The foregoing laws having been framed by_The Visigothic code

and having attempted in them to adapt the punishment to the guilt of

the offender, as, for instance, where we have sentenced certain of

them to lose their property, and be driven into exile, we now hereby

reserve the following privileges of mercy for ourselves, and our

successors, to wit: that if any Jew, after having been ensnared by

the devil, should come to his senses, and profess belief in the Holy

Trinity; and the priests or judges of the diocese or district in which

he lives, should establish the fact by their testimony; and the works

of said Jew should correspond with his professions; in such cases the

prerogative of mercy may be exercised by ourselves, and our successors;

that is to say, after the confession and oath of said Jew has been

made, and the evidence has been submitted to the king, the latter shall

have authority to return his property to said Jew, and to recall him

from exile. If, however, any such Jew, after having professed himself

to be a Christian, should return to the vomit of his error, he shall

be condemned to punishment, without any hope of pardon; and said

punishment shall be proportionate to the proof of his hypocrisy, and

the degree of his guilt, and whether he undergoes a capital penalty, or

one of less severity, no mercy shall, under any circumstances, be shown

him.

=XXVIII. Bishops shall Give to all Jews a Copy of this Book, which has

been Published for the Purpose of Correcting their Errors; and their

Confessions and a Record of their Conversion, shall be Deposited among

the Archives of the Church.=

The perversity of a deceitful mind is accustomed to make use of the

pretence of ignorance, when it asserts that it has no knowledge of

the law, and declares that it is exempt from punishment because it is

ignorant of the New Testament. Now, for the purpose of removing this

false and malicious excuse, we hereby order all bishops and priests to

explain to the Jews within their jurisdiction, the decrees which we

have heretofore promulgated concerning their perfidy; and also, to give

them a copy of this book, which is ordinarily read to them publicly,

in the congregations of the Church, and which they must always carry

with them as evidence of their instruction. And if, after this book

shall have been read to them publicly as aforesaid, or given into

their hands, any of them should claim that he was not present when it

was read, or should assert that he is ignorant of the laws contained

therein, no excuse of his shall be thereafter received; but if, ever

subsequently, he should be detected in the breach of any of said laws,

under no circumstances shall he escape punishment for the same. And

we add to this law, as being a necessary part of it that all written

confessions and agreements which any Jew, at any time, has delivered

to his priest, shall be carefully preserved by the latter, among the

archives of his church, in order that it may be evidence against any

Jew who may thereafter venture to resume the practice of his impious

rites.

INDEX.

Abortion, by drugs, 206;

on a freeborn woman, 206;

on a slave, 207;

penalty for, 208;

on a beast of burden, 286.

Accessories, to rape, punishment of, 93;

to homicide, 223;

to theft, 240.

Accusation of crime, penalty for false, 200.

Adulterer, if killed, not criminal homicide, 96.

Adultery, of freeborn woman with slave, 83;

committed with connivance of husband, 95;

of a betrothed, 95;

of a wife, 96;

where a girl guilty of, is killed, 96;

parties guilty of, cannot be legally killed by slaves, 97;

when a freeborn woman commits, 97;

property of persons who have committed, how disposed of, 99;

who may bring accusation of, 100;

proof of, 101;

sons may prosecute, 100;

where one is convicted of, with virgin or widow, 101;

with female slave, 102.

Advocate, must have written authority from client, 48.

Animals, hired to another, 171;

loaned, 172;

when secretly killed, 246;

where loosed in crops, 279;

when loaned, and abused, 285;

where injure another, owner liable, 286;

where used for the threshing of grain, 287;

where a vicious, kills anyone, 289;

where one retains a vicious, 290;

cannot be excluded from open pastures, 295.

Answer, a defendant cannot refuse to, because plaintiff had not

presented claim, 38.

Arrest, governor of city must aid judge in, 250.

Arson, in and out of city, 271–272;

of forests, 272.

Assault and battery, 215;

by a slave, 217;

where bloodshed results, 264.

Attorney, must conduct case rapidly, 50;

who may be appointed, by powerful persons, and the poor, 52;

employment of, by the royal treasury, 52.

Bailiffs, compensation of, 32;

entitled to horse for journey, 33.

Bailments, 171–172–173–174.

Bees, where cause damage, 303;

where a person finds, 303;

theft of, 303.

Bells, when stolen from cattle, 241.

Betrothal, girl cannot marry another, 76.

Bishops, power of, to restrain judges, 35;

cannot conduct cases in court, 47;

right to one third of revenues for repairs, 146;

arbitrary conduct of, 147;

abuses of, which guilty, 148;

punishment of, 155;

must give subordinates information, 149.

Bond, exacted by judge after unjust decree, void, 34.

Boundaries, disputes concerning, 348;

where change made in time of Romans, 350.

Brothers, have right to dispose of sisters in marriage, when, 76.

Castration, when performed on animal, 285.

Cause of action, when arising in another district, 42.

Causes, not authorized by law, not to be heard, 22;

where determined, cannot be revived, 23;

cannot be heard by anyone not invested with judicial authority, 23.

Cattle, where shut up when have not done injury, 287.

Child, shall remain under control of father, 123;

shall receive inheritance at twenty years of age, 124;

how it may inherit, 127;

must be baptized before ten days old, 128;

posthumous, 127;

who acquires property during life of parents, 142.

Christian, a, shall not protect a Jew, 374;

judaizing, 376.

Christian slaves, sold or liberated by Jews, 369;

shall not attach themselves to Jews, 371;

shall not serve Jews, 392.

Church, donations to, 143;

preservation of property of, 144;

sales of property of, 144;

property in charge of those devoted to the service of, 145;

repairs of, 145.

Clothing, injuries to, 291.

Compromise, cannot be made without consent of court, 40.

Conflagration, when result of campfire, 273.

Consanguinity, degrees of, 117–118–119.

Constituent, responsible for attorney, must pay his fees, 51.

Contracts, how drawn up to be valid, 65;

penalties for repudiating, 65;

invalid if made by slaves, 65;

if dishonorable, void, 66;

party not liable when fraudulent, 66;

void where made under duress, 66.

Corpse, when removed from a grave, penalty for, 356.

Counterfeiting, slaves may be tortured to convict masters of, 261;

of _solidi_, 261.

Court must not be disturbed by tumult, 38;

contempt of, 250.

Criminal, when released by a judge, 252.

Debt of deceased person, how collected, 180.

Debtor, a, cannot be removed from a church, 332.

Decalvatio, penalty of, 44.

Decree, if unjust, or promoted by fear, is invalid, 34.

Deputies, their power, 23.

Deserters, punishment of, 327.

Disinheritance, of children, 137;

not permitted except for grave causes, 138.

Divorce, cause and conditions of, 113;

only valid in case of fornication, 114;

disposal of property after, 114;

cannot exist between betrothed persons, 116.

Documents, fraudulently dated, 257;

penalty for, 258.

Documents, validity of, 64;

witness must know contents of, 64;

proof of and penalties prescribed by, 70.

Dog, when irritated and kills anyone, 291;

vicious, must be killed, 291.

Donations, extorted by force, void, 152.

Dowry, what it shall consist of, 79;

father shall exact and keep it, 79;

more cannot be required than the legal amount, 80;

when reduced to writing, items of, shall not be contested, 82;

what part a woman may bequeath, 139.

Evidence, must be oral when possible, 57.

Exchange, has same validity as purchase, 160.

False imprisonment, penalty for, 265.

Fences, when cut down or burned, penalty for, 277.

Festivals, to be observed like Sunday, 21.

Fictitious name, penalty for adopting, 256.

Fields, uninclosed, where traversed by animals, 294.

Flocks, where meadow injured by, 279.

Forcible entry, 210;

where death results, 210;

penalty, 210.

Forests, undivided between Goths and Romans, 337.

Forging, of royal orders, 253;

of documents, 216;

penalty for, 261–262.

Fornication, punishment of, 103.

Foundlings, rights of, 135;

compensation for support of, and penalty for casting away of,

135–136.

Fraud, where committed in a sale, 161.

Freedman, where claimed as a slave, 184;

where a, injures his former master, 185;

cannot testify, 186;

disposition of property of, 186;

cannot marry in family of patron, 189;

how a royal, shall defend king, 190;

if injures former master, 191.

Freedom, how revoked, 185.

