Chapter XXXI: Book XII (3)

Adultery, of freeborn woman with slave, 83;
committed with connivance of husband, 95;
of a betrothed, 95;
of a wife, 96;
where a girl guilty of, is killed, 96;
parties guilty of, cannot be legally killed by slaves, 97;
when a freeborn woman commits, 97;
property of persons who have committed, how disposed of, 99;
who may bring accusation of, 100;
proof of, 101;
sons may prosecute, 100;
where one is convicted of, with virgin or widow, 101;
with female slave, 102.

Advocate, must have written authority from client, 48.

Animals, hired to another, 171;
loaned, 172;
when secretly killed, 246;
where loosed in crops, 279;
when loaned, and abused, 285;
where injure another, owner liable, 286;
where used for the threshing of grain, 287;
where a vicious, kills anyone, 289;
where one retains a vicious, 290;
cannot be excluded from open pastures, 295.

Answer, a defendant cannot refuse to, because plaintiff had not
presented claim, 38.

Arrest, governor of city must aid judge in, 250.

Arson, in and out of city, 271–272;
of forests, 272.

Assault and battery, 215;
by a slave, 217;
where bloodshed results, 264.

Attorney, must conduct case rapidly, 50;
who may be appointed, by powerful persons, and the poor, 52;
employment of, by the royal treasury, 52.

B.

Bailiffs, compensation of, 32;
entitled to horse for journey, 33.

Bailments, 171–172–173–174.

Bees, where cause damage, 303;
where a person finds, 303;
theft of, 303.

Bells, when stolen from cattle, 241.

Betrothal, girl cannot marry another, 76.

Bishops, power of, to restrain judges, 35;
cannot conduct cases in court, 47;
right to one third of revenues for repairs, 146;
arbitrary conduct of, 147;
abuses of, which guilty, 148;
punishment of, 155;
must give subordinates information, 149.

Bond, exacted by judge after unjust decree, void, 34.

Boundaries, disputes concerning, 348;
where change made in time of Romans, 350.

Brothers, have right to dispose of sisters in marriage, when, 76.

C.

Castration, when performed on animal, 285.

Cause of action, when arising in another district, 42.

Causes, not authorized by law, not to be heard, 22;
where determined, cannot be revived, 23;
cannot be heard by anyone not invested with judicial authority, 23.

Cattle, where shut up when have not done injury, 287.

Child, shall remain under control of father, 123;
shall receive inheritance at twenty years of age, 124;
how it may inherit, 127;
must be baptized before ten days old, 128;
posthumous, 127;
who acquires property during life of parents, 142.

Christian, a, shall not protect a Jew, 374;
judaizing, 376.

Christian slaves, sold or liberated by Jews, 369;
shall not attach themselves to Jews, 371;
shall not serve Jews, 392.

Church, donations to, 143;
preservation of property of, 144;
sales of property of, 144;
property in charge of those devoted to the service of, 145;
repairs of, 145.

Clothing, injuries to, 291.

Compromise, cannot be made without consent of court, 40.

Conflagration, when result of campfire, 273.

Consanguinity, degrees of, 117–118–119.

Constituent, responsible for attorney, must pay his fees, 51.

Contracts, how drawn up to be valid, 65;
penalties for repudiating, 65;
invalid if made by slaves, 65;
if dishonorable, void, 66;
party not liable when fraudulent, 66;
void where made under duress, 66.

Corpse, when removed from a grave, penalty for, 356.

Counterfeiting, slaves may be tortured to convict masters of, 261;
of _solidi_, 261.

Court must not be disturbed by tumult, 38;
contempt of, 250.

Criminal, when released by a judge, 252.

D.

Debt of deceased person, how collected, 180.

Debtor, a, cannot be removed from a church, 332.

Decalvatio, penalty of, 44.

Decree, if unjust, or promoted by fear, is invalid, 34.

Deputies, their power, 23.

Deserters, punishment of, 327.

Disinheritance, of children, 137;
not permitted except for grave causes, 138.

Divorce, cause and conditions of, 113;
only valid in case of fornication, 114;
disposal of property after, 114;
cannot exist between betrothed persons, 116.

Documents, fraudulently dated, 257;
penalty for, 258.

Documents, validity of, 64;
witness must know contents of, 64;
proof of and penalties prescribed by, 70.

Dog, when irritated and kills anyone, 291;
vicious, must be killed, 291.

Donations, extorted by force, void, 152.

Dowry, what it shall consist of, 79;
father shall exact and keep it, 79;
more cannot be required than the legal amount, 80;
when reduced to writing, items of, shall not be contested, 82;
what part a woman may bequeath, 139.

