CONCERNING THE CONDUCT OF CAUSES.
TITLE I. CONCERNING JUDGES AND MATTERS TO BE DECIDED IN COURT.
=I.= _When Amended Laws should come in Force._
=II.= _The Royal Power, as well as the Entire Body of the
People, should be Subject to the Majesty of the Law._
=III.= _It is Permitted to No One to be Ignorant of the Law._
=IV.= _The Business of the King shall First be Considered,
then that of the People._
=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._
=VI.= _Concerning Those who Abandon the King, or the People,
or their Country, or who Conduct Themselves with
Arrogance._
=VII.= _Of Incriminating the King, or Speaking Ill of Him._
=VIII.= _Of Annulling the Laws of Foreign Nations._
=IX.= _No One shall presume to have in his Possession
another Book of Laws except this which has just been
Published._
=X.= _Concerning Fast Days and Festivals, during which No
Legal Business shall be Transacted._
=XI.= _No Cause shall be Heard by the Judges which is not
Sanctioned by the Law._
=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._
=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._
=XIV.= _What Causes shall be Heard, and to what Persons Causes
shall be Assigned for a Decision._
=XV.= _Judges Shall Decide Criminal as well as Civil Causes._
=XVI.= _Concerning the Punishment of Those who Presume to Act
as Judges, who have not been Invested with Judicial
Power._
=XVII.= _Concerning Those who Ignore the Letters of the Judge,
or His Seal, Calling Them to Court._
=XVIII.= _Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently or Ignorantly._
=XIX.= _Where a Judge, either through Convenience to Himself,
or through Want of Proper Knowledge, Decides a Cause
Improperly._
=XX.= _Where a Judge, either through Deceit or Cunning,
imposes Needless Costs upon Either, or Both the
Parties to a Suit._
=XXI.= _What, First of All, a Judge should be Familiar With,
in order that he may Understand a Case._
=XXII.= _Where the Integrity of a Judge is said to be Suspected
by Any One of Honorable Rank, or where a Judge
presumes to render a Decision Contrary to Law._
=XXIII.= _How a Judge should render Judgment._
=XXIV.= _Concerning the Emoluments and the Punishment of the
Judge, and of the Bailiff._
=XXV.= _Everyone who is Invested with Judicial Power Shall
Legally bear the Title of Judge._
=XXVI.= _Every Bond which is Exacted by a Judge, after an
Unjust Decree, shall be held Invalid._
=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._
=XXVIII.= _Concerning the Power, conferred upon Bishops, of
Restraining Judges who Decide Wrongfully._
=XXIX.= _The Judge, when Inquired of by a Party, should be able
to give a Reason for His Decision._
=XXX.= _Concerning the Punishment of Judges who Appropriate
the Property of Others._
=XXXI.= _Concerning those who Treat the Royal Order with
Disdain._
=XXXII.= _How the Judge should Inquire into Causes by the
Ordeal of Hot Water._
=I. When Amended Laws should come in Force.=
In assigning their place to laws which have been amended, we have
considered it proper to give them the most important tank, for,
as clearness in the laws is useful in preventing the misdeeds of
the people, so obscurity in their provisions interferes with the
course of justice. For many salutary edicts are drawn up in obscure
and contradictory language, and are instrumental in promoting the
controversies of litigants; and, while they should put an end to
chicanery, they, in fact, give rise to new sophisms and abuses. For
this reason, therefore, litigation increases; disputes between parties
are encouraged; the judges become undecided, so that, in attempting to
dispose of false claims and charges, they are unable to form definite
conclusions, as all seems perplexed and uncertain. And because all
questions which arise in suits at law, cannot be disposed of in a
few words, except those which have been determined in our presence;
we have decided that certain laws should be amended in this book;
that doubtful matters should be made clear; that profit should be
extracted from those things that are evil; clemency from those that
are mortal; clearness from those that are obscure; and that perfection
should be given to those that are incomplete; whereby the people of
our kingdom, whom our peaceful government alone restrains, may be
checked and controlled, hereafter, by the aid of said amended laws.
And therefore, these laws as amended, and approved by us, and our new
decrees, as set forth in this book and its titles, as well as such as
may be subsequently added, shall be enforced from the second year of
our reign, and the twelfth Kalends of November, and shall be binding
thereafter upon all persons subject to our empire, irrespective of
rank. Those laws, however, which we have promulgated against the
offences of the Jews, we decree shall be valid from the date when they
were confirmed by us.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=II. The Royal Power, as well as the Entire Body of the People, should
be Subject to the Majesty of the Law.=
The Omnipotent Lord of all, sole Founder and Provider of the means of
human salvation, ordered the inhabitants of the earth to learn justice
from the sacred precepts of the law. And, because the mandate of
Divinity has been thus imposed upon the human race, it is fitting that
all terrestrial creatures, of however exalted rank, should acknowledge
the authority of Him whom even the celestial soldiery obey. Wherefore,
if God should be obeyed, justice should be highly esteemed, which, if
it were thus esteemed, would be constantly practised, as every one
loves justice more truly and ardently when a feeling of equity unites
him with his neighbor.[2] Willingly, therefore, carrying out the Divine
commands, let us give temperate laws to ourselves and to our subjects;
laws such as we and our successors, and the whole body of the people,
may readily obey; so that no person of whatever rank or dignity may
refuse to submit to the power of the law, which the necessity and will
of the King has deemed it proper and salutary to inculcate.
=FLAVIUS RECESVINTUS, KING.=
=III. It is Permitted to No One to be Ignorant of the Law.=
All true science declares that ignorance should be detested.[3] For
while it has been written, “he need not understand who desires to act
with propriety,” it is certain that he who does not wish to know,
despises an upright life. Therefore, let no one think that he can do
what is unlawful because he was ignorant of the provisions of the laws,
and what is sanctioned by them; for ignorance does not render him
innocent, whom guilt has subjected to the penalties of the criminal.
=FLAVIUS RECESVINTUS, KING.=
=IV. The Business of the King shall First be Considered, then that of
the People.=
God, the Creator of all things, in his arrangement of the human form,
placed the head above the body, and caused all the different members of
the latter to originate from it, and it is, therefore, called the head;
there being formed the brightness of the eyes, by which all things
that produce injury can be discerned; there being born also the power
of intelligence, through which the members connected with, and subject
to, the head, may be either controlled or protected. For this reason it
is the especial care of skilful physicians to provide the remedies for
the head before treating the other members of the body; which, indeed,
may not be thought unreasonable, when properly explained; because,
if the head should be healthy, it is reasonable to suppose that the
other members can be readily cured. For if disease attacks the head,
health cannot be imparted by it to the members which are constantly
being wasted by weakness. The most important duties of the prince are,
therefore, the preservation of health and the defence of life; so that
the proper method may be adopted in the conduct of the affairs of the
people; and while the health of the king is cared for, the preservation
of his subjects may be the better maintained.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=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.=
Earthly greatness appears the more sublime when compassion for our
neighbors is displayed; and, therefore, it should be the duty of every
monarch to pay more attention to the safety of his subjects than to his
own personal advantage. For the greater the number of his subjects,
the greater the benefit to be derived by him from them; as, however
much the king may desire to profit by his individual efforts alone,
there is little to be gained therefrom. Hence, the wellbeing of the
people, whose bounds are not defined by the will of one, but affect the
prosperity of all, is directly concerned. Wherefore, that the favor
of the prince may not seem to be manifested rather in words than in
deeds, he should be attentive to the unspoken wishes of his subjects;
and thus unsolicited compassion may often effect what otherwise crowded
assemblies would hardly be able to obtain.
For the reason that, in former times, the unbridled greed of princes
despoiled the people of their possessions, and the wealth of the state
was persistently wrung from the misery of its citizens; as we have
already given laws to the subject, we deem it in accordance with the
teachings of the Holy Spirit to place restraints upon the exactions
of the prince. Hence, after sincere deliberation, as well for our own
glory as for that of our successors; God being our mediator; we decree
that no king shall, by any means, extort, or cause to be extorted,
any documents whatever in acknowledgment of any debt, whereby any
person can unjustly, and without his consent, be deprived of his
property. And, if by the free will of any one the king should receive
a gift, or should openly profit by any transaction, the character of
the transaction or contribution should be clearly set forth in the
document; by which means either the influence of the prince or the
fraud of his accomplice may be readily detected. And, if it should
appear that the document had been exacted from any one against his
will, either the dishonesty of the prince shall be atoned for, and
he shall cancel his corrupt contract, or, if he should be dead, the
document shall be declared void as against him from whom it was
extorted, or his heirs, and this shall be done without delay.[4] But
the ownership of property whose acquisition is free from all suspicion,
shall vest absolutely in the prince, and be his own forever. And
whatever disposition he wishes to make of any of these things, he can
make according to his judgment. But as sincerity and truth confirm all
matters of this kind, whenever any documents are made for the advantage
of the prince, the witnesses who have attested those documents shall
be carefully examined, and if no indication of corrupt or forcible
influence by the prince is apparent, or should any fraud in the
execution of the document be detected; according to these circumstances
the instrument shall either stand as properly made, or, having been
proved to be illegal, it shall be declared void.
Similar arrangements concerning lands, vineyards, and bodies of slaves
shall be observed, even when such disposition has been made of them
verbally and in the presence of witnesses. In regard to all property
that has been acquired by princes since the time of King Chintilanus,
or that hereafter shall be acquired by others; and whatever property
a king has left, or shall leave undisposed of, when it is proved to
have been acquired by the head of the government; we decree that it
shall belong to his successor in the kingdom, and he shall have the
power to dispose of it according to his pleasure. But property obtained
from relatives, or inherited from parents, shall descend to his sons,
or, if he have no sons, to his legitimate heirs, as their rights may
appear, or as they are acknowledged by the laws of succession: but if
it should happen that he has left undisposed of any property inherited
from his parents or his relatives, or derived from any contribution, or
obtained by any legal contract; it shall belong, not to the successor
of the kingdom, but to the sons or heirs of him who has thus acquired
it. For whatever the prince is known to have possessed before his
accession to the throne, either as his own property, or gained through
honorable transactions with others, he shall have absolute power to
dispose of according to his will, and his sons shall have full right to
its inheritance; but, if he should have no sons, such property as he
did not dispose of, shall descend to his lawful heirs. This law shall
apply solely to, and shall be observed in, the affairs of the prince,
and shall be forever enforced, and no one shall ascend the royal throne
before making oath that he will observe it in all its details.
Whoever, either through an insurrection of the people, or by secret
machinations, shall attain to supreme power, shall, with all his
adherents, be accursed, and shall be excommunicated from the society
of all Christians; and every Christian who shall have any intercourse
with him shall undergo the same condemnation and pay the same penalty.
And if any one holding an office in the royal palace, shall, through
malice, criticise this law, or evade it in any way, or murmur against
it; or shall have been convicted of having openly condemned it; he
shall be deprived of all his employments and privileges, shall be
stripped of half of all his possessions, shall be forcibly restrained
of his liberty, and be excluded from the society of the palace. Any
one in holy orders who has shared his offense, shall undergo the same
confiscation of his property.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Concerning Those who Abandon the King, or the People, or their
Country, or who Conduct Themselves with Arrogance.=
The extent to which the country of the Goths has been afflicted by
domestic strife, and by the injuries caused by deserters and their
abominable pride, is not generally known; yet it is evident in the
diminution of the population; and these disturbances are the source
of more trouble to the country than enterprises against the enemy.
