The Visigothic code

by Unknown

[32] The savage Lex Talionis of the Mosaic Code, which demanded “an eye for an eye and a tooth for a tooth,” was permitted by the Visigothic jurisprudence, as is disclosed by this and other chapters. In most instances it was authorized where, on account of the poverty of the culprit, a pecuniary compensation was not forthcoming. Notwithstanding the abuse to which it was inevitably liable, there is certainly a measure of stern and retributive justice in the provision consigning a false accuser to the vengeance of the family of his deceased victim; as well as in the case of a wicked and corrupt judge, who maliciously permitted an innocent man to be tortured to death. The Lex Talionis was not unknown to the Romans, and is referred to in the Twelve Tables; but, in after times, their ideas of the proper functions of judicial tribunals, in the infliction of penalties, were too correct to countenance either its acceptance or enforcement.—[Ed.]

[33] Ignorance, inhumanity, and contemptuous disregard of the principles underlying the law of evidence, have, in all ages, impelled semi-barbarians and churchmen to the employment of torture. The absolute unreliability of such a means of eliciting truth, one would naturally suppose would cause it to be rejected by nations in the enjoyment of advanced educational facilities and occupying a high rank in the scale of civilization. Such, however, was far from being the case. An inheritance of the atrocities of the Inquisition, it was still used in France and Spain during the eighteenth century. In Scotland, which was subject to the Civil Law, it was not forbidden until the time of Queen Anne. Although prohibited by Magna Charta, and absolutely unknown to the Common Law of England, torture was, nevertheless, frequently employed as late as the reign of Charles I. A form of it, the peine forte et dure, applied where a prisoner accused of felony stood mute, was authorized by the Statute I, 3, Edward I. During the reign of the tyrannical Henry VIII, the question was in high favor with that monarch and his legal advisers, and the public tormentor, while his profession carried with it the highest possible degree of execration and infamy, was the object of both fear and adulation among the rabble. Such famous lawyers as Sir Edward Coke and Sir Francis Bacon, were earnest advocates of the efficacy of the rack in extorting evidence from recalcitrant witnesses and suspected traitors. In none of the above mentioned instances, were any restraints imposed upon the zeal or malevolence of those entrusted with the application of this relic of barbarian procedure. Under the judicial system of the Visigoths, however, the abuse of torture, or even negligence in its employment, was severely punished; and sometimes, as may be seen from the above, retribution was exacted by the no less iniquitous Lex Talionis. Pecuniary compensation for damages sustained through malice, or neglect of proper care, or where an innocent person was put to the torture, while an inadequate return for the wrong inflicted, was not, under similar circumstances, sanctioned by the customs and practice of more cultured nations, nine centuries subsequently. As a slave was a chattel, he possessed no civil rights, and his master, for this reason, had the privilege to compound his offence, if it were not of too serious a character. The fixing of a prescribed limit, in the value of the property involved, for less than which the question could not be employed, is derived from the arbitrary tariff of fines imposed for the loss of limbs, and other personal injuries, which has always been in use among semi-civilized races. Distinction in point of rank and social position was sedulously observed by the Visigoths in the case of the infliction of torture, as well as in the imposition of penalties for violating the laws and in all subjection to civil disabilities. The worse than useless character of this mode of examination was never considered by mediæval authorities, although it was ably set forth many centuries previously by Cicero, in the following terse and vigorous language: “Regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.”—[Ed.]

[34] This would have been readily accepted as law under James I, a thousand years subsequently; and, no doubt, would have been indorsed as sound by Cotton Mather, whose sanguinary executions for witchcraft took place nearly eleven centuries after the death of the Visigothic king, Chintasvintus. The penalties for sorcery set forth in the Forum Judicum, were far less harsh than those prescribed by the Anglo-Saxon jurisprudence. The punishment of death was not permitted by the former, except where life had been lost through the effect of incantations or charms; a rare occurrence, as may well be surmised; and torture by fire is not even referred to, still less tolerated. In this instance, as in many others, the more lenient policy of the barbarian appears in striking contrast to the fierce and blind intolerance and cruelty of nations in the possession of superior culture and intelligence, and living in a far more progressive age.—[Ed.]

[35] While abortion, as is well known, was not a crime at Common Law, and, under statutory regulations, was for a long time not considered punishable until the period of quickening; it was, however, recognized as a serious offence by the Romans, whose legislation on the subject was copied by the Visigoths. The wide variation of the penalties prescribed was, as is usual, largely dependent upon the social standing of the culprit; excepting in the provisions of the seventh chapter, where the innate cruelty of barbarian retribution is disclosed by one of the most frightful of punishments.—[Ed.]

