[48] While this is an early instance of the recognition of the offence of scandalum magnatum, subsequently regarded as a heinous crime against the Lord’s anointed, and still, under the name of lèse majesté, punished with exemplary severity by many of the monarchs of Europe, it here assumes a broader significance than it did in later times, as it applies also to the people, and thus includes the torts of slander and libel.—[Ed.]
[49] The gardingus was the third in rank of the Visigothic nobility, coming after the dux and comes. Unlike either of them, however, he, as a rule, exercised no public employment; and being ordinarily a person of great wealth, and descended from a long line of ancestors, materially contributed, by the richness of his appointments, and the number of his retinue, to the pomp and splendor of the royal court.—[Ed.]
[50] The intricate questions relating to the leasing, conveyance, descent, and forfeiture of real property are, as has been seen, elaborated and set forth with great skill and learning in the Visigothic Code. Not a single chapter treating of this subject is designated Antiqua, to indicate that it is derived from the Civil Law. And this is the more remarkable when the nomadic origin and barbarous customs of the not remote ancestors of those who enacted these important regulations, are considered. A nation of shepherds and marauders could not be supposed to be familiar with the tenures, contracts, transfers, boundaries, and torts, by which the title to landed estates is either acquired or lost; yet the Visigoths framed their laws with due consideration for the principles of equity, and the general welfare of all classes of freeborn citizens. In many respects their laws were superior to those of the Romans. Only two years by the Twelve Tables, and twenty under the Code of Justinian, were necessary to create a prescriptive right to the ownership of land. Under the Roman jurisprudence, until the population became debased by servile and barbarian marriages, no foreigner could legally hold or convey real-property. The Visigothic Code, on the other hand, carefully guarded the rights of the subject race, and prevented them from being prejudiced by the fraud or oppression of their rulers. The inferior classes under the Republic and the Empire, were practically serfs, living in a condition of abject villenage; those of corresponding station subject to the domination of the Visigoths, were often thrifty tenants of indulgent landlords, or, at the worst, were bound by exacting contracts which they had entered into of their own free will. The extreme solicitude manifested for the protection of the rights of all parties, where the title to real-property is concerned, is disclosed by the manifold precautions enjoined, and the stringent rules to be observed, in determining the existence of adverse possession. A contract for the rental of land, which would be valid in any of our courts, could easily be drawn from the laws of the Code relating to leaseholds.—[Ed.]
[51] “Ludibrium interdum adcrescat.” It would appear from this precautionary measure, that the members of the medical profession, in that age, did not differ greatly from some of their brethren of to-day. The practice of medicine was not highly regarded by the Visigoths, a nation of warriors, and it was often exercised by slaves, as formerly at Rome, and subsequently by barbers and charlatans during the Middle Ages. Malpractice was a term of the broadest significance; the risks assumed by the practitioner, even in ordinary cases, were not compensated for by the fees he was entitled to receive, when successful; and the danger of damages and penalties he incurred where he lost a patient, made the profession anything but an alluring one. After rendering conscientious and assiduous services, to be considered guilty of homicide, and be surrendered to the exasperated relatives of the deceased patient, as a subject for the savage excesses of the Lex Talionis, was not a prospect calculated to advance the interests of medical science.
Not until three centuries later, under the Moorish domination, did the physician and the surgeon acquire the extensive knowledge, and attain the professional eminence, which made the medical colleges of the Spanish Peninsula the centre of that branch of learning, not only of Europe, but of the then known world.—[Ed.]
[52] This law, which grants to every foreign trader the privilege of being judged by his own magistrates, is the precursor of modern legislation establishing consular and other tribunals instituted to protect the commercial interests, and define the judicial rights, of persons transacting business in another country, and is of unknown antiquity. It is, however, at least thirteen hundred years old. A people capable of appreciating and adopting such a measure, must have had intelligent conceptions of the maxims and requirements of international law and have made no inconsiderable progress in the arts of civilization.—[Ed.]
[53] This pleasing homily, which precedes a collection of the most atrocious laws ever devised for the suppression of human thought and the persecution of heretics—with the sole exception of the rules of the Inquisition, of which it is the prototype—is extremely edifying. The confidence and assurance of a heavenly recompense, expressed by the pious king in whose name this edict was promulgated, reveals the degrading superstition of the time, and the absolute domination of the monarch by his spiritual advisers.—[Ed.]
[54] The translator has interpolated between this and the succeeding title, in the Castilian version, another, of nine chapters, under the head of “Concerning insults and opprobrious language.” Part of it relates to false accusations of physical deformity and disease, or slander; part to assault, or attempted assault, where no apparent injury resulted; and the remainder is devoted to laws punishing those who call Christians Saracens, or assert that they have been circumcised. The moderate penalty of a hundred and fifty lashes was prescribed for the last two offences.—[Ed.]
[55] In the words of the text, “veretri ex toto amputatione plectetur.” The sentence will not bear translation, and, in the words of a famous writer referring to a similar case, “must be veiled in the obscurity of a learned language.” While certainly to be classed under “cruel and unusual punishments,” it reveals a fiendish ingenuity in adapting the penalty to the so-called offence.—[Ed.]
Transcriber’s Notes:
1. Obvious printers’, punctuation and spelling errors have been corrected silently.
2. Where hyphenation is in doubt, it has been retained as in the original.
3. Some hyphenated and non-hyphenated versions of the same words have been retained as in the original.