The innumerable details relating to the infringement of the rights of property show that many abuses must have previously existed. The great number of laws designed for the protection of agriculture, indicate the importance with which it was considered by a people who, but a few generations before, had been shepherds and predatory vagabonds. The Visigoths were the first of the nomadic barbarians of the North to acknowledge the privileges and responsibilities attaching to the occupation of a permanent and limited domain. The offences of trespass, and forcible entry and detainer, are clearly and explicitly set forth. Severe penalties are denounced against all who deface, remove, or in any way interfere with, established landmarks. Questions relating to transfers, devises, partition, leases, land belonging to the state, boundaries, disputes concerning the ownership of real-property, and title by adverse possession, are discussed and determined with an ability and an accurate conception of the principles of equity, most remarkable for that age. While enjoyment of liberty was theoretically the unquestioned right of every person except the slave, the limits of castes and classes, adopted, for the most part, from the Roman polity, were strictly defined. Notwithstanding minute and often voluminous provisions, designed for the protection of the people, oppression by the rich and powerful was not unusual, and was sedulously provided against. Cruelty, and persecution of the weak, could be practised by no one, no matter how exalted his dignity, without reprobation and punishment. The interference of individuals of rank in the trial of causes, and their obstruction of the process of the law—evidently a common practice, and a source of endless trouble in former times—is repeatedly prohibited; and every attempt was made to preserve the courts from external influence, and insure the justice and impartiality of their decisions. An appeal could be taken from the decision of the judge to the governor of the city, from him to the governor of the province, and from the latter to the king. Where a person was too poor to incur the ordinary expenses of litigation, he could appeal directly to the bishop; who, as the protector of all within his diocese, was authorized to settle their claims and disputes, and enjoined to interpose his good offices to prevent the exercise of injustice and injury. Founded upon the strict principles of morality which everywhere should control the conduct of mankind, the precepts of the Visigothic Code present a strong and remarkable analogy to those which govern the proceedings of modern judicial tribunals. A contract made under duress, or vitiated by fraud, was void. A principal was liable for the act of his agent, where the latter was known not to have exceeded his authority. A master was responsible in damages for injuries committed by his slave. Guardians were held to strict accountability in the treatment of their wards. The rights and disabilities of minors are clearly and definitely stated. The legal incapacity of insane persons, excepting during lucid intervals, when publicly recognized to be in possession of their faculties, is declared. The questions of lis pendens, res judicata, judgment by default, and vendors’ lien, are treated in much the same way as in modern treatises on those subjects. The laws of inheritance, and the descent of estates, are explained at great length, and with a minuteness corresponding to their importance and effect upon social and domestic life. The relations of husband and wife are exhaustively discussed; no marriage was valid without a dowry, which was given by the husband; the amount was proportioned to the wealth and position of the latter; and a sum in excess of that established by law could not be bestowed through affection, or exacted by improper influence. Patrimonial estates, in the possession of widows, could not be alienated without the consent of a council of relatives; a provision which was, for centuries, the law in Portugal. In the penal legislation of the Code there is a curious mingling of the barbarous and the civilized. The compounding of crimes was permitted by law. The amount of damages to be assessed, like the penalty for the offence, was estimated according to the dignity and possessions of the culprit. The law of retaliation was sanctioned and enforced in cases where the injury was of a personal character; and, in support of this barbarous custom, the authority of the Bible was constantly invoked. The inhumanity of the punishments imposed is another striking indication of the survival of barbarism. Decapitation was the ordinary sentence for capital crimes. The penalty for arson was death by fire. Branding, maiming, scalping, and castration were inflicted for offences not deemed of sufficient gravity to require the imposition of the extreme penalty. Blinding, probably the most cruel of all, though abolished by the Code of Justinian, had been retained by the degenerate Greeks of the Byzantine Empire, from whom the Visigoths acquired it. Scourging was frequently inflicted; the number of blows varied from fifty to three hundred; they were almost always given in public; and even a judge who had been guilty of misconduct in office, was liable to the lash, symbolical at once of suffering and disgrace, and only surpassed in infamy and horror by scalping with fire, or decalvation. Torture, though authorized by law, was sparingly used. Under the Roman system it could only be inflicted upon slaves; the Visigoths, however, countenanced its exercise where the crime sought to be discovered by its means was one implying great moral turpitude; but it was solely employed as a method of eliciting evidence, and never as punishment for crime. With a people so jealous of their liberties, false imprisonment was naturally regarded as one of the greatest of wrongs; while, on the other hand, few penalties are more common than that involving the forfeiture of freedom. Informers, another institution of Byzantine treachery and deceit, were encouraged, and, where they were not participants in illegal acts, were substantially rewarded for their suspicious and ignominious services. The recognition of malice prepense, and criminal intent, especially in cases of homicide, reveals a just perception of the responsibility attending the commission of crime, rare, indeed, among nations just emerging from barbarism, and quite at variance with other provisions asserting the existence of witchcraft, charms, and incantations. Under the Visigothic polity, a crime is expressly declared to die with its author, where he underwent a capital penalty; no blame or reproach attached to his family or his posterity, where they were not implicated in his guilt; and the sweeping and unjust law of attainder, which confiscated the property, and branded the descendants of an offender with infamy, for centuries in force in England, was unknown to the more equitable and indulgent system of the Visigoths.