Therefore, that such contemptible conduct may be abolished, and the
manifest crimes of these transgressors may no longer go unpunished, we
have decreed by this law, which shall prevail through all ages, that
whoever, from the time of King Chintilanus of sacred memory, until the
second year of our reign, has deserted, or shall desert to the enemy;
or shall repair to any foreign country; or even has wished, or shall
wish, at any time, to act with criminal intent against the Gothic
people; or shall conspire against his country; or, perchance, has
attempted at any time to conspire against it; and has been, or shall
be captured or detected in the commission of any of these offences;
and if, either from the first year of our reign has attempted, or,
hereafter, any one within the limits of the country of the Goths shall
attempt, to foment any disorder, or cause any scandal to the detriment
of our government, or of the people; or, what is unworthy to be even
mentioned, may have seemed to have plotted our death or injury, or
shall hereafter plot against subsequent kings; or has appeared, or
shall appear, to manifest, in any way, the intentions of a traitor;
whoever shall be found guilty of all of these crimes, or of any one
of them, shall undergo sentence of death; nor shall any leniency be
shown him, under any condition, except that his life alone may be
spared through the considerate pity of the prince. But this shall
not be done until his eyes have been put out, so that he may not see
the wrong in which he wickedly took delight, and may henceforth drag
out a miserable existence in constant grief and pain. The property
of such atrocious criminals shall belong absolutely to the king, and
whoever he bestows it upon shall possess it in security forever; and
no succeeding king, at any time, shall presume to review the cause,
or shall interfere, in any way, with this sentence. But, as many are
found who, having been implicated in these, and in similar wicked
designs, and have fraudulently transferred their property to the
Church, or to their wives, or to their sons and friends, or to other
persons; or have secretly conveyed said property to foreign countries,
in order that they may claim said property, and demand its possession
thereafter; when, in fact, none of said property has been alienated,
and the papers evidencing its transfer are fraudulent, making false
representations under an appearance of truth; therefore, we have
decided to abolish this most iniquitous fraud by the decree of this
law; so that, wherever documents have been drawn up with a manifest
intention to wrong or deceive, any property owned by a person who has
been convicted of such criminal practices shall be confiscated for the
use of the royal treasury; and it is hereby declared that all such
property above mentioned shall be at the disposal of the king, and he
shall hereafter do with it whatever his judgment dictates, but whatever
other provisions relating to a fraud of this description are contained
in other laws, are hereby confirmed in all their force.
All persons to whom pardon has been granted by preceding kings are
expressly excepted from the penalties of this decree; and if, through
motives of humanity, the king should wish to bestow anything upon a
criminal, it should not be taken from the property belonging to the
malefactor, but must be obtained from such other source as it may
please the king; and it shall be only lawful for him to give an amount
equal to the twentieth part of the inheritance of the criminal.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=VII. Of Incriminating the King, or Speaking Ill of Him.=
As we have forbidden all persons to either plot treason, or to
institute violence against the king, so it shall also be unlawful to
either accuse him of crime, or utter maledictions against him. For the
authority of the Sacred Scriptures does not permit evil to be spoken
of one’s neighbor, and declares that he who curses the prince, is an
offender against the people. Wherefore, whoever shall accuse the prince
of crime or shall utter curses against him, and, instead of humbly and
respectfully admonishing him as to his life, shall boldly insult him
with pride and contumely; or, in order to degrade him, shall refer
to him in ignominious, base, and injurious language; if the offender
should belong to the nobility or to a family of high rank, no matter
whether he is a member of the clergy or of the laity, as soon as he has
been detected and convicted, he shall forfeit half of all his property,
which the prince shall have the privilege of disposing of according to
his pleasure. If, however, he should belong to the lower classes, or
those without dignity and position, both his property and his person
shall be at the absolute disposal of the king. And even should the king
be dead, these same provisions shall apply to whoever dares to defame
his memory.[5] For the living vainly cast the darts of slander against
the dead, who, having departed this life, cannot be affected by abuse,
or influenced by criticism. But, for the reason that he is evidently
insane who heaps detraction upon one who cannot comprehend it; the
slanderer shall receive fifty lashes, and his presumption shall be
silenced. But the privilege is given freely to all, while the prince is
either living or dead, to discuss all matters pertaining to any cause
he may have before the legal tribunals and to use such arguments as may
be proper and right, and obtain such judgment as he may be entitled
to; for, by this means, we endeavor to establish reverence for human
dignity, as well as to maintain faithfully the justice of God.
=FLAVIUS CHINTASVINTUS, KING.=
=VIII. Of Annulling the Laws of Foreign Nations.=
We both permit and desire that the laws of foreign nations shall be
studied for the sake of the useful knowledge that may be obtained from
them, but we reject and prohibit their employment in the business of
the courts. For although they may be couched in eloquent language, they
abound in difficulties; and so long as the methods, principles and
precepts contained in this body of laws suffice for the purposes of
justice, we are unwilling that anything more be borrowed, either from
the Roman laws, or from the institutions of foreigners.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=IX. No One shall presume to have in his Possession another Book of Laws
except this which has just been Published.=
No one of our subjects, whosoever, shall presume to offer to a judge
as authority, in any legal proceeding, any book of laws excepting this
one, or an authorized translation of the same; and any person who does
this shall pay thirty pounds of gold to the treasury.[6] And if any
judge shall not at once destroy such a prohibited book when it is
offered him, he shall undergo the above named penalty. But we decree
that those shall be exempt from the operation of this law, who have
cited former laws, not for the overthrow of ours, but in confirmation
of causes which have previously been determined.
=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=
=X. Concerning Fast Days and Festivals, during which no Legal Business
shall be Transacted.=
No litigation shall be commenced on Sunday, for religion should take
precedence of all legal matters, and upon that day no one shall presume
to subject another to annoyances either for the trial of a case, or
for the payment of a debt; nor shall any person be permitted to bring
a suit at Easter; that is, for fifteen days, the seven which precede
the celebration of that festival, and the seven which follow it.
The days of Christmas, of the Circumcision, of the Epiphany, of the
Ascension, and of Pentecost shall be observed with the same reverence;
and, in like manner, during the harvest festivals, from the fifteenth
Kalends of August, to the fifteenth Kalends of September, the same
pious conformity shall be required. But in the province of Carthage,
by reason of the constant ravages of the locust, we decree that the
harvest festival shall be celebrated from the fifteenth Kalends of July
to the fifteenth Kalends of August; and, on account of the vintage,
from the fifteenth Kalends of October to the fifteenth Kalends of
November.
This provision we decree shall be obeyed by all; so that, during
these festivals, no one may be summoned to court, or subjected to
prosecution, unless the suit in which he is concerned has already
been brought before the judge. For there can be no reason, if the
action should still be undecided, that he who has been sued should be
placed at any disadvantage on account of holidays. And if either of
the parties is a person of credit and honor, he may depart the court,
under his promise to return. But if he should be of doubtful faith, he
shall provide securities for such time as is necessary; either until
the cause has been decided, or until the judge shall appoint a time for
it to be heard. An exception should be made, however, against those
who have committed a crime punishable with death, who may be arrested
upon any of the hereinbefore mentioned days, and kept in close custody,
until Sunday or the above-named festivals shall have passed, when they
shall be subjected to the vengeance of the presiding judge. The harvest
or vintage festivals shall, in no way, interfere with the punishment
of criminals and malefactors worthy of death. But the law shall not
hold him excusable who, not yet having been brought into court, knows
that he shall eventually be summoned there, and who, concealing himself
for the rest of the time, appears in the presence of him to whom he is
liable, only on the festival days aforesaid, thinking that, through
no process of the law, he can be held until the cause is heard: such
a person we decree shall be placed under restraint until the case of
plaintiff shall have been disposed of. And if there should be any one
concerning whose good faith there may be suspicions, and who cannot
find security, he shall remain in custody, until, the holidays having
expired, the cause in which he has been summoned shall be decided. And
if any one shall presume to act contrary to the decree of this law,
and shall come to the judge with a complaint upon the days which are
prohibited, as aforesaid, he shall be scourged in public with fifty
lashes.
=XI. No Cause shall be Heard by the Judges which is not Sanctioned by
the Law.=
No one has a right to hear a cause which is not authorized by the laws;
but the governor of the city or the judge, either in person, or by
their messengers, may cause both parties to appear before the king,
that the matter may be disposed of at his discretion; and, after this
promulgation, such decisions shall have all the force of law.
=FLAVIUS RECESVINTUS, KING.=
=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.=
Whatever legal proceedings have heretofore been begun, but remain
unfinished, we decree shall be disposed of according to these laws. But
those causes which, before these laws have been amended by us, have
been legally decided, that is, according to the tenor of the laws which
prevailed previous to our reign, shall under no circumstances whatever
be revived. But, if the judgment of the prince should approve it, and
conditions require it, he shall have the right to add other laws, which
shall have the same validity and force as those now in existence.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=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.=
It shall be lawful for no one to decide causes unless authorized
either by the mandate of the prince, or by the consent of the parties
evidenced by an agreement made in the presence of three witnesses,
and attested by their seals or signatures. If those, however, who
have received from the king authority to preside in court, or those
who exercise judicial functions either through the appointment of
magistrates or judges, should delegate their powers in writing to
others who are properly qualified, the latter shall have the same power
in determining or settling affairs pertaining to their offices, as the
judges themselves, or the other officials from whom they received their
commissions.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XIV. What Causes shall be Heard, and to what Persons Causes shall be
Assigned for a Decision.=
While deputies are permitted to render judgment in certain criminal
and civil cases, they must not presume to release criminals under the
sentence of the law, but shall see that said sentence is duly executed;
and those who choose such deputies, should solemnly impress upon them
that, during their absence, they should act with moderation and decide
with justice.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XV. Judges Shall Decide Criminal as well as Civil Causes.=
The judges shall have all of the business of the court under their
control, as they have full authority to dispose of all criminal
and civil business. But Defenders of the Peace cannot dispose of
other causes than those which the royal power has permitted them to
determine. The Defender of the Peace is he who has been appointed by
the royal authority for the sole purpose of settling legal disputes
between the parties.
=FLAVIUS CHINTASVINTUS, KING.=
=XVI. Concerning the Punishment of Those who Presume to Act as Judges,
who have not been Invested with Judicial Power.=
No one shall presume, either by decree, or by means of a bailiff, to
either imprison or oppress any person, in any way, in a district over
which he has not been appointed, or where he has no judicial authority,
unless by the order of the king, or by agreement of the parties,
or under instructions of a governor or a judge, in accordance with
what has been stated in a former law relating to the appointment of
judges. And, where a non-appointed judge, as aforesaid, is guilty of
usurpation, and unlawfully presumes to do things that are prohibited;
as soon as this fact shall come to the knowledge of the governor
of the province, whether he is acting in his own proper person, or
by a deputy, he shall cause the illegal act to be punished; and the
magistrate who has thus exceeded his authority shall pay a pound of
gold to him whose rights have been affected, if insult or injury have
alone been committed. But if said person who has illegally assumed
judicial functions, shall boldly deprive anyone of any property, or
order it to be done, he shall not only make restitution, but shall be
compelled to surrender an equal amount of his own property to the party
injured. And if any judge shall appoint his own slave, or the slave of
another, to transact any legal business, the judge who appointed him
shall render full satisfaction to the law for whatever injustice said
slave shall commit. Any bailiff who, acting under the orders of such
an usurper of judicial authority, shall arrest or imprison any one, or
remove any of his property, shall be scourged with a hundred lashes,
and, in this way, shall pay the penalty of his insolence.
