The Visigothic code

by Unknown

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.