Freeman, a, shall not refuse to answer a slave in court, 45;

where a, marries a slave, 84;

where a, allows himself to be sold, 162.

Freewoman, where a, marries without the consent of her parents, 87.

Fruits, where destroyed by animals, 279.

Fugitive, when released by anyone, 306;

slave must be produced before the judge, 307;

where are ignorantly received, 307;

where a slave directs, 309;

investigation of, 312;

where found in a house, 313;

reward for arrest of, 313;

where marries freeborn woman, 314.

Garden, when destroyed, penalty, 275.

Gifts, bestowed upon one another by husband and wife, 155.

Goths and Romans, may intermarry, 76.

Guardian, who may be, 132;

duties of, 132–133;

no right to exact instruments in writing from wards, 133;

must render an account, 134.

Handwriting, comparison of, when necessary, 69.

Heirs of attorney, entitled to his fees, 51;

shall not contest wills of ancestors, 65;

collateral, how inherit, 121;

where they have different parents, 141;

one may act for all in suit, 335.

Heresies, renunciation of, 364.

Heretics, eradication of errors of, 362.

Highways, obstruction of, 293;

space preserved along, 293.

Hogs, when pastured, 298;

fed on acorns under contract, 299;

when wandering in woodland, 300.

Homicide, where committed ignorantly, 218;

where committed on a third party, 219;

where happens in sport, 220;

while inflicting punishment, 221;

by a slave, 221;

by a master, 222;

who may accuse of, 226;

of those related by blood, 229.

Horse, where loosed and injured, 284;

where mane or tail cut off, 285.

House, a, cannot be entered in absence of master, 267.

Husband, adulteress given up to, 114;

ownership of property accumulated by, with wife, 126.

Incest, what constitutes, 106;

with mother and sister-in-law, 111;

with concubine, 114.

Informers, how may accuse, 233;

penalty for false accusation, 234;

guilty knowledge of, 234;

compensation of, 235.

Inheritance, equal rights of brothers and sisters in, 121;

of intestate, 121;

of children not of same parents, 122;

of grandparents, 122;

of husband and wife, 123;

from clerks and monks, 123.

Interest, what may be legally asked, 175.

Intestate, where parents die, 129.

Jailer, corruption of, 251;

compensation of, 251.

Jews, extirpation of errors of, 366;

shall not celebrate Passover, 367;

shall not contract marriage, 367;

shall not practise circumcision, 367;

shall not distinguish food, 367;

shall not torture a Christian, 368;

penalties for offences of, 369;

memorial of, 375;

perfidy of, 377;

shall not avoid baptism, 385;

shall not keep the Sabbath, 386;

confession of, 395;

oath of, 397;

shall not oppress Christians, 401;

assemblies of, shall visit bishop, 404;

penalties for not enforcing laws against, 406;

must have copy of this book, 408.

Journey, when an innocent party is compelled to make a, 42.

Judges, shall have civil and criminal jurisdiction, 24;

penalty for refusing to hear a litigant, 27;

time they shall hold court, 28;

penalty for unjust decision, 28;

where needless costs are imposed, 29;

what they should be familiar with, 29;

where integrity is suspected, 30;

how judgment should be rendered by, 31;

emoluments of, 32;

all invested with judicial authority shall bear title, 33;

must give reason for decision if required, 35;

punishment of, when guilty of misconduct, 36;

improper conduct of, how punished, 214;

must display moderation, 359.

Justifiable homicide, when robber killed, 270.

Kidnapping, of slaves, 247;

of children, 248;

of freeborn persons, 249.

King, his business first considered in the courts, 13;

how documents in name of, should be drawn up, 14;

can only dispose of his private property, 16;

should practise mercy, 201.

Land, division of, between Goths and Romans, 337.

Landlord, dispute with, concerning lease, 339.

Landmarks, how preserved, 348;

penalty for destruction of, 348.

Law, what it is, 5;

its action, 5;

why made, 6;

when amended, at what time in force, 11;

all persons subject to, 12;

no one can allege ignorance of, 13;

penalty for criticizing, 16;

of foreign nations forbidden, 20.

Lawmaker, his method, 1;

duties, 2–3–4.

Leases, lands held under, must be restored, 338;

where a greater area of land cultivated than granted under, 338.

Lèse majesté, 19.

Lex Talionis, its provisions, 215.

Limitation, Statute of, 91–344;

claim for property cannot be asserted after fifty years, 343;

fugitive slave free after fifty years, 343;

suit cannot be brought after thirty years, 343;

runs in all cases except where slaves of the Crown are concerned,

344;

does not run while party is absent, 346.

Litigant, may be chosen to act for others, 39;

must declare for whom he acts, 48.

Marriage, must be accompanied by a dowry, 75;

father has right to dispose of children in, and mother, if he is

dead, 81;

when unlawful, 83;

penalty for, 83;

with holy virgins or widows, incestuous, 107.

Master, where one marries a slave to a freewoman, 86;

may claim property of slave who is sold, 165;

responsible for illegal acts, 264.

Mayhem, what constitutes, penalty for, 225.

Merchant, foreign, where a, sells stolen property, 357;

shall be judged by his own magistrates, 357;

where a, carries away a hired person, 358;

where a, takes away a slave for trade, 358.

Mills and ponds, damage to, 296.

Minors, at what age can testify, 62;

cannot make contracts, 66;

definition of, 131;

suit against, 131.

Money, stolen from the king, 241.

Mother, entitled to share estate with children, 125.

Murder, of freeman, 222.

Nuptial contract, cannot be rescinded when a gift is made, 77.

Officer, where corrupted, permits soldiers to depart, 320;

where an, deserts, 321;

where an, returns home, 322;

where an, receives a bribe, 323.

Officials must not subject persons to unnecessary expense, 360.

Oppression in litigation, by parties in power, 52.

Orchards, enclosure of, 278.

Ordeal of hot water, how applied, 37.

Ox, where used without consent of owner, 287.

Pardon, persons who have received, exempt from punishment, 18.

Parents, where rescue daughter from ravisher, 89;

where consent to rape, 90;

how inherit from children, 128;

what property, may bestow upon children at marriage, 140;

cannot sell or give away children, 163;

right to dispose of property where no children, 130.

Parricides, punishment of, 228;

distribution of property of, 228.

Parties, where they cause unnecessary delay, 33;

both may be compelled to be present in court, 41.

Partition, when made, remains in force forever, 334;

if made between brothers, may be revoked, 334;

wishes of majority rule in, 334;

among relatives of slaves, 340.

Patrons, gifts of, 158;

property acquired through, 158.

Perjury, effects of, 58;

penalty for, 58–59–60;

crime of and penalty, 230.

Personal property must all be classed under one title, 341.

Physician, cannot bleed a woman except her relatives are present, 353;

shall not visit prisoners, 354;

where treats disease under contracts, 354;

compensation from student due to, 355;

cannot be imprisoned without a hearing, 355.

Pledges, when stolen, 177;

given as security for debt, 177;

where not restored, 178.

Poison, penalty for administering, 204.

Princes, cannot conduct their own cases in court, 47.

Property, illegally taken for a debt, 43;

of persons convicted of incest, 109;

given to husband or wife by king, 152;

given to wife in addition to dowry, 153;

given verbally, or in writing, 154;

cannot be seized, except under legal process, 266;

which may not be alienated, 167;

where transferred while in litigation, 169;

loaned and destroyed by fire, 172;

where lost at sea, 173;

entrusted to a slave, 174;

reparation for, when injured or destroyed, 243.

Question, how may be inflicted, 194.

Rape, 91;

of a freewoman, 88;

where brothers consent to, 90;

of betrothed woman, 90;

must be prosecuted within thirty years, 91;

by a slave, 92.

Ravisher, where killed, not criminal homicide, 91.

Relatives, cannot testify against a stranger, 62.

Rent, where tenant does not pay, 341.

Rescue of criminals, 244;

of cattle seized in crops, 280.

Retaliation, law of, 211;

amount due in lieu thereof, 212–213.

River, right to enclose, where bank cultivated, 295.

Robbers, where concealed by freeman or slaves, 316.

Robbery, accessories before the fact, 267;

committed while on an expedition, 267.

Royal order, penalty for contempt of, 36.

Sale, void if made under compulsion, 160;

where price not paid after earnest money given, 160;

where part of price paid, 161.

