BOOK I.

THE

VISIGOTHIC CODE

(_FORUM JUDICUM_)

TRANSLATED FROM THE ORIGINAL LATIN, AND EDITED BY

S. P. SCOTT

Author of “Through Spain” “History of the Moorish Empire in Europe”

Member of the Comparative Law Bureau of the American Bar Association

_Lex est magistra vitæ_

I-II-2

BOSTON

THE BOSTON BOOK COMPANY

1910

Copyright 1910

BY THE COMPARATIVE LAW BUREAU OF THE

AMERICAN BAR ASSOCIATION

_The Riverdale Press, Brookline, Boston, Mass._

TO

MY FELLOW MEMBERS

OF THE COMPARATIVE LAW BUREAU

IN THE HOPE THAT IT MAY PROVE AN ACCEPTABLE CONTRIBUTION

TO THE LITERATURE OF THE NOBLE SCIENCE OF THE LAW

THIS TRANSLATION

OF ONE OF THE MOST VENERABLE MONUMENTS OF JURISPRUDENCE

IS DEDICATED

EDITOR’S PREFACE

It was well said by Gibbon that “Laws form the most important portion

of a nation’s history,” for from them, more impartially than from

any other source, we derive information of the customs, virtues,

vices, political ethics, faults, follies, and religious prejudices

of a people. Especially is this true of the Visigothic Code. In it

are depicted the traditions and history of a race which, originally

nomadic, with unprecedented rapidity became stationary; and, from

being for ages subject to institutions formed by the desultory acts of

tumultuous assemblies, often dictated by caprice and enmity, in less

than two generations acknowledged obedience to a government partly

imperial, partly theocratic. In the annals of no people so recently

barbarian, is to be found more marked and substantial progress,

from the primitive surroundings of pastoral and predatory life, to

the tastes, the laws, the refinements, and the social usages of

civilization.

An analysis of the Visigothic Code may be made under three heads:

historical, descriptive, comparative. Its story is practically that

of the Gothic monarchy in Spain. In the variety and scope of its

provisions; in the skilful adaptation of its canons to the purposes

of ecclesiastical supremacy; in the care with which it preserves the

distinctions of caste; in the accuracy and conciseness of its maxims

defining the principles of equity; in the elaborate, yet simple,

arrangement of its judicial system; in the thoroughly philosophical

spirit that pervades the greater portion of its pages; it is radically

different from, and, in many respects superior to, all other

collections of legal enactments of ancient or mediæval times.

It is far more instructive and suggestive than a chronicle. Nowhere

have the purposes of the law been more ably stated than in its terse

and expressive phraseology. It proclaims the sentiments of a lofty

morality. It appreciates the true object and end of legislation. In

its stern and inflexible disregard for the arrogant claims of superior

wealth and station, it assured to the most lowly the administration of

impartial justice.

The Goths, a branch of the Indo-Germanic race, from which the Caucasian

of modern times is descended, and whose habitat once extended from

Western Europe to the great plains of Central Asia, seem to have

wandered farther, and to have changed more materially, as regards

their laws, customs, and religious belief, than other tribes of

migratory barbarians. Distinct from the Germans, or Teutons, they

have, nevertheless, often been confounded with them; a fact due to

their nomadic tendencies, personal appearance, and general habits

of life. The similarity which characterized the vast hordes, or

vagrant multitudes, which issued in ancient times from the _officina

gentium_, has been the cause of much confusion in the more or less

fanciful accounts of classic annalists and historians. The coincidence

of numerous terms of the Gothic language with those of Sanscrit, and

the identity of many roots of words in both languages, have established

the origin of the Goths to be Indian, and not Scandinavian, as was

once generally supposed. It is related by Herodotus, that Darius, a

thousand years before Christ, repelled from the confines of the Persian

dominions, across the Danube, a great migration of barbarians, moving

and living on horses and in chariots. This people, known as Scythians

in antiquity, were the ancestors of the modern Slavs, and kindred of

the Goths. Driven back by the Persians, they, with others who followed

them, distributed themselves over Northern Europe, whence, in time,

they descended to overwhelm, with their numbers and their valor, the

decadent and tottering Roman Empire.

The original Goths were typical savages. They had practically no

political organization; dressed in skins; disdained all labor; showed

no mercy to their enemies; killed their parents, when they became old

and infirm; had few religious ideas; worshiped a drawn sword as a

divinity; were filthy in their personal habits; and recognized only

the law of the strongest. From such unpromising progenitors was derived

the race destined to be, in large measure, the lawgivers of Europe.

The Visigoths, in the course of conquest firmly established in Gaul

and Spain, and everywhere victorious over the Romans by arms, were, in

their turn--as inevitably happens under similar circumstances--both

enervated and subjugated by the arts of luxury and peace. Despite their

surroundings, they, for a long period, preserved their ancient habits

and traditions. For more than a century they went about half-clad and

unkempt, as they had done on the shores of the Euxine and the Baltic,

to the astonishment and disgust of the polished Roman provincials, who

had inherited the luxurious tastes, courteous manners, and artistic

conceptions of Greece and Italy. To the last, they wore long hair as

a badge of sovereignty; a barbarian custom which first became known

to the Romans, when the city was saved by Marius from the invasion of

the Cimbri and Teutons. In the early days of their domination in the

West, the laws of the Goths, like those of all other unlettered races,

were based upon custom and oral tradition. They carried with them in

all their migrations the same principles which had guided them in

distant countries, and under a far different political and climatic

environment. Many of their rules and customs were never abrogated,

and eventually constituted no unimportant part of their Code. Under

new conditions of government and society, changes became necessary in

their jurisprudence. Roman laws, generally subjected to modification,

and rarely adopted _in toto_, were incorporated into their

statutes. Never, however, was servile obedience, without remonstrance,

offered to despotic authority. Their government was strictly one

by law. The Crown, long elective, and unsuccessfully attempted to

be made hereditary within a quarter of a century of the Saracen

invasion, while at first bestowed by the votes of the entire people,

ultimately became dependent upon the choice of the clergy. The Throne

and the Altar were thus closely connected, and, to a certain extent,

necessary to one another. The bishops, having the power of election,

and likewise of deposition, exercised unbounded influence over the

king, who was indebted to them for his throne. On the other hand, the

sovereign had many opportunities for granting favors and privileges

to the ecclesiastical order, a prerogative which he did not hesitate

to frequently exercise. Ecclesiastical supremacy, however, rarely

countenanced oppression in the early ages of the Gothic monarchy. The

Visigoths, in common with others of their race, professed the Arian

heresy, whose adherents, unlike their successors, the Catholics, were

never noted for bigotry or intolerance, and, as a rule, never accepted

a point of religious faith or discipline without free and careful

deliberation and debate. The omnipresent sacerdotal order, basing its

claims upon Divine precept and example, discouraged, with unfaltering

persistency, the tyranny of the Crown. The coronation oath of the king

was long and minute and abounded in promises to support and defend

the interests of his subjects. When invested with the insignia of

royalty, he was admonished “_Rex ejus eris si recta facis; si autem,

non facis, non eris._” “Thou shalt be king so long as thou dost do

right; but if thou do not do right, thou shalt no longer be king.”

The legal and political events of the Visigothic domination are written

in the annals of its ecclesiastical councils, which designate the chief

events of every reign. These were of three kinds, national, provincial,

diocesan. Of the national councils there were nineteen in all; one of

which was held in the fifth century, two in the sixth, and sixteen in

the seventh; all, after the sixth council, being held at Toledo, which

gave to that venerable city vast and permanent prestige and influence

in the affairs of the hierarchy and the kingdom. The national councils

assembled at the order of the king, who also presided over them; and

this prerogative, strange to say, was assumed and exercised, without

remonstrance from Christian prelates, by the emirs of Moorish Spain.

These ecclesiastical convocations which have been frequently referred

to as the first representative popular assemblies of Europe, were

very far from deserving that title. While, originally, the laity were

admitted to their deliberations and participated, to some extent, in

the discussion of secular matters, the clergy, at all times, were

supreme in power, as they were superior in learning and eloquence. By

degrees, laymen were excluded; the secular element lost its influence;

there was no representation, even theoretical, either of the nobility

or of the people; the sovereign was but the presiding officer of the

assembly; legislation was wholly inspired by the priesthood; and the

authority of the clergy became absolutely paramount. The State became

synonymous with the Council; the theory of popular representation had

vanished; and, while the monarch still assumed the name and state of

royalty, the government of the once independent and liberty-loving

Goths was, in fact, purely and essentially theocratic, and the clergy,

from being teachers, advisers, and pious mediators, were now the

absolute rulers of the Peninsula. This predominance, progressive from

the very beginning, was felt and acknowledged in everything, whether of

greater or minor importance, which affected the welfare of the kingdom.

Although the bishops sometimes imposed upon the weakness of their

kings, their rule was, in the main, beneficent; and the theocratic

character, which they imparted to the government, elicited the respect

of the nobility, and the reverence of the people. These wise and pious

legislators contributed, by their tact and piety, to the thorough

fusion of the victorious and subjugated races. They confirmed the

royal power. They stifled conspiracy, and suppressed rebellion. They

crushed the treasonable aspirations of many a daring aspirant to the

throne. The truculent impulses of the barbarian rabble, never entirely

extinguished, were quietly, but effectually, restrained by their

judicious display of gentleness, firmness, and devotion. By anointing

the sovereign with holy oil, at his coronation, they confirmed his

title, and instituted a ceremony which came to be regarded as essential

to the royal accession. As they possessed a monopoly of the meagre

knowledge of the age, they enjoyed an immense advantage over all other

classes, which they did not hesitate to employ, by every available

means, for the maintenance and perpetuation of their authority.

Thus, under the Arian system, the government of the clergy was, all

things considered, highly salutary. With the conversion of the nation

to the Catholic communion, the organization of the hierarchy was

little altered; but a far different spirit animated the legislative

assemblies. Heresy was punished by the most barbarous laws. The

Jews, whose wealth and intelligence had long been conspicuous in the

Peninsula, were made the subjects of legal enactments especially

devised to deprive them of their property and their liberty. Every

expedient was employed to bring them within the pale of the Church.

Authority over them was vested in the priesthood, and where a Jew was

tried for a criminal offence, it was provided that an ecclesiastic

should always be present. Such Jews as refused to profess Christianity

were subjected to the most stringent and harassing regulations. They

were placed under the constant supervision of spies. Exorbitant taxes

were levied upon them, and, in addition to their own, they were

compelled to pay those of their apostate brethren. They were not

permitted to testify in the courts, to sue, or to defend an action

at law, unless the adverse party was one of their own sect. Under

the pretence of loans, enormous sums were wrung from their unwilling

hands. By means of frivolous pretexts and false accusations, they

were frequently reduced to servitude. The laws even went so far as

to prohibit them from entertaining thoughts relative to the customs

and observances of their sect. Yet, under all these oppressive

restrictions, the Hebrews prospered. They were the wealthiest class

in the kingdom, and well understood how to employ their riches

for their own preservation and profit; while the heavy penalties

prescribed for the bribery of judges and other officials, indicate

how common and widespread was the influence of such corruption. The

extraordinary intelligence and information of the Jew rendered his

advice and assistance always acceptable, and often indispensable, to

the ignorant and profligate noble; services which were often requited

with open protection. Nor was this tolerance and partiality confined

to the laity. Not only were the clergy often remiss in enforcing the

laws against the Hebrews, but the Code specifically and significantly

prohibits their intimacy with Jewish women. In certain offences

where punishment was meted out to them for breaches of the law, they

underwent the Biblical penalty of being stoned to death; and this was

inflicted by certain of their brethren, who, it appears, were appointed

for that very purpose, and were recompensed for their treachery with

the property of their victims. The persecution of the Hebrew under

these atrocious laws, exercised indirectly a great influence upon the

destinies of Europe. The Jews of the Peninsula had long entertained

intimate relations with their co-religionists of the northern coast of

Africa; the oppression under which they languished; the confiscation

of their property; the seizure of their children; their enforced

proselytism; and the prospect of the ultimate annihilation of their

race, tightened the bonds of union existing between them and their

African brethren; established an understanding between itinerant

traders and the Moorish conquerors of the West; and thus invited and

accomplished the Mohammedan conquest of Spain. The most drastic of

these regulations against the Jews were enacted under the reign of

Ervigius, in the latter part of the seventh century; and, less than

forty years afterwards, the whirlwind of Saracen invasion swept the

Visigothic monarchy from the face of the earth.

The cruel and unrelenting pursuit of the Jews, commanded by the

Visigothic Code, was the foundation of the Spanish Inquisition and

its diabolical procedure. From it were derived many of the dogmas,

tortures, and penalties, of that awful tribunal; with the exception,

that what was once only directed against a single sect, was destined

eventually to include the votaries of every heresy. That the

descendants of a nation renowned throughout all antiquity as ardent

lovers of liberty, should, in a few short generations, be transformed

into the most merciless of persecutors, is one of the most remarkable

political anomalies to be met with in history. Even San Isidoro,

referring to driving the Jews to baptism, and into enforced communion

with the Church, declared indignantly that it was “_non secundum

scientiam_;” a remark which, made under the reign of Sisibutus,

in the beginning of the seventh century, is one of remarkable

significance, as emanating from a Father of the Church, in an age of

almost universal ignorance and religious prejudice.

The Hispano-Gothic church was absolutely independent of Rome. The

supremacy of the pope was not recognized, and, in all the annals

antedating the Reconquest, there is no mention of an appeal to the

Holy See on questions of government, ceremonial, or doctrine. The

bold and haughty spirit of the Basques and Iberians, animated the

ecclesiastics of both the Arian and Catholic churches of Spain. Before

the Saracen conquest there were no archbishops. The metropolitans, or

bishops of the principal churches, were equal in rank in the hierarchy,

until the national councils began to be regularly held in the sixth

century; when, gradually, by common consent, Toledo became the seat

of the Primacy, a distinction which it has ever since maintained.

