History of the Moorish Empire in Europe, Vol. 1 (of 3)

by S. P. Scott

Origin and Character of the Goths—Their Invasion of the Peninsula—Power of the Clergy—Ecclesiastical Councils—The Jews—The Visigothic Code—Profound Wisdom of Its Enactments—Provisions against Fraud and Injustice—Severe Penalties—Its Definition of the Law—Condition of the Mechanical Arts—Architecture—Byzantine Influence—Manufactures—Votive Crowns—Agriculture—Literature—Medicine—Slave Labor—Imitation of Roman Customs—Parallel between the Goths and the Arabs—Coincidence of Sentiments and Habits—Causes of National Decline—Permanent Influence of the Gothic Polity.

Among the countless hordes of barbarians who in the third and fourth centuries overran the provinces of the Roman Empire, and insulted the majesty of the sovereigns of the East, none were so pre-eminently distinguished for valor, loyalty, generosity, and chastity as the Goths. From the third century, when the luxurious tastes of Rome impelled adventurous traders to penetrate to the shores of the Baltic in search of amber, to the establishment of an independent monarchy in Italy by Theodoric in the fifth, their name was familiar to Europe—now suggestive of a bulwark of the tottering throne of Byzantium, and again, as a synonym of murder, pillage, and devastation. Of towering stature and fierce aspect, their forms were cast in the gigantic proportions which pagan mythology loved to attribute to its gods and heroes. Their habitations were situated in the depths of gloomy forests, on the banks of deep and rapid streams, or were surrounded by marshes, over whose treacherous and yielding surface a winding pathway usually led to a remote and well defended stronghold. Like all people whose intellectual development had scarcely begun, they believed implicitly in omens, auguries, signs, and dreams; their religious ideas were vague and ill defined; and neither history nor tradition has preserved for us the appellation or attributes of a single Gothic divinity. At their banquets, defiled by drunken orgies, and not infrequently the scenes of violence and even homicide, were celebrated, in uncouth ballads, the exploits of the famous warriors of the nation. Their very name, indicative of the superiority which their prowess never failed to exact, signified The Nobly Born. Without literature, save a fragmentary translation of the Bible, without government, save the dominion of some chieftain who, covetous of renown, temporarily enjoyed the precarious title of sovereign, eager for change, the most reckless of gamesters, the most pitiless of conquerors, destruction was with them a passion, and war an amusement. In common with other barbarians, with whom the ignorance and fears of the age have confounded them, they claimed and exercised, to the utmost, the privileges of individual dignity and personal freedom. An arbitrary classification, dependent upon a fortuitous geographical distribution, had divided this people into Ostrogoths and Visigoths, according to their relative location upon the eastern and western banks of the river Borysthenes. The pressure from the north, which had dispersed the tribes of the forests of Germany and Pannonia over the European provinces of the Roman Empire, had induced the Visigoths, by necessity or choice, to seek a home in Gaul, which country they occupied in common with the Vandals, the Suevi, the Alani, and other more obscure, but not less formidable, barbarians; and scarcely had the division of the empire between Arcadius and Honorius been effected in the first years of the fifth century, when the inhabitants of Spain, either through treason or from the negligence of the garrisons stationed in the passes of the Pyrenees, were overwhelmed by a deluge of savage marauders.

