The Visigothic code

by Unknown

This circumstance, alone, shows the primitive state of society under the Visigothic domination; a state largely due to the simplicity of popular manners; the spirit of inherited traditions; the enjoyment of intellectual preëminence by a single class, in its turn, favorable to the overwhelming growth of sacerdotal power.

The Visigoths were different from other barbarians, in that, in legislation and the management of their civil affairs, they manifested a sense of humanity, and a genuine philosophy, rarely to be found even among nations that are thoroughly civilized. They intermarried with the conquered race. Under their system all persons were equal before the law. The distinction between citizen and foreigner, as defined by the Jus Civile and the Jus Gentium of Roman jurisprudence, was repudiated. The punishment for crime was graded according to the wealth of the offender, rather than according to the rank and station of the party injured. Children of both sexes could inherit alike the property of their parents; a measure of undoubted justice, but in direct contravention of the laws governing the descent of property in most of the countries of modern Europe. The slave being merely a thing, an injury to him was rated according to his commercial value. His rights were, however, carefully guarded against the abuse and cruelty of his master. When emancipated, his freedom was either absolute, or burdened with certain restrictions by the terms of which he and his family forever owed loyalty and obedience to his former owner, and were, in turn, entitled to the advice and protection of the latter and his descendants.

The love of freedom, as with all migratory races, was strong in the hearts of the Visigoths. Always obedient to the Church and to their king, they, nevertheless, stubbornly resisted every encroachment upon their ancient rights and liberties. The throne, originally elective, was not as far removed from the body of the people as it was in other nations; for any person of the pure blood of the Goths who had never entered the cloister, or been sentenced for some crime by a court, and who was eminent for great qualities or distinguished services, could aspire to the supreme power. At the time of the monarch’s accession, justice, honor, truth, piety, faith, and mercy, were diligently inculcated, to be ever observed as virtues most appropriate and becoming to the royal office. At the same time, fearful penalties were denounced against all princes who violated the coronation oath; and, during the ceremony, these penalties were repeated aloud by all persons present, both ecclesiastics and laymen. Subsequent to the seventh century, when Catholicism was adopted, the generous and noble spirit which had hitherto pervaded the councils of the kingdom, was supplanted by a fierce intolerance, and the king was obliged to bind himself to the relentless extirpation of heresy. The sovereign was treated with much less consideration under the Gothic system, than under those established by other peoples in ancient or in modern times. Regal supremacy, while necessarily invested with much importance in time of war, on the other hand, in time of peace had comparatively little significance. Not until the reign of Leovigild, in the latter part of the sixth century, did the Gothic kings assume the outward marks and insignia of royalty. They did not differ in dress or general appearance from their subjects, nor was a conspicuous place reserved for them in the assemblies of the people; all classes were entitled to address their sovereign with familiarity; and, still retaining in his manners and demeanor the traces of his barbaric origin, he seemed rather the elective magistrate of a republic (which to all intents and purposes he was) than the supreme ruler of a great and powerful nation. The right of primogeniture, derived from feudalism, and omitted from the Salic Law, was likewise unknown to the Goths. A monarch, in the same manner as a private individual, could only transmit to his heirs the personal property which he, in his turn, had acquired by his talents, or inherited from his ancestors. Like the chieftains of the Ostrogoths and other barbarians, who considered long, blond hair a badge of royal authority, he assumed the title of Flavius, from the Latin flavus, as indicative of this august and highly prized distinction.

With the fusion of races the identity of the Goths was speedily and completely lost. The military spirit to which they were indebted, not only for their civil and political organization, but also for their integrity as a people, and for their preservation as well, disappeared. In former times, and for ages after their occupation of the Spanish Peninsula, that spirit which was their most distinguishing trait, and the most prominent one which they possessed in common with the Germans, was, by degrees, imperceptibly weakened, and finally lost in the premature decadence of an entire nation. The servile spirit of the Roman colonist and slave, whose sense of independence had been crushed by centuries of oppression, now asserted its predominance over the bold and active sentiments of the hardy soldiers who had overrun and conquered Europe. Under the Visigothic polity there was no pay for military service, and the glory and adventure held out by a campaign, were not considered a sufficient recompense for its hardships. Formerly, the Goths paid their soldiers only in time of war, and, during peace, the army was supported by taxes. The Feudal System, originally derived from the emphyteusis, or perpetual lease, of the Roman law, with its rule exacting military service for the possession of a fief, had not yet been established. The unconquerable repugnance of the Visigoths to war caused them to avoid, under every imaginable pretext, extending their aid to their rulers in times of either conquest or invasion. They refused to protect the person of their monarch, or defend the frontiers of their country. The nobles and wealthy landowners persistently violated the law requiring them to bring into battle one tenth of their slaves, thoroughly armed and equipped. The ninth book of the Code contains stringent regulations against such delinquents as, under various pretences, sought to evade the service in the army, due from them and their dependents; and it was said that, at one time, half the able-bodied population of the Peninsula had, by reason of their refusal to obey those regulations, rendered themselves liable to the dreadful penalties which they imposed. In this fact alone is significantly disclosed, not only the thorough deterioration of the once valiant Gothic race, but one cause of the amazing and unprecedented success of the Saracen power. The Mohammedan squadrons, impelled by the mighty force of fanaticism, could not be withstood by a mob of ill-treated peasants and effeminate nobles, disunited by faction, without reverence for their king, or love for their native land; in whom the martial spirit of their ancestors had long been supplanted by the ignominious passions of cruelty and avarice; where their leaders served under fear of the confiscation of their property, and the rank and file were driven into action with the scourge.