The dominance of the priesthood in the government, once established,

advanced with prodigious strides. In the eighth Council of Toledo,

seventeen nobles and fifty-two bishops sat; in the sixteenth Council,

held fourteen years afterwards, there were in attendance sixteen

palatines and counts, and seventy-seven prelates, and, with this

preponderating ratio of ecclesiastics, the authority and importance

of the latter naturally increased. The morals of the clergy in that

age, while far from being blameless, were not subject to the reproach

which they so justly incurred from the profane and ribald poets and

novelists of subsequent times. Their influence over the people was

unbounded, and their popularity, for the most part, well deserved.

Their intervention in behalf of the oppressed effectually curbed the

ferocious instincts of the monarch and the noble. The criminal, pursued

to the doors of the church, or to the foot of the altar, could not be

removed from their sacred precincts without the consent of a priest,

or a bishop; and the mere fact that he sought refuge in the House of

God rendered him exempt from the death penalty, no matter how grave

the character of his offence might be. To the bishop was granted the

right of supervision over the conduct of the judge, when the latter

exceeded his powers, or rendered decisions manifestly in violation

of justice. The Goths, the most plastic and obedient of proselytes,

regarded their spiritual advisers with peculiar respect and veneration.

They were their guides, their protectors, their benefactors. Nor was

the potent influence of the clergy in the maintenance of justice and

right, confined to the lower orders. They pronounced anathemas against

treason; excommunicated pretenders to the throne; curbed the ambition

and greed of marauding nobles; compelled the reverence of aspirants

to the royal office; and exacted from the king, who was often their

creature, the deference and submission which they considered due to

their sacred office and authority.

The people of the Peninsula, while apparently attached to the Arian

heresy, evinced little steadfastness in faith with the appearance of

orthodox Christianity. Confident in their power, and well aware that no

monarch would venture to promulgate an edict menacing their supremacy,

or, in any way, conflicting with the privileges of the Church, the

priesthood did not require, as an essential condition of its validity,

that every law should be confirmed by the voice of a council.

Consequently many regulations were established by the sole authority

of the king; and this privilege, at first merely a concession, came,

in due time, to be considered and accepted as a royal prerogative. The

appeal to the sovereign instead of to the pope, further strengthened

the authority of the throne; but never, at any time, was the king

permitted to forget to whom he owed his election and his title; and

that the same power which had raised him to that exalted position

could, at any time he violated his coronation oath, depose him, and

reduce him again to the subordinate and comparatively obscure position,

from which ecclesiastical favor, aided, perhaps, by his own talents and

ability, had raised him.

This circumstance, alone, shows the primitive state of society under

the Visigothic domination; a state largely due to the simplicity of

popular manners; the spirit of inherited traditions; the enjoyment of

intellectual preëminence by a single class, in its turn, favorable to

the overwhelming growth of sacerdotal power.

The Visigoths were different from other barbarians, in that, in

legislation and the management of their civil affairs, they manifested

a sense of humanity, and a genuine philosophy, rarely to be found even

among nations that are thoroughly civilized. They intermarried with the

conquered race. Under their system all persons were equal before the

law. The distinction between citizen and foreigner, as defined by the

_Jus Civile_ and the _Jus Gentium_ of Roman jurisprudence,

was repudiated. The punishment for crime was graded according to the

wealth of the offender, rather than according to the rank and station

of the party injured. Children of both sexes could inherit alike the

property of their parents; a measure of undoubted justice, but in

direct contravention of the laws governing the descent of property in

most of the countries of modern Europe. The slave being merely a thing,

an injury to him was rated according to his commercial value. His

rights were, however, carefully guarded against the abuse and cruelty

of his master. When emancipated, his freedom was either absolute, or

burdened with certain restrictions by the terms of which he and his

family forever owed loyalty and obedience to his former owner, and

were, in turn, entitled to the advice and protection of the latter and

his descendants.

The love of freedom, as with all migratory races, was strong in the

hearts of the Visigoths. Always obedient to the Church and to their

king, they, nevertheless, stubbornly resisted every encroachment upon

their ancient rights and liberties. The throne, originally elective,

was not as far removed from the body of the people as it was in other

nations; for any person of the pure blood of the Goths who had never

entered the cloister, or been sentenced for some crime by a court, and

who was eminent for great qualities or distinguished services, could

aspire to the supreme power. At the time of the monarch’s accession,

justice, honor, truth, piety, faith, and mercy, were diligently

inculcated, to be ever observed as virtues most appropriate and

becoming to the royal office. At the same time, fearful penalties were

denounced against all princes who violated the coronation oath; and,

during the ceremony, these penalties were repeated aloud by all persons

present, both ecclesiastics and laymen. Subsequent to the seventh

century, when Catholicism was adopted, the generous and noble spirit

which had hitherto pervaded the councils of the kingdom, was supplanted

by a fierce intolerance, and the king was obliged to bind himself to

the relentless extirpation of heresy. The sovereign was treated with

much less consideration under the Gothic system, than under those

established by other peoples in ancient or in modern times. Regal

supremacy, while necessarily invested with much importance in time of

war, on the other hand, in time of peace had comparatively little

significance. Not until the reign of Leovigild, in the latter part of

the sixth century, did the Gothic kings assume the outward marks and

insignia of royalty. They did not differ in dress or general appearance

from their subjects, nor was a conspicuous place reserved for them in

the assemblies of the people; all classes were entitled to address

their sovereign with familiarity; and, still retaining in his manners

and demeanor the traces of his barbaric origin, he seemed rather the

elective magistrate of a republic (which to all intents and purposes

he was) than the supreme ruler of a great and powerful nation. The

right of primogeniture, derived from feudalism, and omitted from the

Salic Law, was likewise unknown to the Goths. A monarch, in the same

manner as a private individual, could only transmit to his heirs the

personal property which he, in his turn, had acquired by his talents,

or inherited from his ancestors. Like the chieftains of the Ostrogoths

and other barbarians, who considered long, blond hair a badge of royal

authority, he assumed the title of Flavius, from the Latin flavus, as

indicative of this august and highly prized distinction.

With the fusion of races the identity of the Goths was speedily and

completely lost. The military spirit to which they were indebted, not

only for their civil and political organization, but also for their

integrity as a people, and for their preservation as well, disappeared.

In former times, and for ages after their occupation of the Spanish

Peninsula, that spirit which was their most distinguishing trait,

and the most prominent one which they possessed in common with the

Germans, was, by degrees, imperceptibly weakened, and finally lost in

the premature decadence of an entire nation. The servile spirit of

the Roman colonist and slave, whose sense of independence had been

crushed by centuries of oppression, now asserted its predominance

over the bold and active sentiments of the hardy soldiers who had

overrun and conquered Europe. Under the Visigothic polity there was

no pay for military service, and the glory and adventure held out

by a campaign, were not considered a sufficient recompense for its

hardships. Formerly, the Goths paid their soldiers only in time of war,

and, during peace, the army was supported by taxes. The Feudal System,

originally derived from the _emphyteusis_, or perpetual lease,

of the Roman law, with its rule exacting military service for the

possession of a fief, had not yet been established. The unconquerable

repugnance of the Visigoths to war caused them to avoid, under every

imaginable pretext, extending their aid to their rulers in times of

either conquest or invasion. They refused to protect the person of

their monarch, or defend the frontiers of their country. The nobles

and wealthy landowners persistently violated the law requiring them

to bring into battle one tenth of their slaves, thoroughly armed and

equipped. The ninth book of the Code contains stringent regulations

against such delinquents as, under various pretences, sought to evade

the service in the army, due from them and their dependents; and it

was said that, at one time, half the able-bodied population of the

Peninsula had, by reason of their refusal to obey those regulations,

rendered themselves liable to the dreadful penalties which they

imposed. In this fact alone is significantly disclosed, not only the

thorough deterioration of the once valiant Gothic race, but one cause

of the amazing and unprecedented success of the Saracen power. The

Mohammedan squadrons, impelled by the mighty force of fanaticism,

could not be withstood by a mob of ill-treated peasants and effeminate

nobles, disunited by faction, without reverence for their king, or love

for their native land; in whom the martial spirit of their ancestors

had long been supplanted by the ignominious passions of cruelty and

avarice; where their leaders served under fear of the confiscation of

their property, and the rank and file were driven into action with the

scourge.

The original Visigothic laws, wholly based upon oral tradition, were

first reduced to order and committed to writing by Euric, at Arles, in

the latter half of the fifth century. This collection is unfortunately

lost, but many of its provisions were incorporated into the Visigothic

Code, although, no doubt, subjected to important and numerous

modifications in the course of centuries. At the beginning of the sixth

century, Alaric II. promulgated the _Breviarium Alaricianum_,

a body of laws compiled mainly from the Codes of Justinian and

Theodosius, which collection was the source of the subsequent Lombard

and Bavarian Codes. From the two compilations of Euric and Alaric,

under the reigns of Kings Chintasvintus and Recesvintus, 649–652,

was formed the _Forum Judicum_, or Visigothic Code; the most

remarkable monument of legislation which ever emanated from a

semi-barbarian people, and the only substantial memorial of greatness

or erudition bequeathed by the Goths to posterity. Like the Roman

works on jurisprudence it is divided into twelve books, sub-divided

into titles and chapters. The language in which it is written is

monkish Latin, a barbarous jargon, extremely difficult to translate,

and vastly different from the polished idiom of Tacitus and Cicero.

Its examination discloses many discrepancies, variations, ambiguities,

and contradictions, unquestionably due to the ignorance of the various

transcribers; a fact which is not surprising when the imperfect

knowledge and defective education which prevailed in Spain during the

seventh century, are considered. There is no mention of the _Forum

Judicum_ during the Saracen domination, except that it is known to

have been preserved by the Moors; and as Christians were permitted the

use of their own laws, where they did not conflict with those of the

conquerors, upon the regular payment of tribute, it may be presumed

that it was the recognized legal authority of Christian magistrates

during the period that Spain remained under the Moslem sceptre. When

Ferdinand III. took Cordova in the thirteenth century, he ordered the

_Forum Judicum_ to be adopted and observed by its citizens, and

caused it to be rendered into Castilian. This translation, which is

usually appended to the Latin version, is incomplete, incorrect, and

unsatisfactory. It contains many omissions and substitutions; the

meaning of the sentences, in many cases, is not even approximately

given; the proper names seem to have originated in the fertile

imagination of the monkish translator; and, not infrequently,

interpolations, derived from some unknown source, have entirely usurped

the place of the original text.

In considering the general details of the Visigothic Code, one of

the striking and suggestive features which presents itself is the

inculcation of exalted precepts of honor, probity, and justice, and,

at the same time, the acceptance and adoption of a belief in the

basest and most grovelling forms of superstition. Upon the same page

where the duties to be observed between man and man are set forth

with a perspicuity and a piety worthy of all praise, appear laws

denunciatory of divination and sorcery. With all its imperfections,

however, it presents us not only with noble and accurate conceptions of

justice, but indirectly gives us, as well, a faithful and picturesque

representation of the gradual, but constant, advancement of a people.

Unlike other Codes which preceded and followed it, it is deficient

in regularity of classification and division, and, in that respect,

signally differs from the Institutes of Justinian, whose arrangement

was almost literally followed by Blackstone in his Commentaries

on the Laws of England. The irreconcilable character of many of

its enactments; the identity of penalties for offences of a widely

different gravity and nature; the enunciation of the most sublime

principles of morality, side by side with mandates requiring the

infliction of tortures whose inhumanity would almost appal a savage;

the absence of ordeals and the wager of battle, so frequently appealed

to in that and following ages, as proofs of guilt or innocence; are,

in addition to those previously referred to, among the most prominent

characteristics of this extraordinary compilation. The array of one

caste against another, a practice which has never failed to destroy

a government and degrade a people, is conspicuous everywhere. The

court was regarded rather as a place of execution than the seat of the

rendition of justice; the judge rather an avenger of injury, than the

representative of the law and the guardian of social order. The words

_ultio_ and _ulciscor_, constantly recurring in the Code,

disclose only too plainly the vengeful sentiments of the legislator. In

common with all barbarians, and likewise with the majority of civilized

men, force, with its consequent inconvenience and suffering, was the

only idea which appealed strongly to the Gothic mind, and the moral and

deterrent influence of legislation was almost entirely lost sight of.

In the arrangement of the Visigothic Code, the oldest laws, that is,

those based upon the unwritten observances of ages, are without any

evidence of the time of their adoption; such as are derived from Roman

sources are designated _antiqua_, or ancient; the edicts of kings

are promulgated under the royal title, a distinction indicative also of

those which were exclusively enacted by the national councils.

