Principle Of Criminal Law.
In other codes the injury done seems almost alone to constitute the crime, and the punishment is fixed in that material reparation which results from a pecuniary composition. In this code, crime is measured by its moral and true element—intention. The various shades of criminality, absolutely involuntary homicide, homicide by inadvertence, homicide by provocation, homicide with or without premeditation, are all distinguished and defined almost as accurately as in our codes, and the punishments vary in an equitable proportion. The justice of the legislator went further than this. He attempted, if not to abolish, at least to diminish that diversity of legal value established among men by the other Barbarian codes. The only distinction which it maintained was that between the freeman and the slave. In regard to freemen, the punishment does not vary, either according to the origin or rank of the dead man, but simply according to the different degrees of the moral culpability of the murderer. With regard to slaves, though not daring completely to deprive masters of the right of life and death, the Forum judicum at least attempted to subject them to a public and regular course of procedure:—
Laws Regarding Slaves.
"If no one who is guilty or accomplice of a crime should remain unpunished, how much more should those be punished who have committed homicide wickedly and with levity. Thus, as cruel masters, in their pride, frequently put to death their slaves without any fault on their part, it is fitting altogether to extirpate this license, and to ordain that the present law shall be eternally observed by all. No master or mistress may, without a public trial, put to death any of their male or female slaves, or any person dependent upon them. If a slave, or any other servant, commit a crime which may lead to his capital condemnation, his master or accuser shall immediately give information thereof to the judge of the place where the action was committed, or to the count, or to the duke. After the discussion of the affair, if the crime be proved, let the culprit suffer, either by sentence of the judge, or of his master, the punishment of death which he has deserved; in such sort, however, that if the judge will not put the culprit to death, he shall draw up a capital sentence against him, in writing, and then it shall be in the power of the master to kill him or to keep him in life. In truth, if the slave, by a fatal boldness, while resisting his master, has struck him or attempted to strike him with a weapon, or a stone, or by any other blow, and if the master in self-defence has killed the slave in his anger, the master shall in no wise suffer the punishment of homicide. But he must prove that this was the case; and he must prove it by the testimony or oath of the slaves, both male and female, who were present at the time, and by the oath of himself, the author of the deed. Whosoever, from pure wickedness, and by his own hand or that of another, shall have killed his slave without bringing him to public trial, shall be branded with infamy, declared incapable of giving evidence, and doomed to pass the rest of his life in exile and penitence; and his property shall be given to his nearest relatives, to whom the law grants it as an inheritance."
This law alone, and the efforts which its passage reveals, do great honour to the Visigothic legislators; for nothing honours the laws and their authors so much as a courageous moral conflict against the bad customs and evil prejudices of their age and country. We are often forced to believe that the love of power has a great share in the construction of laws which aim at the maintenance of order and the repression of violent passions; the excess of passion borders closely on the rights of liberty, and order is the hackneyed pretext of despotism. But here, power has nothing to gain; the law is disinterested; it seeks after justice only; it seeks after it laboriously, in opposition to the strong who reject it, and for the benefit of the weak who are unable to call in its aid—perhaps, even, in opposition to the public opinion of the time, which, after having had great difficulty in looking on a Roman as a Goth, had still more in regarding a slave as a man. This respect for man, whatever may be his origin or social condition, is a phenomenon unknown to Barbarian legislation; and nearly fourteen centuries elapsed before the doctrine passed from religion into politics, from the Gospel into the codes. It is therefore no slight honour to the Visigothic bishops that they did their best to guard and transfer into the laws this noble sentiment, which it is so difficult to disentangle from the meshes of fact, and which is continually in danger of being crushed beneath the pressure of circumstance.
Presence Of A Good Principle.
It continually recurs in their legislation, both in general precepts and in special regulations; and when it yields, either before the inconsiderate brutality of Barbarian customs, or before the despotic traditions of Roman jurisprudence—traditions with which the minds of the Spanish bishops themselves were imbued—we still discern, even in these bad laws, the obscure presence of a good principle labouring to surmount the obstacles beneath which it has succumbed.