=FLAVIUS CHINTASVINTUS, KING.=
=XVII. Concerning Those who Ignore the Letters of the Judge, or His
Seal, Calling Them to Court.=
When application has been made to the judge by a plaintiff, he may
compel the other party to come into court, either by means of a letter
or by his seal, in this manner, to wit: that the messenger of the
judge shall offer the letter or seal to him who has been summoned, in
the presence of respectable witnesses. And if after having received
said summons, he should either delay, or refuse to appear, he shall
forfeit five golden _solidi_ to the plaintiff, on account of his
delay or refusal, and five more to the judge on account of contempt.
But if he should not have the means to pay this fine, he shall, for
each offence, receive fifty lashes in the presence of the judge, but
they must be so inflicted as to place upon him no permanent mark of
infamy. But if he should only be guilty of contempt, and should not
have the means wherewith to render satisfaction, he shall receive
thirty lashes, without further penalty. And if he who has been sued
shall declare, before he receives punishment from the judge, that he
has, in no way, been guilty of delay or contempt, and shall be unable
to prove this fact by witnesses, and shall make oath that, at no time,
has he been guilty of contempt as aforesaid, he shall be exempt from
the condemnation and punishment hereinbefore mentioned. But if any
bishop, relying upon the privileges of the sacerdotal order, shall
ignore the summons of the judge, and neglect to give security for
his appearance, he shall, without delay, be compelled, either by the
presiding judge, or by the governor or lord of the province, to pay
a fine of fifty _solidi_: of which sum the judge shall receive
twenty _solidi_, on account of contempt, and the plaintiff the
remaining thirty. But if any priest, deacon, clerk, or monk, after
receiving the letter or seal of the judge, should delay to answer
either in his own person or by a representative, or should continue
obstinately in contempt, he shall undergo the punishment hereinbefore
mentioned, according to the provisions of the law relating to the
laity; and if he should not have the means to pay his fine, the bishop
may be notified, that he may have the privilege of paying the same for
him, if he so desires. But if he should be unwilling to do so, the
bishop must bind himself by oath, in the presence of the judge, that he
will place the above-named person under such restraint that he shall be
compelled to fast continuously for the space of thirty days, and shall
only receive each day at sunset, a little bread and water; that, by
this means, his contumacy may be punished in a proper manner. It shall
always be in the discretion of the judge, that if it should be evident
that, either through age or sickness, a severe sentence could not be
endured; the judge shall not inflict the extreme penalty upon any one
belonging to any rank of the clergy, or upon a layman; but the illness
or age of the offender being taken into consideration, he may impose
such a penalty that the person in contempt may not thereby undergo
either great weakness or exhaustion, or death. Any one who refuses to
obey the mandate of the judge, and conceals himself, so that the judge
cannot easily find him, and does not present himself in court within
four days after the appointed time, but presents himself upon the fifth
day, shall not be subject to the sentence of this law. In like manner,
if any one who, at the time, is distant more than a hundred miles,
should appear upon the eleventh day after the appointed time, he shall
not undergo the penalty of this law. And also, if he who is distant two
hundred miles, should present himself in court on the twenty-first day
after he has been summoned; he shall be free from punishment under this
law. And a similar regulation shall prevail where the length of the
journey is still longer. And, finally, if he to whom reasonable time
has been given, should purposely delay, and does not appear, upon the
last day prescribed by law, the judge shall at once grant the prayer of
the plaintiff; and if, subsequently, the other party should appear in
court, and the twenty-first day shall have passed, he shall be fined
twenty _solidi_ of gold. And if he that is distant more than a
hundred miles, should exceed the term of eleven days, he shall be
liable to a fine of ten _solidi_: of which the judge shall reserve
for himself half, and the other half shall be given to the plaintiff.
But if sickness should prevent one who is summoned from appearing; or
if he should be hindered by an inundation; or his paths across the
mountains should be obstructed by snows; this must plainly appear; and
the truth must be established either by credible witnesses, or by the
oath of the party himself.
=FLAVIUS CHINTASVINTUS, KING.=
=XVIII. Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently, or Ignorantly.=
If any one should file a complaint against another before a judge, and
the latter should refuse to hear him, or deny him the use of his seal,
or, under different pretexts, should delay the trial of his cause, not
permitting it to be heard, through favor to a client or a friend, and
the plaintiff can prove this by witnesses, the judge shall give to him
to whom he has refused a hearing, as compensation for his trouble, a
sum equal to that which the plaintiff would have received from his
adversary by due course of law; and he who brought the suit may have
it continued until the time appointed by law; and, when it comes
before the court for trial, he shall receive the judgment to which he
is entitled. But if the plaintiff should be unable to prove either the
fraud or undue procrastination of the judge, the latter shall make
oath that he, through no malice, nor through favor or friendship, has
delayed the hearing, and, by reason of this oath, the judge shall in no
manner be deemed guilty.
The judge shall be permitted, for two days in every week, or every
day during the noon hour, to desist from holding court, and to repose
in quiet at home. But, for the remaining time, he shall attend to the
business of his office, and, without any unnecessary delay, determine
such matters as may be brought before him.
=XIX. Where a Judge, either through Convenience to Himself, or through
Want of Proper Knowledge, Decides a Cause Improperly.=
If any judge should render judgment for the sake of gain, and direct
that any one should be treated with injustice, he who has been
benefited by the decision of the said judge shall make restitution.
And the judge himself, who has thus acted contrary to the precepts of
equity, shall surrender to the losing party the same amount of his own
property, as he has ordered him to be deprived of; that is to say,
that in addition to the restitution that has been made, he shall, in
satisfaction for his improper conduct, give to him whom he unjustly
condemned, a sum equal to that which was disposed of by his decree. But
if he should not have sufficient property wherewith to make amends,
he shall be deprived of all that he is known to possess, and shall be
delivered as a slave to him to whom he is indebted, or, after having
been exposed in public, he shall receive fifty lashes. But if he shall
have rendered an unjust judgment through ignorance, and can declare
under oath that he has done this only through want of knowledge, and
not through partiality or cupidity, or for the sake of profit, his
judgment shall be invalid, and he himself shall not be considered
guilty.[7]
=FLAVIUS CHINTASVINTUS, KING.=
=XX. When a Judge, either through Deceit or Cunning, Imposes Needless
Costs upon Either, or Both the Parties to a Suit.=
It is part of our duty quietly and carefully to admonish judges not
to subject litigants to unnecessary delay, or impose heavy costs upon
them. But, if it appears that, through craft or cunning, a judge has
so delayed matters that one or both parties have suffered injury, he
shall be compelled to refund to them all costs that have been incurred
after eight days from the time the action was begun; the facts having
been established under oath. But if either through illness or from
considerations of public utility, the judge should be prevented from
performing his duties, he shall not subject the litigants to delay, but
shall dismiss them at once, and shall appoint a time for the hearing of
the cause.
=XXI. What, First of All, a Judge should be Familiar With, in order that
he may Understand a Case.=
In order that he may be perfectly familiar with a case the judge should
first interrogate the witnesses; then he should examine the documents,
if any there be; and, that the truth may the more certainly be
determined, the oaths of the parties should finally be taken with all
due reverence. The true investigation of justice demands that written
instruments should take precedence over everything else; and that
necessity alone justifies the administering of oaths to the parties.
But in those cases where there is no documentary evidence, or other
proof, or where the judge shall not be able to decide without it, the
parties to the suit shall be sworn.
=FLAVIUS CHINTASVINTUS, KING.=
=XXII. Where the Integrity of a Judge is said to be Suspected by Any
One of Honorable Rank, or where a Judge presumes to render a Decision
Contrary to Law.=
If any one should declare that he suspects the integrity of either a
judge, a governor, a vice-governor, or any other official, and demands
access to his superior, or shall even allege that he has suspicions
of that superior himself, he shall not be subject to delay on this
account, especially if he should be poor. But those who decide the
case shall do so with the bishop of the diocese, and their opinions
and judgment shall be reduced to writing, and be signed by them; and
he who has declared that he suspected the judge, should he desire to
bring a suit against him, after judgment has been rendered in the
case in question, shall have the right to summon that judge to appear
before the king. And if a judge or an ecclesiastic should be convicted
of having decided wrongfully in any cause, the property of which the
complainant has been deprived shall be restored to him, and an equal
quantity of property shall be given him by way of satisfaction, by
those who are proved to have rendered an unrighteous judgment. And
if anyone should lodge an unjust complaint against a judge, and it
should appear that the cause in question has been properly decided,
the accuser shall undergo the same penalty which the judge would have
suffered. And if he should not have the property wherewith to make
amends, after having been exposed in public he shall receive thirty
lashes in the presence of the judge himself.
If anyone, however, should allege that he possesses information which
relates to the interests of the Crown, access to our presence shall not
be denied him.
=FLAVIUS CHINTASVINTUS, KING.=
=XXIII. How a Judge should render Judgment.=
If the lawsuit is important, of matters involving the ownership of
valuable property are in question, the judge shall, in the presence of
both parties, make two copies of the decree, which shall be exactly
similar in text and signature, and each party shall be given one of
them. But where affairs of minor importance are concerned, only such
things as have been testified to in favor of him who prevailed, shall
be reduced to writing by the judge. He who has been defeated shall be
entitled to a transcript of the decree and of the testimony of the
witnesses, should he desire it. But if the party who has been brought
into court in any case, shall declare in the presence of the judge
that it is not necessary for the plaintiff to introduce any evidence,
the judge shall put the decree in writing, and confirm it with his
signature, however insignificant the action may be, in order that the
matter may not, under any circumstances, be brought up again in the
future. But if, under an order of the court, one party should offer
witnesses, and, at the time that their testimony is to be heard, the
other party should absent himself without the knowledge of the judge,
the testimony of the witnesses shall be received, and what they have
established by their evidence shall be given in writing, under seal, to
him who produced them. It shall not be lawful for him who fraudulently
left the court to afterwards offer any evidence in the case, but he
shall have the privilege, before the death of any witness who has
testified against him, to adduce any reasonable accusation against
him, which shall be heard by the judge; and if the accused witness
should have been manifestly guilty of perjury, his testimony shall be
rejected. And if, after such examination, all the witnesses should be
impeached but one, he who has offered the testimony, must produce other
witnesses to prove his case, within the space of three months. But, if
he is unable to find any, the property in question shall remain in the
possession of him who formerly held it. The judge shall always keep
copies of the judgment which he has rendered, to prevent a renewal of
any controversies in the future.
=FLAVIUS CHINTASVINTUS, KING.=
=XXIV. Concerning the Emoluments and the Punishment of the Judge, and of
the Bailiff.=
There are some judges who, on account of cupidity, and in violation
of the provisions of the law, presume to reserve for themselves the
third part of the property involved in the causes which are brought
before them; wherefore, we now decree by the present law, in order to
effectually abolish this practice, that no judge shall accept more for
his trouble, after the case has been properly considered and decided,
than has been fixed by a former law, to wit, twenty _solidi_.
If any one should fraudulently attempt to extort more than this sum,
he shall lose the entire compensation which he would have lawfully
received; and also, because he has unjustly appropriated more than
twenty _solidi_, contrary to the provisions of the law, he shall
pay double that amount to him from whom he directed it should be
taken. And likewise, because we are aware that certain bailiffs who
busy themselves in the affairs of others, receive greater compensation
for their labor than they deserve; we also decree by this law, that
no bailiff who is employed in any lawsuit, shall have more than ten
_solidi_ for his fee. And if any one should presume to extort more
than this established amount, he shall not only lose his legitimate
fee, but also he shall restore to the person from whom he received it,
double the amount which he has extorted. The fees of both judge and
bailiff shall be paid by the party against whom judgment is rendered;
and if a case should occur where a settlement cannot be made, the
legal compensation of the judge and the bailiff shall be required of
both parties. The same rule shall apply to a debtor who did not return
upon the appointed day, the money which he has borrowed; as well as to
one who unjustly retains the property of another; and also, in cases
of partition, where both parties demand their rights from the judge,
it shall be required of each of them, that he pay to the court his
portion of the fees aforesaid. And, likewise, where no crime has been
proved; or no contempt, unlawful possession, or indebtedness have been
established; this provision shall be in force, and the fees of the
judge and the bailiff shall be paid by both parties.