In an age of ignorance and degeneracy a body of laws enacted and

compiled by a semi-barbarous people, was necessarily largely dependent

upon the maxims and precedents of such as had preceded it. The harsh,

and often cruel, provisions of the Twelve Tables and the Civil Law,

were greatly softened in the Visigothic Code. By the terms of the

Roman _Nexum_, a debtor hypothecated himself as security for

his obligation, forfeiting his liberty in case he failed to fulfil

his contract; and thus, as is also declared by the Bible, “the

borrower was servant to the lender;” a custom absolutely prohibited

by the _Forum Judicum_. The relations of patron and client were

essentially different under the Roman and Gothic dominations. At Rome,

the condition of clientage could not be renounced; in Gothic Spain a

freedman, or _libertus_, had the right to leave his patron and

select another, provided he previously surrendered all the property

he had received from his benefactor; the obsequious behavior of the

Italian client often degenerated into abject servility, which was

regarded with gratification by its object; while among the Visigoths

nothing was exacted by the patron for his favor but the practice of

obedience, and the manifestation of gratitude. The rules governing

the control of public lands did not differ greatly under the civil

administration of the two races; in the Peninsula, two-thirds of the

conquered domain, in accordance with the usual custom of barbarians,

became the property of the State by right of conquest; and the

remaining third was abandoned to those who had been vanquished in

the appeal to arms. The _Lex Talionis_, a prominent feature in

the history of all nations in the early times of their formation,

while known to have existed at Rome from the reign of Numa, and which

appears with such frequency in the enactments of the Visigothic

Code, was unquestionably borrowed by the authors of the latter from

the institutions of Moses, in accordance with their theocratic

prejudices and predilections. According to Roman ideas, a person

unquestionably guilty of crime, and caught _in flagrante delicto_,

was not entitled to a trial, which was considered superfluous, and

his punishment could be inflicted then and there; a principle also

frequently acted upon by the Visigoths.

This famous Code consists of laws emanating from four different

sources: first, those based on ancient Gothic customs; second, such

as were adopted from the Roman jurisprudence; third, the acts of

ecclesiastical councils; fourth, edicts of kings, promulgated at

different times, according to the various exigencies that arose; all

of which seem to have had equal validity. One of the most remarkable

characteristics of this collection is the maintenance of the principle

of legal responsibility, irrespective of wealth, rank, or dignity.

Every precaution was taken to prevent the interference of the sovereign

with the magistracy and the tribunals, in instances where the royal

power might be improperly exerted to pervert the course of justice;

and where the judge, yielding to superior influence, rendered an

unjust decree, that decree was declared to be void. In cases where an

appeal was taken to the throne, the king, in the consideration of the

questions brought before him, was admonished to strictly observe the

forms and principles of equity, and to render his decision accordingly.

While the judge derived his authority from the Crown, he was in fact,

independent of it; and, equally removed from the voice of popular

clamor, unlike the elective magistrates of the tribunals of antiquity,

was under no obligations to the populace. The sacerdotal legislator,

never unmindful of his own interests while defining the rights of

the people, was, nevertheless, himself subject to the secular power.

While this was the case, however, a great distinction existed between

the punishment inflicted for practically the same offences upon the

clergy and the laity, with the advantage entirely upon the side of

the former. The penalties usually imposed upon ecclesiastics for

breaches of the law were fines, penance, and monastic seclusion; and

their sacred office was a safeguard against the horrible and degrading

punishments from which even the highest nobility were sometimes unable

to escape. In this undisguised leniency, and practical exemption from

severe judicial sentences, may be discerned the germ of the “benefit

of clergy,” carried to such lengths, and productive of such manifold

injustice and abuse, in mediæval times.

The theocratic principle animating the Visigothic Code is conspicuous

in almost all its chapters. The pious and significant maxim, “_Omnis

potestas a Deo_,” pervades it from beginning to end; in the

preambles, which recite the reasons for the enactment of the laws; in

the body of the latter, which appeal to Divine sanction for their

promulgation; in the penalties, which breathe the ferocious sentiment

of the ordinances of the Pentateuch. Many of the latter are copied

almost verbatim from the Bible. Recalcitrant Jews were stoned to

death. Adultery was the only cause for which divorce was permitted. In

the long, elaborate, and frightful oath which Jews, apostatizing to

Christianity, were compelled to take and subscribe, everything that

was most reverenced by them and could be considered most binding, was

borrowed from the Old Testament, and, supplemented by appeals to, and

confessions of, Christian doctrine, invoked the direst maledictions

upon the heads of all who, either tempted by ambition or influenced

by hypocrisy, violated their vows, the impressiveness of which was

increased by every circumstance of solemnity, superstition, and power.

In the contest for ascendency, the Church possessed the advantages

of thorough organization and submissive obedience of inferiors, of

reverence for alleged celestial origin, and of unity of language;

advantages never, in any former age, enjoyed to such an extent by

any other society, political, or religious; and which, inspiring

respect among all classes, founded upon a solid and enduring basis the

magnificent fabric of her authority and grandeur.

The innumerable details relating to the infringement of the rights of

property show that many abuses must have previously existed. The great

number of laws designed for the protection of agriculture, indicate

the importance with which it was considered by a people who, but a

few generations before, had been shepherds and predatory vagabonds.

The Visigoths were the first of the nomadic barbarians of the North

to acknowledge the privileges and responsibilities attaching to the

occupation of a permanent and limited domain. The offences of trespass,

and forcible entry and detainer, are clearly and explicitly set forth.

Severe penalties are denounced against all who deface, remove, or in

any way interfere with, established landmarks. Questions relating to

transfers, devises, partition, leases, land belonging to the state,

boundaries, disputes concerning the ownership of real-property, and

title by adverse possession, are discussed and determined with an

ability and an accurate conception of the principles of equity, most

remarkable for that age. While enjoyment of liberty was theoretically

the unquestioned right of every person except the slave, the limits of

castes and classes, adopted, for the most part, from the Roman polity,

were strictly defined. Notwithstanding minute and often voluminous

provisions, designed for the protection of the people, oppression by

the rich and powerful was not unusual, and was sedulously provided

against. Cruelty, and persecution of the weak, could be practised by

no one, no matter how exalted his dignity, without reprobation and

punishment. The interference of individuals of rank in the trial of

causes, and their obstruction of the process of the law--evidently a

common practice, and a source of endless trouble in former times--is

repeatedly prohibited; and every attempt was made to preserve the

courts from external influence, and insure the justice and impartiality

of their decisions. An appeal could be taken from the decision of the

judge to the governor of the city, from him to the governor of the

province, and from the latter to the king. Where a person was too poor

to incur the ordinary expenses of litigation, he could appeal directly

to the bishop; who, as the protector of all within his diocese, was

authorized to settle their claims and disputes, and enjoined to

interpose his good offices to prevent the exercise of injustice and

injury. Founded upon the strict principles of morality which everywhere

should control the conduct of mankind, the precepts of the Visigothic

Code present a strong and remarkable analogy to those which govern

the proceedings of modern judicial tribunals. A contract made under

duress, or vitiated by fraud, was void. A principal was liable for the

act of his agent, where the latter was known not to have exceeded his

authority. A master was responsible in damages for injuries committed

by his slave. Guardians were held to strict accountability in the

treatment of their wards. The rights and disabilities of minors are

clearly and definitely stated. The legal incapacity of insane persons,

excepting during lucid intervals, when publicly recognized to be in

possession of their faculties, is declared. The questions of _lis

pendens_, _res judicata_, judgment by default, and vendors’

lien, are treated in much the same way as in modern treatises on

those subjects. The laws of inheritance, and the descent of estates,

are explained at great length, and with a minuteness corresponding

to their importance and effect upon social and domestic life. The

relations of husband and wife are exhaustively discussed; no marriage

was valid without a dowry, which was given by the husband; the amount

was proportioned to the wealth and position of the latter; and a sum

in excess of that established by law could not be bestowed through

affection, or exacted by improper influence. Patrimonial estates, in

the possession of widows, could not be alienated without the consent of

a council of relatives; a provision which was, for centuries, the law

in Portugal. In the penal legislation of the Code there is a curious

mingling of the barbarous and the civilized. The compounding of crimes

was permitted by law. The amount of damages to be assessed, like the

penalty for the offence, was estimated according to the dignity and

possessions of the culprit. The law of retaliation was sanctioned

and enforced in cases where the injury was of a personal character;

and, in support of this barbarous custom, the authority of the Bible

was constantly invoked. The inhumanity of the punishments imposed is

another striking indication of the survival of barbarism. Decapitation

was the ordinary sentence for capital crimes. The penalty for arson

was death by fire. Branding, maiming, scalping, and castration were

inflicted for offences not deemed of sufficient gravity to require the

imposition of the extreme penalty. Blinding, probably the most cruel of

all, though abolished by the Code of Justinian, had been retained by

the degenerate Greeks of the Byzantine Empire, from whom the Visigoths

acquired it. Scourging was frequently inflicted; the number of blows

varied from fifty to three hundred; they were almost always given in

public; and even a judge who had been guilty of misconduct in office,

was liable to the lash, symbolical at once of suffering and disgrace,

and only surpassed in infamy and horror by scalping with fire, or

decalvation. Torture, though authorized by law, was sparingly used.

Under the Roman system it could only be inflicted upon slaves; the

Visigoths, however, countenanced its exercise where the crime sought

to be discovered by its means was one implying great moral turpitude;

but it was solely employed as a method of eliciting evidence, and never

as punishment for crime. With a people so jealous of their liberties,

false imprisonment was naturally regarded as one of the greatest of

wrongs; while, on the other hand, few penalties are more common

than that involving the forfeiture of freedom. Informers, another

institution of Byzantine treachery and deceit, were encouraged, and,

where they were not participants in illegal acts, were substantially

rewarded for their suspicious and ignominious services. The recognition

of malice prepense, and criminal intent, especially in cases of

homicide, reveals a just perception of the responsibility attending the

commission of crime, rare, indeed, among nations just emerging from

barbarism, and quite at variance with other provisions asserting the

existence of witchcraft, charms, and incantations. Under the Visigothic

polity, a crime is expressly declared to die with its author, where

he underwent a capital penalty; no blame or reproach attached to his

family or his posterity, where they were not implicated in his guilt;

and the sweeping and unjust law of attainder, which confiscated the

property, and branded the descendants of an offender with infamy, for

centuries in force in England, was unknown to the more equitable and

indulgent system of the Visigoths.

We are ignorant of the details of the procedure followed by the

Visigothic tribunals. They had, however, their summonses and other

writs of various kinds, their pleadings, arguments, depositions,

appraisements, judicial opinions both oral and written, appeals and

executions. The proceedings were conducted with due solemnity; the

most assiduous care was exercised to insure the integrity of the

magistrate; the rules of propriety were strictly enforced; exhibitions

of contempt were punished with exemplary severity; and even a person

of the highest rank, if guilty of marked disrespect to the judge,

or participating in any unseemly demonstration, was unceremoniously

ejected by the bailiffs. By the enforcement of such measures, the

courts were not only invested with a proper dignity and importance, but

their impartiality was established and secured; and all, even including

the people of the lower classes, came to regard these tribunals

as fountains of equity, and the protection and mainstay of their

liberties. They were almost continually open; the judges had but few

hours of rest or recreation; they were made responsible, in both person

and property, for a proper determination of the causes brought before

them; their remuneration was fixed by law, and was independent even of

royal favor; and the crimes of oppression and bribery, when committed

by a magistrate, were made the subject of some of the most savage

enactments in the _Forum Judicum_, including degradation from

office, forfeiture of property, scourging, decalvation, exile, slavery,

and death.

The employment of compurgators under the Visigothic system was an

important and popular one. Their number is not stated, and does not

appear to have been limited, but originally it consisted of twelve. The

probable predecessor of our system of trial by jury, this institution

was derived from the Saxons, and was, without question, of remote

antiquity. The oath, under other systems of jurisprudence, rarely

employed in purgation of crime, was frequently resorted to by the

Visigothic magistracy, as it formerly had been under the primitive

legal procedure of the Germans. An accused party, if he had hitherto

borne a good character, was entitled to establish his innocence by this

means; a proceeding which could be confirmed and accompanied by the

affidavits of his friends, neighbors, and kinsmen, who, being persons

best acquainted with his character and habits, came into court, and

swore to their belief in his innocence. No testimony was offered in

their presence, and no arguments were made before them, as with the

modern jury. With more correct notions of the requisites and effect

of legal evidence than their German predecessors, the Visigothic

courts did not admit the intervention of compurgators, except under

circumstances where competent proof had failed to conclusively

establish the guilt of the accused. It is a curious fact that their

services were enlisted by criminals and litigants in the courts of

England until comparatively recent times. At first limited to criminal

prosecutions, their introduction was subsequently extended to various

civil actions, and especially to those brought for the recovery of

debts; and, recognized by the Canon Law, compurgators were sworn in

England as late as the reign of Elizabeth. This remarkable institution,

which bears so plainly the impress of ecclesiastical influence,

appealing to the piety and superstitious fears of the ignorant,

evinces, by the surprising vitality which it exhibited, its peculiar

adaptation to the purposes of legal procedure in the age when it

prevailed.

While members of the sacerdotal order were, to a certain extent,

subject to secular justice under the Visigothic polity, the reverence

with which they were universally regarded, the great power they exerted

over the institutions of the kingdom, and their superior intelligence,

which with the ignorant of all classes, invested them with mysterious

powers, rendered their appearance in courts of law most infrequent.

The history of the Visigothic monarchy, especially after its adoption

of Catholicism in 587, is, therefore, as has already been remarked,

closely interwoven with that of the Visigothic Church. The Crown

possessed little real authority. The complete and universal municipal

organization, instituted by the Romans, had disappeared with the

Gothic occupation. Civil and judicial officers, although appointed by

the Crown, were subject to ecclesiastical supervision; not only in

the parish and the diocese, but in the tribunals of justice, in the

most intimate relations of domestic life, in the determination and

settlement of secular disputes, and even in the presence of the throne.

The influence of the priest increased in the same ratio in which that

of the soldier declined. It reached its climax at the time of the

Saracen invasion, when, to all but the most discerning eye, the rule of

the Church seemed destined to endure through many centuries, and its

civil and political power appeared impregnable. The illusory character

of this apparent greatness was soon to be exhibited. Two years after

the last of the Gothic kings ascended the throne, the Moorish armies

were in possession of the Spanish Peninsula.