Sanctuary,

where a homicide takes, 227;

one claiming, cannot be rescued by force, 331;

may be killed if resists with arms, 331.

Scandal, public, what course to be pursued in, 324.

Seduction, penalty for, 93.

Self defence, where assault committed, 215.

Sentence of court must be public, 252.

Shipwreck, property rescued from, 243.

Slave, not worthy of credit, 61;

when allowed to testify, 61;

when given in marriage to another, 85;

may be tortured to reveal adultery, 98;

may not be liberated to conceal adultery, 98;

of Church, if emancipated cannot marry a freeborn person, 150;

penalty for, 151;

free after thirty years, 347;

sales by, void, 164;

where accuses former master of crime, 165;

may not be redeemed with his own property, 166;

where transferred for crime, 167;

where captured and sold by an enemy, 169;

how liberated, 181;

where has several masters, consent of all must be had, 182;

how may be returned to slavery, 183;

liberation of royal, 188;

if a criminal, may be demanded, 193;

where a, insults a freeborn person, 216.

Sodomy, penalty for, 111.

Soil, fruits of, what may be demanded, 175.

Solidus, no one may refuse to accept a, of legal weight, 262.

Soothsayers, penalty for consulting, 203.

Stolen property, when bought ignorantly, 240;

knowingly, 241;

he in possession of, must name thief, 269.

Strays, when found, must be taken up and appraised, 281;

where leave before driven out, 282;

if mutilated, penalty for, 282;

notice must be given, how, 301;

care of, 301;

must not be sheared or branded, 301.

Streams, right to enclose, 295.

Subornation of perjury, penalty for, 62.

Summons,

penalty for refusal to obey, 25;

time within which must be obeyed, 26.

Sunday, no litigation lawful on, 21.

Tenant, must pay rent for land sublet, 339.

Testator, cannot dispose of same property in two different ways, 72.

Testimony, must be furnished by both parties, 41.

Theft, when committed by a slave, 238;

by a freeman and slave, 239;

by a master with his slave, 239;

of mill machinery, 242.

Thief,

how punished, 242;

where killed, not homicide, 243;

where killed at night, 243;

heirs of, 244;

when to be brought before the judge, 245.

Tombs, penalty for injury of, 356.

Tonsure, punishment of those who illegally assume, 108.

Torture, shall not be inflicted upon persons of noble birth, 49;

for what, and how inflicted, 194;

penalty for, if accused innocent, 194;

how slaves tortured, 196.

Traps for wild beasts, neighbors must be informed of, 292.

Traveler, where deprived of liberty, penalty for, 214.

Treason, penalty for, 17.

Trees, compensation for cutting down, 274;

where injury results from cutting, 275.

Trespass, _vi et armis_, penalty for, 264.

Trespasser, where one falls into a trap set for wild animals, 292.

Vendor, if not of good character, must give security, 160.

Vineyards, where injured, penalty for, 276;

where planted on land of co-heirs, 336;

on land where no title, 336.

Wards, when of legal age, 134.

Water, theft of, 296.

Widows, guilty of fraud, 109.

Wife, no right to earnings of slave under husband, 126.

Wills, how drawn up and executed, 67;

must be published within six months, 68;

how proved when made on a journey, 68;

must be published in the presence of a priest or a witness, 69;

how genuineness established, 71;

invalid if executed under duress, 72;

who are entitled to custody of, 176;

alteration of, 256;

forging of, 256;

nuncupative, 67;

holographic, 70.

Witchcraft, how punished, 204;

where employed against property, 205.

Witness, who may not be, 54;

must be sworn, 54;

where contradicted by documentary evidence, 54;

impeachment of, 59;

must sign or seal will, 67;

penalty for neglect, 68;

cannot testify to what is not in a will, 72.

Women, may conduct their own cases in court, 50;

cannot appoint an attorney, 50;

advanced in years cannot marry young men, 77–78;

where they marry slaves, 83–84–85;

must not marry within year of husband’s death, 83;

where, marry again in absence of husband, 86;

of bad character, 102;

entitled to share of entire estate, 123.

THE END.

FOOTNOTES:

[1] It must be remembered that under the Gothic polity, the legislator,

invariably a member of the ecclesiastical order, was frequently called

upon to exercise the exalted functions of the judge. In some instances,

the two officials had concurrent jurisdiction; in others, the bishop

was authorized to decide questions of law and fact in the absence of

the magistrate. Especially was this the case where the interests of the

Church were, in any way, concerned. Hence arises the apparent confusion

of the duties of legislator and judge, in this and other chapters of

the Visigothic Code.--[ED.]

[2] Preambles, such as the above, which are of frequent occurrence in

this body of laws, show unmistakably its ecclesiastical origin, and

the theocratic principles, which, at all times, dominated those who

framed it. The Mosaic Code alone, among those of great antiquity, is

constantly pervaded by similar religious sentiments; which, emanating

from the high authorities of the Church, undoubtedly exerted great and

beneficial influence over an ignorant and superstitious people. Such

additions to legal enactments would seem strangely out of place at the

present day.--[ED.]

[3] The first sentence of this chapter is directly at variance with

the maxim subsequently inculcated with such diligence by the Church

of Rome; through the rigid enforcement of which it long maintained

its despotic empire, and which it still regards as one of the most

important sources of its power: “Ignorance is the mother of Devotion.”

It may be conjectured from the above, that the familiar legal axiom,

“_Ignorantia legis neminem excusat_,” already ancient, and well

established in the seventh century, is probably as old as the law

itself.--[ED.]

[4] The Visigothic Councils, whose authority was presumed to emanate

from Heaven, and whose alleged sacred character invested also, to a

certain extent, the monarchs elected by them, presumed to legislate for

all coming time. Instances often occur where future kings are declared

to be bound irrevocably by the acts of their predecessors, and by the

decrees of the collected wisdom and piety of the nation, represented by

the ecclesiastical assemblies of Toledo. Despite the solemn adjurations

of prince and prelate, however, few kings hesitated to repeal or

abolish the laws of their ancestors, when those laws either offended

their prejudices, or interfered with their ambition.

The manifest injustice and iniquity now recognized by nearly all

civilized nations as attaching to _ex post facto_ laws, were not

appreciated by the Visigothic legislator, or sovereign. Laws were

frequently made retroactive, and were enforced with great severity in

cases affecting questions of religious belief, as well as in those

relating to the rights and privileges of the Crown.--[ED.]

[5] Considering that the crown was elective; that the monarch was only

“_Primus inter pares_,” and that the subject had apparently the

right to sometimes admonish his sovereign of his errors, a relic of

the sturdy independence which characterized all northern barbarians;

the doctrine of _lesé-majesté_ seems to have early acquired great

importance among the Visigoths, judging from the severe penalties

visited upon those guilty of the offence.--[ED.]

[6] The coins principally in use among the Visigoths were those of the

Byzantine Empire at that epoch, as follows:--Gold, The _Libra_, or

pound, twelve ounces in weight, and divided into seventy-two _Tremisæ_,

or twenty-four _Siliqæ_; and Silver, The _Libra_, containing twenty

_Solidi_, and the _Solidus_, containing twenty _Denarii_ of copper. The

smaller coins, of which there were many, were those of ancient Rome,

and of the Eastern Empire.

The _Libra_ of gold was worth $368, and the one of silver worth

$88, or, at the present value of money, $4,048, and $968, respectively.

The _Solidus_ ($56 gold, and $44 silver,) was the standard coin in

circulation.

The gold _Tremisa_ was the only coin struck by the royal mints

during the Visigothic domination. Heavily alloyed, rude in design,

and coarse in execution, these clumsy medals disclose the primitive

conditions of the numismatic art of the period, being notably inferior

to the contemporary examples of Byzantine coinage, themselves far below

the artistic models of ancient Rome.

The severe fines imposed under the Visigothic Code, and whose

non-payment generally involved the alternative of perpetual servitude,

often caused the financial ruin of the offender.

[7] Nothing in the whole system of the Visigoths is more remarkable

than the care with which they attempt to preserve the integrity of the

judiciary. It is not impossible that the notorious corruption attending

the dispensation of justice by the Roman tribunals, in the days of the

decadent Empire, may have prompted the drastic legislation against

judicial misconduct which is so prominent a feature of the Code. The

penalties in extreme cases are but little inferior in severity to that

said to have been imposed by Cambyses; who flayed a corrupt judge,

and placed his skin in the judgment seat, as a suggestive warning to

his successors. It may well be presumed that, in the face of such

punishment, the acceptance of bribes was not a common vice among the

Visigothic magistrates. The latter did not receive regular salaries,

but were paid according to the work they performed; a regulation which

would appear, in some instances, rather calculated to encourage, than

to suppress litigation.--[ED.]