E.

Evidence, must be oral when possible, 57.

Exchange, has same validity as purchase, 160.

F.

False imprisonment, penalty for, 265.

Fences, when cut down or burned, penalty for, 277.

Festivals, to be observed like Sunday, 21.

Fictitious name, penalty for adopting, 256.

Fields, uninclosed, where traversed by animals, 294.

Flocks, where meadow injured by, 279.

Forcible entry, 210;
where death results, 210;
penalty, 210.

Forests, undivided between Goths and Romans, 337.

Forging, of royal orders, 253;
of documents, 216;
penalty for, 261–262.

Fornication, punishment of, 103.

Foundlings, rights of, 135;
compensation for support of, and penalty for casting away of,
135–136.

Fraud, where committed in a sale, 161.

Freedman, where claimed as a slave, 184;
where a, injures his former master, 185;
cannot testify, 186;
disposition of property of, 186;
cannot marry in family of patron, 189;
how a royal, shall defend king, 190;
if injures former master, 191.

Freedom, how revoked, 185.

Freeman, a, shall not refuse to answer a slave in court, 45;
where a, marries a slave, 84;
where a, allows himself to be sold, 162.

Freewoman, where a, marries without the consent of her parents, 87.

Fruits, where destroyed by animals, 279.

Fugitive, when released by anyone, 306;
slave must be produced before the judge, 307;
where are ignorantly received, 307;
where a slave directs, 309;
investigation of, 312;
where found in a house, 313;
reward for arrest of, 313;
where marries freeborn woman, 314.

G.

Garden, when destroyed, penalty, 275.

Gifts, bestowed upon one another by husband and wife, 155.

Goths and Romans, may intermarry, 76.

Guardian, who may be, 132;
duties of, 132–133;
no right to exact instruments in writing from wards, 133;
must render an account, 134.

H.

Handwriting, comparison of, when necessary, 69.

Heirs of attorney, entitled to his fees, 51;
shall not contest wills of ancestors, 65;
collateral, how inherit, 121;
where they have different parents, 141;
one may act for all in suit, 335.

Heresies, renunciation of, 364.

Heretics, eradication of errors of, 362.

Highways, obstruction of, 293;
space preserved along, 293.

Hogs, when pastured, 298;
fed on acorns under contract, 299;
when wandering in woodland, 300.

Homicide, where committed ignorantly, 218;
where committed on a third party, 219;
where happens in sport, 220;
while inflicting punishment, 221;
by a slave, 221;
by a master, 222;
who may accuse of, 226;
of those related by blood, 229.

Horse, where loosed and injured, 284;
where mane or tail cut off, 285.

House, a, cannot be entered in absence of master, 267.

Husband, adulteress given up to, 114;
ownership of property accumulated by, with wife, 126.

I.

Incest, what constitutes, 106;
with mother and sister-in-law, 111;
with concubine, 114.

Informers, how may accuse, 233;
penalty for false accusation, 234;
guilty knowledge of, 234;
compensation of, 235.

Inheritance, equal rights of brothers and sisters in, 121;
of intestate, 121;
of children not of same parents, 122;
of grandparents, 122;
of husband and wife, 123;
from clerks and monks, 123.

Interest, what may be legally asked, 175.

Intestate, where parents die, 129.

J.

Jailer, corruption of, 251;
compensation of, 251.

Jews, extirpation of errors of, 366;
shall not celebrate Passover, 367;
shall not contract marriage, 367;
shall not practise circumcision, 367;
shall not distinguish food, 367;
shall not torture a Christian, 368;
penalties for offences of, 369;
memorial of, 375;
perfidy of, 377;
shall not avoid baptism, 385;
shall not keep the Sabbath, 386;
confession of, 395;
oath of, 397;
shall not oppress Christians, 401;
assemblies of, shall visit bishop, 404;
penalties for not enforcing laws against, 406;
must have copy of this book, 408.

Journey, when an innocent party is compelled to make a, 42.

Judges, shall have civil and criminal jurisdiction, 24;
penalty for refusing to hear a litigant, 27;
time they shall hold court, 28;
penalty for unjust decision, 28;
where needless costs are imposed, 29;
what they should be familiar with, 29;
where integrity is suspected, 30;
how judgment should be rendered by, 31;
emoluments of, 32;
all invested with judicial authority shall bear title, 33;
must give reason for decision if required, 35;
punishment of, when guilty of misconduct, 36;
improper conduct of, how punished, 214;
must display moderation, 359.

Justifiable homicide, when robber killed, 270.

K.