The enactments of the Visigothic Code, from their promulgation to the

present day, have been never entirely abrogated by the legislative

powers of Spain, and, as the foundation of the national judicature,

many of its precepts and its rules still maintain their original

force and power in the legal and ecclesiastical tribunals of the

Spanish Peninsula. During the Moslem domination, their authority

was unquestioned in the different Christian kingdoms of the North.

The voluminous compilation, known as _Las Siete Partidas_,

published by Alfonso el Sabio in 1348, was largely borrowed from the

_Forum Judicum_. Charles III. in 1788, expressly declared that

the provisions of the latter had never been repealed by subsequent

statutes, and ordered that they should prevail in a contest involving

the law of inheritance, where the property of a deceased monk was

claimed both by his monastery and his relatives, in the royal chancery

court of Granada. Not only are some of these laws still recognized

as binding in the Peninsula, but they were long used in Southern

France, and the capitularies of the early kings of that country bear

unmistakable internal evidence of their derivation from this same

source.

The Castilian version of the Visigothic Code, notwithstanding its

coarseness, its ambiguities, and its errors, is still most useful for

the purposes of the philologist and the historian. It displays the

beginning and the development of the noble and elegant Spanish idiom,

from its origin, full of barbarisms, down to its perfection of to-day;

from the crude and awkward expressions of the chronicle and the missal,

to the perspicuous and polished diction of Calderon, Mendoza, and

Cervantes. We detect in its labored and awkward sentences the corrupt

Latin of the times when classic purity was lost, and the Romance

languages had not yet been formed; an epoch of transition, abounding in

abbreviated words and crabbed expressions, curious etymology, phrases

constructed with little regard to the rules of syntax, incorrect

quotations from Scripture, provincial peculiarities of construction

and nomenclature, archaic terms, whose meanings are now forgotten,

words of purely Arabic derivation, the names of animals and objects,

then, for the first time, introduced into Castilian,--much of it

confusing, yet all instructive in revealing the customs and prejudices

of a people, and depicting the various gradations accompanying the

formation and growth of a language.

Such are our obligations, legal, historical, ethical, philological,

and economic, to the Visigothic Code. Its harsh, inelegant style,

its repetitions and absurdities, its incoherence, its superstitions,

and its savage treatment of heretics, may well be forgotten in the

services it has rendered to mankind. All modern systems of government

are infinitely indebted to it, for it forms to-day the basis of the

jurisprudence of a large portion of the civilized nations of the

earth. A great number of the principles it inculcates would reflect

credit upon any legal treatise, human or divine. Its translation into

Castilian aided, more than any one literary work, to invest with

beauty, grace, and symmetry, what is now one of the most magnificent

and sonorous languages spoken by the tongue of man. It has delineated,

with a fidelity not to be found in tradition or chronicle, the state

of a society, remarkable in its characteristics, still devoted to

barbarian customs, yet evincing sentiments and impulses usually only

to be encountered under conditions of the most advanced moral and

intellectual development.

Prefixed to the Code, yet clearly indicating by their position and

contents that they have properly no more right to be included in it

than scores of other products of ecclesiastical legislation to be

encountered in the canonical compilations and ancient chronicles

of Spain, are ten pages of decrees and fragmentary ordinances of

various Councils, purporting to relate to the election of kings and

their duties, but which, in reality, are mainly taken up by edifying

homilies, invocations of the Deity, and fulminations against such as

venture to dispute the divine authority of the Church. These pages

fairly swarm with repetitions, anachronisms, and absurdities; their

diction is far more barbarous and perplexing than even that of the

Code itself; and their general features strongly suggest that they may

have been inserted by some ignorant monk, zealous for the superior

privileges of his order. For these reasons, as well as because much of

what they contain is repeated in the body of the work, they have been

omitted.

The translation of this ancient body of laws has been a laborious

undertaking, and one to which little assistance has been afforded by

the obscure Castilian version. Equivalents for many of the Latin terms

do not exist in English. Some passages are of doubtful significance,

others absolutely unintelligible. In not a few instances, the text

is so involved that only paraphrases can be employed. Despite these

serious obstacles, in the treatment of the subject, I have endeavored

to observe, as far as practicable, the spirit of the original, and

have preferred to render the words and expressions literally--where

this can be done--rather than to make use of the terms of modern legal

phraseology.

PHILADELPHIA, May 1, 1908.

CONTENTS.

BOOK I.

CONCERNING LEGAL AGENCIES.

TITLE I.--_The Lawmaker._

Page

I. What the Method of Making Laws Should Be 1

II. How the Lawmaker Should Act 2

III. What Should be Required of the Lawmaker 2

IV. What the Conduct of the Lawmaker Should Be in his

Daily Life 2

V. How the Lawmaker Should Impart Advice 3

VI. What Manner of Speech the Lawmaker Should Use 3

VII. How the Lawmaker Should Act in Rendering Judgment 3

VIII. How the Lawmaker Should Comport Himself in Public

and Private Affairs 3

IX. What Instruction it is Fitting That the Lawmaker

Should Give 4

TITLE II.--_The Law._

I. What the Lawmaker Should Observe in Framing the Laws 5

II. What the Law Is 5

III. What the Law Does 5

IV. What the Law Should Be 5

V. Why the Law is Made 6

VI. How the Law Should Triumph over Enemies 6

BOOK II.

CONCERNING THE CONDUCT OF CAUSES.

TITLE I.--_Concerning Judges, and Matters to be

Decided in Court._

I. When Amended Laws Should come in Force 11

II. The Royal Power, as well as the Entire Body of the

People should be Subject to the Majesty of the Law 12

III. It is Permitted to No One to be Ignorant of the Law 13

IV. The Business of the King shall First be Considered,

then that of the People 13

V. How the Avarice of the King should be Restrained in

the Beginning, and How Documents Issued in the

Name of the King should be Drawn Up 14

VI. Concerning Those who Abandon the King, or the

People, or their Country, or who Conduct themselves

with Arrogance 17

VII. Of Incriminating the King, or Speaking Ill of Him 19

VIII. Of Annulling the Laws of Foreign Nations 20

IX. No One shall presume to have in his Possession another

Book of Laws except this which has just been

Published 20

X. Concerning Feast Days and Festivals, during which No

Legal Business shall be Transacted 21

XI. No Cause shall be Heard by the Judges which is not

Sanctioned by the Law 22

XII. When Causes have once been Determined, at no Time

shall They be Revived, but They shall be Disposed

of according to the Arrangement of this Book; the

Addition of Other Laws being One of the Prerogatives

of the King 23

XIII. It Shall be Lawful for No One to Hear and Determine

Causes except Those Whom either the King, the

Parties by Voluntary Consent, or the Judge, shall

have Invested with Judicial Powers 23

XIV. What Causes shall be Heard, and to what Persons

Causes shall be Assigned for a Decision 24

XV. Judges Shall Decide Criminal as well as Civil Causes 24

XVI. Concerning the Punishment of Those who Presume to

Act as Judges, Who have not been Invested with

Judicial Power 24

XVII. Concerning Those who Ignore the Letters of the Judge,

or His Seal, Calling Them to Court 25

XVIII. Where a Judge Refuses to Hear a Litigant, or Decides

Fraudulently or Ignorantly 27

XIX. Where a Judge, either through Convenience to Himself

or through Want of Proper Knowledge, Decides

a Cause Improperly 28

XX. Where a Judge, either through Deceit or Cunning,

imposes Needless Costs upon Either or Both the

Parties to a Suit 29

XXI. What, First of All, a Judge should be Familiar With,

in order that he May Understand a Case 29

XXII. Where the Integrity of a Judge is said to be Suspected

by Anyone of Honorable Rank, or where a Judge

presumes to render a Decision Contrary to Law 30

XXIII. How a Judge should render Judgment 31

XXIV. Concerning the Emoluments and the Punishment of

the Judge, and of the Bailiff 32

XXV. Everyone who is Invested with Judicial Power shall

Legally bear the Title of Judge 33

XXVI. Every Bond which is Exacted by a Judge, after an

Unjust Decree, shall be held Invalid 34

XXVII. An Unjust Decree, or an Unjust Interpretation of the

Law, Prompted by Fear of the Throne, or Made by

Order of the King, shall be Invalid 34

XXVIII. Concerning the Power Conferred upon Bishops, of

Restraining Judges who Decide Wrongfully 35

XXIX. The Judge, when Inquired of by a Party, should be

able to give a Reason for his Decision 35

XXX. Concerning the Punishment of Judges who Appropriate

the Property of Others 36

XXXI. Concerning Those who Treat the Royal Order with

Disdain 36

XXXII. How the Judge should Inquire into Causes by the

Ordeal of Hot Water 37

TITLE II.--_Concerning Causes._

I. No One can Refuse to Answer because the Plaintiff

Never Presented his Claim to Him 38

II. The Court must be Disturbed by no Clamor or Tumult 38

III. Where there are Many Litigants, Two may be Chosen

who shall have Power to carry on the Suit 39

IV. Both Parties may be Compelled by the Judge or the

Bailiff, to be Present in Court on the Day when the

Case is to be Heard 39

V. Those whose Affairs have been brought before a

Tribunal for a Decision, shall under no Circumstances

enter into a Compromise before the Case

has been Decided 40

VI. Both Parties shall be Required to Furnish Testimony 41

VII. Concerning the Journey which Anyone Compels an

Innocent Person to Make 42

VIII. Where Anyone Residing in the District of one Judge

has a Cause of Action against a Party Living in the

District of another Judge 42

IX. Concerning Those who Venture to Defend the Suits of

Others 44

X. No Freeman shall Refuse to Answer the Slave of

another in Court 45

TITLE III.--_Concerning Constituents and Commissions._

I. Princes and Bishops should not Conduct their Cases

in Court in Person, but through their Subjects or

Subordinates 47

II. The Judge must inquire of a Litigant, whether the

Suit brought by Him is his Own, or that of Another 48

III. He who cannot conduct his Cause Himself must give

Written Authority to his Attorney 48

IV. Torture shall in no Case be inflicted upon Persons of

Noble Birth who are acting as Representatives of

Others; and, In what way, a Freeman of the Lower

Class, or a Slave, may be subjected to Torture 49

V. If He who has Appointed an Attorney Suffers Delay,

He can revoke his Commission 50

VI. It shall not be Lawful for a Woman to Act as an

Attorney, but She may Conduct her Own Case in

Court 50

VII. The Constituent shall receive the Benefit, and bear the

Loss, resulting from Proceedings Instituted by his

Attorney 51

VIII. If an Attorney should die, his Heirs shall be entitled

to his Fees 51

IX. What Persons those in Power, and those that are

Poor, may appoint to Conduct their Cases 52

X. Those who have Charge of the Royal Treasury, when

the Suit is brought for its Benefit, have authority

to appoint whom they wish to represent them 52

TITLE IV.--_Concerning Witnesses and Evidence._

I. Concerning Persons who are not Permitted to Testify 54

II. Witnesses shall not Testify except under Oath; Where

both parties offer Witnesses which shall be Believed;

and Where a Witness Testifies Falsely 54

III. Where a Witness Testifies Orally, and Written Evidence

Contradicts Him 54

IV. A Slave shall not be Believed unless he Belongs to the

Crown; and When Royal Slaves shall be Believed 56

V. A Witness shall not give his Testimony in Writing, but

Orally, and How Testimony should be Given 57

VI. Concerning Those who give False Testimony 58

VII. Concerning Those who are Proved to have given False

Testimony; and Concerning the Space of Six

Months in which a Witness may be Declared Infamous.

It shall not be Lawful to give Testimony

concerning One who is Dead 58

VIII. Concerning Those who Induce Others to give False

Testimony, or Encourage the Slaves of Others to

Seek their Liberty 60

IX. In what Causes Slaves can Testify 61

X. Concerning Those who Bind Themselves in Writing,

not to give True Testimony in the Cause of Others 62

XI. At what Age Minors can Testify 62

XII. A Near Relative or a Kinsman of a Party to a Suit,

cannot give Testimony against a Stranger 62

TITLE V.--_Concerning Valid and Invalid Documents and How Wills

Should be Drawn Up._

I. What Documents are Valid in Law 64

II. No Witness shall Testify as to the Contents of a Document

of which He is Ignorant 64

III. Concerning the Drawing Up of Contracts, and Other

Legal Documents 65

IV. Neither Children, nor Other Heirs, shall contest the

Final Disposition of Property by their Ancestors 65

V. Concerning the Penalties to which those are Liable

who attempt to Repudiate their Written Contracts 65

VI. Contracts and Agreements made by Slaves are Invalid,

unless Ordered by Their Masters 65

VII. Concerning Dishonorable and Illegal Contracts 66

VIII. No One shall be Liable in Person or Property, under

the Terms of any Contract, where Deception has

been Practised; nor shall He be Liable to any

Penalty provided by the same 66

IX. Every Obligation, or Contract, which has been Extorted

by Force, or Fear, shall be Void 66

X. What Contracts entered into by Minors shall be Valid 66

XI. How Wills shall be Drawn Up and Proved 67

XII. How the Wills of those who Die during a Journey shall

be Proved 68

XIII. A Will must be Published in the Presence of a Priest,

or of Witnesses, within Six Months 69

XIV. Concerning the Comparison of Handwriting where

Doubt attaches to any Document 69

XV. Concerning Holographic Wills 70

XVI. Concerning the Comparison of Documents, and the

Infliction of Penalties prescribed by Wills 70

XVII. No Testator shall be Permitted to Dispose of Property

in One Way, in the Presence of Witnesses, and in

Another by a Written Will 72

BOOK III.

CONCERNING MARRIAGE.