For four hundred years, the beautiful, the rich, the fertile and densely populated Peninsula had enjoyed the inestimable blessings of peace. With the defeat and death of the sons of Pompey, the last vestige of civil war and intestine discord had disappeared from its borders. Its fields were cultivated with assiduous care; its seaports were thronged with the shipping of the Mediterranean; the manufacturing interests of its inland cities were diversified and important. Its people, who had inherited from Rome and Carthage that love of pleasure which was at once their boast and their disgrace, with Epicurean unconcern, lived only for the present, in the participation of all the luxury which boundless wealth and national prosperity could bestow. Upon this earthly paradise—with its splendid cities, its sumptuous villas, its majestic souvenirs of Roman greatness, its traditions of heroic achievement and maritime adventure; where Hannibal had gained his boyhood’s laurels, and Cæsar, moved by the sight of Alexander’s statue, had first aspired to the dominion of the world—now descended the brutal and licentious plunderers of the North. The excesses perpetrated by them in other provinces of the empire were trivial when compared with the havoc they committed in Iberia. No considerations of public policy, no sentiments of mercy, interposed to mitigate the calamities which befell the smiling plains of the Anas, the Iberus, and the Bætis. Such of the inhabitants as were fortunate enough to find an asylum behind the walls of fortified cities, soon paid for their temporary security with the pangs of famine. The growing crops, delivered to the torch, left to-day a blackened waste where only yesterday had been every promise of an abundant harvest. A smoky pall, appropriate symbol of destruction, overhung the sites of prosperous hamlets and marble villas, where a few smouldering embers alone indicated the former abode of taste and opulence. Heaps of corpses, denied the rites of sepulture, covered the land, which was infested with incredible numbers of wolves and birds of prey, attracted from every side to their loathsome and inexhaustible repast. A feeling of utter despair fell upon the survivors; the instincts of humanity and the feelings of nature were suspended or destroyed; men murdered their families and then committed suicide; women devoured their offspring; exposure, want, suffering, and anxiety produced their inevitable consequences; and the crowning misfortune, the pestilence, daily claimed its victims by thousands. The savage masters of the country, satiated with rapine and mutually jealous of power, now began to quarrel with each other. In the contests which ensued, almost from the first, the superior organization and martial genius of the Goths acquired for them the acknowledged supremacy over their adversaries—a supremacy which soon became coextensive with the Peninsula and laid the foundations of an extensive kingdom. Early in the fifth century the extermination, expulsion, or absorption by intermarriage, of the various tribes, and the emigration of the Vandals, in a body, to Africa, gave the control of the entire country, with the exception of a few seaports still tributary to Constantinople, to the Visigoths. In political organization, in nomenclature, in the construction and in the application of the maxims of jurisprudence, in the election of their rulers, in the punishment of criminals, in the regulation of their amusements, they observed the traditions and honored the observances of their old homes on the Vistula and the Baltic. The accident of conversion, a matter of indifference to the majority of the nation, and one, in this instance, partially dependent upon policy, had made them Arians, and consequently heretics. The Gothic Church, in its independence of the See of Rome, while it honored the Supreme Pontiff, and recognized, to a certain extent, the religious supremacy of the Papacy, presented an anomaly in the Christian world. The monarch chosen for his wisdom or his bravery had not as yet assumed the exterior insignia of royalty, and the laws held him to a strict accountability for the lives and property of his subjects, but in ecclesiastical affairs his authority was undisputed and supreme. He convoked at his pleasure and presided over the national councils—assemblies originally composed entirely of the clergy, and in which, at all times, the theocratical element largely preponderated; he published encyclical letters; he possessed the power of revising the decrees of councils before their adoption and promulgation; and his wishes and suggestions were received with a respect surpassing that usually accorded by his haughty vassals to the majesty of the throne. The clergy were in fact absolutely dependent upon the sovereign; their immunities were subject to his will or his caprice; and, far from enjoying the exemption they obtained in after times by reason of their sacred office and superior sanctity, they were liable to taxation, and amenable to punishment for the violation of the laws as strictly as were the laity. Not only were these restrictions imposed upon them, but the interests of the secular portion of the community were carefully guarded against the possible encroachments of ecclesiastical tyranny; the judges were particularly enjoined to scrutinize the conduct of the priesthood; and instances were by no means rare where heavy fines were imposed upon them for acts of injustice and for the oppression of their parishioners. From the decision of every bishop and metropolitan an appeal lay to the throne, a privilege conceded. to the