[8] This chapter does not appear in the Castilian translation. It

is the only instance in the Visigothic Code where any ordeal is

permitted as a means of obtaining evidence of crime. The other ordeals,

subsequently so popular during the Middle Ages, and employed not only

in proceedings before judicial tribunals, but also by the clergy to

establish the existence of demoniacal possession, do not seem to

have been practised by, or even known to, the Visigoths. Nor did

they ever appeal to the wager of battle, so congenial to the spirit

of the pugnacious barbarian, and which afterwards became one of the

institutions of the age of chivalry and feudalism.--[ED.]

[9] “_Decalvatio_” was one of the most dreaded punishments

sanctioned by the Visigothic laws. The tonsure was itself considered

degrading, among a people who attached the highest importance to

a luxuriant growth of hair, even when, as a distinctive mark of

their calling, it was undergone by ecclesiastics; and shaving the

head, in the execution of a judicial sentence, was often regarded

as an indelible mark of infamy. There were several degrees of this

punishment, all of which did not entail the same suffering and

disgrace. In some cases, the hair was cut in the form of a cross;

in others, the head was entirely shaved. He who was “_turpiter

decalvatus_,” was scalped, and had the skin entirely stripped from

his head above the ears; a practice surpassing in barbarity that

peculiar to the American Indian. It was not unusual, in the infliction

of this cruel penalty, to include a portion, or even all, of the

skin of the forehead; thereby horribly disfiguring the victim for

life.--[ED.]

[10] The mutual relations and liabilities of principal and agent,

and constituent and attorney, seem to have been well defined among

the Visigoths. The attorneys, “_assertori_,” referred to in the

Code, were, in reality, attorneys-in-fact. Strictly speaking, lawyers

(although the _assertor_ appeared in court, and, to some extent,

exercised the functions of an attorney-at-law) did not exist among the

barbarians who had migrated from the Euxine and the Danube, and by whom

members of the legal profession were looked upon with both suspicion

and hatred. It is said that Alaric, by way of mockery, cut out the

tongue of a distinguished Roman advocate who fell into his hands. In

the Visigothic tribunals each party stated and argued his own case;

and, where an attorney was appointed, every precaution was taken to

prevent the exertion of that insensible, but none the less weighty,

influence which everywhere attaches to the possession of superior

wealth, rank and power. The effect of written instruments delegating

authority to agents of various kinds, was also well understood,

and their validity was insured by the attestation of reputable

witnesses.--[ED.]

[11] Branding was a penalty rarely imposed under the Visigothic system,

and was deemed especially infamous on account of it being reserved for

crimes involving unusual turpitude. He who was “_notatus infamia_”

was deeply burned upon the forehead with a red-hot iron, which left an

ineffaceable scar. Few offences were more detested by the Visigoths

than perjury.--[ED.]

[12] There were various degrees of slavery recognized by the Visigoths.

Slaves in the service of the Crown were often highly educated and

accomplished for that age; exercised important and responsible

employments at court; enjoyed many privileges, and were exempt from

many restrictions ordinarily attaching to the servile condition. They

were rather serfs than bondsmen; and could themselves own, and, under

certain conditions, dispose of, slaves: a singular anomaly which could

hardly exist, for any length of time, in a thoroughly civilized state.

While the Roman master, under the law, was invested with absolute

control over his slave, even to the extent of putting him to death,

the Visigoth could exert no such irresponsible power. The worst

features of the Roman System, rendered necessary where slaves existed

in immense numbers, were rejected by the Visigoths, who displayed,

in this instance, far more humanity than their polished and corrupt

predecessors. Among them the Roman legal axiom, “_Partus sequitur

ventrem_,” did not exclusively prevail; as the children followed

the condition of the father as well as that of the mother. In both the

Roman and the Visigothic codes the slave was considered as devoid of

all personality; and was merely a chattel, with which debts and other

obligations could be discharged, as with any other article of portable

property. The _servus idoneus_, or slave of superior rank, was

distinguished for his ability and integrity, or for the confidence

reposed in him by his master; the _servus vilis_ was ignorant,

debased, and frequently criminal. In the infliction of penalties, a

distinction was made between the individuals belonging to these two

classes, and always in favor of the former. Freeborn persons who, by

the sentence of the law, were reduced to slavery, a common occurrence

under the Visigothic system, and a penalty from which tyrannical and

corrupt judges were not exempt, were designated _mancipia_.

Slaves belonging to the Church were generally of a high order of

ability and trustworthiness, like those who were the property of the

Crown. The owner was made liable in damages for any injury committed

by his slave; as the latter not being a person, and still less a free

agent, was legally presumed to be under the control of his master,

who, consequently, was responsible for his acts. The Visigothic Code

in comparison with others, protects the rights of slaves with great

impartiality, and often treats their minor offences with marked

indulgence.--[ED.]

[13] This is probably the first instance on record, of a law

authorizing the taking of depositions. It will be observed that no

provision is made for the service of notice on the other party to the

suit. The art of cross-examination does not seem to have been either

recognized, or practised, by the Visigothic tribunals. The rigid

investigation by the judge, who examined all witnesses, was presumed to

be amply sufficient to elicit the truth--[ED.]

[14] In the words of the text, “_pari simul sententia falsarii

teneantur_.” Subornation of perjury was, as will be seen from the

above, placed in the same category with perjury. The penalty for

the latter crime varied with the social status of the culprit, from

the loss of the fourth of his property, to scourging, and perpetual

servitude. See Book VII, Title V, Chapter II.--[ED.]

[15] A large part of the preceding Book has been borrowed from the

Roman jurisprudence, and some of it is older than the Twelve Tables. It

is hardly necessary to remark that the intelligence and experience of

semi-barbarians are unequal to the task of the framing, construction,

and execution of enactments relating to the enforcement of civil

obligations, and the testamentary disposition of property, as set forth

in these chapters. The power to distrain, referred to in Chapter VIII

as effecting the property of a surety for a debt, is a remedy whose

origin antedates all history. It was the _pignoris captio_ of the

Romans, among whom it was a summary proceeding, undertaken without

previous application to a judicial tribunal. It was supplemented by

the _manus injectio_, or seizure of the person of a debtor or

wrongdoer; followed by his subjection to hard labor, and often to cruel

treatment, until the unpaid claim was satisfied, or the tort he had

committed, had, in the opinion of the injured party, been sufficiently

punished. This form of execution was much used by the Visigoths, and

its severity was somewhat modified by their laws; but while its most

oppressive features were eliminated, enough remained to render the

proceeding liable to great abuse.

The rules relating to the execution, attestation and proof of wills and

other legal documents, contained in the _Forum Judicum_ were, for

the most part, derived from the Codes of Theodosius and Justinian. The

provisions governing nuncupative and holographic testaments are very

similar in all these collections. The will made by a traveller or a

soldier, while on a journey or absent in the service of the government,

is merely the _peculium castrense_, or military will of the Roman

legionary. Codicils, introduced by the laws of Justinian, were unknown

to the Visigoths.--[ED.]

[16] The crime of rape was considered by the Visigothic legislator in

the original and broader acceptation of the term, and not according

to the more limited significance attaching to it at the present day.

It included, therefore, the offences of abduction and kidnapping; all

survivals of practices observed by mankind in their natural condition;

one of whose customs, marriage by capture, still prevails among certain

barbarous nations. By the Visigoths, as by the Romans, rape, theft,

and some other crimes, were classed as private wrongs, to be expiated

by the infliction of personal vengeance. For this reason, the ravisher

was delivered up to the tender mercies of the relatives of the victim;

or, reduced to servitude, he was compelled to serve the latter for

life.--[ED.]

[17] The Statute of Limitations could be pleaded in few crimes, under

the Visigothic Code, and especially was this true where the defendant

had been guilty of what we would call a felony. The reason for its

adoption in this instance is obscure, and this law may have been

enacted for some special purpose, or to fit some particular case;

retroactive legislation being common under the Visigothic Monarchy. In

all other laws published under this Title, marriage between the parties

is not only absolutely prohibited, but every precaution is taken to

make it impossible. As the former decrees and enactments are not stated

to have been abrogated by the promulgation of the above-mentioned law,

its application and enforcement would seem to have been difficult, to

say the least. Such conflicting legislation was, however, not unusual

under the polity of the Visigoths.--[ED.]