In cases of partition, where one of the parties causes unnecessary
delay; as soon as the fact shall come to the knowledge of the judge,
he may exact his fee and that of the bailiff from him who has delayed
to assert his claims within the specified time. If any corrupt bailiff
should fail to execute an order of the judge, when the property
involved is worth an ounce of gold, or less, the bailiff shall pay
to him who is entitled to the judgment, a _solidus_ of gold;
and where the property is worth more, he shall pay for every ounce,
a _solidus_, on account of his delay. And if the property in
question should be worth more than two ounces, and not more than a
pound of gold, said bailiff shall receive ten lashes, and the number of
lashes shall increase with the number of pounds of gold.
If the cause or the party is of minor importance, and the bailiff
must travel to perform his duties, he shall be entitled to two common
horses, from the plaintiff, in addition to his fees. But if the cause
should be important, and the party of high rank, the bailiff shall
not be entitled to demand more than six horses for the purpose of his
journey.
=FLAVIUS RECESVINTUS, KING.=
=XXV. Every one who is Invested with Judicial Power shall Legally bear
the Title of Judge.=
As the remedies of the law are applied in many ways, it is decreed,
that a duke, count, vicar, deputy, and any other official, who, either
by the royal order, or by consent of the parties, has been, or shall
be, selected to determine questions of law; or any person of whatever
rank invested with the legal right to preside in court; as well as
all to whom has been delegated the power to decide causes; shall be
invested with the name of judge, and shall be entitled to the rights,
and subject to the liabilities of that office, whether these relate to
the emoluments or the penalties attaching to the same.
=XXVI. Every Bond that is Exacted by a Judge, after an Unjust Decree,
shall be held Invalid.=
We occasionally find that justice is distorted, and deprived of its
proper force, by unjust judges; and see injustice, confirmed by their
decrees, prevail in its stead. And, indeed, certain judges after they
have rendered unjust decrees, cause one or both the parties to bind
themselves in writing, in order that the wrongful judgment that has
been rendered may not at any time thereafter be remedied; but where
such a transaction is not fair and honorable, but entered into with
the manifest intention of oppressing any one whose cause is just, the
matter may be reviewed; and all obligations relating thereto shall be
declared invalid, and not, in any way, authorized by law.
=FLAVIUS RECESVINTUS, KING.=
=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.=
Sometimes the influence of power defeats the ends of justice, and
although it often prevails, it is certain that it always inflicts
injury; for, when the abuse of authority once causes oppression, it
never permits the restoration of justice to its original integrity.
Therefore, as judges through fear, or at the command of princes,
sometimes decide questions contrary to law, for the sake of the peace
of our kingdom we have determined to cure two diseases with one remedy;
declaring that when it should have been discovered that any document
has been drawn up, or any judgment rendered, not according to justice
or to the established laws, but by the command or through the dread
of the king, then that which is evidently contrary to justice and to
the laws shall be void; and those who have rendered the judgment or
have caused it to be rendered, shall receive no mark of infamy, nor be
subjected to any punishment whatever; and any judge shall be immune
from the penalties of the law, if he will swear that he has decided
wrongfully, not through his own depravity, but on account of royal
compulsion.
=FLAVIUS RECESVINTUS, KING.=
=XXVIII. Concerning the Power, conferred upon Bishops, of Restraining
Judges who Decide Wrongfully.=
We direct the ministers of God, to whom the Divine authority has been
committed to remedy the misfortunes of oppression and poverty, that
they admonish, with paternal piety, such judges as oppress the people
with unjust decrees, by which means such wrongs may be remedied. But if
any magistrate, invested with judicial functions, has either decided
unjustly, or has imposed a wrongful sentence upon any one, then the
bishop in whose diocese this has been done, shall summon the judge who
is alleged to have acted unjustly, and shall render a just decision,
sitting along with him, in the presence of ecclesiastics, or other
persons of respectability. But if the judge, moved by perversity,
refuses to correct the iniquitous judgment given by him, after the
bishop has exhorted him to do so, then the bishop shall have the
privilege of reviewing the case, and of rendering judgment alone; and
the wrongful decision of the judge, subsequently set aside by him,
as well as his own decision, shall be committed to writing, and be
deposited among the records of the court. The bishop shall so act
toward the party who has been oppressed, and liberated by him from
that oppression, that truth may be established and confirmed by our
authority. If the judge should prevent the party whom he has oppressed
from appearing before the bishop, he shall forfeit two pounds of gold
to the king.
=FLAVIUS CHINTASVINTUS, KING.=
=XXIX. The Judge, when Inquired of by a Party, should be able to give a
Reason for His Decision.=
Every judge is hereby admonished that if a demand is made upon him by
any one, he shall give the reasons, in their proper order, for the
decision he has made; and this he shall do, either in the presence of
the governor of the city, or of those whom the governor has chosen to
represent him. And if the matter has been brought before the king,
those judges whom the king shall appoint for the purpose, shall decide
the cause, without the presence of the bishop and the other judges.
And if, after the action has been brought to an end, either before the
bishop or before the governor, either of the parties should present
himself, a second time, with the royal order, he who heard or decided
the cause in the first place, must account for his conduct to those who
have been specially appointed judges by the royal decree; so that in
case he should be found to have rendered an improper decision, he may
give satisfaction therefor to the plaintiff before the law. And if the
plaintiff shall have filed an unjust complaint, he shall be condemned
to suffer the legal penalty prescribed for the same.
=FLAVIUS RECESVINTUS, KING.=
=XXX. Concerning the Punishment of Judges who Appropriate the Property
of Others.=
While it is evident that judges have been appointed for the purpose
of remedying evils, some of them, on the other hand, with all the
insolence of power, attempt to attack those very things which,
according to the principles of equity, they ought to defend. For, once
invested with authority, some judges do not hesitate to assume illegal
control over the property of others; and do not fear, under almost any
pretext, to subject them to unreasonable expense in the exercise of
official tyranny. Henceforth, any judge who shall take any property
belonging to another, contrary to an order of court, or in violation
of law, or shall injure said property in any way, shall be condemned
to suffer the same penalty which he, acting in his judicial capacity,
would have imposed upon any one guilty of the same offence.
=FLAVIUS RECESVINTUS, KING.=
=XXXI. Concerning those who Treat the Royal Order with Disdain.=
Any freeman who shall have been convicted of having disobeyed the royal
summons, or shall have been proved to have acted in such a manner that
his duplicity is apparent, and shall say contrary to the truth, that
he has neither seen nor received the summons; if he is a person of
noble birth, he shall pay three pounds of gold to the treasury; but,
if he should not have sufficient property to pay this fine, he shall
receive a hundred lashes with the scourge, without any degradation of
rank. But if he should have been prevented from travelling by sickness,
tempest, inundation, or snow, or by unavoidable trouble of any kind,
and this should be established by the testimony of reliable witnesses,
he shall not be considered guilty of disobedience to the royal order,
or be liable to any punishment, as it is evident that the delay was the
result of manifest necessity.
=XXXII. How the Judge should Inquire into Causes by the Ordeal of Hot
Water.=
We are aware that many persons assert that they have received injuries
at the hands of freeborn citizens; and it is our opinion that torture
should be applied in such instances, where an amount exceeding three
hundred solidi is involved; and we now declare this to be a salutary
measure, and decree that whenever crime has been committed by any
one, where a small amount of property is concerned, the ordeal by hot
water be instituted by the judge; and should the accused appear to be
guilty, the judge shall not hesitate to put him to the torture, and
after confession has been obtained, he shall inflict upon the criminal
the sentence of the law provided in such cases. If, after the test,
he should prove to be innocent, his accuser shall incur no reproach
whatever. This test shall also be applied to suspicious persons who
present themselves in court to give testimony against others.[8]
TITLE II. CONCERNING CAUSES.
=I.= _No One can Refuse to Answer because the Plaintiff has
Never Presented his Claim to Him._
=II.= _The Court must be Disturbed by no Clamor or Tumult._
=III.= _Where there are Many Litigants, Two may be Chosen who
shall have Power to carry on the Suit._
=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._
=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._
=VI.= _Both Parties shall be Required to Furnish Testimony._
=VII.= _Concerning the Journey which any one Compels an
Innocent Person to Make._
=VIII.= _Where any one Residing in the District of one Judge has
a Cause of Action against a Party Living in the
District of another Judge._
=IX.= _Concerning Those who Venture to Defend the Suits of
Others._
=X.= _No Freeman shall Refuse to Answer the Slave of another
in Court._
=FLAVIUS RECESVINTUS, KING.=
=I. No One can Refuse to Answer because the Plaintiff has Never
Presented his Claim to Him.=
No one can interpose a defense to the action of any plaintiff by saying
that the latter has no right to bring a suit, because he has not made
formal demand upon him for his claim, unless he can show that the time
within which the suit may be brought, has expired.
=FLAVIUS CHINTASVINTUS, KING.=
=II. The Court must be Disturbed by no Clamor or Tumult.=
The court shall not be disturbed by any tumult or clamor whatever;
those who have no interest in the case shall be compelled to withdraw;
and only such as are known to be concerned in the proceedings shall
come into the presence of the court. But if the judge desires
spectators to be present, he can permit it, in case he should wish to
confer with them about the case. But if he should be unwilling, no one
shall be allowed to enter the court room, either to aid one party by
improper suggestions, or to interpose objections to the conduct of the
other, whereby either party may be unnecessarily annoyed. And if any
one, having been admonished by the judge to be silent, should not obey,
nor desist in his attempts to aid either party, and should, in defiance
of this warning, continue to interfere, he shall be compelled to pay
ten golden _solidi_ to the judge. And if he should still persist
in his conduct, he shall be unceremoniously ejected from the court.
=III. Where there are Many Litigants, Two may be Chosen who shall have
Power to carry on the Suit.=
If the litigants are more numerous on one side than on the other, both
sides, in turn, shall select from their number, parties to carry on
their case. For all ought not to participate in the conduct of the
action, but, as we have said, those chosen by both sides should alone
appear in court, so that all noise and confusion may be avoided.
=FLAVIUS CHINTASVINTUS, KING.=
=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.=
Often, through the negligence of the judges or the bailiffs, when
security is not required of the parties, one or the other of them
unnecessarily suffers inconvenience or injury. For when one party is
present in court, and the other is absent, no little expense is often
incurred by the former. Therefore, we decree that all judges, and all
upon whom judicial power has been conferred, whenever the time arrives
in any suit for the giving of security; or when a cause is about to be
heard, or settlement to be made; both parties, that is the plaintiff
as well as the defendant, shall be required to give bond, that, upon
the day appointed for trial, either in person, or by representatives,
they shall be present in court, in order that the case may be heard,
or the claim otherwise disposed of; and if either party should refuse
to come, and absent himself upon the appointed day; or if sickness,
or any accident during his journey, should prevent him from coming;
and he should not communicate the fact to the judge or his attorney;
and should not appear in court within the time prescribed by law, and
the case should be delayed on that account; he shall pay the amount
of the bond to him before whom he entered into the obligation. And if
either the judge or the bailiff should neglect to exact security from
both parties, as aforesaid, and, while compelling one party to give
bond should excuse the other, he shall pay out of his own property, a
sum equal to that for which he wished to make him liable whom alone he
placed under bond. And if, to the injury of either party, the judge or
the bailiff should restore to one the undertaking which he had exacted
from the other, or should destroy or conceal it, he shall pay him on
account of whom the bond was executed, out of his own property, a
penalty equal to that which was inserted in the bond.
