The Visigothic code

by Unknown

An analysis of the Visigothic Code may be made under three heads: historical, descriptive, comparative. Its story is practically that of the Gothic monarchy in Spain. In the variety and scope of its provisions; in the skilful adaptation of its canons to the purposes of ecclesiastical supremacy; in the care with which it preserves the distinctions of caste; in the accuracy and conciseness of its maxims defining the principles of equity; in the elaborate, yet simple, arrangement of its judicial system; in the thoroughly philosophical spirit that pervades the greater portion of its pages; it is radically different from, and, in many respects superior to, all other collections of legal enactments of ancient or mediæval times.

It is far more instructive and suggestive than a chronicle. Nowhere have the purposes of the law been more ably stated than in its terse and expressive phraseology. It proclaims the sentiments of a lofty morality. It appreciates the true object and end of legislation. In its stern and inflexible disregard for the arrogant claims of superior wealth and station, it assured to the most lowly the administration of impartial justice.

The Goths, a branch of the Indo-Germanic race, from which the Caucasian of modern times is descended, and whose habitat once extended from Western Europe to the great plains of Central Asia, seem to have wandered farther, and to have changed more materially, as regards their laws, customs, and religious belief, than other tribes of migratory barbarians. Distinct from the Germans, or Teutons, they have, nevertheless, often been confounded with them; a fact due to their nomadic tendencies, personal appearance, and general habits of life. The similarity which characterized the vast hordes, or vagrant multitudes, which issued in ancient times from the officina gentium, has been the cause of much confusion in the more or less fanciful accounts of classic annalists and historians. The coincidence of numerous terms of the Gothic language with those of Sanscrit, and the identity of many roots of words in both languages, have established the origin of the Goths to be Indian, and not Scandinavian, as was once generally supposed. It is related by Herodotus, that Darius, a thousand years before Christ, repelled from the confines of the Persian dominions, across the Danube, a great migration of barbarians, moving and living on horses and in chariots. This people, known as Scythians in antiquity, were the ancestors of the modern Slavs, and kindred of the Goths. Driven back by the Persians, they, with others who followed them, distributed themselves over Northern Europe, whence, in time, they descended to overwhelm, with their numbers and their valor, the decadent and tottering Roman Empire.

The original Goths were typical savages. They had practically no political organization; dressed in skins; disdained all labor; showed no mercy to their enemies; killed their parents, when they became old and infirm; had few religious ideas; worshiped a drawn sword as a divinity; were filthy in their personal habits; and recognized only the law of the strongest. From such unpromising progenitors was derived the race destined to be, in large measure, the lawgivers of Europe.

The Visigoths, in the course of conquest firmly established in Gaul and Spain, and everywhere victorious over the Romans by arms, were, in their turn—as inevitably happens under similar circumstances—both enervated and subjugated by the arts of luxury and peace. Despite their surroundings, they, for a long period, preserved their ancient habits and traditions. For more than a century they went about half-clad and unkempt, as they had done on the shores of the Euxine and the Baltic, to the astonishment and disgust of the polished Roman provincials, who had inherited the luxurious tastes, courteous manners, and artistic conceptions of Greece and Italy. To the last, they wore long hair as a badge of sovereignty; a barbarian custom which first became known to the Romans, when the city was saved by Marius from the invasion of the Cimbri and Teutons. In the early days of their domination in the West, the laws of the Goths, like those of all other unlettered races, were based upon custom and oral tradition. They carried with them in all their migrations the same principles which had guided them in distant countries, and under a far different political and climatic environment. Many of their rules and customs were never abrogated, and eventually constituted no unimportant part of their Code. Under new conditions of government and society, changes became necessary in their jurisprudence. Roman laws, generally subjected to modification, and rarely adopted in toto, were incorporated into their statutes. Never, however, was servile obedience, without remonstrance, offered to despotic authority. Their government was strictly one by law. The Crown, long elective, and unsuccessfully attempted to be made hereditary within a quarter of a century of the Saracen invasion, while at first bestowed by the votes of the entire people, ultimately became dependent upon the choice of the clergy. The Throne and the Altar were thus closely connected, and, to a certain extent, necessary to one another. The bishops, having the power of election, and likewise of deposition, exercised unbounded influence over the king, who was indebted to them for his throne. On the other hand, the sovereign had many opportunities for granting favors and privileges to the ecclesiastical order, a prerogative which he did not hesitate to frequently exercise. Ecclesiastical supremacy, however, rarely countenanced oppression in the early ages of the Gothic monarchy. The Visigoths, in common with others of their race, professed the Arian heresy, whose adherents, unlike their successors, the Catholics, were never noted for bigotry or intolerance, and, as a rule, never accepted a point of religious faith or discipline without free and careful deliberation and debate. The omnipresent sacerdotal order, basing its claims upon Divine precept and example, discouraged, with unfaltering persistency, the tyranny of the Crown. The coronation oath of the king was long and minute and abounded in promises to support and defend the interests of his subjects. When invested with the insignia of royalty, he was admonished “Rex ejus eris si recta facis; si autem, non facis, non eris.” “Thou shalt be king so long as thou dost do right; but if thou do not do right, thou shalt no longer be king.”