[18] No one can doubt that, under such conditions, it was “fully

satisfied.” This is another instance where the punishment of a personal

injury was regarded, not as an offence against the community, and a

breach of good morals, but as a case demanding private retribution, as

is specifically stated in the law itself.

The distinctions between the crimes of rape, adultery and fornication,

as now established, are not clearly set forth in the Visigothic Code.

Intercourse with a widow is designated adultery. The rape of a woman

of any condition, is frequently called adultery with violence. The

excessively harsh penalties prescribed for such offences, and which,

as a rule, were only limited by the caprice or compassion of the

party injured, are a relic of the customs of the Northern barbarians,

with whom female chastity was as much the rule as, on the other hand,

it was the exception among the warmer-blooded nations of Southern

Europe. Most of the laws relating to crimes against women are termed

“ancient,” showing their derivation from a remote antiquity, or Roman

origin.--[ED.]

[19] The extraordinary leniency shown by this law to ecclesiastical

culprits, as compared with laymen guilty of the same offence, openly

displays the bias of the legislative power. There was one rule for the

priest, and another, and a very different one, for his parishioners.

It will be noted, also, that no provision is made for the punishment

of the higher clergy; while it was notorious that the bishops and

metropolitans were the greatest of all offenders, where women were

concerned. As they framed the laws which governed the people, and were

presumed to receive their inspiration from heaven, they naturally

came to regard themselves as above their own decrees, and not liable

to their penalties and restrictions. The dissolute character of the

priesthood in those times, and long subsequently, is well known to

every student of history. The indulgence with which the bishop was

accustomed to regard the failings of his subordinates is disclosed

by the fine imposed upon him for neglect to discipline the former.

No mercy is shown to the women involved, and, what is unusual, no

distinction is made where the latter belong to different castes, or

stations in society. It is probable that this law, so far as the

punishment of the clergy was concerned, “was more honor’d in the breach

than the observance.”--[ED.]

[20] The right of dower, established by the Visigothic Code, is Roman

in origin. It was derived from the bestowal of the dowry, “_res

uxorica_,” which was an almost indispensable part of every marriage

contract, and with which it is sometimes now confounded. While,

under the Roman law, the dowry was given by the intended wife or her

relations to the intended bridegroom, or to some member of his family,

with the Visigoths it came from the bridegroom, and represented, in

fact, the purchase money paid for the bride; a survival of the ancient

barbarian custom of marriage by purchase, just as the wedding-ring is

symbolical of the presumed subordination of the wife to her husband, a

ceremony whose purpose, as well as significance, have both long since

been forgotten.

Both the rights of dower and curtesy, as defined by the legal polity

of the Visigoths, it will be seen, are practically the same as they

now exist under the laws of England, and of those of many of the

States of the Union. Considering the lapse of time, the differences of

race and religion, the wide divergence of political systems, and the

antagonistic character of many of the social usages observed during

epochs separated by thirteen centuries, this fact is very remarkable.

While the wife had a right to the use of half of the deceased husband’s

property during her lifetime, he had a right to the use of only one

third of hers, as he has to-day. The favor generally shown to the wife

in the stipulations of the marriage contract, are largely the result

of the independence enjoyed by the sex under Teutonic and Scandinavian

customs.--[ED.]

[21] There is some ambiguity in this and in the preceding chapter,

growing out of the use of the term _pupillus_ in the text;

it denoting indiscriminately, minor, ward, and orphan. The

provisions would apply with equal propriety to any or all of these,

but it is most probable that minors alone were intended to be

designated.--[ED.]

[22] As the law of primogeniture, so popular with mediæval and modern

nations, was not recognized by the Roman jurisprudence, so it was also

rejected by the Visigothic legislator. The testamentary distribution of

estates under the Code was governed by far more equitable principles

than obtain, even in our time, among many peoples who have enjoyed,

for centuries, the experience and advantages of a highly developed

civilization. While the testator was, for the most part, unhampered

in the final disposition of his property, he could not disinherit any

of his children without just cause, and that cause was required to be

specifically stated in his will. Where children or grandchildren shared

equally in the estate of their parents or grandparents, all cause

for family dissensions on account of favoritism or undue influence,

was absolutely removed. As it was provided by law that the estate

of the decedent must descend in the direct line, to the exclusion

of stepchildren, another source of dissatisfaction and temptation

to fraudulent interference with the rights of the next of kin was

permanently disposed of.

The interests of all heirs were jealously guarded. Even the dowry of

the wife, peculiarly her own property, as it represented the purchase

price paid for her by her husband, could not be alienated, to the

prejudice of her children. The dutiful conduct of the latter was

insured by the law which declared all their rights in the estates of

their parents to be forfeited, in case they were guilty of gross insult

or violence toward the former. In the case of wards and minors, there

is probably no body of laws which protects with more solicitude the

interests and property of such helpless beings, than do the provisions

of the Visigothic Code.--[ED.]

[23] This decree, promulgated about 660, is one of the first of the

statutory declarations recognizing the principle of mortmain. The

Codes of both Theodosius and Justinian contained similar, but far

less sweeping provisions relating to the acquisition of property

by the Church; but these were concerned, for the most part, with

bequests. From the nature of the case, however, in the organization

and perpetuation of ecclesiastical societies, custom and necessity

must early have rendered real property inalienable by bodies which

never die; and which are encouraged to add to their wealth by every

expedient, honorable and dishonorable, but are prohibited by tradition,

policy, and legal enactment from conveying their possessions to the

laity.--[ED.]

[24] Priests and deacons, under the Visigothic ecclesiastical system,

which, it must not be forgotten, was at all times practically

independent of papal authority, were permitted to marry; as were their

Arian predecessors. Such a union, however, was subject to certain

restrictions. It could only be entered into once; the bride had to be

a virgin; and where the husband was raised to a higher dignity in the

Church he was compelled to, at once, repudiate his wife. The marriage

itself was an impediment to promotion, as priests without families

were much more sure to rise in their profession than those who had

contracted marital obligations.--[ED.]

[25] The holding of a plurality of livings by a single ecclesiastic,

an abuse which, in after times, assumed such gigantic proportions

under papal rule, especially in England, where, by reason of the

hardships it produced, it promoted in no small degree the progress of

the Reformation, was scarcely known to the Arian, or Catholic clergy

of Spain. The enjoyment of the revenues of one, or a greater number of

benefices by a layman, no matter how wealthy or powerful the latter

might be--a custom elsewhere so prevalent--was not provided for by the

sacerdotal legislature of the Visigoths in their Code of laws; for

the reason, no doubt, that such a thing was deemed too improbable for

serious consideration.--[ED.]

[26] The institution of patron and _libertus_, or client, adopted

by the Visigoths almost without alteration, dates back to the primitive

ages of Rome. The regulation was recognized by the Law of the Twelve

Tables, and was modified by various enactments during the eras of the

Republic and the Empire. Its survival, during all the vicissitudes

attending the Roman domination, attests its peculiar adaptability to

the national character, and to the political and social organization

of the people who established it. It presents a greater analogy to the

Highland clan than to any other modern institution, although marked and

radical differences exist between the two; the strongest resemblance

being in the devoted allegiance due to both the _patronus_ and

the chieftain. By the ordinary act of manumission the slave became a

_libertus_ or freedman; a term of much more limited significance

than it has at present. The former master then became the protector

and guardian of his freedman; and, in return for this protection, the

latter was bound to perform certain duties, which he could not evade

without the reproach of ingratitude, and the certainty of punishment.

One of these obligations was that of military service, which differed

from those subsequently required by the law of the Feudal System,

only in that it was not especially rendered as a condition for the

tenure of a fee. The relation of patron and client, which, under the

Romans, could only be dissolved between individuals by death, or by

the loss of his freedom by the client for misconduct or insolence, was

not so strictly observed among the Visigoths. Under their system, the

freedman had a right to transfer his allegiance to another patron; an

act which caused the forfeiture to his former master, of at least half

his property. Not only individuals, but churches, and municipal bodies,

could exercise patronal rights. While the term client was generally

applied by both nations to a manumitted slave, it had in fact, a much

broader meaning; and denoted any person who voluntarily placed himself

under the care or supervision of another of superior rank or power.