He who brought the suit may then insist that it be carried on without
further delay. The penalty, although declared in the bond to be payable
to the judge or the bailiff, shall not entirely belong to them; but,
after the case has been decided, they shall be entitled to half of said
penalty, and the other half shall be given to the party who gains the
suit.
=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.=
If cases are not permanently disposed of by the temperate decision
of the judge, not only do great difficulties arise in settling the
disputes of litigants, but the course of justice is often interfered
with, through the irreconcilability of adverse claims; for many
persons, after they have brought their disputes before the royal
tribunal to be finally determined, in order to avoid the legal penalty
for their conduct, settle, by agreement between themselves, the cause
which they have brought to the hearing of the king. Lest, therefore,
any party by means of such a fraud may escape the justice of the court,
we decree, by this law, that whoever, hereafter, shall apply to the
royal tribunal for the determination of his case against another,
shall, under no circumstances, absent himself, or make any compromise
with his adversary, but shall prosecute the cause already begun until
the king shall have given a decision in the matter. And, if either
plaintiff or defendant should neglect to carry on the action before the
king, or before those whom he has chosen to hear it, or should enter
into any arrangement with the other party, each shall pay to the Crown
the sum which he who filed the petition, could have obtained, had he
gained the suit; and whatever shall be thus obtained by the king in
this proceeding he can dispose of at his pleasure. All those shall be
liable to a similar penalty, who seek to have their disputes settled
by a judicial decision, and, after the cause has been begun, refuse to
proceed with it and presume to compromise with one another.
The judge and the bailiff shall have the right to divide the aforesaid
penalty between them. But if the parties should not have sufficient
property to pay said penalty, each shall receive one hundred lashes
with a scourge, and the judge shall terminate the suit forthwith. We
decree, however, that those shall be free from the operation of this
law to whom the royal mandate was especially directed, as well as those
whom the judge, who heard the cause, shall have dismissed, after a
settlement has been effected with his consent.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Both Parties shall be Required to Furnish Testimony.=
Whenever a cause is heard, both parties, that is, plaintiff as well as
defendant, shall be required to produce evidence, and the judge shall
decide which side is entitled to a decree. But if, after the testimony
has been taken, the truth does not appear to have been established,
the defendant shall declare under oath that the property in question,
if any has been demanded of him, has never been, and is not now, in
his possession, and that he is not aware of any reason why he should
be sued, and that he truly does not know that he has done anything
to render him liable, in any way, to the party who complains of him,
and after the defendant has thus made oath, the plaintiff shall be
compelled to pay him five _solidi_.
=FLAVIUS RECESVINTUS, KING.=
=VII. Concerning the Journey which any one Compels an Innocent Person to
Make.=
All those whose innocence is established, should be free from injury,
and exempt from annoyance by unprincipled men. Henceforth, whenever any
one shall cause another to be wrongfully summoned before the king, or
brought, without cause, before a court; as soon as it has been proved
that the claim of the plaintiff was not well founded; if the party
has, in obedience to a summons, been compelled to come fifty miles,
or less, he shall receive from the plaintiff five _solidi_, on
account of the unjust demand by the latter. If he has been forced to
come a distance of sixty miles, the unjust plaintiff shall pay him six
_solidi_; and so on, the number of _solidi_ increasing at the
rate of one for every ten miles; and, for the distance of one hundred
miles, ten _solidi_ shall be given by said plaintiff to him who
has been subjected to annoyance and trouble; and thus the number of
_solidi_ shall increase as aforesaid, in the ratio of five for
every fifty miles, and ten for every hundred miles; the amount of
pecuniary satisfaction being always proportionate to the length of the
journey.
=FLAVIUS CHINTASVINTUS, KING.=
=VIII. Where any one Residing in the District of one Judge has a Cause
of Action against a Party Living in the District of another Judge.=
If any freeman or slave has a cause of action against anyone residing
outside of the province in which he lives, and within the jurisdiction
of another judge, the judge of the district to which the plaintiff
belongs shall send a letter under his signature and seal, to the other
judge, and direct him to hear the cause of the complainant, without
delay; and if he should neglect or deny this request, then the judge
in whose district the plaintiff resides, shall seize as much of the
property belonging to the judge to whom he sent the letter, as the sum
amounts to, concerning which the plaintiff brought the suit; wherever
he can find said property in his jurisdiction; which property, however,
must not be delivered into the possession of the plaintiff. And he who
receives it shall hold it, so that, when the case has been disposed of,
the costs and expenses may be paid out of the income derived from the
same. If the judge who, on the reception of the letter from the other
judge, refused to hear the cause of the plaintiff, should afterwards
conclude to do so, such property of his as was seized by the former
judge, shall be restored to him without delay; but none of the amount
which has been expended for reasonable costs shall be returned. And
if, after the case has been decided according to the rules of justice,
the judge shall be found to have lost anything by reason of the unjust
demands of the plaintiff, then the latter shall make full restitution
to the said judge, and shall be compelled to pay him in addition, an
equal amount from his own property. And if that judge who was the cause
of the delay, has no property, in the jurisdiction of the other judge
who notified him, wherewith to reimburse the plaintiff, the latter
judge may seize the property of the former, wherever he can find it,
even when it is not in his jurisdiction; or he may deliver to the
plaintiff a memorandum under his seal, in which the amount of the sum
involved is set forth, by authority of which the plaintiff may have the
power to seize said property.
If one whose property was illegally taken for a debt should complain
of this to the king, the judge, or the governor; a judge convicted of
unnecessary delay in hearing the case, shall pay all damages incurred,
and four times their amount besides, out of his own purse. But if a
creditor should privately accept from his debtor, a sum equal in value
to the amount of property involved, the judge cannot be required to
give satisfaction as above stated. If the judge who was notified should
hear the cause of the plaintiff without delay, and should find that
there is no justice in his claim, he must send a copy of the decree in
writing, carefully made out, and signed with his hand and sealed with
his seal, to the judge by whom he has been notified, as hereinbefore
stated. And if, after the decision, the wrong-doing of him who made
the claim should appear; if he is a freeman, he shall pay double the
amount of the property involved, that is, a sum equal to what the other
party lost, and as much more. Any slave who shall have been detected
in the commission of such acts, shall receive one hundred lashes
with the scourge; shall be scalped as a mark of infamy; and shall at
once restore the entire amount of property which he had seized, as
security.[9] And all concerned in the seizure, if they are slaves, and
did so willingly, shall each receive a hundred lashes; but if they are
freemen, they shall restore to the owner as much as they are proved to
have taken from him, without the sum usually given as indemnity by him
who has been convicted of having acted wrongfully in similar cases.
=IX. Concerning Those who Venture to Defend the Suits of Others.=
Whoever has recourse to a person of high rank or influence, that,
through his aid in court, he may be able to oppress his adversary,
shall lose his case, even though his cause be just; and as soon as the
judge perceives that any powerful person is interfering in a case, he
shall order him to desist. But if the said person should defy the
judge, and, obstinately resisting, should refuse to leave the court,
or to cease interfering with the proceedings, the judge shall have
authority to fine him two pounds of gold, one of which shall be for his
own benefit, and the other for the benefit of the party injured by the
said powerful adversary, and the latter shall be violently thrown out
of court. Any freeman or slave who refuses to desist from interference
with the business of the court, after having been warned by the judge,
shall receive fifty lashes with the scourge, in public.
=FLAVIUS CHINTASVINTUS, KING.=
=X. No Freeman shall Refuse to Answer the Slave of another in Court.=
In order that insolence may be the more easily punished, the law
regards excuses as superfluous. Sometimes freemen do not hesitate to
injure the slaves of others, and then refuse to answer the petition
of a slave in court; declaring that they should not be compelled to
answer any one from whom they cannot collect damages, if they should
chance to be victorious. But lest, through this delay, the slave
himself should unjustly suffer injury; though his master should be
distant fifty miles, or any objection should be made by his master
on account of his employment at the time; after due deliberation, we
hereby decree that a hearing shall be denied to no one. If, however, a
slave should assert that he has any claim of his own, or any business
to transact in court on behalf of his master or mistress, he against
whom he files a complaint, shall straightway be compelled to appear and
answer; and, in the end, make such compensation as is authorized by
law, if he be vanquished by the slave; but if the slave is unable to
prove what he has adduced, then the freeman shall declare under oath
that he has no knowledge of, nor has in his possession, the property
to which claim is made; nor has done, nor has caused to be done, any
of those things of which he is accused. And, after this oath has been
taken, the slave or the freeman, as the case may be, must not delay to
make amends for filing his unjust complaint. But if, in the settlement
of these damages, where the claim is for a small amount, it should
appear that his master is only worth ten _solidi_, the slave shall
be compelled to pay only half the penalty, that is to say, two half
_solidi_. But if it should appear that the master of the slave is
distant less than fifty miles, his slave cannot bring an action against
any freeman, unless the master is unable, in person, to be present in
court; or should send a letter, written in his own hand, and signed
with his signature, authorizing the slave to appear for him, by the
latter as messenger to the judge.
If the slave, acting on behalf of his master, should cause him any
injury, either through fraud or neglect, or should lose the case, it
shall be lawful for the master to have it reviewed, either upon his
own application, or upon that of a lawful representative, and have it
justly decided by the testimony of such witnesses as he may be able to
produce.
TITLE III. CONCERNING COMMISSIONERS AND COMMISSIONS.
=I.= _Princes and Bishops should not Conduct their Cases in
Court in Person, but through their Subjects or
Subordinates._
=II.= _The Judge must inquire of a Litigant, whether the Suit
brought by Him is his Own, or that of Another._
=III.= _He who cannot Conduct his Cause Himself must give
Written Authority to his Attorney._
=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._
=V.= _If He who has Appointed an Attorney Suffers Delay, he
can Revoke his Commission._
=VI.= _It shall not be Lawful for a Woman to Act as an
Attorney, but She may Conduct Her Own Case in Court._
=VII.= _The Constituent shall receive the Benefit, and bear the
Loss, resulting from Proceedings Instituted by his
Attorney._
=VIII.= _If a Representative should die, his Heirs shall be
entitled to his Fees._
=IX.= _What Persons those in Power, and those that are Poor,
may appoint to Conduct their Cases._
=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._
=FLAVIUS RECESVINTUS, KING.=
=I. Princes and Bishops should not Conduct their Cases in Court in
Person, but through their Subjects or Subordinates.=
As it is the office of persons in power to decide questions of law,
and as, in many instances, they should not be needlessly subjected to
the annoyances resulting from litigation; therefore, if either the
king or a bishop should have a lawsuit with any one, he may select
a personal representative to whom the transaction of the business
shall be intrusted; for the reason that it would seem an insult to the
dignity of persons of such high rank, if those of a lower class should
contradict their evidence in court. And again, if the king should
choose to personally assume the conduct of his case in any matter, who
is there who would dare to contradict him? Therefore, lest the fear of
royal power should suppress the truth, the case should be conducted,
not by the king, but by some of his subjects.