We are ignorant of the details of the procedure followed by the Visigothic tribunals. They had, however, their summonses and other writs of various kinds, their pleadings, arguments, depositions, appraisements, judicial opinions both oral and written, appeals and executions. The proceedings were conducted with due solemnity; the most assiduous care was exercised to insure the integrity of the magistrate; the rules of propriety were strictly enforced; exhibitions of contempt were punished with exemplary severity; and even a person of the highest rank, if guilty of marked disrespect to the judge, or participating in any unseemly demonstration, was unceremoniously ejected by the bailiffs. By the enforcement of such measures, the courts were not only invested with a proper dignity and importance, but their impartiality was established and secured; and all, even including the people of the lower classes, came to regard these tribunals as fountains of equity, and the protection and mainstay of their liberties. They were almost continually open; the judges had but few hours of rest or recreation; they were made responsible, in both person and property, for a proper determination of the causes brought before them; their remuneration was fixed by law, and was independent even of royal favor; and the crimes of oppression and bribery, when committed by a magistrate, were made the subject of some of the most savage enactments in the Forum Judicum, including degradation from office, forfeiture of property, scourging, decalvation, exile, slavery, and death.
The employment of compurgators under the Visigothic system was an important and popular one. Their number is not stated, and does not appear to have been limited, but originally it consisted of twelve. The probable predecessor of our system of trial by jury, this institution was derived from the Saxons, and was, without question, of remote antiquity. The oath, under other systems of jurisprudence, rarely employed in purgation of crime, was frequently resorted to by the Visigothic magistracy, as it formerly had been under the primitive legal procedure of the Germans. An accused party, if he had hitherto borne a good character, was entitled to establish his innocence by this means; a proceeding which could be confirmed and accompanied by the affidavits of his friends, neighbors, and kinsmen, who, being persons best acquainted with his character and habits, came into court, and swore to their belief in his innocence. No testimony was offered in their presence, and no arguments were made before them, as with the modern jury. With more correct notions of the requisites and effect of legal evidence than their German predecessors, the Visigothic courts did not admit the intervention of compurgators, except under circumstances where competent proof had failed to conclusively establish the guilt of the accused. It is a curious fact that their services were enlisted by criminals and litigants in the courts of England until comparatively recent times. At first limited to criminal prosecutions, their introduction was subsequently extended to various civil actions, and especially to those brought for the recovery of debts; and, recognized by the Canon Law, compurgators were sworn in England as late as the reign of Elizabeth. This remarkable institution, which bears so plainly the impress of ecclesiastical influence, appealing to the piety and superstitious fears of the ignorant, evinces, by the surprising vitality which it exhibited, its peculiar adaptation to the purposes of legal procedure in the age when it prevailed.
While members of the sacerdotal order were, to a certain extent, subject to secular justice under the Visigothic polity, the reverence with which they were universally regarded, the great power they exerted over the institutions of the kingdom, and their superior intelligence, which with the ignorant of all classes, invested them with mysterious powers, rendered their appearance in courts of law most infrequent.
The history of the Visigothic monarchy, especially after its adoption of Catholicism in 587, is, therefore, as has already been remarked, closely interwoven with that of the Visigothic Church. The Crown possessed little real authority. The complete and universal municipal organization, instituted by the Romans, had disappeared with the Gothic occupation. Civil and judicial officers, although appointed by the Crown, were subject to ecclesiastical supervision; not only in the parish and the diocese, but in the tribunals of justice, in the most intimate relations of domestic life, in the determination and settlement of secular disputes, and even in the presence of the throne. The influence of the priest increased in the same ratio in which that of the soldier declined. It reached its climax at the time of the Saracen invasion, when, to all but the most discerning eye, the rule of the Church seemed destined to endure through many centuries, and its civil and political power appeared impregnable. The illusory character of this apparent greatness was soon to be exhibited. Two years after the last of the Gothic kings ascended the throne, the Moorish armies were in possession of the Spanish Peninsula.