meanest peasant; the king could suspend or abrogate the rules of ecclesiastical discipline; no canon was valid without his sanction; and he assumed the rights of nominating, and of translating from one see to another, the greatest prelates of the Church. But as assemblies of men who possess a monopoly of the learning and worldly wisdom of a nation, conscious of mental superiority and incited by motives of ambition, are never satisfied with acting in a subordinate capacity; the ecclesiastical councils of Spain almost imperceptibly, but none the less surely, began to encroach upon the royal prerogative, and, assisted by the weakness or gratitude of princes whose titles had been assured by their confirmation, aimed at the seizure of absolute power. By the institution of the rite of anointing, which imparted a sacred character to the monarch, and invested in them an implied control over his coronation—a rite first used in Spain and not adopted in France till the reign of Pepin, in the eighth century; by the framing of laws favorable to their order, and whose essential provisions were carefully disguised under the specious name of enactments for the public welfare; by a command of a majority of the votes which elected the sovereign; and lastly, by the conversion of the whole nation to the doctrines of the orthodox faith; the Gothic clergy advanced unswervingly towards the establishment of their claim to political supremacy. The Third Council of Toledo was the first of these important convocations in which questions relating to the settlement of the constitution of the Gothic monarchy were debated and settled. From this time until the meeting of the Eighth Council in 653, the palatines did not participate in the deliberations of these assemblies, which now began to assume the appearance of legislative bodies, in which the aims of exclusive ecclesiastical representation were already clearly disclosed by the partiality and exemptions which characterized the canons treating of the rights and privileges of the priesthood. After the middle of the seventh century, although the nobles were admitted as members of the national councils and took part in their discussions, the influence of the clergy became paramount, and the duties of the nobility were confined to a passive assent to, and registration of, their edicts. A separate tribunal for the final adjudication of all disputed points of doctrine which might incidentally arise in the ordinary administration of justice was granted to ecclesiastics; the latter were prohibited from engaging in commerce, which the poverty of the Church had formerly rendered necessary; it became customary to select bishops for the negotiation of treaties, and for the direction of military embassies which were invested with the all-important powers of peace and war; the councils occasionally claimed jurisdiction over secular causes—an unwarranted assumption of power which the indifference or bigotry of the sovereign usually failed to resent; and the intolerant character of the canons treating of heresy indicate, but too plainly, the growing spirit of persecution—the germ of future inquisitorial atrocities.

But, notwithstanding the acceptance of Catholicism, and the consequent advance towards the enjoyment of absolute independence, the Church was hampered by many serious restrictions. Bishops, clerks, and monks remained subordinate to the secular arm and responsible to the courts of the realm; they could not, with impunity, disregard their processes, still less defy their authority; and the commission of crime rendered them liable to heavy fines and long terms of imprisonment; although, like the nobility, they could not be subjected to the punishments inflicted upon the lower orders, such as scourging and branding—the latter being considered especially infamous. The immunity which subsequently attached to the character of the clergy as non-combatants was not known to the founders of the Gothic monarchy. When a city was besieged or the country threatened with invasion, every subject, regardless of his profession, was obliged to serve in the army, and no ecclesiastic could plead his sacred office in bar of military duty to his sovereign, under penalty of confiscation and exile; the tonsure was regarded as of peculiar significance and sanctity, and any one whose locks had once been shorn, or who had assumed the clerical habit, was henceforth excluded, as a rule, from all military and civil employments, and consecrated for life to the service of the cloister; a law which, when abused by fraud or ignorance, was more than once productive of important results, and even of changes in the royal succession. Upon the whole, however, the influence of the Church in those days of intellectual darkness was highly beneficial. Its monopoly of the scanty wisdom of the time was often employed for the protection of the oppressed, for the alleviation of suffering, for the frustration of tyranny, for the consolation of death. The bishop stood as a guard between the helpless peasant and the unjust judge; his mediation with the throne, in cases of flagrant injury, was not optional but mandatory; and his official conduct was subject to the constant supervision, and was liable to the censure, of the magistrate. The ambition and political aspirations of the clergy, joined to their insatiable greed of dominion, which increased with each successive encroachment upon the civil power, with the daily accumulation of wealth, and the acquisition of extensive estates by gift, extortion, bequest, or purchase, disclosed themselves in time in their legitimate consequence, religious