The Visigothic code

by Unknown

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.