The original Visigothic laws, wholly based upon oral tradition, were first reduced to order and committed to writing by Euric, at Arles, in the latter half of the fifth century. This collection is unfortunately lost, but many of its provisions were incorporated into the Visigothic Code, although, no doubt, subjected to important and numerous modifications in the course of centuries. At the beginning of the sixth century, Alaric II. promulgated the Breviarium Alaricianum, a body of laws compiled mainly from the Codes of Justinian and Theodosius, which collection was the source of the subsequent Lombard and Bavarian Codes. From the two compilations of Euric and Alaric, under the reigns of Kings Chintasvintus and Recesvintus, 649–652, was formed the Forum Judicum, or Visigothic Code; the most remarkable monument of legislation which ever emanated from a semi-barbarian people, and the only substantial memorial of greatness or erudition bequeathed by the Goths to posterity. Like the Roman works on jurisprudence it is divided into twelve books, sub-divided into titles and chapters. The language in which it is written is monkish Latin, a barbarous jargon, extremely difficult to translate, and vastly different from the polished idiom of Tacitus and Cicero. Its examination discloses many discrepancies, variations, ambiguities, and contradictions, unquestionably due to the ignorance of the various transcribers; a fact which is not surprising when the imperfect knowledge and defective education which prevailed in Spain during the seventh century, are considered. There is no mention of the Forum Judicum during the Saracen domination, except that it is known to have been preserved by the Moors; and as Christians were permitted the use of their own laws, where they did not conflict with those of the conquerors, upon the regular payment of tribute, it may be presumed that it was the recognized legal authority of Christian magistrates during the period that Spain remained under the Moslem sceptre. When Ferdinand III. took Cordova in the thirteenth century, he ordered the Forum Judicum to be adopted and observed by its citizens, and caused it to be rendered into Castilian. This translation, which is usually appended to the Latin version, is incomplete, incorrect, and unsatisfactory. It contains many omissions and substitutions; the meaning of the sentences, in many cases, is not even approximately given; the proper names seem to have originated in the fertile imagination of the monkish translator; and, not infrequently, interpolations, derived from some unknown source, have entirely usurped the place of the original text.

In considering the general details of the Visigothic Code, one of the striking and suggestive features which presents itself is the inculcation of exalted precepts of honor, probity, and justice, and, at the same time, the acceptance and adoption of a belief in the basest and most grovelling forms of superstition. Upon the same page where the duties to be observed between man and man are set forth with a perspicuity and a piety worthy of all praise, appear laws denunciatory of divination and sorcery. With all its imperfections, however, it presents us not only with noble and accurate conceptions of justice, but indirectly gives us, as well, a faithful and picturesque representation of the gradual, but constant, advancement of a people. Unlike other Codes which preceded and followed it, it is deficient in regularity of classification and division, and, in that respect, signally differs from the Institutes of Justinian, whose arrangement was almost literally followed by Blackstone in his Commentaries on the Laws of England. The irreconcilable character of many of its enactments; the identity of penalties for offences of a widely different gravity and nature; the enunciation of the most sublime principles of morality, side by side with mandates requiring the infliction of tortures whose inhumanity would almost appal a savage; the absence of ordeals and the wager of battle, so frequently appealed to in that and following ages, as proofs of guilt or innocence; are, in addition to those previously referred to, among the most prominent characteristics of this extraordinary compilation. The array of one caste against another, a practice which has never failed to destroy a government and degrade a people, is conspicuous everywhere. The court was regarded rather as a place of execution than the seat of the rendition of justice; the judge rather an avenger of injury, than the representative of the law and the guardian of social order. The words ultio and ulciscor, constantly recurring in the Code, disclose only too plainly the vengeful sentiments of the legislator. In common with all barbarians, and likewise with the majority of civilized men, force, with its consequent inconvenience and suffering, was the only idea which appealed strongly to the Gothic mind, and the moral and deterrent influence of legislation was almost entirely lost sight of.

In the arrangement of the Visigothic Code, the oldest laws, that is, those based upon the unwritten observances of ages, are without any evidence of the time of their adoption; such as are derived from Roman sources are designated antiqua, or ancient; the edicts of kings are promulgated under the royal title, a distinction indicative also of those which were exclusively enacted by the national councils.