intolerance. The Arian Church in Spain never disgraced its rule by persecution for differences of opinion. With the acceptance of the orthodox belief in the sixth century, however, the spirit of vindictive malevolence,—which has always animated and directed the genius of Catholicism when in the ascendant, at once infected the counsels of the ecclesiastical tribunals, and indirectly, through their influence and example, the decisions of the courts of law. The coronation oath rendered obligatory the expulsion of all heretics without consideration of birth, position, or previous service to the state. The Jews, in whom were vested the most important offices, and who possessed the bulk of the wealth of the kingdom, were banished, imprisoned, plundered, or burnt; and while it is true that the severity of the laws against this sect defeated, erelong, the object of their enactment, even their partial enforcement was the cause of great and wide-spread suffering. With the consciousness of power came the increase of pomp and the desire for prohibited enjoyments and indulgence in carnal pleasures wholly inconsistent with the observance of the vows of poverty and chastity as well as contrary to the rules of ecclesiastical discipline. The canons enacted from time to time by the councils, and whose provisions were designed to impose restraints upon the irregular conduct of the clergy, show, more conclusively than the pages of any chronicle, the lax morality and deplorable condition of the religious society of that age. Stringent regulations were adopted against the acceptance of bribes as the price of exemption from persecution—especially referring to the Jews—a proof that the zealous protestations of the clerical order could not withstand the pecuniary arguments of the astute Hebrew; while the censures fulminated against priests and monks who abused the privileges of the confessional, or violated nature in the commission of revolting crimes, indicate the secret and universal corruption which had already begun to pollute the sacred offices of the Church and impair the usefulness of its ministers. The Eighteenth Council of Toledo, at the dictation of King Witiza, whose profligate conduct and contempt for religion had aroused the horror of Christendom and provoked the anathemas of the Pope, had, with unexampled servility, passed laws authorizing the marriage of ecclesiastics, the institution of polygamy, and the practice of promiscuous concubinage. Under these conditions of sacerdotal degradation, sanctioned by custom and established by law, the influence of the Church was everywhere diminished; the faith of men in the existing religion was weakened; and the public mind was insensibly prepared for the new revelation which, appealing to the strongest passions of the human breast, stripped of metaphysical distinctions, and inculcating moral precepts such as the most skeptical and dissolute must applaud, was soon to be published to the discontented and priest-ridden subjects of the Gothic empire. The ill-defined powers of the Crown and the Mitre, at first reciprocally dependent, led eventually to a clashing of interests and a struggle for precedence between the royal and the sacerdotal authority, in which the clergy, though their aspirations were occasionally checked by some monarch of stern and decided character, in the end invariably obtained the advantage. The dependence of the sovereign upon the priesthood was never lost sight of. No occasion which might remind him of the obligation he owed to the order whose suffrages had conferred, and might, with equal facility, resume possession of his crown, was suffered to pass unimproved. The anointing with holy oil, which symbolized the right of divine consecration, had already forged another link in the chain which bound the king to the Church. The anathemas denounced upon a prince for failure to execute the laws against heretics, far exceeded in virulence those to which any subject was liable. At one time, the wishes of the sovereign were anticipated by the subserviency of the prelates; at another, his prerogative was invaded and his commands disobeyed with an arrogance worthy of the imperious spirit of Julius II. or of Gregory the Great. The populace, through ignorance, prejudice, and habit, blindly devoted to the sacerdotal order, furnished a formidable body of auxiliaries, ever ready to hearken to the appeals of their ghostly advisers, a force which the dignity and assurance of the haughtiest ruler could not with impunity disregard. The turbulent and illiterate nobility, although the king was selected from their number by the voices of the assembled bishops—in which ceremony the concurrence of the palatines was admitted, in reality, only through courtesy—possessed, in the practical application of the precepts of the Gothic constitution, scarcely the shadow, still less the substance, of power. The council was the embodiment and representative of the intellect and the collective wisdom of the nation. Its canons were, for the most part, framed in strict accordance with the principles of equity, and the deliberations and conclusions of its sessions were often characterized by a breadth of understanding and a degree of impartiality which clearly indicated that its members were not deficient in the knowledge and requirements of enlightened statesmanship. The results of their labors are contained in the Gothic Code, a body of laws remarkable in many respects, when we consider the general illiteracy and ignorance of the age in which it was compiled, and its transcendent importance as the prototype of the systems of