TITLE I.--_Concerning Nuptial Contracts._

I. Marriage shall not be Entered Into without a Dowry 75

II. It shall be as Lawful for a Roman Woman to Marry a

Goth, as for a Gothic Woman to Marry a Roman 76

III. Where a Girl Marries against the Will of her Father,

while she is Betrothed to Another 76

IV. When a Gift is made by way of Pledge, a Nuptial

Contract cannot be Rescinded 77

V. Women Advanced in Years shall not Marry Young Men 77

VI. What Property the Dowry shall consist of 79

VII. The Father shall Exact, and Keep, the Dowry of his

Daughter 79

VIII. In case of the Death of the Father, the Disposition of

the Children of both Sexes, in Marriage, shall belong

to the Mother 81

IX. Where Brothers Defer the Marriage of their Sister, or

Where a Girl Marries Beneath her Station 81

X. Where the Items of a Dowry, relating to any kind of

Property, are reduced to Writing, it shall not be

Contested 82

TITLE II.--_Concerning Unlawful Marriages._

I. Where a Woman Marries within a Year after the

Death of her Husband 83

II. Where a Freeborn Woman Marries a Slave, or her own

Freedman 83

III. Where a Freeborn Woman Marries the Slave of

Another, or a Freeborn Man the Female Slave of

Another 84

IV. Where a Freedwoman, or a Freedman, Marries the

Slave of Another 85

V. Where Anyone gives in Marriage his Slave, of Either

Sex, to the Slave of Another 85

VI. Where a Woman contracts a Second Marriage in the

Absence of her Husband 86

VII. Where a Master Marries one of his Slaves to a Freewoman

declaring him to be a Freeman 86

VIII. Where a Freewoman Marries without the Consent of

her Parents 87

TITLE III.--_Concerning the Rape of Virgins, or Widows._

I. Where a Freeman carries off a Freewoman by Force,

he shall not be permitted to Marry her, if she was a

Virgin 88

II. Where Parents remove their Daughter from the Power

of a Ravisher 89

III. Where the Parents of a Girl, who has been Betrothed,

consent that she should be Carried Away by Another 90

IV. Where Brothers, either during the Life of their Father,

or after his Death, consent that Anyone should

Carry Away their Sister by Force 90

V. Where Anyone Carries Away by Violence a Woman

who was Betrothed to Another 90

VI. Where a Ravisher is Killed 91

VII. Within what Time it is Lawful to Prosecute a Ravisher;

and Whether any Marriage Contract can be entered

into with Him by the Girl or her Parents 91

VIII. Where a Slave carries off a Freewoman by Force 92

IX. Where a Slave carries off a Freedwoman by Force 92

X. Where a Slave carries off the Female Slave of Another

by Force 92

XI. Concerning those who Deceive Girls, or the Wives of

Others, or Widows; and Concerning those who

Compel by Force, and without the Royal Command,

any Freeborn Girl or Widow to take a Husband 93

XII. Concerning Freemen and Slaves who are Proved to

have been Implicated in the Crime of Rape 93

TITLE IV.--_Concerning Adultery._

I. Where a Woman Commits Adultery, with or without

the Connivance of her Husband 95

II. Where a Girl or a Woman who has been Betrothed, is

found Guilty of Adultery 95

III. Concerning the Adultery of a Wife 96

IV. Where an Adulterer, along with an Adulteress, are

Killed 96

V. Where her Father, or her Relatives, Kill a Girl who

has been Guilty of Adultery in their House 96

VI. It is not Lawful for Slaves to put Persons to Death

who are taken in Adultery 97

VII. Where a Girl, or a Widow, goes to the House of

Another, in order to Commit Adultery, and the

Man should wish to Marry Her 97

VIII. Where a Freeborn Woman commits Adultery with

Anyone 97

IX. Where a Freeborn Woman commits Adultery with the

Husband of Another 98

X. Slaves of Both Sexes may be Tortured to Reveal the

Adultery of their Masters 98

XI. Whether it shall be Lawful to set a Slave at Liberty,

in order to Conceal the Crime of Adultery 98

XII. Concerning the Property of Persons who have Committed

Adultery 99

XIII. Concerning those Persons who have a Right to bring

Accusations of Adultery, and what Proof of the

Crime should be Made 100

XIV. Where a Freedman, or a Slave, has been Convicted of

having committed Adultery, with Violence, upon a

Freeborn Virgin, or Widow 101

XV. Where a Freeman, or a Slave, without the Knowledge

his Master, commits Adultery with the Female

Slave of Another 102

XVI. Where a Female Slave is proved to have committed

Adultery with Another by Force 102

XVII. Concerning Freeborn Women, or Female Slaves, of

Bad Character, and Where Judges Refuse to

Investigate, or Punish their Crimes 102

XVIII. Concerning the Impurity of Priests and other Ministers

of Religion 104

TITLE V.--_Concerning Incest, Apostacy, and Pederasty._

I. Concerning Incestuous and Adulterous Marriages in

General 106

II. Concerning Incestuous and Adulterous Marriages

and Debauchery, either with Holy Virgins, or with

Widows and other Women while doing Penance 107

III. Concerning Men and Women who Illegally Assume

the Tonsure and Dress of Religious Orders 108

IV. Concerning the Restraint of Fraud Peculiar to Widows 109

V. Concerning Pederasty 110

VI. Concerning Sodomy, and the Manner in which the

Law should be Enforced 111

VII. Concerning Adultery committed with the Concubine of

a Father or a Brother 111

TITLE VI.--_Concerning Divorce, and the Separation of Persons who

have been Betrothed._

I. Where a Woman, justly or unjustly, is Separated from

her Husband 113

II. There shall be No Divorce between Married Persons 114

III. There shall be No Divorce between Persons who are

Betrothed 116

BOOK IV.

CONCERNING NATURAL LINEAGE.

TITLE I.--_Concerning the Degrees of Relationship._

I. The Nature of the First Degree 117

II. The Affinity of the Second Degree 117

III. The Relationship of the Third Degree 118

IV. The Consanguinity of the Fourth Degree 118

V. The Origin of the Fifth Degree 118

VI. The Limits of the Sixth Degree 119

VII. The Persons in the Seventh Degree who are not Mentioned

by the Laws 119

TITLE II.--_Concerning the Laws of Inheritance._

I. Brothers and Sisters shall Share Equally in the

Inheritance of their Parents 121

II. The Children shall Come First in the Order of

Succession 121

III. Where there are no Heirs in the Direct Line, Collateral

Heirs shall Inherit the Property 121

IV. Who shall Succeed to the Property of Those who have

left no Written Wills, or have made no Disposition

of their Possessions in the Presence of Witnesses 121

V. Concerning Inheritance by Brothers and Sisters, and

by such of these as are not descended from the

same Parents 122

VI. Where he who Dies leaves Grandfathers or

Grandmothers 122

VII. Where he who Dies leaves Aunts 122

VIII. Where he who Dies leaves Nephews 122

IX. A Woman shall be entitled to a Share in an Entire

Inheritance 123

X. As a Woman has a Right to a Share of an Entire

Inheritance, so he who is next in Succession shall

inherit the Remainder of the Property 123

XI. Concerning the Inheritance of Husband and Wife,

Respectively 123

XII. Concerning the Inheritance of Property from Clerks

and Monks 123

XIII. After the Death of their Mother, Children shall remain

under Control of their Father; and What Disposition

he shall make of their Property 123

XIV. Where a Mother remains a Widow, she shall have an

Equal Portion of the Inheritance with her Children;

and How a Mother ought to Dispose of the Property

of her Children 125

XV. No Wife can lay Claim to what her Husband has

Gained by the Labor of her Slaves 126

XVI. Concerning such Property as the Husband and Wife

together have Accumulated during their Married

Life 126

XVII. In what way a Child may Inherit Property 127

XVIII. How the Parents of a Child can Inherit from Him 128

XIX. Concerning Posthumous Children 129

XX. He who leaves no Children, has full Power to Dispose

of his Property as he Pleases 130

TITLE III.--_Concerning Wards and Their Guardians._

I. What a Minor Is 131

II. From what date Time is to be Computed in Bringing

Lawsuits relating to Minors 131

III. How the Guardianship of Wards should be Entered

upon; what Portion of their Property they shall

Receive, and what Portion shall be given to their

Guardians 132

IV. Guardians shall have no Right to Exact from Wards

in their Charge any Instruments in Writing whatever 133

TITLE IV.--_Concerning Foundlings._

I. Where anyone Casts Away, or Abandons, a Freeborn

Child, he shall Serve as its Slave 135

II. Where a Male or Female Slave shall be Proved to

have Cast Away a Child, with or without the

Knowledge of his or her Master 135

III. What Compensation for Support anyone shall Receive

for the Bringing up of a Child Committed to his

Care by its Parents 136

TITLE V.--_Concerning Such Property as is Vested by the Laws of

Nature._

I. Concerning the Disinheriting of Children; and What

Disposition Parents should make of their Property 137

II. What Part of her Dowry a Woman has a Right to

Bequeath 139

III. What Property Parents should Bestow upon their

Children, at the Time of their Marriage 140

IV. Concerning Children Born of Different Parents; and

What Distinctions Parents may Make in the Disposition

of their Estates 141

V. Concerning such Property as Children may have

Acquired during the Lives of their Parents 142

BOOK V.

CONCERNING BUSINESS TRANSACTIONS.