The legal and political events of the Visigothic domination are written in the annals of its ecclesiastical councils, which designate the chief events of every reign. These were of three kinds, national, provincial, diocesan. Of the national councils there were nineteen in all; one of which was held in the fifth century, two in the sixth, and sixteen in the seventh; all, after the sixth council, being held at Toledo, which gave to that venerable city vast and permanent prestige and influence in the affairs of the hierarchy and the kingdom. The national councils assembled at the order of the king, who also presided over them; and this prerogative, strange to say, was assumed and exercised, without remonstrance from Christian prelates, by the emirs of Moorish Spain. These ecclesiastical convocations which have been frequently referred to as the first representative popular assemblies of Europe, were very far from deserving that title. While, originally, the laity were admitted to their deliberations and participated, to some extent, in the discussion of secular matters, the clergy, at all times, were supreme in power, as they were superior in learning and eloquence. By degrees, laymen were excluded; the secular element lost its influence; there was no representation, even theoretical, either of the nobility or of the people; the sovereign was but the presiding officer of the assembly; legislation was wholly inspired by the priesthood; and the authority of the clergy became absolutely paramount. The State became synonymous with the Council; the theory of popular representation had vanished; and, while the monarch still assumed the name and state of royalty, the government of the once independent and liberty-loving Goths was, in fact, purely and essentially theocratic, and the clergy, from being teachers, advisers, and pious mediators, were now the absolute rulers of the Peninsula. This predominance, progressive from the very beginning, was felt and acknowledged in everything, whether of greater or minor importance, which affected the welfare of the kingdom. Although the bishops sometimes imposed upon the weakness of their kings, their rule was, in the main, beneficent; and the theocratic character, which they imparted to the government, elicited the respect of the nobility, and the reverence of the people. These wise and pious legislators contributed, by their tact and piety, to the thorough fusion of the victorious and subjugated races. They confirmed the royal power. They stifled conspiracy, and suppressed rebellion. They crushed the treasonable aspirations of many a daring aspirant to the throne. The truculent impulses of the barbarian rabble, never entirely extinguished, were quietly, but effectually, restrained by their judicious display of gentleness, firmness, and devotion. By anointing the sovereign with holy oil, at his coronation, they confirmed his title, and instituted a ceremony which came to be regarded as essential to the royal accession. As they possessed a monopoly of the meagre knowledge of the age, they enjoyed an immense advantage over all other classes, which they did not hesitate to employ, by every available means, for the maintenance and perpetuation of their authority.

Thus, under the Arian system, the government of the clergy was, all things considered, highly salutary. With the conversion of the nation to the Catholic communion, the organization of the hierarchy was little altered; but a far different spirit animated the legislative assemblies. Heresy was punished by the most barbarous laws. The Jews, whose wealth and intelligence had long been conspicuous in the Peninsula, were made the subjects of legal enactments especially devised to deprive them of their property and their liberty. Every expedient was employed to bring them within the pale of the Church. Authority over them was vested in the priesthood, and where a Jew was tried for a criminal offence, it was provided that an ecclesiastic should always be present. Such Jews as refused to profess Christianity were subjected to the most stringent and harassing regulations. They were placed under the constant supervision of spies. Exorbitant taxes were levied upon them, and, in addition to their own, they were compelled to pay those of their apostate brethren. They were not permitted to testify in the courts, to sue, or to defend an action at law, unless the adverse party was one of their own sect. Under the pretence of loans, enormous sums were wrung from their unwilling hands. By means of frivolous pretexts and false accusations, they were frequently reduced to servitude. The laws even went so far as to prohibit them from entertaining thoughts relative to the customs and observances of their sect. Yet, under all these oppressive restrictions, the Hebrews prospered. They were the wealthiest class in the kingdom, and well understood how to employ their riches for their own preservation and profit; while the heavy penalties prescribed for the bribery of judges and other officials, indicate how common and widespread was the influence of such corruption. The extraordinary intelligence and information of the Jew rendered his advice and assistance always acceptable, and often indispensable, to the ignorant and profligate noble; services which were often requited with open protection. Nor was this tolerance and partiality confined to the laity. Not only were the clergy often remiss in enforcing the laws against the Hebrews, but the Code specifically and significantly prohibits their intimacy with Jewish women. In certain offences where punishment was meted out to them for breaches of the law, they underwent the Biblical penalty of being stoned to death; and this was inflicted by certain of their brethren, who, it appears, were appointed for that very purpose, and were recompensed for their treachery with the property of their victims. The persecution of the Hebrew under these atrocious laws, exercised indirectly a great influence upon the destinies of Europe. The Jews of the Peninsula had long entertained intimate relations with their co-religionists of the northern coast of Africa; the oppression under which they languished; the confiscation of their property; the seizure of their children; their enforced proselytism; and the prospect of the ultimate annihilation of their race, tightened the bonds of union existing between them and their African brethren; established an understanding between itinerant traders and the Moorish conquerors of the West; and thus invited and accomplished the Mohammedan conquest of Spain. The most drastic of these regulations against the Jews were enacted under the reign of Ervigius, in the latter part of the seventh century; and, less than forty years afterwards, the whirlwind of Saracen invasion swept the Visigothic monarchy from the face of the earth.