jurisprudence which now regulate the civil and criminal procedure of the courts of Europe and America. In the extraordinary minuteness of its details, in its thorough and comprehensive treatment of the manifold transactions of daily life, and in its provisions for almost every contingency which could arise in the administration of the sovereigns under whose auspices it was framed, this extraordinary work presents the modern legislator with a subject eminently worthy of his attention and study. The contact with races which had long enjoyed the blessings of civilization, and the development of the intellectual faculties consequent upon the experience obtained in frequent expeditions and protracted campaigns, imperceptibly modified the ancient laws of the Goths; the very essence of which was, from the first, and long continued to be, the assertion of the principle of personal liberty. Rome, whose toleration of the religious prejudices and customs of the nations subjected to her dominion—so long as they did not conflict with her interests or contravene her authority—was one great secret of her power, had, in accordance with that policy, indulged the Iberians in the use of their own laws, and only those who enjoyed the privileges of citizenship could be summoned before the tribunal of the imperial magistrate. The incursions of the barbarians had abolished every restraint, and transformed the previous quiet and peaceful condition of the Peninsula into a state of anarchy. There was then no law but the will of the chieftain, who was inclined to encourage, rather than to repress, the excesses of a brutalized soldiery. All records and muniments of title had disappeared; boundaries had ceased to exist; the tenure of lands was entirely dependent upon the numerical strength of the claimants; and when the fields of one district were exhausted, the discontented settlers sought a new residence in another locality, whose wealth had excited their avarice, and the inferior military resources of whose occupants rendered the retention of their possessions uncertain. The cessation of hostilities was always accompanied with the plunder and impoverishment of the vanquished; no treaty was valid, because no moral obligation, or superior power by which it could be enforced, existed; every vice was committed with impunity; every grudge was satisfied with all the abuse of unrestricted license; the caprice of the military commander had supplanted the precedents of the prætor, and the sword had become the only acknowledged arbiter of every controversy.

During the reign of Euric, in the year 479, was codified and published the first book of Gothic law, the basis of the subsequent complex and exhaustive system of jurisprudence which increased in size, and gathered reverence and authority with the reign of each succeeding sovereign. It was known as the Forum Judicum, or the Book of Judges, and consisted mainly of a compilation of the rules applicable to the various customs and ordeals, which had been approved by time and experience as beneficial in the administration of the government of the Gothic nation, combined with such maxims of Roman law as had gradually been absorbed through frequent association with the courts and magistrates of the empire. The new rights and duties arising from the acceptance by the Goths of the orthodox belief in the latter half of the sixth century, necessitated a revision of the existing laws and the formulation of another code of far more extensive scope than the one which already existed. By certain provisions of the former the constitution of the Iberian church was definitely established and the predominance of the clergy in secular matters assured; measures of portentous significance, whose evil effects upon the intelligence and prosperity of the Spanish people are discernible even in our day. From the date of its adoption and promulgation, the inhabitants of the Peninsula were, without exception, declared subject to its statutes. From this time dates the absolute supremacy of the Church in the Peninsula. The hold which it then obtained upon temporal affairs it has never relaxed. The awful consequences of that supremacy upon all classes and conditions of men owing allegiance to the Spanish crown are familiar to every reader of history.

The Visigothic Code exhibited, in the restrictions it imposed upon the royal prerogative, that spirit of jealous independence always conspicuous in the character of the German warrior, and which had been preserved through many centuries by the importance that distinguished the privileged orders under an elective monarchy. The king, who, at first, had been liable to censure and judgment by his subjects, was informed, when invested with his office, that even its dignity could not exempt him from the obligation to observe the law, a principle of justice and equality which he shared with every resident in his dominions. The authority of the turbulent and illiterate nobles, who, with all the arrogance of power, did not hesitate to threaten and insult the creature of their choice, was curbed in time by the potent yet gentle influence of the clergy, whose learning and talents at first swayed, and finally absolutely controlled, the deliberations of the National Councils. The high rank of the prelates, their superior accomplishments in an age of universal ignorance, and their claims as members of an independent hierarchy, which even the Supreme Pontiff himself scarcely ventured to contradict, in the end communicated to the Visigothic constitution all the worst characteristics of an irresponsible and intolerant theocracy.