=II. The Judge must inquire of a Litigant, whether the Suit brought by
Him is his Own, or that of Another.=
The judge must, in the first place, make inquiry of a litigant whether
he is conducting his own case, or that of another. He shall also be
asked whom he represents; and, after the judge has decided the case,
he shall include in the decree him by whose order the action was
prosecuted, and, in addition, he shall receive a copy of the authority
of the representative, to be filed with the record of the judgment. And
it shall be lawful for the defendant to examine the commission given
by the plaintiff, in the presence of the judge, so that he may know,
without doubt, for what reason he was brought into court, as well as
ascertain the contents of the order granting the authority.
=III. He who cannot Conduct his Cause Himself, must give Written
Authority to his Attorney.=
If any one is unable to conduct his own cause, or is unwilling to do
so, he must appoint a representative, by an instrument in writing,
under his own hand, confirmed by the seals and signatures of witnesses.
And if any such representative should be guilty of collusion with his
adversary, so that he is defeated, he shall pay to his principal, as
much of his own property as the latter has lost, or as much as he ought
to have obtained. But it shall not be lawful for a slave to conduct
any case whatever, through the commission of another, unless on behalf
of his master or mistress, or of the Church, or of some poor person,
or under the commission of the royal treasury. If, through either
the neglect or misconduct of the judge, or through the perjury of a
witness, the provisions of this law should not be carried out, then it
shall be the duty of the king to enforce the same.
=FLAVIUS CHINTASVINTUS, KING.=
=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.=
No person of noble rank shall, under any circumstances, be put to the
torture by authority of a commission given to another. It is, however,
hereby permitted that any freeborn person of low rank who is poor,
and has already been convicted of crime, may be tortured under such a
commission; but only when the principal gives authority in writing to
do this, signed by him, and attested by three witnesses, which shall
be entrusted for delivery, to a freeman, and not to a slave. And if
he should cause the torture to be inflicted upon an innocent person,
the aforesaid principal is hereby admonished, that he has incurred
the penalty of the law which is found in the sixth book, first title,
second chapter; wherein it is stated for what things freeborn persons
are to be put to the question. It is lawful for other criminal causes
to be prosecuted under commission; and, as has been said above,
tortures may be applied to a freeman by the representative of another
who is also free. And it is granted by the law to a freeman or a slave,
to subject a slave to torture, with this provision, to wit: that if
either torture or injury should be inflicted upon an innocent person,
the principal shall be compelled to give complete satisfaction, under
the instructions of the judge. Nor is he to be discharged who received
the commission, until either the principal may be produced in court, or
shall make amends according to law. And whoever desires to inflict the
torture, having received authority to do so under a commission, shall
be compelled by the judge to give bond.
=V. If He who has Appointed an Attorney Suffers Delay, he can Revoke his
Commission.=
He who conducts a case as the representative of another should
proceed with it as rapidly as possible; and if he is dilatory, and
the case which should have been prosecuted with alacrity, is retarded
unnecessarily, or is fraudulently postponed, the principal may have
recourse to the judge. And if he who receives the commission to conduct
the case should, through malice or corruption, cause delay for ten days
after he has received the order of the judge to proceed with the same,
the adversary or the judge being present, then the principal can either
conduct the case himself, or appoint any one else whom he may select,
to conduct it for him.
=ANCIENT LAW.=
=VI. It shall not be Lawful for a Woman to Act as an Attorney, but She
may Conduct Her Own Case in Court.=
No woman can conduct a case under the authority of another, but she is
not forbidden to transact her own business in court. Nor can a husband
conduct the case of his wife without authority from her; and, indeed,
he should protect himself with such an instrument in writing, that
the wife may not repudiate the whole proceeding; and if she should
repudiate it, the husband shall undergo the penalty to which he is
liable who presumed to conduct a case without the authority of his
wife. And if the husband should lose a case which he prosecuted without
the order of his wife, her rights shall in no way be prejudiced; and
she can afterwards either prosecute the case herself, or can authorize
any one she wishes to do whatever is proper in the matter. And if
the case should justly go against the husband, and the wife should
believe that the adversary who prevailed should again be sued; and,
after the second trial, it should be apparent that her husband was not
unjustly beaten in the first trial, the wife shall render satisfaction
as prescribed by law, not only to the judge who first heard the case,
but also to the other party whom she brought into court for the second
time.
=ANCIENT LAW.=
=VII. The Constituent shall receive the Benefit, and bear the Loss,
resulting from Proceedings Instituted by his Attorney.=
He who authorizes a case to be conducted by another as his attorney,
shall enjoy the profit, or endure the loss resulting from the same,
according to the circumstances; and he who carried on the action in
compliance with his instructions, and exerted himself faithfully in
the performance of his duty, shall not be deprived of his commission
by his constituent; nor shall the latter be permitted to afterwards
transfer the conduct of the case to another; because it is unjust that
he who is known to have labored faithfully in the business which he
has undertaken, should be deprived of his reward. He who is about to
assume the conduct of a case should have an understanding with his
constituent beforehand, and ascertain what amount he is to receive as
a recompense for his services after the cause has been decided. And if
he who conducted the case shall neglect to deliver to his constituent,
within three months, any property which came into his hands under the
decree, he shall lose the compensation for his services which he would
otherwise have received; and shall be compelled by order of court to
deliver to his constituent, whatever he was entitled to under the
decision.
=VIII. If an Attorney should Die, his Heirs shall be entitled to his
Fees.=
Where any person authorizes another to conduct a case for him, and
dies before it is heard, said authority shall determine; and if he who
received it should be surprised by death before the cause is heard,
then also the order addressed to him before his death shall have no
validity. But if the cause has been heard and energetically prosecuted
through his diligence, and yet, for some reason or other, it was not
entirely concluded, or some payment should remain to be made before
final settlement; and if the case has been prosecuted as far as he who
was commissioned to conduct it should have carried it; then, his heirs
shall be entitled to receive from the constituent whatever compensation
their ancestor would have been entitled to.
=FLAVIUS CHINTASVINTUS, KING.=
=IX. What Persons those in Power, and those that are Poor, may appoint
to Conduct their Cases.=
It shall not be lawful for any one who selects an attorney to conduct
his case, under any circumstances, to appoint a person who is more
powerful than himself, so that the capacity to oppress, or terrify, may
be greater than his own. For if a powerful person should be involved in
a lawsuit with one who is poor, and is unwilling to conduct it himself,
he cannot appoint any one else to carry it on but one of equal standing
with, or perhaps inferior to, the other party. But, on the other hand,
if a poor man chooses, he may select as his attorney any one of equal
rank and power with his adversary.
=FLAVIUS CHINTASVINTUS, KING.=
=X. Those who have Charge of the Royal Treasury, when a Suit is brought
for its Benefit, have authority to appoint whom they wish to represent
them.=
Nothing should be done rashly in matters relating to the royal
treasury. And whenever it appears advisable to proceed against any one
on behalf of the treasury, he who is charged with that duty shall have
the right to conduct the case before either the governor of the city,
or the judge. If, however, he should happen to be absent from the place
where the business is to be transacted, or should be prevented by any
accident, or even should be unwilling to appear in his own person, he
shall have the unquestionable right to appoint any one he chooses, to
bring an action in which the public interests are involved.[10]
TITLE IV. CONCERNING WITNESSES AND EVIDENCE.
=I.= _Concerning Persons who are not Permitted to Testify._
=II.= _Witnesses shall not Testify except under Oath; Where
both parties offer Witnesses which should be
Believed; and Where a Witness Testifies Falsely._
=III.= _Where a Witness Testifies Orally, and Written Evidence
Contradicts Him._
=IV.= _A Slave shall not be Believed unless he Belongs to the
Crown; and When Royal Slaves shall be Believed._
=V.= _A Witness shall not give His Testimony in Writing, but
Orally, and How Testimony should be Given._
=VI.= _Concerning Those who give False Testimony._
=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._
=VIII.= _Concerning Those who Induce Others to give False
Testimony; or Encourage the Slaves of Others to Seek
their Liberty._
=IX.= _In what Causes Slaves can Testify._
=X.= _Concerning Those who Bind themselves in Writing, not to
give True Testimony in the Causes of Others._
=XI.= _At what Age Minors can Testify._
=XII.= _A Near Relative, or a Kinsman, of a Party to a Suit,
cannot give Testimony against a Stranger._
=FLAVIUS CHINTASVINTUS, KING.=
=I. Concerning Persons who are not Permitted to Testify.=
Murderers, malefactors, thieves, criminals, poisoners, ravishers,
perjurors, or those who are addicted to the practice of sorcery or
divination, shall under no circumstances be permitted to testify.
=II. Witnesses shall not Testify except under Oath; Where both parties
offer Witnesses which should be Believed; and Where a Witness Testifies
Falsely.=
The judge, as soon as the cause is heard, the witnesses having been
sworn according to law, shall render judgment. No witnesses shall be
permitted to testify without having first been sworn. If evidence
should be offered by both sides, its weight shall be duly considered,
and the judge shall determine on which side it preponderates.
If any one, after having been warned by the judge, should refuse to
testify concerning any matter within his knowledge; and should either
say that he does not know the facts, and hesitates to take the oath, or
should suppress the truth through favor to any one, or through bribery;
if he is a person of noble rank, he shall not be permitted to give
testimony afterwards in any cause in court, nor shall his testimony be
taken in any proceeding whatever. But if he who refuses to testify,
should be an ordinary citizen, or a person of inferior rank, he shall
be considered infamous, and shall receive a hundred lashes; because it
is no less criminal to suppress the truth, than to commit perjury.
=FLAVIUS CHINTASVINTUS, KING.=
=III. Where a Witness Testifies Orally, and Written Evidence Contradicts
Him.=
Whenever a witness testifies to something contrary to what is contained
in any document, which he is known to have signed, although he
may directly contradict the text of the document, the latter shall
be preferred as evidence. But if witnesses should testify that the
document offered is not valid, he who introduced it must confirm it by
the testimony of witnesses; and if he cannot prove it by them, and by
the production of other documents, the judge must require the witness
who denies that it is in his hand, to write a similar document, in
order that the truth may be the more readily established. And the judge
shall make every effort to find other documents which may be compared
with the one in question. And if all these efforts should fail, he
shall not delay to make the witness swear that he had never signed the
document; and if, afterwards, in any way it should become evident, that
the latter had lied for the purpose of suppressing the truth, he shall
be branded with the mark of infamy; and, if he is a person of high
position, he shall be compelled to pay, by way of satisfaction, to the
person affected by his false testimony, double the sum which the latter
would have lost.[11] But if he is a person of inferior rank, and has
not sufficient property wherewith to make amends, he shall never again
be allowed to testify, and shall receive a hundred lashes with the
scourge.
