The Visigothic code

by Unknown

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.