The Forum Judicum consists of twelve books, which not only define the rights of the different classes of society, but prescribe at length, and in copious detail, the mode of procedure to be followed in the various tribunals. Every precaution which ingenuity could devise was adopted to insure the fidelity, the honesty, and the impartiality of the magistrate, whether of the civil or the ecclesiastical order. It was the duty of the judge to observe and report upon the decisions of the bishop and the priest, while, on the other hand, the higher clergy possessed, under certain contingencies, the power of examining causes and rendering judgment when the proper official had refused or neglected to exercise his judicial functions, and the interests of either of the parties litigant were exposed to injury in consequence. The courts were open from dawn to dark, and the period of vacation and the hours of rest were strictly regulated by law. The trial of causes could not be delayed except for valid reasons; the speedy rendition of judgment was compulsory; the procrastination, injustice, or corruption of the judge was punished by a fine amounting to double the loss incurred, and when the circumstances were peculiarly aggravating his property was confiscated and he was publicly sold as a slave. No person, however indigent, was debarred, for that reason, from the benefits of justice, and a fund was set apart in every town for the support of impecunious litigants, which was disbursed by the municipal government with the approval of the bishop. An appeal from the decisions of the inferior tribunals was granted as a matter of unquestionable right, and the slightest suspicion of interference by the throne in the proceedings rendered them invalid and worthless. The ceremonies relating to the administration of the law were characterized by great simplicity, and the pleadings were divested of unnecessary verbiage. The highest reverence for the officers of the crown was inculcated and enforced; and a resort to litigation was persistently discouraged by public opinion, excepting where it was imperatively demanded by the interests of justice. In the rules of evidence, as well as in their application, traces of the deeply rooted superstitions of the Teutonic barbarians still remained. The ordeals of fire and water were not infrequently adopted. The wager of battle could not be refused, without ignominy; and the oaths of compurgators were, at times, invoked to restore the lustre of some tarnished escutcheon, or to remove the stain attaching to a suspected violation of female honor. Torture was allowed, but excessive severity in its application was prohibited, and, in case of death or permanent injury resulting from its abuse, the judge was liable to forfeiture both of his possessions and his liberty. In determining the competency of testimony, an unwise and unjust discrimination was made against the poor, through the unwarrantable presumption of temptation to bribery, and this exclusion also applied to Jews—even though apostates—as well as to their descendants, and to slaves. The crime of perjury was mentioned with horror; its commission was deemed worthy of the severest punishment; and the false witness, visited with public execration, was condemned to life-long servitude. In general, the criminal code of the Visigoths was conspicuous for the moderation with which it treated offenders against the public peace. The penalty of death was rarely inflicted, and was confined to cases of arson, rape, and murder. A regular schedule of minor crimes and their punishments existed; the severity of the latter depending upon the social rank and political importance of the individual. In flagrant instances of malicious prosecution, bribery of public officers, or abuse of political power, the culprit became the slave of the injured party, with the sole limitation to his resentment, that the life of his former oppressor should be spared. Rebellion was punished by banishment; infanticide by blinding; and the counterfeiter, or the forger of a royal edict, suffered the loss of the right hand. When the atrocious nature of an offence against morals demanded a penalty of corresponding infamy, the head of the criminal was shaved and branded, marking him for life as a social outcast, to be forever an object of public abhorrence. Scourging was the penalty of most universal application, and even a freeman, however exalted his station, was not exempt from its infliction, if he ventured to provoke the vengeance of retributive justice, and was not possessed of the stated fine which was the legal equivalent of the lash. The right of asylum, a privilege whose importance as a salutary check upon the passions of a fierce and tyrannical nobility, in an age of violence, is with difficulty appreciated in modern times, was recognized by the Gothic constitution; and no suppliant, who had sought protection at the foot of the altar, could be removed without the consent of the proper