This institution had more influence in preserving and perpetuating the

distinctions of caste--that most pernicious and fatal of evils which

cause the disintegration of nations and overthrow of governments--than

any other arbitrary and oppressive regulation of ancient times.

[27] Among the clients owing services to a patron, were the

_buccelarii_, who derived their appellation from the _buccela_, or

ration, furnished them. They may be designated “bailiffs,” as their

duties resembled, in many respects, those of the Spanish _alguazil_.

They formed part of the armed retinue of the patron, accompanied

him to war, and guarded his property in times of revolution and

disorder.--[ED.]

[28] The irresponsible, and more than despotic authority vested by

the Roman laws in the father over the son, was thoroughly repugnant

to the Visigothic conception of justice and freedom, which had been

transmitted through many generations of barbarian ancestors. The

Roman father not only possessed the power of life and death over his

children, but had the undisputed right to sell them into slavery. The

parental and filial relation was hedged about with such restrictions

that it was almost impossible to sever it during life. By the law of

the Twelve Tables a son could not be free, unless he had been sold as

a slave and manumitted, three times. His reduction to a condition of

servitude carried with it many civil disabilities which could never be

removed. The independence of a son of his father’s control rendered

his inheritance of the parental estate impossible. These oppressive

regulations were either greatly modified, or entirely abrogated, by the

more equitable policy of Visigothic legislation. In the case of female

children also, under the latter system, principles more consonant with

ideas of justice prevailed. The emancipation of the sex from arbitrary

restraint also made great progress, when it is remembered that a woman,

no matter what her age or position, was always considered by the Romans

to be in a condition of tutelage.--[ED.]

[29] This affords curious and instructive information as to the cost

of books in the seventh century. The silver _solidus_ is meant,

as, where any coin referred to is of gold, the fact is always stated

in the _Forum Judicum_. As the _solidus_ was nominally worth

$4.00 of our money, but in reality $44.00, taking into consideration

the difference of values at that and the present time, it will be seen

that the price fixed by law, of a copy of the Visigothic Code, was

$17,600.00. This appears incredible, but it must be borne in mind that

all books were in manuscript; that few persons were qualified to write

them; and, as ignorance was almost universal, the demand for literature

was extremely limited. The preparation of a literary work was then a

formidable and expensive undertaking. Most of the books of that age,

and, indeed, for centuries subsequently, were of a religious character,

such as missals, fabulous chronicles of the Church, and spurious and

imaginary biographies of saints. Making the sale of a collection

of laws at a price above a certain sum a penal offence, punishable

with the scourge, is an example of crime unique among the _mala

prohibita_.--[ED.]

[30] Twelve and a half per cent was the ordinary rate; but, in some

instances, it was much higher. The law against usury was habitually

violated by the Jews, who extorted enormous rates of interest both from

individuals and from the Crown.--[ED.]

[31] All the laws relating to bailments, included under this and the

preceding Title, are of ancient origin; that is, borrowed, almost

without change, from the Roman jurisprudence. The responsibility of

the bailee for property entrusted to him, is determined by the same

principles which experience and a sense of equity, in all ages, have

demonstrated to be just and expedient, and which form the basis of

similar contracts at the present day. The requirement of ordinary or

extraordinary diligence and care was then, as now, dependent upon the

question whether one or both parties derived benefit from the bailment.

In case of gross negligence or fraud, the bailor was entitled to an

animal or article of equal value to the one lost or destroyed; just as

he can now, under similar circumstances, recover damages in a suit at

law. The forfeiture of half the value of the property loaned, when it

was stolen, and negligence was not established, or even alleged, is a

novel regulation, and one especially calculated to render the bailee

more careful and alert. The custom of pawning property as security for

money loaned is, no doubt, as ancient as any business transaction, and

is the _pignori acceptum_ of the Roman, and Civil and Common Law

authorities. The question of negligence does not seem to have been

considered where a pledge was stolen; for, in this case, the entire

loss was sustained by the bailor, and not half of it, as when the

article was merely loaned by way of accommodation, and no remuneration

for its use was expected.--ED.

[32] The savage _Lex Talionis_ of the Mosaic Code, which

demanded “an eye for an eye and a tooth for a tooth,” was permitted

by the Visigothic jurisprudence, as is disclosed by this and other

chapters. In most instances it was authorized where, on account of the

poverty of the culprit, a pecuniary compensation was not forthcoming.

Notwithstanding the abuse to which it was inevitably liable, there is

certainly a measure of stern and retributive justice in the provision

consigning a false accuser to the vengeance of the family of his

deceased victim; as well as in the case of a wicked and corrupt

judge, who maliciously permitted an innocent man to be tortured to

death. The _Lex Talionis_ was not unknown to the Romans, and is

referred to in the Twelve Tables; but, in after times, their ideas

of the proper functions of judicial tribunals, in the infliction of

penalties, were too correct to countenance either its acceptance or

enforcement.--[ED.]

[33] Ignorance, inhumanity, and contemptuous disregard of the

principles underlying the law of evidence, have, in all ages, impelled

semi-barbarians and churchmen to the employment of torture. The

absolute unreliability of such a means of eliciting truth, one would

naturally suppose would cause it to be rejected by nations in the

enjoyment of advanced educational facilities and occupying a high rank

in the scale of civilization. Such, however, was far from being the

case. An inheritance of the atrocities of the Inquisition, it was still

used in France and Spain during the eighteenth century. In Scotland,

which was subject to the Civil Law, it was not forbidden until the time

of Queen Anne. Although prohibited by Magna Charta, and absolutely

unknown to the Common Law of England, torture was, nevertheless,

frequently employed as late as the reign of Charles I. A form of it,

the _peine forte et dure_, applied where a prisoner accused of

felony stood mute, was authorized by the Statute I, 3, Edward I. During

the reign of the tyrannical Henry VIII, the question was in high favor

with that monarch and his legal advisers, and the public tormentor,

while his profession carried with it the highest possible degree of

execration and infamy, was the object of both fear and adulation among

the rabble. Such famous lawyers as Sir Edward Coke and Sir Francis

Bacon, were earnest advocates of the efficacy of the rack in extorting

evidence from recalcitrant witnesses and suspected traitors. In none

of the above mentioned instances, were any restraints imposed upon

the zeal or malevolence of those entrusted with the application of

this relic of barbarian procedure. Under the judicial system of the

Visigoths, however, the abuse of torture, or even negligence in its

employment, was severely punished; and sometimes, as may be seen from

the above, retribution was exacted by the no less iniquitous _Lex

Talionis_. Pecuniary compensation for damages sustained through

malice, or neglect of proper care, or where an innocent person was put

to the torture, while an inadequate return for the wrong inflicted,

was not, under similar circumstances, sanctioned by the customs and

practice of more cultured nations, nine centuries subsequently. As a

slave was a chattel, he possessed no civil rights, and his master,

for this reason, had the privilege to compound his offence, if it

were not of too serious a character. The fixing of a prescribed

limit, in the value of the property involved, for less than which the

question could not be employed, is derived from the arbitrary tariff

of fines imposed for the loss of limbs, and other personal injuries,

which has always been in use among semi-civilized races. Distinction

in point of rank and social position was sedulously observed by the

Visigoths in the case of the infliction of torture, as well as in the

imposition of penalties for violating the laws and in all subjection

to civil disabilities. The worse than useless character of this mode

of examination was never considered by mediæval authorities, although

it was ably set forth many centuries previously by Cicero, in the

following terse and vigorous language: “_Regit quæsitor, flectit

libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil

veritati loci relinquatur_.”--[ED.]

[34] This would have been readily accepted as law under James I, a

thousand years subsequently; and, no doubt, would have been indorsed

as sound by Cotton Mather, whose sanguinary executions for witchcraft

took place nearly eleven centuries after the death of the Visigothic

king, Chintasvintus. The penalties for sorcery set forth in the

_Forum Judicum_, were far less harsh than those prescribed by the

Anglo-Saxon jurisprudence. The punishment of death was not permitted

by the former, except where life had been lost through the effect of

incantations or charms; a rare occurrence, as may well be surmised; and

torture by fire is not even referred to, still less tolerated. In this

instance, as in many others, the more lenient policy of the barbarian

appears in striking contrast to the fierce and blind intolerance

and cruelty of nations in the possession of superior culture and

intelligence, and living in a far more progressive age.--[ED.]