In an age of ignorance and degeneracy a body of laws enacted and compiled by a semi-barbarous people, was necessarily largely dependent upon the maxims and precedents of such as had preceded it. The harsh, and often cruel, provisions of the Twelve Tables and the Civil Law, were greatly softened in the Visigothic Code. By the terms of the Roman Nexum, a debtor hypothecated himself as security for his obligation, forfeiting his liberty in case he failed to fulfil his contract; and thus, as is also declared by the Bible, “the borrower was servant to the lender;” a custom absolutely prohibited by the Forum Judicum. The relations of patron and client were essentially different under the Roman and Gothic dominations. At Rome, the condition of clientage could not be renounced; in Gothic Spain a freedman, or libertus, had the right to leave his patron and select another, provided he previously surrendered all the property he had received from his benefactor; the obsequious behavior of the Italian client often degenerated into abject servility, which was regarded with gratification by its object; while among the Visigoths nothing was exacted by the patron for his favor but the practice of obedience, and the manifestation of gratitude. The rules governing the control of public lands did not differ greatly under the civil administration of the two races; in the Peninsula, two-thirds of the conquered domain, in accordance with the usual custom of barbarians, became the property of the State by right of conquest; and the remaining third was abandoned to those who had been vanquished in the appeal to arms. The Lex Talionis, a prominent feature in the history of all nations in the early times of their formation, while known to have existed at Rome from the reign of Numa, and which appears with such frequency in the enactments of the Visigothic Code, was unquestionably borrowed by the authors of the latter from the institutions of Moses, in accordance with their theocratic prejudices and predilections. According to Roman ideas, a person unquestionably guilty of crime, and caught in flagrante delicto, was not entitled to a trial, which was considered superfluous, and his punishment could be inflicted then and there; a principle also frequently acted upon by the Visigoths.

This famous Code consists of laws emanating from four different sources: first, those based on ancient Gothic customs; second, such as were adopted from the Roman jurisprudence; third, the acts of ecclesiastical councils; fourth, edicts of kings, promulgated at different times, according to the various exigencies that arose; all of which seem to have had equal validity. One of the most remarkable characteristics of this collection is the maintenance of the principle of legal responsibility, irrespective of wealth, rank, or dignity. Every precaution was taken to prevent the interference of the sovereign with the magistracy and the tribunals, in instances where the royal power might be improperly exerted to pervert the course of justice; and where the judge, yielding to superior influence, rendered an unjust decree, that decree was declared to be void. In cases where an appeal was taken to the throne, the king, in the consideration of the questions brought before him, was admonished to strictly observe the forms and principles of equity, and to render his decision accordingly. While the judge derived his authority from the Crown, he was in fact, independent of it; and, equally removed from the voice of popular clamor, unlike the elective magistrates of the tribunals of antiquity, was under no obligations to the populace. The sacerdotal legislator, never unmindful of his own interests while defining the rights of the people, was, nevertheless, himself subject to the secular power. While this was the case, however, a great distinction existed between the punishment inflicted for practically the same offences upon the clergy and the laity, with the advantage entirely upon the side of the former. The penalties usually imposed upon ecclesiastics for breaches of the law were fines, penance, and monastic seclusion; and their sacred office was a safeguard against the horrible and degrading punishments from which even the highest nobility were sometimes unable to escape. In this undisguised leniency, and practical exemption from severe judicial sentences, may be discerned the germ of the “benefit of clergy,” carried to such lengths, and productive of such manifold injustice and abuse, in mediæval times.

The theocratic principle animating the Visigothic Code is conspicuous in almost all its chapters. The pious and significant maxim, “Omnis potestas a Deo,” pervades it from beginning to end; in the preambles, which recite the reasons for the enactment of the laws; in the body of the latter, which appeal to Divine sanction for their promulgation; in the penalties, which breathe the ferocious sentiment of the ordinances of the Pentateuch. Many of the latter are copied almost verbatim from the Bible. Recalcitrant Jews were stoned to death. Adultery was the only cause for which divorce was permitted. In the long, elaborate, and frightful oath which Jews, apostatizing to Christianity, were compelled to take and subscribe, everything that was most reverenced by them and could be considered most binding, was borrowed from the Old Testament, and, supplemented by appeals to, and confessions of, Christian doctrine, invoked the direst maledictions upon the heads of all who, either tempted by ambition or influenced by hypocrisy, violated their vows, the impressiveness of which was increased by every circumstance of solemnity, superstition, and power. In the contest for ascendency, the Church possessed the advantages of thorough organization and submissive obedience of inferiors, of reverence for alleged celestial origin, and of unity of language; advantages never, in any former age, enjoyed to such an extent by any other society, political, or religious; and which, inspiring respect among all classes, founded upon a solid and enduring basis the magnificent fabric of her authority and grandeur.