The Visigothic code

by Unknown

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.]