ecclesiastical authority. In the provisions which define the civil relations of society, the Forum Judicum recalls to every one conversant with the Commentaries of Blackstone, the familiar maxims and precedents of the Common Law of England. The different grades of relationship, and the rights of inheritance in the ascending and descending lines, were treated of exhaustively in the books of the Visigothic Code. In the protection of the interests of children its sections displayed a paternal and anxious care. No child could be disinherited unless it had been guilty of some aggravated act of violence towards its parent. In all questions relating to the descent of property, no preference was accorded to sex, and the female remained on the same footing as the male. A minor of ten years could, without restriction, dispose of his or her possessions by will. Guardians were appointed by the courts, who were required to observe the conditions of their trust, and to render accounts of the funds which passed through their hands; and the power of appointing a guardian ad litem was frequently exercised, where the affairs of a minor necessitated the institution or the defence of a suit at law. The boundless control of the father over the child, which formed so prominent a feature in the domestic regulations of Rome, was repugnant to the independent spirit of the Goths; the parental duties and responsibilities were expressly defined; the son who resided with his father was entitled to two-thirds of his earnings; and the courts exercised unremitting and vigilant supervision over the persons and estates of minors and orphans. A reminiscence of the ancient custom of marriage by purchase survived in the price paid by the bridegroom to the relatives of the bride; all clandestine alliances were considered invalid; a woman could sue, and be sued, without joining with her husband; and no responsibility attached to either for the illegal acts of the other. Integrity of descent and purity of blood were preserved by laws of exceptional severity; a free-born female who abandoned her person to, or even contracted marriage with, a slave was scourged and burnt with her unfortunate paramour or spouse. A wife who had incurred the guilt of adultery was delivered over absolutely to the tender mercies of the injured husband. This offence, which evoked ordinarily the strongest denunciation from the descendants of the cold and sluggish barbarians of the Baltic, was, however, in an ecclesiastic rather reprobated as an amiable weakness than condemned as a crime; an indulgence to be attributed partly to the predominant and sympathetic caste of the legislature, and partly to an appreciation of the opportunities and temptations which beset the father-confessor, who, after conviction, was immured in some comfortable monastery until he professed penitence and received absolution.

The conditions of vassalage and serfdom, as understood and practised elsewhere in Europe, and especially in Germany, were foreign to the polity of the Visigoths. Feudalism, with its mutual rights and obligations as subsequently known to Europe, strictly speaking, did not exist. The relations affecting the status of lord and vassal were, to some extent, borrowed from the Roman system and modelled upon those of patron and client. The sections relating to the conditions of servitude were minute and voluminous. The master had generally unrestricted power over the life of his slave. He who aided the escape of the latter was legally responsible for his value. Recognizing the peculiar facilities for criminal intercourse, and the corresponding difficulty of its detection, the law sentenced the servile adulterer to the stake. While the most liberal encouragement was given to the manumission of slaves, the numbers of this unfortunate class were constantly increasing, by the capture of prisoners of war, by the degradation of dishonest officials, by the submission of debtors, and by the conviction of criminals. Every slave belonged to a certain rank, and castigation for petty delinquencies, as well as punishment for serious crimes, was inflicted with more or less rigor, according to the cause of his servitude, his industrial ability, and the social condition of his owner, whether he was born, purchased, or condemned; whether he was a skilful artisan or mechanic, or an ordinary laborer; or whether he was the property of the Crown, of the Church, or of an individual. The influence of the Visigoths did much to lighten the burdens of slavery; the bloody spectacles of the gladiatorial contests possessed no allurements for a nation not degraded by cowardice and cruelty; the treatment of bondmen was, in some localities, so softened and modified that scarcely more than the name of hereditary servitude existed; and in cases of intolerable oppression, where the slave took refuge in the sanctuary, the master could be compelled to dispose of him to some one more actuated by feelings of kindness and pity.