In regard to the two credible witnesses, whose evidence the authority
of a former law declared should be received as sufficient; it must
be required, not only that they should be reputable, that is,
unquestionably freemen, but also of honorable rank and possessed of
property. For care must be taken lest any one oppressed by poverty, and
unable to bear his privations, should, without due reflection, perjure
himself.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. A Slave shall not be Believed unless He Belongs to the Crown; and
When Royal Slaves shall be Believed.=
A slave is not to be believed at all if he should try to prove any
one else guilty of crime, or if he should endeavor to implicate
his master in any offence. And even if he should be subjected to
torture, and should confess what he has done, still he must not be
believed; an exception, however, being made in the case of such
slaves as have been transferred to the royal service, and are
deservedly honored with the offices of the palace; that is to say,
the chiefs of the grooms, of the fowlers, of the silversmiths,
and of the cooks; or any besides these who are superior to them
in rank or position. Moreover, to any slaves who are well and
favorably known to the king, and who have never been guilty of
depravity or crime, permission is granted by the law to testify,
as well as to persons who are freeborn. But it must not be thought
that other slaves in the royal service can be called as witnesses,
for no credit shall attach to any of them, unless the king should
especially authorize their testimony to be taken.[12]
=FLAVIUS CHINTASVINTUS, KING.=
=V. A Witness shall not give His Testimony in Writing, but Orally; and
How Testimony should be Given.=
Witnesses shall not give testimony by letter, but present, in person,
they shall be required to tell the truth, as far as lies in their
knowledge. Nor shall they testify concerning foreign matters, but only
concerning those which they know to have taken place under their own
eyes. But if the witnesses, or their relatives, or friends, should
either be oppressed with age or infirmity, or resident in a foreign
or distant province, and should think that their testimony should be
taken, and if all those concerned in the case are not residents of
the same province, they shall assemble in that province, where he
who is the highest in rank among the parties lives, and, either in
the presence of the judge of the district, or of those whom he shall
select, and those interested having been duly summoned, shall give
their evidence under oath. Any other proceeding relating to such
matters shall be void and of no effect in law.[13]
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Concerning Those who give False Testimony.=
If any one should give false testimony against another, and be
detected, or should acknowledge his crime; if he is a person of rank,
he shall give as much of his own property to him against whom he
testified falsely, as the latter would have lost by his evidence, and
he shall never again be permitted to testify in court. If he is a
person of inferior rank, and does not possess the means wherewith to
make amends, he shall be delivered as a slave to him against whom he
testified falsely. But the cause shall by no means be lost by reason
of such false testimony, unless the truth shall have been established
otherwise; that is, either by a lawful and approved witness, or by just
and legal documents in writing. If any one should corrupt another,
either by a gift, or by fraud, and should thereby induce him to
perjure himself, then, as soon as this fact shall become apparent, the
instigator of the crime who aimed at the injury of another, as well
as he who was induced by avarice to swear falsely, shall undergo the
penalty of forgery.[14]
=FLAVIUS CHINTASVINTUS, KING.=
=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.=
The wickedness of those who give false testimony is not limited to this
offence merely, but attempts to add another crime to that of perjury.
And, therefore, because such detestable criminals are condemned to
death by the Divine Law, we decree that those whom judicial authority
has proved to have given false witness against their brethren, shall
henceforth not be permitted to testify, as they have already been
declared worthy of death, not by human, but by the Divine decree.
And if any one should give evidence in court concerning any matter
in dispute, and the case should be gained by his testimony, and this
witness should subsequently declare that he had given false testimony
in the first place, and should then testify in such a manner that
his former evidence shall be overthrown; he having been influenced
by friendship, or fear, or by a gift from that party against whom
he formerly testified; we decree by this new law, the old one still
remaining in force, that the testimony of said witness shall not be
entitled to credit; and that the cause in which he perjured himself
shall not be lost by reason of his testimony, unless it happens that
the judgment shall be reversed by the introduction of more reliable,
legitimate witnesses, or by means of properly verified documents; so
that it may be proper to have a rehearing of the case, and a second
decision, as hereinbefore stated. If a party desiring to accelerate
the progress of his case should produce a witness in court, and his
adversary being present, the latter should declare that he cannot offer
anything to contradict said witness, the matter in question shall be
settled by the judge in favor of him whose witness has testified. We,
however, grant the privilege to the party who declared that he did not
know what he could adduce to contradict the witness, to discover, if
possible, within six months, the means of contradicting him, and to
remedy the defects of his case. But if, within six months, he cannot
impeach this witness, and establish his infamy in court, no further
time shall be given him in which to do so, or to introduce other
witnesses in his behalf; and whatever has been proved by the aforesaid
testimony, shall remain established for all time. And, on the other
hand, if he who has the right to impeach the aforesaid witness within
six months, shall be able to prove his assertions within the appointed
time, and if he can thereby establish the infamy of said witness, it
shall be lawful for the said party to produce evidence to contradict
any witness who is living. But if it should be proved that any witness
who formerly testified, is dead, no testimony to impeach him shall be
given. Nor shall the testimony of a living witness, in contradiction
of one who is dead, ever be taken; excepting in the case of a lawful
and manifest instrument in writing, in which he who is dead, confessed,
over his own signature, that he was guilty of crime, or that he has
been rendered publicly infamous by the sentence of a court of justice.
And these statements concerning the infamy which renders any one
incompetent to testify in court are sufficient. But if a debt is due
from a person who is dead; or if he is accused of wrong; it shall be
lawful for a party, according to another law, to prove, either by a
competent witness, or by a legal document, either the existence of the
debt or the commission of the wrong; and to obtain such redress as he
may be entitled to.
=FLAVIUS CHINTASVINTUS, KING.=
=VIII. Concerning Those who Induce Others to give False Testimony, or
Encourage the Slaves of Others to Seek their Liberty.=
Any one convicted of having induced another to give false testimony
against a freeman, shall pay the same amount to him whom he attempted
to injure by that false testimony, as the latter could have justly
obtained by a judgment in court. But if a witness, asked by another
to testify, is known to have given false testimony against a freeman
or a liberated slave, and the latter has been reduced to servitude by
his evidence, and he who introduced the witness shall not have been
convicted of the fraud; the witness himself is to be subjected to the
penalty hereinbefore stated; that is, he shall be liable to him whom
he wished to injure by his testimony, for the full sum involved in the
suit. And if he should not have the means to make amends, he shall be
delivered over, with all his property, to the party he attempted to
defraud, to forever serve him as a slave. We hereby decree that the
same penalty shall be inflicted upon those who have been convicted of
giving false testimony in order to liberate the slaves of others; or
who, by their schemes, have manifested an intention to deprive freemen
of their liberty.
=FLAVIUS CHINTASVINTUS, KING.=
=IX. In what Causes Slaves can Testify.=
What relates to the general benefit of the public must not be neglected
in our decrees, nor shall the facility for committing crime be such,
that any person may think that he is exempt from the operation of the
law. Since, therefore, when an affray takes place among freemen whereby
death results, and no freeman is present who can give evidence of the
crime, slaves may testify; so that it may be ascertained from their
evidence how the homicide was committed. But for the reason that, under
other circumstances, the course of justice would be obstructed; as, for
instance, when the accused freeman shall be some distance away, or, if
at hand, should not be recognized; therefore slaves shall be permitted
to testify when no freemen were present, or those who were there are
implicated in the affair in question. But slaves shall not be allowed
to give testimony in other cases, nor in matters of great importance,
but only in such as are comparatively insignificant; as those involving
the title to lands, vineyards, or buildings, which are of lesser
moment, and concerning which disputes often arise between heirs or
neighbors. A slave shall also be believed in matters in which he is
personally interested; as, for instance, if he should be seized by
others, or be illegally detained by them, and also where another slave
has escaped; on his statement, when true, the former may be returned
to his master; and by reliable information imparted by a slave, any
dispute which has arisen on account of the ownership of another,
may be ended. Nevertheless, slaves shall be considered unworthy of
credit, unless they are known to be innocent of all crime, and are not
grievously oppressed by poverty; and their testimony can, under no
circumstances, be received to contradict that of freemen; unless, as
has been hereinbefore stated, it should happen that a homicide has been
committed.
=FLAVIUS CHINTASVINTUS, KING.=
=X. Concerning Those who Bind themselves in Writing, not to give True
Testimony in the Causes of Others.=
We are aware that many persons are in the habit of entering into
obligations in writing, binding themselves to promptly give evidence
in their own behalf, or in that of their friends; but to furnish no
information in case any one else should bring a suit against them.
And because it is well established that they are contrary to truth
and equity, all judges shall have the power to at once examine such
contracts, cancel them, and inflict a hundred lashes on all who are
mentioned in them. Yet that this punishment may not fix upon said
persons any mark of infamy, it is granted to them by this law, that
they shall afterwards have the right to testify, and that their liberty
shall, in no way, be restrained.
=FLAVIUS CHINTASVINTUS, KING.=
=XI. At what Age Minors can Testify.=
It is hereby decreed that after a boy or girl has reached his or her
fourteenth year, they shall be competent to testify in any case in
court.
=XII. A Near Relative, or a Kinsman of a Party to a Suit, cannot give
Testimony against a Stranger.=
Brothers, sisters, half-brothers, uncles, aunts, or their children,
also grandsons and granddaughters, shall not be permitted to give
evidence in court against strangers; unless relations belonging to the
same family should have lawsuits among themselves, or there should not
be any other freeman who can testify in the case.
TITLE V. CONCERNING VALID AND INVALID DOCUMENTS; AND HOW WILLS
SHOULD BE DRAWN UP.
=I.= _What Documents are Valid in Law._
=II.= _No Witness shall Testify as to the Contents of a
Document of which He is Ignorant._
=III.= _Concerning the Drawing Up of Contracts, and Other Legal
Documents._
=IV.= _Neither Children, nor Other Heirs, shall contest the
Final Disposition of Property by their Ancestors._
=V.= _Concerning the Penalties to which those are Liable who
attempt to Repudiate their Written Contracts._
=VI.= _Contracts and Agreements made by Slaves are Invalid,
unless Ordered by their Masters._
=VII.= _Concerning Dishonorable and Illegal Contracts._
=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._
=IX.= _Every Obligation, or Contract, which has been Extorted
by Force, or Fear, shall be Void._
=X.= _What Contracts entered into by Minors shall be Valid._
=XI.= _How Wills shall be Drawn Up and Proved._
=XII.= _How the Wills of those who Die during a Journey shall
be Proved._
=XIII.= _A Will must be Published in the Presence of a Priest,
or of Witnesses, within Six Months._
=XIV.= _Concerning the Comparison of Handwriting, where Doubt
attaches to any Document._
=XV.= _Concerning Holographic Wills._
=XVI.= _Concerning the Comparison of Documents, and the
Infliction of Penalties prescribed by Wills._
=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._
=FLAVIUS CHINTASVINTUS, KING.=
=I. What Documents are Valid in Law.=
All documents which have been drawn up for a year and a day, and are
known to have been executed according to law; or which are confirmed
by the seals or signatures of the parties, or of witnesses; shall
be deemed valid. Such documents also, as any person, on account of
sickness, was unable to sign, but requested witnesses to affix their
signatures thereto, in his presence, shall be equally valid. And,
also, where any one is requested to affix his seal or signature to a
document, instead of the party himself; it shall be valid only under
the condition that if the maker of said document should recover from
his illness, and desiring that that which has been thus attested be
irrevocably established, should confirm it by his own signature, then
it shall have complete validity.
If a testator should die after making a will attested by another, as
aforesaid, he who was called as a witness shall see that the will is
proved by him within six months, as provided by another law.
=FLAVIUS EGICA, KING.=
=II. No Witness shall Testify as to the Contents of a Document of which
He is Ignorant.=
Where any one is asked to witness a document of any kind, he must
not sign it before he has read it, or has heard it read. And if he
should do so, and then attempt to testify concerning what he has
done negligently, his evidence shall not be received, because he
was ignorant of the contents of the paper to which he affixed his
signature; nor shall the document be valid, because its authenticity
has not been established by legal proof.
=ANCIENT LAW.=
=III. Concerning the Drawing Up of Contracts, and Other Legal Documents.=
All contracts and agreements, which have been properly and lawfully
reduced to writing, provided they have been published for a year and a
day, shall be thereafter unalterable.
=ANCIENT LAW.=
=IV. Neither Children, nor Other Heirs, shall contest the Final
Disposition of Property by their Ancestors.=
It shall not be lawful for a son, or other heir, to contest the just
and legitimate provisions of the will of an ancestor, because it is
presumption in him who attempts to nullify the acts of his ancestors.