The enactments of the Visigothic Code, from their promulgation to the present day, have been never entirely abrogated by the legislative powers of Spain, and, as the foundation of the national judicature, many of its precepts and its rules still maintain their original force and power in the legal and ecclesiastical tribunals of the Spanish Peninsula. During the Moslem domination, their authority was unquestioned in the different Christian kingdoms of the North. The voluminous compilation, known as Las Siete Partidas, published by Alfonso el Sabio in 1348, was largely borrowed from the Forum Judicum. Charles III. in 1788, expressly declared that the provisions of the latter had never been repealed by subsequent statutes, and ordered that they should prevail in a contest involving the law of inheritance, where the property of a deceased monk was claimed both by his monastery and his relatives, in the royal chancery court of Granada. Not only are some of these laws still recognized as binding in the Peninsula, but they were long used in Southern France, and the capitularies of the early kings of that country bear unmistakable internal evidence of their derivation from this same source.
The Castilian version of the Visigothic Code, notwithstanding its coarseness, its ambiguities, and its errors, is still most useful for the purposes of the philologist and the historian. It displays the beginning and the development of the noble and elegant Spanish idiom, from its origin, full of barbarisms, down to its perfection of to-day; from the crude and awkward expressions of the chronicle and the missal, to the perspicuous and polished diction of Calderon, Mendoza, and Cervantes. We detect in its labored and awkward sentences the corrupt Latin of the times when classic purity was lost, and the Romance languages had not yet been formed; an epoch of transition, abounding in abbreviated words and crabbed expressions, curious etymology, phrases constructed with little regard to the rules of syntax, incorrect quotations from Scripture, provincial peculiarities of construction and nomenclature, archaic terms, whose meanings are now forgotten, words of purely Arabic derivation, the names of animals and objects, then, for the first time, introduced into Castilian,—much of it confusing, yet all instructive in revealing the customs and prejudices of a people, and depicting the various gradations accompanying the formation and growth of a language.
Such are our obligations, legal, historical, ethical, philological, and economic, to the Visigothic Code. Its harsh, inelegant style, its repetitions and absurdities, its incoherence, its superstitions, and its savage treatment of heretics, may well be forgotten in the services it has rendered to mankind. All modern systems of government are infinitely indebted to it, for it forms to-day the basis of the jurisprudence of a large portion of the civilized nations of the earth. A great number of the principles it inculcates would reflect credit upon any legal treatise, human or divine. Its translation into Castilian aided, more than any one literary work, to invest with beauty, grace, and symmetry, what is now one of the most magnificent and sonorous languages spoken by the tongue of man. It has delineated, with a fidelity not to be found in tradition or chronicle, the state of a society, remarkable in its characteristics, still devoted to barbarian customs, yet evincing sentiments and impulses usually only to be encountered under conditions of the most advanced moral and intellectual development.
Prefixed to the Code, yet clearly indicating by their position and contents that they have properly no more right to be included in it than scores of other products of ecclesiastical legislation to be encountered in the canonical compilations and ancient chronicles of Spain, are ten pages of decrees and fragmentary ordinances of various Councils, purporting to relate to the election of kings and their duties, but which, in reality, are mainly taken up by edifying homilies, invocations of the Deity, and fulminations against such as venture to dispute the divine authority of the Church. These pages fairly swarm with repetitions, anachronisms, and absurdities; their diction is far more barbarous and perplexing than even that of the Code itself; and their general features strongly suggest that they may have been inserted by some ignorant monk, zealous for the superior privileges of his order. For these reasons, as well as because much of what they contain is repeated in the body of the work, they have been omitted.
The translation of this ancient body of laws has been a laborious undertaking, and one to which little assistance has been afforded by the obscure Castilian version. Equivalents for many of the Latin terms do not exist in English. Some passages are of doubtful significance, others absolutely unintelligible. In not a few instances, the text is so involved that only paraphrases can be employed. Despite these serious obstacles, in the treatment of the subject, I have endeavored to observe, as far as practicable, the spirit of the original, and have preferred to render the words and expressions literally—where this can be done—rather than to make use of the terms of modern legal phraseology.