The precepts of the Forum Judicum which relate to bailments, to strays, to trespass, to accessories before and after the fact, to the obstruction of highways, to malicious mischief, to the attestation of documents, and to contracts made under duress, are substantially the same as those set forth in our law-books of to-day. A statute of limitations, which recognized a period varying from thirty to fifty years, beyond which even some criminal prosecutions could not be instituted, was in force. The legislation pertaining to agriculture, irrigation, and the boundaries of land was particularly complete and exhaustive. Security was obtained by bonds and pledges; inventories were required of guardians; and the culprit who was guilty of slander was not only responsible in damages for his intemperate language, but was also often liable to corporeal punishment; as, for instance, if he called another a “Saracen,” or even insinuated that he had been circumcised, he might consider himself fortunate if he did not receive fifty lashes at the hands of the common executioner.

Considering the general condition of society, the antecedents of a nation whose energies had hitherto been directed to the overthrow of every institution which secured the perpetuity of peace and order, the previous slender opportunities of its authors, and the limited educational facilities at their command, the Code of the Visigoths presents us with a system of legislation of extraordinary interest and value. So remarkable is this body of jurisprudence in the wisdom, foresight, humanity, and knowledge of mankind which characterize its leading maxims, that they almost seem to have been suggested by divine inspiration. Its first statutes appeared when the comprehensive system of Justinian, which had enlisted the talents and exhausted the erudition of the most accomplished jurists of the Eastern Empire, was nearly perfected. It borrowed but little, however, from the learning of Tribonian and the laborious ingenuity of his seventeen coadjutors. The eternal principles of justice, it is true, are equally the basis of both of these collections; but their construction and the methods of their application, under similar conditions, are widely different; and the superiority, upon the whole, is largely on the side of the so-called barbarian. In the majority of instances, excepting where ecclesiastical ambition and monastic prejudice perverted the ends of legislation, the laws of the Visigoths were uniformly framed for the protection of the weak, the relief of the oppressed, and the general welfare of society. Unlike the practice of more civilized nations in comparatively recent times, the judicature of the former confined its penalties to the personality of the offender, and imposed no disabilities, either by forfeiture or attainder, upon his innocent relatives and descendants. It restrained the tyranny of the monarch; it defined with conciseness and accuracy the rights of the subject; it accorded unprecedented concessions to the widow and the orphan; it respected the unfortunate and helpless condition of the slave. It prohibited encroachments upon personal liberty, and declared the sale of a freeman to be equivalent in atrocity to the crime of homicide. In almost every provision which did not conflict with the claims of the priesthood, it hearkened to the voice of mercy and humanity. By the constant menace and certain infliction of civil degradation, confiscation, and perpetual servitude, it secured the fidelity of the judges and fiscal officers of the state. It accepted the great principle of the Salic law, and, with worldly prudence, forbade the election of a female sovereign. But, when the theocratic influence which pervaded every branch of the Gothic constitution comes to be examined, its effect upon contemporaneous legislation is seen to be pernicious and deplorable. The power of the clergy was irresponsible, ubiquitous, and thoroughly despotic. It dictated the proceedings of every assembly. It whispered suggestions of questionable morality in the ears of the monarch. When thwarted in its unholy aims, its vengeance was implacable. The abuse of the convenient and formidable weapon of excommunication had not reached the extreme which it subsequently attained, yet the all but omnipotent hand of the priesthood was already able to invade the privacy of domestic life, to interfere with the sensitive and delicate mechanism of commerce, to violate the rights of property, to desecrate the sacred precincts of the grave. Ecclesiastical intolerance dictated the passage of ex-post-facto laws, a measure whose monstrous injustice is patent to every unprejudiced mind. The disability imposed upon the Hebrew race, and the savage spirit of the canons enacted for its oppression, point significantly to the prospective horrors of the inquisitorial tribunals. The practice of sorcery and magic—so dreaded in an age of intellectual inferiority, and especially offensive to the Church, which tolerated no wonder-workers outside of its own pale—was severely reprobated, and punished with excessive severity. The ends of the clergy, when not obtainable by the arts of controversy, were secured by other means not unfamiliar to the intriguing courtiers of mediæval Europe; its propositions were advanced with caution and debated with consummate skill; and its arguments were either insinuated with more than Jesuitical adroitness, or urged with all the energy of sacerdotal zeal.