TITLE I.--_Ecclesiastical Affairs._

I. Concerning Donations to the Church 143

II. Concerning the Preservation and Restoration of Property

Belonging to the Church 144

III. Concerning Sales and Gifts of Church Property 144

IV. Concerning Church Property in Charge of Those

Devoted to the Service of the Church 145

V. Concerning the Repairs of Churches, and Divers Other

Matters 145

VI. Concerning the Arbitrary Conduct of Bishops 147

VII. Emancipated Slaves of the Church, who are still

Bound to Render it Service, shall not be Permitted

to Marry Persons who are Freeborn 150

TITLE II.--_Concerning Donations in General._

I. A Donation Extorted by Violence is Void 152

II. Concerning Royal Donations 152

III. Concerning Property Given to a Husband or a Wife

by the King 152

IV. Concerning Property, in Addition to the Dowry, Given

to a Wife by her Husband 153

V. Concerning Property Given to a Husband by his Wife;

and Where a Wife has been Convicted of Adultery 153

VI. Concerning Property Donated Verbally, or Conveyed

by Instruments in Writing 154

VII. Concerning Gifts Bestowed upon one Another by

Husband and Wife 155

TITLE III.--_Concerning the Gifts of Patrons._

I. Where Anyone who has been Placed under the Control

of Another, or of the Son of that Person,

Deserts either his Patron, or the Children of the

Latter 156

II. Concerning Arms given to Bailiffs who have been

Appointed for the Defence of Anyone, and the

Acquisitions of said Bailiffs 158

III. Concerning Property Acquired through the Appointment

of a Patron, or which has been Donated by Him 158

IV. Concerning Property Accepted and Acquired through

the Office of Patron 158

TITLE IV.--_Concerning Exchanges and Sales._

I. What Constitutes a Valid Exchange, and what a Valid

Purchase 160

II. If the Vendor is not a Person of Good Character, he

must give a Surety 160

III. Any Sale made under Compulsion shall be Void 160

IV. In Case the Price should not be Paid, after Earnest

Money has been Given 160

V. Where only Part of the Price is Paid 161

VI. Where Fraud is Committed in Stating the Price of

whatever is Sold 161

VII. Where Anyone says that he Sold his Property for Less

than it was Worth 161

VIII. Concerning Those who Sell, or Give Away, the Property

of Others 162

IX. It shall not be Lawful to Sell, or Give Away, Property

whose Ownership is in Dispute 162

X. Where a Freeman Allows Himself to be Sold 162

XI. Concerning Free Men and Free Women sold by Slaves

or Freemen 163

XII. It shall be Illegal for Parents to Sell their

Children or, by any Contract whatsoever, to Place

Them in the Power of Others 163

XIII. Concerning Sales by Slaves 164

XIV. Where a Slave, who has been Sold, Accuses his Former

Master of Crime 165

XV. A Master may Claim the Property of a Slave whom

he has Sold 165

XVI. Whether a Slave may be Redeemed with his own

Private Property 166

XVII. No One, against his Will, shall be Compelled to Sell

his Slaves 166

XVIII. Where a Slave, on Account of a Crime he has Committed,

is Transferred to the Possession of Another 167

XIX. Concerning Property Belonging to Private Persons,

and to the Courts, which may not be Alienated 167

XX. Where Anyone Sells or Gives Away Property, whose

Possession should first have been Transferred by

Judicial Decree 169

XXI. Of Slaves Captured and Sold by the Enemy 169

XXII. For what Price this Book shall be Bought 169

TITLE V.--_Concerning Property Committed to the Charge of,

or Loaned to, Another._

I. Concerning Animals Hired to Another 171

II. Concerning Animals Loaned for the Purpose of Labor 172

III. Concerning Things which have been Loaned, and

afterwards Destroyed by Fire, or Lost by Theft 172

IV. Concerning Lost Money, and the Interest on the Same 173

V. Concerning Property Committed to the Charge of

Another, and Lost by Accident at Sea 173

VI. Concerning Property Entrusted to a Slave without his

Master’s Knowledge 174

VII. Where a Slave Fraudulently Demands Property Entrusted

by his Master to Another 174

VIII. Concerning Legal Interest 175

IX. What shall be Paid for the Use of Fruits of the Soil 175

X. Who are Entitled to Wills, or Instruments in Writing,

which have been Entrusted to the Keeping of Anyone 176

TITLE VI.--_Concerning Pledges and Debts._

I. Where Articles are not Pledged 177

II. Where Pledges are Deposited, and afterwards Stolen 177

III. Where Articles are Pledged as Security for Debts 177

IV. Where a Pledge is not Restored when the Debt is Paid 178

V. Where a Person is Liable for many Debts, or has Committed

many Crimes 179

VI. In what way the Debt of a Person who is Dead, or any

Injury he has Committed, shall be Inquired into 180

TITLE VII.--_Concerning the Liberation of Slaves, and Freedmen._

I. Where Slaves are Liberated, either by Instruments in

Writing, or in the Presence of Witnesses 182

II. Where a Slave Belonging to One, or to Several Persons,

is set at Liberty 182

III. Concerning Those who Declare that they are Free 183

IV. Whether he who is enjoying Liberty, can be Returned

to Slavery 183

V. Whether he who is sought to be Returned to Slavery,

can be Deprived of any of his Property 183

VI. Whether he who has been Declared to be Free by his

Master, in Court, can be again Reduced to Slavery,

on the Demand of said Master 184

VII. Where anyone, Influenced by Fear, Asserts that he is

a Slave 184

VIII. Where a Freeman is Claimed as a Slave; or Where a

Slave Declares Himself to be Free 184

IX. For what Reasons Freedom, once Given, shall be Revoked 185

X. Where a Freedman Inflicts Injury upon him who Gave

him his Freedom 185

XI. A Freedman shall not be Permitted to give Testimony

against his Former Master, or against the Children of

the Latter 186

XII. Freedmen shall not be Permitted to Testify in Court 186

XIII. Concerning the Disposition of the Property of a Person

who has been set Free, should he Die without

Leaving Legitimate Children 186

XIV. Concerning the Conditions Imposed by a Master, where

Slaves are Liberated by an Instrument in Writing 187

XV. Concerning the Liberation of Slaves belonging to the

Crown 188

XVI. Concerning the Property of Slaves belonging to the

Crown, who have been Liberated 188

XVII. Neither Freedmen, nor their Descendants, shall either

Marry into, or Act Insolently towards, the Family of

their Patron 189

XVIII. Freedmen who have Entered any Religious Order, shall

not be Returned to the Service of their Masters 190

XIX. In what manner Royal Freedmen and their Descendants

shall Defend the King, while Serving in the

Army; and with whom Those in the Public Service

shall March 190

XX. Concerning Freedmen who are Guilty of Transgressions 191

BOOK VI.

CONCERNING CRIMES AND TORTURES.

TITLE I.--_Concerning the Accusers of Criminals._

I. A Slave, Accused of a Crime, may be Demanded of

his Master by the Officials of the District 193

II. For what Offences, and in what Manner, Freeborn

Persons shall be put to the Torture 194

III. For what Offences, and in what Manner, Slaves, of

Either Sex, shall be put to the Torture, on account

of the Crimes of their Masters 196

IV. For what Offences, and in what manner, a Slave, or a

Freedman, shall be Tortured 197

V. In what way an Accusation shall be Brought to the

Notice of the King 200

VI. How Kings should Practise the Duties of Mercy 201

VII. He Alone shall be Considered Guilty who Committed

the Crime 201

TITLE II.--_Concerning Malefactors and their Advisers,

and Poisoners._

I. Where a Freeborn Man Consults with a Soothsayer

Concerning the Health, or the Death of Another 203

II. Concerning Poisoners 204

III. Concerning Malefactors and their Advisers 204

IV. Concerning Those who are Guilty of any Illegal Acts,

or any Injury, towards Men, Animals, or any Kind of

Property Whatsoever 205

TITLE III.--_Concerning Abortion._

I. Concerning Those who Administer Drugs for the Production

of Abortion 206

II. Where a Freeborn Man Causes a Freeborn Woman to

Abort 206

III. Where a Freeborn Woman Causes another Freeborn

Woman to Abort 207

IV. Where a Freeborn Man Produces Abortion upon a

Slave 207

V. Where a Slave Produces Abortion upon a Freeborn

Woman 207

VI. Where a Slave Produces Abortion upon a Female

Slave 207

VII. Concerning Those who Kill their Children before, or

after, they are Born 207

TITLE IV.--_Concerning Injuries, Wounds, and Mutilations,

Inflicted upon Men._

I. Concerning the Injury of Freemen and Slaves 209

II. Concerning Insolent Persons and their Acts 210

III. Concerning the Law of Retaliation, and the Amount

to be Paid in Lieu of the Enforcement of said Law 211

IV. Where a Person Deprives a Traveler of his Liberty,

against the Will of the Latter, and with Intent to

do him Injury 214

V. He who Violates the Law by Inflicting Injury upon

Another, shall undergo the same Punishment which

he Himself Inflicted 215

VI. He shall not be Considered Guilty who Struck Another,

when the Latter was about to Strike Him 215

VII. Where a Slave Insults a Freeborn Person 216

VIII. Where one Freeborn Person Strikes Another 216

IX. Where the Slave of Another is Mutilated by a Freeborn

Person 216

X. Where a Slave Strikes a Freeborn Person 217

XI. Where One Slave Mutilates Another Slave 217

TITLE V.--_Concerning Homicide._

I. Where One Kills Another without Knowing it 218

II. Where One Kills Another without Seeing Him 219

III. Where One, being Pushed, Kills Another 219

IV. Where One, Seeking to Strike Another, Kills a Third

Person 219

V. Where One is Killed while Interfering in a Quarrel 220

VI. Where One, Intending to Inflict a Slight Injury, Kills

Another 220

VII. Where One, in Sport, or Recklessly, Kills Another 220

VIII. Where One Kills Another through Immoderate Punishment 221

IX. Where a Freeman Kills a Slave by Accident 221

X. Where a Slave Kills a Freeman by Accident 221

XI. Where One Man Intentionally Kills Another 221

XII. No Master shall Kill his Slave without Good Reason;

and Where One Freeman Kills Another 222

XIII. No One shall Deprive a Male or Female Slave of a Limb 225

XIV. Any Person may bring an Accusation of Homicide 226

XV. Both Relatives and Strangers have a Right to Accuse

a Person of Homicide 227

XVI. Where a Homicide Takes Refuge in a Church 227

XVII. Concerning Parricides, and the Disposition of their

Property 228

XVIII. Concerning Those who Kill Others Related to Them

by Blood 229

XIX. Where One Blood-Relative is Accidentally Killed by

Another 230

XX. Where One Slave Kills Another by Accident 230

XXI. Concerning those who Destroy their Souls by Perjury 230

BOOK VII.

CONCERNING THEFT AND FRAUD.

TITLE I.--_Concerning Informers of Theft._

I. Concerning Informers and Persons who give Information

of Theft 233

II. A Slave, Acting as Informer, must not be Believed,

unless the Testimony of his Master is also Given 234

III. Where the Informer Knew of the Commission of the

Theft 284

IV. Concerning the Compensation of an Informer 235

V. Where an Innocent Person is Accused of Crime by an

Informer 235

TITLE II.--_Concerning Thieves and Stolen Property._

I. He who is Searching for Stolen Property must Describe

it 238

II. Where a Slave Commits a Theft Before or After he

has Received his Freedom 238

III. Where a Slave, who has Become the Property of

Another Master, Commits an Unlawful Act 238

IV. Where a Freeman Commits a Theft in Company with

the Slave of Another Person 239

V. Where a Master Commits a Theft in Company with his

Slave 239

VI. Where a Slave, Belonging to Another Person, is

Instigated by Anyone to the Commission of

Unlawful Acts 239

VII. Concerning Those who Knowingly Associate with

Thieves 240

VIII. Where Anyone, Ignorantly, Buys Stolen Property of a

Thief 240

IX. Where Anyone, Knowingly, Buys Stolen Property of a

Thief 241

X. Concerning Money, and Other Property, Stolen from

the King 241

XI. Concerning the Stealing of Bells from Cattle 241

XII. Concerning the Theft of Mill Machinery 242

XIII. Concerning the Punishment of a Thief 242

XIV. A Thief, when Taken, shall be Brought Before the

Judge; and Where a Freeman Commits a Theft in

Company with a Slave, Both shall Undergo the

Same Penalty 242

XV. Where a Thief, Defending Himself with a Sword, is

Killed 243

XVI. Where a Thief is Killed at Night, while he is Being

Taken 243

XVII. Concerning Property Injured or Destroyed; and the

Reparation to be Made for what has been Damaged

or Stolen 243

XVIII. Concerning Property Rescued from Shipwreck 243

XIX. Concerning the Property and the Heirs of Thieves 244

XX. Concerning Those who Rescue Thieves and Other

Criminals, after their Capture 244

XXI. Where a Slave Steals from his Master, or from a

Fellow-Slave 245

XXII. Within what Time, after his Arrest, a Thief must be

Brought Before the Judge 245

XXIII. Where Anyone Secretly Kills an Animal Belonging to

Another 246

TITLE III.--_Concerning Appropriators and Kidnappers

of Slaves._

I. Where Anyone Seizes the Slave of Another 247

II. Where a Freeman is Convicted of Having Stolen the

Male or Female Slave of Another 247

III. Concerning Kidnapped Children of Freeborn Persons 248

IV. Where one Slave Kidnaps Another Belonging to a

Person not his Master 248

V. Where a Slave, at the Command of his Master, Kidnaps

a Freeborn Person 249

VI. Where a Slave, without the Knowledge of his Master,

Kidnaps a Freeborn Person 249

TITLE IV.--_Concerning the Custody and Sentence of

Condemned Persons._

I. Where a Judge is Asked to Punish Crime, and is

Afterwards Treated with Contempt 250

II. The Governor of the City shall Aid the Judge in the

Arrest of Persons Accused of Crime 250

III. Where a Person Breaks out of Prison, or Influences the

Jailer for that Purpose 251

IV. Concerning the Compensation which may be Received

from those in Custody 251

V. Where a Judge who is Lenient to Offenders Against

the Law, Releases a Criminal 252

VI. Concerning the Punishment of a Judge who Improperly

Discharges a Criminal 252

VII. A Person Guilty of Crime shall receive the Sentence of

the Law not Secretly, but in Public 252

TITLE V.--_Concerning Forgers of Documents._

I. Concerning Those who Forge Royal Orders and Mandates 253

II. Concerning Those who Forge Documents, or Attempt

to Forge Them 254

III. Concerning Those who Forge, or Serve, False Orders in

the Name of the King, or a Judge 255

IV. Concerning Those who Falsify a Will against the Consent

of a Party while Living, or Disclose the Contents

of the Same 256

V. Concerning Those who Attempt to Forge, or Conceal,

the Will of a Person Already Deceased 256

VI. Where Anyone Assumes a Fictitious Name, or Adopts

a False Lineage or Relationship 256

VII. Concerning Documents Fraudulently Dated, Prior to

their Execution 257

VIII. Concerning Later Documents Fraudulently Executed 258

IX. Concerning those who Falsely Write, or Publish,

Decrees and Edicts of the King 259

TITLE VI.--_Concerning Counterfeiters of Metals._

I. Concerning the Torture of Slaves, in Order to Convict

their Masters of Counterfeiting Money; and the

Reward of Witnesses who have given Information

of the Same 261

II. Concerning Those who Debase _Solidi_, or Other Coins 261

III. Concerning Those who Debase Gold by a Mixture of

Other Metals 262

IV. Where Artificers of Metals are Found to have Abstracted

a Portion of what was Entrusted to Them 262

V. No One shall Refuse to Accept a Golden _Solidus_ of

Legal Weight 262

BOOK VIII.

CONCERNING ACTS OF VIOLENCE AND INJURIES.