[35] While abortion, as is well known, was not a crime at Common Law,

and, under statutory regulations, was for a long time not considered

punishable until the period of quickening; it was, however, recognized

as a serious offence by the Romans, whose legislation on the subject

was copied by the Visigoths. The wide variation of the penalties

prescribed was, as is usual, largely dependent upon the social standing

of the culprit; excepting in the provisions of the seventh chapter,

where the innate cruelty of barbarian retribution is disclosed by one

of the most frightful of punishments.--[ED.]

[36] It is probable, from the extreme cruelty of the penalty imposed

for professing ignorance of the laws of the land, that this defence

had been frequently set up by criminals, and that it had, in not a few

instances, been pleaded with success. There is not, in the entire Code,

a sentence exceeding this in severity, as the crime itself is supposed

to have been sufficiently expiated by the infliction of the _Lex

Talionis_.--[ED.]

[37] The various degrees of homicide, as set forth in the preceding

chapters, were clearly understood if not specifically designated,

by the Visigothic legislator. Chapter XI, which describes the crime

corresponding to murder in the first degree, is the only one of

undoubted Roman origin; all the others being the acts of Councils,

or the edicts of kings. In the first and second chapters, the

circumstances which characterize excusable homicide are stated; and in

the third, fourth, fifth, sixth, and seventh, the conditions attending

the crime of manslaughter are explicitly defined. The vital question

of intent, or the existence or non-existence of malice prepense,

is referred to repeatedly, both in a positive and negative manner,

whenever homicide is described. The humane protection afforded the

slave from the cruelty of his master, as provided for by Chapter XII,

suggests what frightful abuses must have previously resulted from

the unrestrained exercise of magisterial tyranny. The guilt of the

accessory-before-the-fact was not considered as great as that of the

principal; as the penalty to which the former was liable, while being

severe, as well as in the highest degree ignominious, fell short of

the infliction of death. The horror with which a parricide has always

been regarded, was likewise felt by the Visigoths, as is disclosed by

his summary execution by the same means that he employed to take the

life of his victim; a form of the _Lex Talionis_ which was only

made use of in the case of crimes of peculiar atrocity. The blinding to

which a murderer was subjected, who had claimed the right of asylum,

was far from being an exhibition of clemency, and certainly entailed

greater suffering than the extreme penalty otherwise prescribed by the

law. Homicide was justifiable, as has been seen, when committed in

self-defence against an attacking party; in certain cases of trespass

_vi et armis_, and where a father killed his adulterous daughter

in his own home, or a husband caught an adulterer with his wife,

_in flagrante delicto_. In the latter instances the offender was

especially exonerated from all blame, on account of the provocation;

and, therefore, could not be held for manslaughter, as he now can be,

under the statutes of the majority of our States. Justification could

also be pleaded where a criminal was killed while committing highway

robbery, larceny, or burglary; the latter (_furtum nocturnum_)

being a much more comprehensive term than ours, and including all kinds

of nocturnal depredations. The employment of that popular American

fiction, the “unwritten law,” by means of which so many homicides have

been acquitted, and which appeals so strongly to the primitive sense

of retributive justice which still dominates humanity, was thus openly

endorsed by the Visigothic Code. Insanity, as a defence for homicide,

was utterly unknown to the legal systems of antiquity; and it is only

under the highly artificial conditions of modern civilization that

this theory has attained such an extraordinary, and often pernicious,

development.--[ED.]

[38] It is rather remarkable that the theft of royal property should

only have been punished by the imposition of a fine equal to that

prescribed where a private individual was robbed. It is evident that,

under a strict construction of this law, no other penalty could be

inflicted.--[ED.]

[39] This chapter, a survival of the irresponsible authority exercised

by the Roman _dominus_, is the only one in the Code where the

fate of a slave, guilty of crime, is specifically and absolutely

left to the will of his master. It is possible that, on account

of the facility afforded for the commission of such offences, the

possession of extraordinary power was supposed to be required, as a

safeguard.--[ED.]

[40] The enforcement of the _Lex Talionis_ in case of the

kidnapping of a freeborn person indicates the abhorrence with which the

crime, ever regarded by all nations as one of the most atrocious in the

calendar, was viewed by the Visigoths. As slaves were valuable articles

of property, the legislation of the Code was principally directed

against those who stole them. The kidnapping of women, having been

already provided for under the title of Rape, is, for that reason, not

referred to here.--[ED.]

[41] The mildness of the sentence imposed for the crime described in

this chapter, which seems to include the capital offences of treason

and _lèse-majesté_, as well as the lesser one of forgery, is most

extraordinary and inexplicable. Although “the divinity that doth hedge

a king” was not fully recognized or appreciated by the Visigoths of the

seventh century, whose monarch was the creature of an ecclesiastical

council, and not infrequently deduced his origin from any but a

princely house, it is still inconceivable that these offences being

particularly directed against the regal dignity, should have been

regarded as personal and of trifling moment, for it can be readily

conjectured what serious trouble and embarrassment a spurious edict,

purporting to emanate from the throne, might cause.

The “notaries” herein referred to were secretaries, shorthand writers

or amanuenses.

This law is of Roman origin, and the amputation of a finger or a hand,

while not unusual under that system, was a more prominent feature

of Greek penal legislation, from which the Romans, at the time of

the adoption of the Law of the Twelve Tables, borrowed many of their

punishments.--[ED.]

[42] The penalty above described for an offence of such gravity as

highway robbery, seems to be grossly inadequate. It is, however, a

peculiarity of the Visigothic Code that, for many breaches of the law

which we class as misdemeanors, it authorizes punishments generally

inflicted for the commission of felony, and _vice versa_. Perhaps

the courts construed the expression “complete legal satisfaction,” to

mean the sentence usually imposed for theft. There can be little doubt

that the obscurity of the language which often characterizes the edicts

of the _Forum Judicum_, would, under a less strict and impartial

judicial system, have offered many opportunities for the escape of an

offender from the legal consequences of his crime.--[ED.]

[43] Between one twelfth and one fourteenth of an acre. The great Roman

highways, portions of which are still in good preservation in some of

the provinces of the Spanish Peninsula, and especially in Estremadura,

were usually from eleven to fifteen feet wide; and, with the space

required by the Visigothic laws to be left unenclosed for the passage

of cattle, were sometimes sixty to a hundred feet in their entire width.

The Visigothic surface measures were partly Roman, partly Gallic,

and partly Gothic. The standard, the _Jugerum_ .622 acre, was

older than the Roman Republic; the _Arepennis_, equal to half

a _Jugerum_, was used by the Gauls; and the _Aratrum_, or

“ploughland,” corresponded to an area of a hundred and twenty acres,

approximately, and is of Northern derivation. The _Aratrum_ was

divided into “oxgates,” or “oxlands,” being as much arable soil as

could be tilled by an ox, usually fifteen acres, but varying according

to country and custom. For purposes of description, the latter term,

evidently an importation of the Danes or Saxons, is frequently employed

in the ancient English works on tenures; particularly where the latter

were of the classes designated as “base,” and “in gross”; as well as

in conveyances and leases, where absolute accuracy of boundaries was

either unnecessary or unattainable. The divisions of “ploughland”

and “oxgate” were used much more recently in Scotland than in

England.--[ED.]

[44] The reader cannot have failed to remark the striking analogy

existing between the laws of the _Forum Judicum_ relating

to strays, and our own statutory enactments on the same subject.

Indeed, aside from some of the penalties imposed, and the amount

of compensation allowed, the regulations are, in many instances,

almost identical. Unlike a great part of the Visigothic legislation,

where trespass, and other violations of the law of real property

are involved, few of the provisions concerning strays are derived

from Roman sources. Most of them are unquestionably survivals of the

ancient legal traditions of the wandering Gothic tribes, the great

bulk of whose wealth consisted of flocks and herds of sheep and

cattle.--[ED.]

[45] This law was evidently intended to repeal the preceding one,

although this is not specifically stated. Its enactment, as is set

forth in the preamble, was demanded by the constantly increasing

number of marriages between freeborn persons and slaves. The

degradation attending such unions does not seem to have been regarded

by the masses with the same prejudice that actuated the law-making

power, whose interest it was to rigidly maintain the barriers of

caste.--[ED.]