[36] It is probable, from the extreme cruelty of the penalty imposed for professing ignorance of the laws of the land, that this defence had been frequently set up by criminals, and that it had, in not a few instances, been pleaded with success. There is not, in the entire Code, a sentence exceeding this in severity, as the crime itself is supposed to have been sufficiently expiated by the infliction of the Lex Talionis.—[Ed.]

[37] The various degrees of homicide, as set forth in the preceding chapters, were clearly understood if not specifically designated, by the Visigothic legislator. Chapter XI, which describes the crime corresponding to murder in the first degree, is the only one of undoubted Roman origin; all the others being the acts of Councils, or the edicts of kings. In the first and second chapters, the circumstances which characterize excusable homicide are stated; and in the third, fourth, fifth, sixth, and seventh, the conditions attending the crime of manslaughter are explicitly defined. The vital question of intent, or the existence or non-existence of malice prepense, is referred to repeatedly, both in a positive and negative manner, whenever homicide is described. The humane protection afforded the slave from the cruelty of his master, as provided for by Chapter XII, suggests what frightful abuses must have previously resulted from the unrestrained exercise of magisterial tyranny. The guilt of the accessory-before-the-fact was not considered as great as that of the principal; as the penalty to which the former was liable, while being severe, as well as in the highest degree ignominious, fell short of the infliction of death. The horror with which a parricide has always been regarded, was likewise felt by the Visigoths, as is disclosed by his summary execution by the same means that he employed to take the life of his victim; a form of the Lex Talionis which was only made use of in the case of crimes of peculiar atrocity. The blinding to which a murderer was subjected, who had claimed the right of asylum, was far from being an exhibition of clemency, and certainly entailed greater suffering than the extreme penalty otherwise prescribed by the law. Homicide was justifiable, as has been seen, when committed in self-defence against an attacking party; in certain cases of trespass vi et armis, and where a father killed his adulterous daughter in his own home, or a husband caught an adulterer with his wife, in flagrante delicto. In the latter instances the offender was especially exonerated from all blame, on account of the provocation; and, therefore, could not be held for manslaughter, as he now can be, under the statutes of the majority of our States. Justification could also be pleaded where a criminal was killed while committing highway robbery, larceny, or burglary; the latter (furtum nocturnum) being a much more comprehensive term than ours, and including all kinds of nocturnal depredations. The employment of that popular American fiction, the “unwritten law,” by means of which so many homicides have been acquitted, and which appeals so strongly to the primitive sense of retributive justice which still dominates humanity, was thus openly endorsed by the Visigothic Code. Insanity, as a defence for homicide, was utterly unknown to the legal systems of antiquity; and it is only under the highly artificial conditions of modern civilization that this theory has attained such an extraordinary, and often pernicious, development.—[Ed.]

[38] It is rather remarkable that the theft of royal property should only have been punished by the imposition of a fine equal to that prescribed where a private individual was robbed. It is evident that, under a strict construction of this law, no other penalty could be inflicted.—[Ed.]

[39] This chapter, a survival of the irresponsible authority exercised by the Roman dominus, is the only one in the Code where the fate of a slave, guilty of crime, is specifically and absolutely left to the will of his master. It is possible that, on account of the facility afforded for the commission of such offences, the possession of extraordinary power was supposed to be required, as a safeguard.—[Ed.]

[40] The enforcement of the Lex Talionis in case of the kidnapping of a freeborn person indicates the abhorrence with which the crime, ever regarded by all nations as one of the most atrocious in the calendar, was viewed by the Visigoths. As slaves were valuable articles of property, the legislation of the Code was principally directed against those who stole them. The kidnapping of women, having been already provided for under the title of Rape, is, for that reason, not referred to here.—[Ed.]

[41] The mildness of the sentence imposed for the crime described in this chapter, which seems to include the capital offences of treason and lèse-majesté, as well as the lesser one of forgery, is most extraordinary and inexplicable. Although “the divinity that doth hedge a king” was not fully recognized or appreciated by the Visigoths of the seventh century, whose monarch was the creature of an ecclesiastical council, and not infrequently deduced his origin from any but a princely house, it is still inconceivable that these offences being particularly directed against the regal dignity, should have been regarded as personal and of trifling moment, for it can be readily conjectured what serious trouble and embarrassment a spurious edict, purporting to emanate from the throne, might cause.