Kidnapping, of slaves, 247;
of children, 248;
of freeborn persons, 249.

King, his business first considered in the courts, 13;
how documents in name of, should be drawn up, 14;
can only dispose of his private property, 16;
should practise mercy, 201.

L.

Land, division of, between Goths and Romans, 337.

Landlord, dispute with, concerning lease, 339.

Landmarks, how preserved, 348;
penalty for destruction of, 348.

Law, what it is, 5;
its action, 5;
why made, 6;
when amended, at what time in force, 11;
all persons subject to, 12;
no one can allege ignorance of, 13;
penalty for criticizing, 16;
of foreign nations forbidden, 20.

Lawmaker, his method, 1;
duties, 2–3–4.

Leases, lands held under, must be restored, 338;
where a greater area of land cultivated than granted under, 338.

Lèse majesté, 19.

Lex Talionis, its provisions, 215.

Limitation, Statute of, 91–344;
claim for property cannot be asserted after fifty years, 343;
fugitive slave free after fifty years, 343;
suit cannot be brought after thirty years, 343;
runs in all cases except where slaves of the Crown are concerned,
344;
does not run while party is absent, 346.

Litigant, may be chosen to act for others, 39;
must declare for whom he acts, 48.

M.

Marriage, must be accompanied by a dowry, 75;
father has right to dispose of children in, and mother, if he is
dead, 81;
when unlawful, 83;
penalty for, 83;
with holy virgins or widows, incestuous, 107.

Master, where one marries a slave to a freewoman, 86;
may claim property of slave who is sold, 165;
responsible for illegal acts, 264.

Mayhem, what constitutes, penalty for, 225.

Merchant, foreign, where a, sells stolen property, 357;
shall be judged by his own magistrates, 357;
where a, carries away a hired person, 358;
where a, takes away a slave for trade, 358.

Mills and ponds, damage to, 296.

Minors, at what age can testify, 62;
cannot make contracts, 66;
definition of, 131;
suit against, 131.

Money, stolen from the king, 241.

Mother, entitled to share estate with children, 125.

Murder, of freeman, 222.

N.

Nuptial contract, cannot be rescinded when a gift is made, 77.

O.

Officer, where corrupted, permits soldiers to depart, 320;
where an, deserts, 321;
where an, returns home, 322;
where an, receives a bribe, 323.

Officials must not subject persons to unnecessary expense, 360.

Oppression in litigation, by parties in power, 52.

Orchards, enclosure of, 278.

Ordeal of hot water, how applied, 37.

Ox, where used without consent of owner, 287.

P.

Pardon, persons who have received, exempt from punishment, 18.

Parents, where rescue daughter from ravisher, 89;
where consent to rape, 90;
how inherit from children, 128;
what property, may bestow upon children at marriage, 140;
cannot sell or give away children, 163;
right to dispose of property where no children, 130.

Parricides, punishment of, 228;
distribution of property of, 228.

Parties, where they cause unnecessary delay, 33;
both may be compelled to be present in court, 41.

Partition, when made, remains in force forever, 334;
if made between brothers, may be revoked, 334;
wishes of majority rule in, 334;
among relatives of slaves, 340.

Patrons, gifts of, 158;
property acquired through, 158.

Perjury, effects of, 58;
penalty for, 58–59–60;
crime of and penalty, 230.

Personal property must all be classed under one title, 341.

Physician, cannot bleed a woman except her relatives are present, 353;
shall not visit prisoners, 354;
where treats disease under contracts, 354;
compensation from student due to, 355;
cannot be imprisoned without a hearing, 355.

Pledges, when stolen, 177;
given as security for debt, 177;
where not restored, 178.

Poison, penalty for administering, 204.

Princes, cannot conduct their own cases in court, 47.

Property, illegally taken for a debt, 43;
of persons convicted of incest, 109;
given to husband or wife by king, 152;
given to wife in addition to dowry, 153;
given verbally, or in writing, 154;
cannot be seized, except under legal process, 266;
which may not be alienated, 167;
where transferred while in litigation, 169;
loaned and destroyed by fire, 172;
where lost at sea, 173;
entrusted to a slave, 174;
reparation for, when injured or destroyed, 243.

Q.

Question, how may be inflicted, 194.

R.

Rape, 91;
of a freewoman, 88;
where brothers consent to, 90;
of betrothed woman, 90;
must be prosecuted within thirty years, 91;
by a slave, 92.

Ravisher, where killed, not criminal homicide, 91.

Relatives, cannot testify against a stranger, 62.

Rent, where tenant does not pay, 341.

Rescue of criminals, 244;
of cattle seized in crops, 280.