[46] The great value of slaves, as articles of personal property, and

the manifest sympathy of the people with them, seem to have prompted

the enactment of this law, by which the inhabitants of an entire

district were to be turned into a corps of detectives for the capture

of fugitives; and the severest penalties were denounced against all,

irrespective of age, sex, social standing, or rank, for non-compliance

with its provisions. The statement that no community, large or small,

was without a number of fugitive slaves, who, sure of the assistance

of their neighbors, scarcely took the trouble to conceal themselves,

indicates that human servitude was not popular with the majority of

the people of the Iberian Peninsula. It would appear, also, that the

magistrates, whose executive delinquencies rendered them liable to

the same punishment as the offenders themselves, were frequently loth

to execute the law. The marked consideration always shown the clergy

by their legislative brethren, is again disclosed by the amusing

inequality of penalties prescribed for the neglect of official duties.

There is a great and painful difference between the limitation to

one meal a day, for a month (a privation, it is hardly necessary to

add, which might be readily evaded) and two hundred lashes, laid on

vigorously with a scourge. This law gives us a curious insight into

life in those times, and one that could have been derived from no other

source; and it is especially instructive in the information it affords

concerning the feelings entertained by all, except the comparatively

few members of the privileged classes, towards those in the servile

condition.--[ED.]

[47] The military organization of the Visigoths bore a striking

resemblance to those of modern armies, and coincided, in only a few

unimportant particulars, with that of the Roman legion. Division by

means of the decimal system, popular among all semi-barbarian races

on account of its simplicity, and the facility of arrangement it

affords, was universally employed. The commander-in-chief, styled

in the Code, _præpositus hostis_, was usually a _dux_, or

duke; the lieutenant-general a _comes_, or count. The commander

of a thousand men, corresponding to our colonel, was denominated

_tiuphadus_; next in rank came the _quingentarius_, who

had charge of a battalion of five hundred; then the centurion, and

the decurion, in command of a company of a hundred, and a squad

of ten men, respectively. The conscription officers were called

_compulsores exercitus_, and the quarter-masters or commissaries,

_annonarii_.

This military gradation was also maintained in civil life, in time

of peace. The _dux_ was the governor of the province in which

he lived; the _comes_, the governor of the chief city of his

district; the _tiuphadus_ was responsible for the behavior of

the thousand men, and their families, over whom he exercised control.

All these, with several other civil functionaries, had the privilege

of holding court, and were invested by the law with the title of

judge: “_judicis nomine censeantur ex lege_.” See Code II,

1–25.--[ED.]

[48] While this is an early instance of the recognition of the offence

of _scandalum magnatum_, subsequently regarded as a heinous crime

against the Lord’s anointed, and still, under the name of _lèse

majesté_, punished with exemplary severity by many of the monarchs

of Europe, it here assumes a broader significance than it did in later

times, as it applies also to the people, and thus includes the torts of

slander and libel.--[ED.]

[49] The _gardingus_ was the third in rank of the Visigothic

nobility, coming after the _dux_ and _comes_. Unlike either

of them, however, he, as a rule, exercised no public employment; and

being ordinarily a person of great wealth, and descended from a long

line of ancestors, materially contributed, by the richness of his

appointments, and the number of his retinue, to the pomp and splendor

of the royal court.--[ED.]

[50] The intricate questions relating to the leasing, conveyance,

descent, and forfeiture of real property are, as has been seen,

elaborated and set forth with great skill and learning in the

Visigothic Code. Not a single chapter treating of this subject is

designated _Antiqua_, to indicate that it is derived from the

Civil Law. And this is the more remarkable when the nomadic origin and

barbarous customs of the not remote ancestors of those who enacted

these important regulations, are considered. A nation of shepherds

and marauders could not be supposed to be familiar with the tenures,

contracts, transfers, boundaries, and torts, by which the title to

landed estates is either acquired or lost; yet the Visigoths framed

their laws with due consideration for the principles of equity, and the

general welfare of all classes of freeborn citizens. In many respects

their laws were superior to those of the Romans. Only two years by the

Twelve Tables, and twenty under the Code of Justinian, were necessary

to create a prescriptive right to the ownership of land. Under the

Roman jurisprudence, until the population became debased by servile

and barbarian marriages, no foreigner could legally hold or convey

real-property. The Visigothic Code, on the other hand, carefully

guarded the rights of the subject race, and prevented them from being

prejudiced by the fraud or oppression of their rulers. The inferior

classes under the Republic and the Empire, were practically serfs,

living in a condition of abject villenage; those of corresponding

station subject to the domination of the Visigoths, were often thrifty

tenants of indulgent landlords, or, at the worst, were bound by

exacting contracts which they had entered into of their own free will.

The extreme solicitude manifested for the protection of the rights

of all parties, where the title to real-property is concerned, is

disclosed by the manifold precautions enjoined, and the stringent rules

to be observed, in determining the existence of adverse possession. A

contract for the rental of land, which would be valid in any of our

courts, could easily be drawn from the laws of the Code relating to

leaseholds.--[ED.]

[51] “_Ludibrium interdum adcrescat._” It would appear from this

precautionary measure, that the members of the medical profession,

in that age, did not differ greatly from some of their brethren of

to-day. The practice of medicine was not highly regarded by the

Visigoths, a nation of warriors, and it was often exercised by slaves,

as formerly at Rome, and subsequently by barbers and charlatans during

the Middle Ages. Malpractice was a term of the broadest significance;

the risks assumed by the practitioner, even in ordinary cases, were

not compensated for by the fees he was entitled to receive, when

successful; and the danger of damages and penalties he incurred where

he lost a patient, made the profession anything but an alluring one.

After rendering conscientious and assiduous services, to be considered

guilty of homicide, and be surrendered to the exasperated relatives

of the deceased patient, as a subject for the savage excesses of the

_Lex Talionis_, was not a prospect calculated to advance the

interests of medical science.

Not until three centuries later, under the Moorish domination, did the

physician and the surgeon acquire the extensive knowledge, and attain

the professional eminence, which made the medical colleges of the

Spanish Peninsula the centre of that branch of learning, not only of

Europe, but of the then known world.--[ED.]

[52] This law, which grants to every foreign trader the privilege

of being judged by his own magistrates, is the precursor of modern

legislation establishing consular and other tribunals instituted to

protect the commercial interests, and define the judicial rights, of

persons transacting business in another country, and is of unknown

antiquity. It is, however, at least thirteen hundred years old. A

people capable of appreciating and adopting such a measure, must

have had intelligent conceptions of the maxims and requirements of

international law and have made no inconsiderable progress in the arts

of civilization.--[ED.]

[53] This pleasing homily, which precedes a collection of the most

atrocious laws ever devised for the suppression of human thought and

the persecution of heretics--with the sole exception of the rules of

the Inquisition, of which it is the prototype--is extremely edifying.

The confidence and assurance of a heavenly recompense, expressed by

the pious king in whose name this edict was promulgated, reveals the

degrading superstition of the time, and the absolute domination of the

monarch by his spiritual advisers.--[ED.]

[54] The translator has interpolated between this and the succeeding

title, in the Castilian version, another, of nine chapters, under

the head of “Concerning insults and opprobrious language.” Part of

it relates to false accusations of physical deformity and disease,

or slander; part to assault, or attempted assault, where no apparent

injury resulted; and the remainder is devoted to laws punishing

those who call Christians Saracens, or assert that they have been

circumcised. The moderate penalty of a hundred and fifty lashes was

prescribed for the last two offences.--[ED.]

[55] In the words of the text, “_veretri ex toto amputatione

plectetur_.” The sentence will not bear translation, and, in the

words of a famous writer referring to a similar case, “must be veiled

in the obscurity of a learned language.” While certainly to be classed

under “cruel and unusual punishments,” it reveals a fiendish ingenuity

in adapting the penalty to the so-called offence.--[ED.]

Transcriber’s Notes:

1. Obvious printers’, punctuation and spelling errors have been

corrected silently.

2. Where hyphenation is in doubt, it has been retained as in the

original.

3. Some hyphenated and non-hyphenated versions of the same words have

been retained as in the original.

4. Italics are shown as _xxx_.

5. Bold print is shown as =xxx=.

The foregoing laws having been framed by us with care and diligence,