The cruel and unrelenting pursuit of the Jews, commanded by the Visigothic Code, was the foundation of the Spanish Inquisition and its diabolical procedure. From it were derived many of the dogmas, tortures, and penalties, of that awful tribunal; with the exception, that what was once only directed against a single sect, was destined eventually to include the votaries of every heresy. That the descendants of a nation renowned throughout all antiquity as ardent lovers of liberty, should, in a few short generations, be transformed into the most merciless of persecutors, is one of the most remarkable political anomalies to be met with in history. Even San Isidoro, referring to driving the Jews to baptism, and into enforced communion with the Church, declared indignantly that it was “non secundum scientiam;” a remark which, made under the reign of Sisibutus, in the beginning of the seventh century, is one of remarkable significance, as emanating from a Father of the Church, in an age of almost universal ignorance and religious prejudice.

The Hispano-Gothic church was absolutely independent of Rome. The supremacy of the pope was not recognized, and, in all the annals antedating the Reconquest, there is no mention of an appeal to the Holy See on questions of government, ceremonial, or doctrine. The bold and haughty spirit of the Basques and Iberians, animated the ecclesiastics of both the Arian and Catholic churches of Spain. Before the Saracen conquest there were no archbishops. The metropolitans, or bishops of the principal churches, were equal in rank in the hierarchy, until the national councils began to be regularly held in the sixth century; when, gradually, by common consent, Toledo became the seat of the Primacy, a distinction which it has ever since maintained. The dominance of the priesthood in the government, once established, advanced with prodigious strides. In the eighth Council of Toledo, seventeen nobles and fifty-two bishops sat; in the sixteenth Council, held fourteen years afterwards, there were in attendance sixteen palatines and counts, and seventy-seven prelates, and, with this preponderating ratio of ecclesiastics, the authority and importance of the latter naturally increased. The morals of the clergy in that age, while far from being blameless, were not subject to the reproach which they so justly incurred from the profane and ribald poets and novelists of subsequent times. Their influence over the people was unbounded, and their popularity, for the most part, well deserved. Their intervention in behalf of the oppressed effectually curbed the ferocious instincts of the monarch and the noble. The criminal, pursued to the doors of the church, or to the foot of the altar, could not be removed from their sacred precincts without the consent of a priest, or a bishop; and the mere fact that he sought refuge in the House of God rendered him exempt from the death penalty, no matter how grave the character of his offence might be. To the bishop was granted the right of supervision over the conduct of the judge, when the latter exceeded his powers, or rendered decisions manifestly in violation of justice. The Goths, the most plastic and obedient of proselytes, regarded their spiritual advisers with peculiar respect and veneration. They were their guides, their protectors, their benefactors. Nor was the potent influence of the clergy in the maintenance of justice and right, confined to the lower orders. They pronounced anathemas against treason; excommunicated pretenders to the throne; curbed the ambition and greed of marauding nobles; compelled the reverence of aspirants to the royal office; and exacted from the king, who was often their creature, the deference and submission which they considered due to their sacred office and authority.

The people of the Peninsula, while apparently attached to the Arian heresy, evinced little steadfastness in faith with the appearance of orthodox Christianity. Confident in their power, and well aware that no monarch would venture to promulgate an edict menacing their supremacy, or, in any way, conflicting with the privileges of the Church, the priesthood did not require, as an essential condition of its validity, that every law should be confirmed by the voice of a council. Consequently many regulations were established by the sole authority of the king; and this privilege, at first merely a concession, came, in due time, to be considered and accepted as a royal prerogative. The appeal to the sovereign instead of to the pope, further strengthened the authority of the throne; but never, at any time, was the king permitted to forget to whom he owed his election and his title; and that the same power which had raised him to that exalted position could, at any time he violated his coronation oath, depose him, and reduce him again to the subordinate and comparatively obscure position, from which ecclesiastical favor, aided, perhaps, by his own talents and ability, had raised him.