TITLE I.--_Concerning Attacks, and Plunder of Property._

I. The Patron, or the Master, shall Alone be Held Guilty,

if, by his Orders, a Freeman or a Slave should

Commit any Unlawful Act 264

II. Where a Party in Possession is Expelled by Force 264

III. Where Many Persons Unite in Causing Bloodshed 264

IV. Where a Person is Shut up by Violence, Inside his Own

House, or Within his Gate 265

V. Property, while in the Possession of Another, shall

not be Seized, Except Under Legal Process 266

VI. Where a Person is Guilty of Asking Others to Commit

Depredations 267

VII. A House shall not be Entered in the Absence of the

Master, or while he is on a Public Expedition 267

VIII. Where the Slaves of a Person who is Absent on a

Public Expedition Commit Unlawful Acts 268

IX. Concerning Those who, while on an Expedition, Commit

Robbery or Other Depredations 268

X. He in whose Possession Stolen Property has been

Found, shall be Compelled to name his associates in

the Crime 269

XI. Concerning Those who are Guilty of Giving Directions

to Others for Purposes of Robbery 269

XII. Concerning Those who Rob, or Inflict Annoyance

upon Anyone, while he is on a Journey, or at Work

in the Country 269

XIII. Whether a Person Caught in the Act of Robbery may

be Killed 270

TITLE II.--_Concerning Arson and Incendiaries._

I. Concerning Those who set Fire to Houses either Within

or Without a City 271

II. Where Forests are set on Fire 272

III. Where a Conflagration Results from the Smouldering

Campfire of a Traveller 273

TITLE III.--_Concerning Injuries to Trees, Gardens, or

Growing Crops of any Description._

I. Concerning the Compensation for Cutting Down Trees 274

II. Where Anyone Destroys the Garden of Another 275

III. Where Injury, or Homicide, Results from the Cutting

Down of a Tree 275

IV. Where a Tree is Partially Cut Down, or is Injured

by Fire 276

V. Concerning the Cutting Down, Tearing up, or Burning

of Vines; and the Seizure of Growing Crops 276

VI. Where Fences are Cut Down, or Burned 277

VII. Where Fence Posts are Cut 277

VIII. Where Anyone is Caught with a Vehicle, in a Wood

Belonging to Another 278

IX. Concerning the Unreasonable Enclosure of Orchards,

Vineyards and Pastures 278

X. Where Animals are Voluntarily Loosed in Fields where

there are Crops, or in Vineyards 278

XI. Where Animals Damage Growing Crops 279

XII. Where an Enclosed Field is Ruined by Flocks 279

XIII. Where Fruits of any Kind are Destroyed by Animals 279

XIV. Where, while Anyone is Driving Cattle out of Cultivated

Fields, Another Person Rescues them, or Takes

Possession of them afterwards Secretly or by Force 280

XV. Concerning Animals Found in Vineyards, Fields of

Grain, or Meadows 281

XVI. Where Animals Depart from Fields of Growing Grain

Before they are Driven Out 282

XVII. Where Anyone Mutilates an Animal found in a Field

of Grain 282

TITLE IV.--_Concerning Injuries to Animals, and

Other Property._

I. Where a Horse, or any other Animal, which has been

Tied Up, is Removed, or Injured, in any Way,

Without the Consent of the Owner 284

II. Where any Animal which has been Loaned, is Used

against the Directions, or Will of the Owner,

or is Abused 285

III. Where the Mane or Tail of a Horse, or any Other

Animal, is cut off by Anyone 285

IV. Where Anyone Castrates an Animal Belonging to

Another 285

V. Where Anyone Produces an Abortion upon a Beast of

Burden Belonging to Another 286

VI. Where Anyone Produces an Abortion upon any kind of

Animal Belonging to Another 286

VII. Where Animals of any kind Injure One Another 286

VIII. Where a Person Kills an Animal Belonging to

Another, whether he has been Injured by said

Animal, or Not 286

IX. Where an Ox, Belonging to Another, is Used for

Labor, without the Consent of its Owner 287

X. Where Animals, of any kind, Belonging to Another,

are Overworked in the Threshing of Grain 287

XI. Where Cattle, which have done no Injury, are

Shut Up 287

XII. Where an Animal Causes Injury to Anyone 288

XIII. Where an Animal is Injured, or Killed, by a Blow 288

XIV. Where Cattle, Belonging to Another, with or without

the Knowledge of the Owner, are Mingled with the

Herd or Flock of the Latter 288

XV. Where Anything Intended to Frighten an Animal is

Fastened to it, and it should be either Injured,

or Killed, in Consequence 289

XVI. Where a Vicious Animal, while on the Premises of its

Owner, Kills Anyone 289

XVII. Where Anyone Rids himself of a Vicious Animal, or

Still Retains it in his Possession 290

XVIII. Where Anyone Teases an Animal and is Injured by it,

he Alone shall be Responsible for the Injury 290

XIX. Where a Dog that has been Irritated, whether the

Provocation was Wanton or not, is Proved to have

Injured, or Killed Anyone 291

XX. Concerning a Vicious Dog 291

XXI. Concerning Injuries to Clothing 291

XXII. Where a Trespasser Falls into a Trap set for Wild

Animals 292

XXIII. He who sets Snares or Traps for Wild Beasts, must

Inform his Neighbors of the Places where said

Snares are Set 292

XXIV. Concerning Injuries Resulting from the Obstruction

of Highways 293

XXV. Of the Space that is to be Preserved along Public

Highways 293

XXVI. Where the Animals of Persons Traversing Fields that

are not Enclosed, are Driven Away 294

XXVII. Animals Driven along the Highway Cannot be Excluded

from Open Pastures 295

XXVIII. He who has Land under Cultivation along the Bank

of a River, has a Right to Enclose the Same 295

XXIX. Concerning the Right to Enclose Streams 295

XXX. Concerning Those who Damage Mills, and Ponds 296

XXXI. Concerning Those who Steal Water from Streams

Belonging to Others 296

TITLE V.--_Concerning the Pasturage of Hogs, and

Concerning Strays._

I. Where Hogs are Pastured on Acorns, Either without

Authority, or under Contract 298

II. Where Hogs are Fed on Acorns on Land Belonging to

Several Persons 299

III. Where Hogs Turned on Land to be Fed on Acorns,

under Contract, are Taken away by Stealth, Before

the Tenth Part of said Hogs are Delivered 299

IV. Where Hogs are Found Wandering in Woodland 300

V. Where a Drove of Animals, of any Kind, Enter upon

the Pasture-land of Another Person 300

VI. Public Notice shall be given of Strays by him who

Finds them 301

VII. Whoever Finds any Strays shall take Proper Care of

the Same 301

VIII. No Stray Animal shall be Either Sheared, Branded,

or Appropriated by Anyone 301

TITLE VI.--_Concerning Bees, and the Damage they Cause._

I. Where a Person Finds Bees on his Property 303

II. Where Bees Cause any Damage 303

III. Concerning the Theft of Bees 303

BOOK IX.

CONCERNING FUGITIVES AND REFUGEES.

TITLE I.--_Concerning Fugitives, and Those who Conceal,

and Assist them in Their Flight._

I. Where a Freeman or a Slave is Found to have Concealed

a Fugitive 306

II. Where a Fugitive is Released from his Chains by any

Person 306

III. Within what Time a Fugitive Slave that has been

Found, shall be Produced Before the Judge 307

IV. Where Anyone, Ignorantly, Receives a Fugitive

Slave, and Cares for Him 307

V. Where Anyone Persuades the Slave of Another to

Flee, or Shows him Hospitality 308

VI. Where a Man, Unknown to be a Slave, is Received by

Another, and Remains with him Several Days 308

VII. Where a Slave, Knowingly, Directs a Fugitive Slave

in his Flight 309

VIII. Concerning the Reception of Fugitive Slaves; and

Whether a Master or a Slave may receive a Fugitive

Slave Belonging to Another 309

IX. Where a Fugitive Slave Comes to the House of any

Person, Notice of the Fact must be Given to the

Neighbors and Authorities of the District 311

X. Where a Slave that has been Sold into a Foreign

Country, Returns as a Fugitive, and is Sold a Second

Time, he shall be Entitled to his Freedom 311

XI. Where a Fugitive Slave Takes Refuge with Another

Person, an Investigation must be Made, to Ascertain

whether he was not Sent by his Master, in

Order that the Latter might Receive Compensation

from the Person who Received said Slave 312

XII. Where a Slave, Falsely Declaring that he is Free,

Serves Another for Hire 312

XIII. Where a Fugitive Slave is Found in the House of any

Person 313

XIV. Concerning the Reward for Arresting a Fugitive Slave 313

XV. Where a Fugitive Slave Falsely Declares that he is

Freeborn 314

XVI. Where a Fugitive Slave, Declaring that he is Freeborn,

Marries a Freeborn Woman 314

XVII. Concerning Property Acquired by Fugitive Slaves 315

XVIII. Concerning Those who Refuse to Restore Fugitive

Slaves to their Masters 315

XIX. Where a Freeman, or a Slave, Undertakes the Concealment

of Robbers 316

XX. A Judge must Surrender a Fugitive Slave, with all the

Property Found in his Possession, to his Master 316

XXI. Concerning Fugitive Slaves and those who Shelter Them 316

TITLE II.--_Concerning Those who Refuse to go to War,

and Deserters._

I. Where an Officer of the Army, Corrupted by a Bribe,

Permits a Soldier to Depart, or does not Compel

him to Leave his Home 320

II. Where Conscription Officers Appropriate the Property

of Those they Call to Arms 321

III. Where an Officer of the Army Abandons the War, and

Returns Home, or Permits Others to do so 321

IV. Where an Officer of the Army, Deserting the Service,

Returns Home, or Compels Others to do so 322

V. Where a Conscription Officer Receives a Bribe to Permit

Soldiers who are not Ill, to Remain at Home 323

VI. Concerning those who Appropriate Army Rations, or

are Guilty of Fraud in the Distribution of the Same 323

VII. What Reward he who Rescues Slaves, or Property, from

the Possession of the Enemy, shall be Entitled to 324

VIII. What Conduct shall be Pursued when Public Scandal

Arises within the Bounds of Spain 324

IX. Concerning Those who Fail to Enlist at the Appointed

Time or Place, or Desert; and What Proportion of

the Slaves Belonging to any Person shall join the

Army 327

TITLE III.--_Concerning Those who Seek Sanctuary in a Church._

I. No One, Claiming the Privilege of Sanctuary in a

Church, shall be Taken from Thence by Force,

Unless he Defends himself with Arms 331

II. Where a Person Seeks Sanctuary in a Church, and is

Killed, while Defending himself with Arms 331

III. Concerning the Penalty for Removing a Man from a

Church by Force 331

IV. A Debtor, or a Criminal, Cannot be Forcibly Removed

from a Church, and must Pay such Debts, or Penalties,

as are Due 332

BOOK X.

CONCERNING PARTITION, LIMITATION AND BOUNDARIES.

TITLE I.--_Concerning Partition, and Lands Conveyed by Contract._

I. A Partition Once Made, shall Remain Forever in Force 334

II. No Partition Made Between Brothers shall be Revoked,

Even if it was not Made in Writing but Only

in the Presence of a Competent Witness 334

III. Where a Partition is Made Among Many Persons by

the Majority and those Entitled to the Larger Share,

it shall not be Changed by any Act of the Minority 334

IV. One Heir shall have the Right to Act for all the

Others, either as Plaintiff or Defendant 335

V. Where Anyone Violates a Contract Establishing a

Partition, and Seizes a Portion of the Property 335

VI. Where an Heir Plants a Vineyard, or Erects a House,

on Land Belonging to his Co-Heirs 336

VII. Where one Person Plants a Vineyard on the Land of

Another, to which he has no Title 336

VIII. Concerning the Division of Lands Made Between

Goths and Romans 337

IX. Concerning Forests Still Undivided Among Goths and

Romans 337

X. Whatever Acts a Slave may Perform, without the

Order of his Master, shall be Void, except when

Otherwise Provided by Law 337

XI. Whoever Enters upon Land under a Lease, must

Comply with his Contract 337

XII. Where Lands are Leased, by a written Contract, for a

Term of Years 338

XIII. Where he who Rents Land under Contract, Cultivates

a Greater Area than he has a Right to do, under the

Conditions of the Same 338

XIV. Where a Dispute Arises Between Landlord and Tenant,

Concerning Arable Lands, or Forests, which are

Leased 339

XV. Both Tenants must Pay the Rent for Land which has

been Sublet 339

XVI. Where Goths have Appropriated any of the Third

Part of Land Belonging to Romans, they shall

Restore the Entire Amount to the Romans, under

Order of Court 339

XVII. Concerning the Partition of Property Among the

Blood-Relatives of Slaves, and the Distribution of

their Personal Estates 340

XVIII. All Personal Property shall be Classed under One Title 341

XIX. Where a Contract is not Complied With according to

its Terms 341

TITLE II.--_Concerning the Limitations of Fifty and Thirty Years._

I. After the Lapse of Fifty Years, Neither Goths nor

Romans can Assert a Claim to Property 343

II. No Fugitive Slave shall be Again Reduced to Servitude,

after the Lapse of Fifty Years 343

III. No Suit at Law shall be Brought Thirty Years After

the Cause of Action has Arisen 343

IV. The Limitation of Thirty Years shall Run in all Cases

Excepting those where Slaves of the Crown are

Concerned 344

V. Concerning Claims made within Thirty Years 344

VI. The Limitation of Thirty Years shall not Run while

Persons are Exiled 346

VII. Within what Time Slaves Belonging to the Crown can

Again be Reduced to Slavery 347

TITLE III.--_Concerning Boundaries and Landmarks._

I. How Boundaries and Landmarks shall be Preserved 348

II. Concerning the Destruction and Removal of Landmarks 348

III. What is to be Done when a Dispute Arises Concerning

Boundaries 348

IV. Where One Person makes a Claim to Land Included

within the Boundaries of Another 349

V. Where any Change was made in the Boundaries of Land

During the Time of the Romans, no Claim Based upon

Other Boundaries shall Prevail 350

BOOK XI.

CONCERNING THE SICK AND THE DEAD, AND MERCHANTS

WHO COME FROM BEYOND SEAS.

TITLE I.--_Concerning Physicians and Sick Persons._

I. No Physician shall Presume to Bleed a Woman, in the

Absence of her Relatives 353

II. No Physician shall Visit Persons Confined in Prison 354

III. Where a Physician Treats Disease under a Contract 354

IV. Where a Sick Person Dies, while a Physician is Treating

him under a Contract 355

V. Where a Physician Removes a Cataract from the Eye 355

VI. Where a Freeman or a Slave Dies from Being Bled 355

VII. Concerning the Compensation to be Received for the

Instruction of a Student in Medicine 355

VIII. No Physician shall be Imprisoned without a Hearing 355

TITLE II.--_Concerning Those who Disturb Sepulchres._

I. Concerning Persons who Deface or Injure Tombs 356

II. Where a Coffin is Removed from a Grave 356

TITLE III.--_Concerning Merchants who Come from Beyond Seas._

I. Where Foreign Merchants are Detected Selling Stolen

Property 357

II. Foreign Merchants shall be Judged by their own

Magistrates, and According to their own Laws 357

III. Where a Foreign Merchant Carries Away with him,

from our Kingdom, a Person whom he has Hired 358

IV. Where a Foreign Merchant takes Away a Slave for

Purposes of Commerce 358

BOOK XII.

CONCERNING THE PREVENTION OF OFFICIAL OPPRESSION,

AND THE THOROUGH EXTINCTION OF

HERETICAL SECTS.