=V. Concerning the Penalties to which those are Liable who attempt to
Repudiate their Written Contracts.=
He who repudiates a contract, or obligation, lawfully and properly
executed, unless some more powerful person compelled him to do so by
force; and afterwards, before the cause is heard, shall pay the penalty
prescribed by the said contract, or obligation, then the latter shall
be valid. And any contract or obligation, properly drawn up between the
parties, even if it contains no penalty, shall under no circumstances,
be altered or cancelled. And whatever things are set out in writing
in contracts or obligations, shall be perfectly valid; and especially
if a party has drawn them up himself, and they have reference to any
indebtedness incurred by him.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Contracts and Agreements made by Slaves are Invalid, unless Ordered
by their Masters.=
Honor and justice both demand that, where slaves enter into contracts
in writing, or in the presence of witnesses, and not by the order of
their masters, such contracts shall be void.
=VII. Concerning Dishonorable and Illegal Contracts.=
We hereby decree that any contract or obligation, entered into by any
person whomsoever, which is injurious and unlawful, shall be void.
=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.=
The practices of wicked and depraved men should always be opposed by
the authority of the law. For the reason, therefore, that the avarice
of designing persons often fraudulently ensnares others, and induces
them to enter into contracts whereby their liberty and their property
are lost, such transactions are hereby absolutely prohibited. And
whenever a contract is entered into, the penalty for its violation
shall not be more than double the amount involved; or triple the
amount, if a sum of money be in dispute. But, under no circumstances
shall a person be permitted to pledge all his property or his person
for the debt of another, because it is manifestly unjust that any
one should be ruined personally and financially on account of such
indebtedness; and therefore, any obligation or contract made in
violation of this law, shall be void and of no effect.
=IX. Every Obligation, or Contract, which has been Extorted by Force, or
Fear, shall be Void.=
Any contract which a person of high or low rank has extorted by force
or fear; that is, if he who makes it has been put in prison, or
threatened with violent death, or undergone any punishment, or any
indignity whatever, or suffered injury of any kind, in an attempt to
compel its execution; then any obligation or agreement made under such
circumstances shall be void.
=FLAVIUS RECESVINTUS, KING.=
=X. What Contracts entered into by Minors shall be Valid.=
Minors under fourteen years of age who wish to dispose of their
property by will, or in any other manner, whether in writing, or in
the presence of witnesses, shall not be permitted to do so, unless
in case of serious illness, or impending death. But if they should
be impelled by necessity, as aforesaid all minors who are more than
ten years of age, have full liberty to make such disposition of their
property as they may desire. If, however, they should recover from
their illness, whatever they have done shall be void; unless, being ill
a second time, they should confirm what they have previously done; or,
having reached their fourteenth year, they should have full authority
to act for themselves in all matters in which they are interested. All
persons who are insane from infancy, or indeed from any age whatever,
and remain so without intermission, cannot testify, or enter into a
contract, and, if they should do so, it would have no validity. But
such as have lucid intervals, shall not be prohibited from transacting
business during those periods.
=FLAVIUS RECESVINTUS, KING.=
=XI. How Wills shall be Drawn Up and Proved.=
The last will of a dying person, whether it be signed by his hand
and those of witnesses, or confirmed by the seals and signatures of
all parties; or even if the testator could not write, or attach his
seal, and some one else be requested by him to affix his signature,
or seal, instead of his own, along with those of lawful witnesses; or
if the wishes of said testator should only be expressed verbally, in
the presence of others; where any one of the methods above stated is
adopted, the will shall be valid in law. But care must especially be
taken that those wills which are executed according to the first and
second regulations, that is, such as are signed by the testator and
witnesses, or confirmed by the seals of either of these parties, shall
be published in the presence of an ecclesiastic within six months, as
has been provided for in another law. And if it should happen that
the maker of the will, who should have signed it, attaches his seal,
the witness who has signed the will, must establish the fact by oath,
and explain why the testator attached his seal. But those wills that
are executed under the third provision hereinbefore stated, that is,
where a competent witness subscribed it at the request of the testator,
shall be considered valid if published within six months. And he who
signed the will instead of the testator, and the witnesses who had
been requested by the latter to be present, shall make oath concerning
these facts, before the judge, and shall swear that there was no fraud
in the execution of the will signed by them, but that it was drawn up
according to the wishes of the testator himself, and that they appeared
at his request, and thus the act of the agent of the testator who
subscribed the will in his stead shall be proved and confirmed. But a
will made verbally, in the presence of witnesses, which the testator,
being in extremity, was not able to put in writing, shall be fully
proved if the witnesses who heard it, and appeared at the request of
the testator, should confirm by oath, in the presence of the judge,
within the space of six months, what the testator had declared; and
this oath must be signed by the judge as well as by the witnesses. And
when the affair shall have been fully settled, the witnesses shall
receive for their trouble the thirtieth part of the property of the
defunct; but only in money, conveyances, and books, which otherwise
would belong to the heirs. The witnesses must, within six months, serve
notice upon those who are interested in the settlement of the estate,
of the disposition of the same made by the testator.
If any of the witnesses should neglect to carry out the provisions of
this law within the appointed time, they shall be liable to the penalty
of forgery; excepting, however, they should be able to prove that they
had been prevented from performing their duty within the six months
aforesaid, either through the fraud or deception of others, or by the
royal order; under which circumstances no blame shall be attached to
them.
=FLAVIUS CHINTASVINTUS, KING.=
=XII. How the Wills of those who Die during a Journey shall be Proved.=
If any one should die while on a journey, or on a public expedition, if
there should be no freeman with him, he may write his will with his
own hand. But if he does not know how to write, or if, from weakness,
is unable to do so, he may communicate his wishes to his slaves, whose
good faith must subsequently be established by the bishop and the
judge. And if the said slaves, at no time previously, have been guilty
of fraud, their statements shall be received and reduced to writing,
sworn to, and attached by the signatures of the bishop and the judge;
and afterwards, if confirmed by the royal authority, they shall be
valid.
=FLAVIUS CHINTASVINTUS, KING.=
=XIII. A Will must be Published in the Presence of a Priest, or of
Witnesses, within Six Months.=
A written will must be published within six months, either in the
presence of a priest, or of witnesses. And if any one should suppress
a will through fraud, he shall be compelled to pay as much out of his
own property to the beneficiaries of said will, as they are entitled to
according to its provisions.
=FLAVIUS CHINTASVINTUS, KING.=
=XIV. Concerning the Comparison of Handwriting, where Doubt attaches to
any Document.=
Documents of every description, where he who made them and the
witnesses to the same are dead, and in which the signature of the
former and the attestation of the witnesses appear, when brought into
court to be verified, may be proved by comparison of their seals and
signatures with those of other documents; and the proof shall be
sufficient in this investigation, if the seals and signatures of three
or four other documents, when introduced, shall be evidently those
of the parties in question. But if the documents aforesaid shall not
have been published within the time prescribed by law, they shall be
invalid.
=FLAVIUS CHINTASVINTUS, KING.=
=XV. Concerning Holographic Wills.=
It happens frequently, through necessity, that the solemnities of
the law cannot be complied with; and where the locality is such that
witnesses cannot be found, by whom any one may have his will subscribed
according to the regulations required by law, the testator may write
those things in his own hand which he desires to have done; provided it
be specifically stated, what he intends to dispose of, or what business
he wishes any one he may select to transact; the day and the year being
both given in the instrument. And when the will has been written, the
testator himself shall sign it; and if said will should come into the
possession of him for whose benefit it was made, or into that of his
heirs, within thirty years, it must be presented to the bishop or the
judge within six months thereafter. The bishop and the judge--three
other documents having been produced in which the signature of the
testator appears--shall then determine, by comparison of all these
documents, whether the will which the testator wrote with his own hand
is genuine or not, and if it should become evident that it is genuine,
then the bishop, or the judge, or other reputable witnesses, shall
confirm the same by their signatures, and, in this manner, the said
holographic will shall be fully proved and established.
=FLAVIUS RECESVINTUS, KING.=
=XVI. Concerning the Comparison of Documents, and the Infliction of
Penalties prescribed by Wills.=
As we should not, where it is proper to do so, refuse salutary remedies
to those who are in distress, so we should justly impose censure where
irrational contention occurs. Hereafter, when any dispute arises
concerning the will of an ancestor, which appears to have been drawn
up justly and legally, and according to obligations which have been
incurred; if any interested party to whom the will is shown, should say
that he does not know that it is true, he who has produced it must
immediately swear that no fraud or mutilation has been made therein at
any time, by him, or by any one else, so far as he knows; but that it
still remains just as the testator executed it. Then he who refused to
accept it shall be forced to swear that he does not know that said will
is authentic, and does not recognize it, and is not aware that it has
been legally drawn up, or that the seal or signature of the maker is
genuine. Then search must be made by both parties, among the effects
of the deceased, for instruments in writing; so that, by comparison
with the seals and signatures of other documents, it may be properly
established, whether the matter alleged is true or false. Then, if
documents of the testator should not be found, by comparison with
which the will in question can be proved, he who introduced the will
shall make diligent inquiry, wherever he can, for other papers of the
testator, by comparison with which he may prove the will in question.
And if, after all these efforts, the truth should not be ascertained,
he who introduced the will, even if he had summoned witnesses from
a distance, must pay all expenses; and he who refused to accept it,
shall not be liable to any penalty whatever. But in such cases, if he
who declared the will to be fraudulent, did so, not for the sake of
truth, but solely for the annoyance of the other party, and to compel
him to summon witnesses, and incur expense, in order to establish the
genuineness of the will; then he who introduced the will, must prove
by witnesses that it is true and unmutilated; and he who, through an
unjust contention, has caused annoyance and expense to his adversary,
must pay the amount of the penalty mentioned in the will. But if he
has not sufficient property, after an estimate has been made of the
same, to pay the sum which the testator prescribed, or openly refuses
to pay said penalty, he shall be forced to surrender to him whom he has
wronged, all that he would have inherited from the testator. We decree
that this law shall apply to the wills of parents alone; because we see
that sons or grandsons very frequently are involved in unjust disputes
with one another. This exception, however, is made, that if a will
shall be found to be, in any way, opposed to the laws, any one is free
to dispute its validity.
=FLAVIUS CHINTASVINTUS, KING.=
=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.=
The evidence, either oral or written, by means of which the proof of a
bequest from one person to another is established, and which should be
true and manifest, is often rendered doubtful; so that the intentions
of the testator, concerning the gifts and other matters set forth in
his will, can with difficulty be determined; for the reason that while
he has made certain statements in his will, he has made others, of a
directly contrary character, secretly, in the presence of witnesses.
Thus, by reason of this duplicity, it is evident that there are
practically two wills; for clearness and honesty are excluded, where
one thing is published openly, and another secretly stated in the
presence of witnesses.
And, where any one who has executed a document conveying property of
any kind to another, by gift or sale, shall be found to have made a
different disposition of said property before a witness, than he did
in writing; he shall pay the penalty prescribed in the document to him
upon whom this deceit has been practised; and, in addition to this, he
shall never be permitted to recover what he has surrendered.
Nor shall any witness be allowed to testify concerning anything which
is not contained in a will; so that, hereafter, all temptations for
dispute having been removed, whatever is found to be the manifest and
lawful tenor of such documents may not be brought into dispute, through
the machinations of a corrupt witness.
This law shall have equal force with those already promulgated.
If he who offers a will is of such rank and power that the said will
appears to have been rather exacted by, than offered to him, and this
fact can be proved, then the will shall be declared invalid; and
the property disposed of by it shall be distributed among the heirs
according to law.[15]