TITLE I.--_Concerning the Exercise of Moderation in

Judicial Decisions, and the Avoiding of Oppression

by Those Invested with Authority._

I. Concerning the Admonition of the King, by which

Judges are Ordered to Display Moderation in the

Administration of Justice 359

II. No Official, Invested with Power Over the People and

Supervision Over their Acts, shall Subject them to

Unnecessary Expense, or Other Impositions 360

TITLE II.--_Concerning the Eradication of the Errors

of all Heretics and Jews._

I. Laws Having Been Given to True Believers, it is Now

Necessary to Place Restraints upon Infidels 363

II. Concerning the Renunciation of the Errors of all

Heresies 364

III. Concerning the Laws Promulgated on Account of the

Wickedness of the Jews 365

IV. Concerning the Extirpation of the Errors of the Jews

in General 366

V. Jews shall not Celebrate the Passover According to

their Custom 367

VI. Jews shall not Contract Marriage According to their

Custom 367

VII. Jews shall not Perform the Rite of Circumcision 367

VIII. Jews shall not Divide their Food into Clean and

Unclean, According to their Custom 367

IX. No Jew shall Subject a Christian to Torture 368

X. No Jew shall Testify Against a Christian; and Under

what Circumstances the Descendants of Jews may

Testify 368

XI. No Jew shall Circumcise a Christian Slave 369

XII. Concerning the Penalties to be Inflicted for Offences

Committed by Jews 369

XIII. Concerning Christian Slaves who are Known to have

been Sold or Liberated by Jews 369

XIV. Under no Circumstances shall Christian Slaves Attach

themselves to Jews, or be Admitted into their

Sect 371

XV. All Christians are Forbidden to Defend or Protect a

Jew by Either Force or Favor 374

XVI. Memorial of the Jews Presented to the King 375

XVII. Concerning Judaizing Christians 376

XVIII. Concerning the Perfidy of the Jews 377

TITLE III.--_Concerning New Laws against the Jews, in

which Old Ones are Confirmed, and New Ones are Added._

I. Concerning Old Laws Enacted Against the Transgressions

of the Jews, and the Confirmation of the Same 382

II. Concerning Blasphemers Against the Holy Trinity 384

III. Jews shall not Absent themselves, or Remove their

Children or Slaves, to Avoid the Blessing of

Baptism 385

IV. Jews shall not Celebrate the Passover According to

their Custom, or Practice Circumcision, or Induce

any Christian to Renounce the Church of Christ 385

V. Jews shall not Presume to Keep the Sabbath, or

Celebrate Festival Days, According to their Ritual 386

VI. Every Jew shall Cease from Labor on Sunday, and

on all Appointed Holidays 387

VII. Jews shall not make any Distinction in their Food,

According to their Custom 388

VIII. A Jew shall not Marry a Person Nearly Related to

him by Blood, or Contract Marriage without the

Benediction of a Priest 388

IX. Jews who Insult our Religion, while Attempting to

Defend their own Sect, shall not Betake

themselves Elsewhere; nor shall Anyone Shelter

them while Fugitives 389

X. No Christian shall Accept a Gift from a Jew, to the

Detriment of the Christian Faith 390

XI. Jews shall not Dare to Read Such Books as the Christian

Faith Rejects 391

XII. Christian Slaves shall not Serve, or Associate with,

Jews 392

XIII. Where a Jew Declares that he is a Christian, and, for

this Reason, does not Wish to Dispose of a Christian

Slave 393

XIV. The Confession of Jews; and, In What way Each One

of Them, who is Converted, must Write Down the

Proof of his Conversion 395

XV. Conditions under which Jews must Make Oath, when,

having been Converted, they give in their

Confession of Faith 397

XVI. Concerning the Christian Slaves of Jews, who have not

Proclaimed themselves Christians, and those who

Expose Them 401

XVII. No Jew, under any Authority whatever, shall Dare to

Oppress, Punish, or Imprison a Christian, Except

by Order of the King 401

XVIII. If Slaves of Jews, not yet Converted, should Claim

the Grace of Christ, they shall be Liberated 402

XIX. Jews shall not Rule Christians under the Authority of

Mayors of Towns, or of Superintendents of Estates;

and Concerning the Penalties to be Imposed upon

Such as Appoint them to Office 402

XX. Where a Jew comes from Another Country into any of

the Provinces of Our Kingdom, he must, at once,

Present himself before a Bishop, a Priest, or a

Judge; and What shall be Done under the

Circumstances 403

XXI. How Assemblies of Jews shall Visit the Bishop on

Appointed Days 404

XXII. Where Anyone has a Jew in his Service, and a Priest

Demands him, the Master shall not have a Right to

Retain said Jew 405

XXIII. All Restraint of, and Control over, the Jews shall be

Vested in the Priesthood 405

XXIV. Concerning the Penalties to be Imposed upon Priests

and Judges who Neglect to Enforce the Laws against

the Jews 406

XXV. No Judge shall Presume to Investigate the Offences

of the Jews without the Knowledge of an

Ecclesiastic 407

XXVI. Bishops shall be Immune from Punishment when their

Priests do not Inform them of such Things as

should be Corrected 407

XXVII. Concerning the Mercy to be Shown by Princes towards

Those who have been Truly Converted to the

Christian Faith 408

XXVIII. Bishops shall Give to all Jews a Copy of this Book,

which has been Published for the Purpose of

Correcting their Errors; and their Confessions

and a Record of their Conversion shall be

Deposited among the Archives of the Church 408

LAWS OF THE JUDGES.

BOOK I.

CONCERNING LEGAL AGENCIES.

TITLE I. THE LAWMAKER.

=I.= _What the Method of Making Laws Should Be._

=II.= _How the Lawmaker Should Act._

=III.= _What Should be Required of the Lawmaker._

=IV.= _What the Conduct of the Lawmaker Should Be in his

Daily Life._

=V.= _How the Lawmaker Should Impart Advice._

=VI.= _What Manner of Speech the Lawmaker Should Use._

=VII.= _How the Lawmaker Should Act in Rendering Judgment._

=VIII.= _How the Lawmaker Should Comport Himself in Public and

Private Affairs._

=IX.= _What Instruction it is Fitting that the Lawmaker

Should Give._

=I. What the Method of Making Laws Should Be.=

We, whose duty it is to afford suitable assistance in the formation

of the laws, should, in the execution of this undertaking, improve

upon the methods of the ancients, disclosing as well the excellence

of the law to be framed, as the skill of its artificer. The proof

of this art will be the more plainly evident, if it seems to draw

its conclusions not from inference and imitation but from truth. Nor

should it stamp the force of argument with the subtlety of syllogism,

but it should, with moderation, and by the use of pure and honorable

precepts, determine the provisions of the law. And, indeed, reason

plainly demands that the work be performed in this manner. For, when

the master holds in his hand the finished product, in vain is sought

the reason for its having been impressed with that particular form.

On subjects that are obscure, reason eagerly seeks to be informed by

examination; in matters, however, that are well known and established,

action alone is required. Therefore, when the matter in question is not

clear because its form is unfamiliar, investigation is desirable; but

it is otherwise in affairs known to all men, where not speculation,

but performance, becomes essential, As we are more concerned with

morals than with eloquence, it is not our province to introduce the

personality of the orator, but to define the rights of the governor.

=II. How the Lawmaker Should Act.=

The maker of laws should not practise disputation, but should

administer justice. Nor is it fitting that he should appear to have

framed the law by contention, but in an orderly manner. For the

transaction of public affairs does not demand, as a reward of his

labors, the clamor of theatrical applause, but the law destined for the

salvation of the people.

=III. What Should be Required of the Lawmaker.=

First, it should be required that he make diligent inquiry as to the

soundness of his opinions. Then, it should be evident that he has acted

not for private gain but for the benefit of the people; so that it may

conclusively appear that the law has not been made for any private or

personal advantage, but for the protection and profit of the whole body

of citizens.

=IV. What the Conduct of the Lawmaker Should Be in his Daily Life.=

The framer of laws and the dispenser of justice should prefer morals

to eloquence, that his speech may be characterized rather by virtuous

sentiments, than by elegance of expression. He should be more eminent

for deeds than for words; and should discharge his duties rather with

alacrity than with reluctance, and not, as it were, under compulsion.[1]

=V. How the Lawmaker Should Impart Advice.=

He should be mindful of his duty only to God and to himself; be liberal

of counsel to persons of high and low degree, and easy of access to

the citizens and common people; so that, as the guardian of the public

safety, exercising the government by universal consent, he may not, for

personal motives, abuse the privileges of his judicial office.

=VI. What Manner of Speech the Lawmaker Should Use.=

He should be energetic and clear of speech; certain in opinion; ready

in weighing evidence; so that whatever proceeds from the source of the

law may at once impress all hearers that it is characterized by neither

doubt nor perplexity.

=VII. How the Lawmaker Should Act in Rendering Judgment.=

The Judge should be quick of perception; firm of purpose; clear in

judgment; lenient in the infliction of penalties; assiduous in the

practice of mercy; expeditious in the vindication of the innocent;

clement in his treatment of criminals; careful of the rights of the

stranger; gentle toward his countrymen. He should be no respecter of

persons, and should avoid all appearance of partiality.

=VIII. How the Lawmaker Should Comport Himself in Private and Public

Affairs.=

All public matters he should approach with patriotism and reverence;

those concerning private individuals and domestic controversies he

should determine according to his authority and power; so that the

community may look up to him as a father, and the lower orders of the

people may regard him as a master and a lord.

He should be assiduous in the performance of his duties so that he may

be feared by the commonalty to such a degree that none shall hesitate

to obey him; and be so just that all would willingly sacrifice their

lives in his service, from their attachment to his person and to his

office.

=IX. What Instruction it is Fitting that the Lawmaker Should Give.=

Then, also, he should bear in mind that the glory and the majesty of

the people consist in the proper interpretation of the laws, and in the

manner of their administration. For, as the entire safety of the public

depends upon the preservation of the law, he should attempt to amend

the statutes of the country rather than the manners of the populace;

and remember that there are some who, in controversies, apply the laws

according to their will, and in pursuance of private advantage, to such

an extent that what should be law to the public is to them private

dishonor; so that, by perversion of the law, acts which are illegal

are often perpetrated, which should obviously be abolished through the

power of the law itself.

TITLE II. THE LAW.

=I.= _What the Lawmaker Should Observe in Framing the Laws._

=II.= _What the Law Is._

=III.= _What the Law Does._

=IV.= _What the Law Should Be._

=V.= _Why the Law is Made._

=VI.= _How the Law Should Triumph over Enemies._

=I. What the Lawmaker Should Observe in Framing the Laws.=

In all legislation the law should be fully and explicitly set forth,

that perfection, and not partiality, may be secured. For, in the

formation of the laws, not the sophisms of argument, but the virtue

of justice should ever prevail. And here is required not what may be

prompted by controversy, but what energy and vigor demand; for the

violation of morals is not to be coerced by the forms of speech, but

restrained by the moderation of virtue.

=II. What the Law Is.=

The law is the rival of divinity; the oracle of religion; the source of

instruction; the artificer of right; the guardian and promoter of good

morals; the rudder of the state; the messenger of justice; the mistress

of life; the soul of the body politic.

=III. What the Law Does.=

The law rules every order of the state, and every condition of man;

it governs wives and husbands; youth and age; the learned and the

ignorant; the polished and the rude. It aims to provide the highest

degree of safety for both prince and people, and, in renown and

excellence, it is as conspicuous as the noon-day sun.

=IV. What the Law Should Be.=

The law should be plain, and not lead any citizen to commit error or

fraud. It should be suitable to the place and the time, according to

the character and custom of the state; prescribing justice and equity;

consistent, honorable, worthy, useful, and necessary; and it should

be carefully noted whether its provisions are framed rather for the

convenience, than for the injury, of the public; so that it may be

determined whether it sufficiently provides for the administration of

justice; whether or not it appears to be contrary to religion, and

whether it defends the right, and may be observed without detriment to

any one.

=V. Why the Law is Made.=

Laws are made for these reasons: that human wickedness may be

restrained through fear of their execution; that the lives of innocent

men may be safe among criminals; and that the temptation to commit

wrong may be restrained by the fear of punishment.

=VI. How the Law Should Triumph over Enemies.=

Domestic peace having been once established and the plague of

contention having been entirely removed from prince, citizen, and the

populace, expeditions then may be made safely against the enemy and

he may be attacked confidently and vigorously, in the certain hope of

victory; when nothing is to be anticipated or feared from dissensions

at home. The entire body of the people being prosperous and secure,

through the influence of peace and order, they can set forth boldly

against the enemy and become invincible, where salutary arts are

aided by just laws. For men are better armed with equity than with

weapons; and the prince should rather employ justice against an enemy

than the soldier his javelin; and the success of the prince will be

more conspicuous when a reputation for justice accompanies him, and

soldiers who are well governed at home will be all the more formidable

to a foe. It is a matter of common experience, that justice, which has

protected the citizen, overwhelms the enemy; and that those prevail in

foreign contests who enjoy domestic peace; and while the moderation of

the prince insures temperance in the enforcement of the law, so the

united support of the citizens promotes victory over the enemy. For

the administration of the law is regulated by the disposition and

character of the king; from the administration of the law proceeds the

institution of morals; from the institution of morals, the concord of

the citizens; from the concord of the citizens, the triumph over the

enemy. So a good prince ruling well his kingdom, and making foreign

conquests, maintaining peace at home, and overwhelming his foreign

adversaries, is famed both as the ruler of his state and a victor

over his enemies, and shall have for the future eternal renown; after

terrestrial wealth, a celestial kingdom; after the diadem and the

purple, a crown of glory; nor shall he then cease to be king; for when

he relinquished his earthly kingdom, and conquered a celestial one, he

did not diminish, but rather increased his glory.

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