Retaliation, law of, 211;
amount due in lieu thereof, 212–213.

River, right to enclose, where bank cultivated, 295.

Robbers, where concealed by freeman or slaves, 316.

Robbery, accessories before the fact, 267;
committed while on an expedition, 267.

Royal order, penalty for contempt of, 36.

S.

Sale, void if made under compulsion, 160;
where price not paid after earnest money given, 160;
where part of price paid, 161.

Sanctuary,
where a homicide takes, 227;
one claiming, cannot be rescued by force, 331;
may be killed if resists with arms, 331.

Scandal, public, what course to be pursued in, 324.

Seduction, penalty for, 93.

Self defence, where assault committed, 215.

Sentence of court must be public, 252.

Shipwreck, property rescued from, 243.

Slave, not worthy of credit, 61;
when allowed to testify, 61;
when given in marriage to another, 85;
may be tortured to reveal adultery, 98;
may not be liberated to conceal adultery, 98;
of Church, if emancipated cannot marry a freeborn person, 150;
penalty for, 151;
free after thirty years, 347;
sales by, void, 164;
where accuses former master of crime, 165;
may not be redeemed with his own property, 166;
where transferred for crime, 167;
where captured and sold by an enemy, 169;
how liberated, 181;
where has several masters, consent of all must be had, 182;
how may be returned to slavery, 183;
liberation of royal, 188;
if a criminal, may be demanded, 193;
where a, insults a freeborn person, 216.

Sodomy, penalty for, 111.

Soil, fruits of, what may be demanded, 175.

Solidus, no one may refuse to accept a, of legal weight, 262.

Soothsayers, penalty for consulting, 203.

Stolen property, when bought ignorantly, 240;
knowingly, 241;
he in possession of, must name thief, 269.

Strays, when found, must be taken up and appraised, 281;
where leave before driven out, 282;
if mutilated, penalty for, 282;
notice must be given, how, 301;
care of, 301;
must not be sheared or branded, 301.

Streams, right to enclose, 295.

Subornation of perjury, penalty for, 62.

Summons,
penalty for refusal to obey, 25;
time within which must be obeyed, 26.

Sunday, no litigation lawful on, 21.

T.

Tenant, must pay rent for land sublet, 339.

Testator, cannot dispose of same property in two different ways, 72.

Testimony, must be furnished by both parties, 41.

Theft, when committed by a slave, 238;
by a freeman and slave, 239;
by a master with his slave, 239;
of mill machinery, 242.

Thief,
how punished, 242;
where killed, not homicide, 243;
where killed at night, 243;
heirs of, 244;
when to be brought before the judge, 245.

Tombs, penalty for injury of, 356.

Tonsure, punishment of those who illegally assume, 108.

Torture, shall not be inflicted upon persons of noble birth, 49;
for what, and how inflicted, 194;
penalty for, if accused innocent, 194;
how slaves tortured, 196.

Traps for wild beasts, neighbors must be informed of, 292.

Traveler, where deprived of liberty, penalty for, 214.

Treason, penalty for, 17.

Trees, compensation for cutting down, 274;
where injury results from cutting, 275.

Trespass, _vi et armis_, penalty for, 264.

Trespasser, where one falls into a trap set for wild animals, 292.

V.

Vendor, if not of good character, must give security, 160.

Vineyards, where injured, penalty for, 276;
where planted on land of co-heirs, 336;
on land where no title, 336.

W.

Wards, when of legal age, 134.

Water, theft of, 296.

Widows, guilty of fraud, 109.

Wife, no right to earnings of slave under husband, 126.

Wills, how drawn up and executed, 67;
must be published within six months, 68;
how proved when made on a journey, 68;
must be published in the presence of a priest or a witness, 69;
how genuineness established, 71;
invalid if executed under duress, 72;
who are entitled to custody of, 176;
alteration of, 256;
forging of, 256;
nuncupative, 67;
holographic, 70.

Witchcraft, how punished, 204;
where employed against property, 205.

Witness, who may not be, 54;
must be sworn, 54;
where contradicted by documentary evidence, 54;
impeachment of, 59;
must sign or seal will, 67;
penalty for neglect, 68;
cannot testify to what is not in a will, 72.

Women, may conduct their own cases in court, 50;
cannot appoint an attorney, 50;
advanced in years cannot marry young men, 77–78;
where they marry slaves, 83–84–85;
must not marry within year of husband’s death, 83;
where, marry again in absence of husband, 86;
of bad character, 102;
entitled to share of entire estate, 123.

THE END.

FOOTNOTES:

[1] It must be remembered that under the Gothic polity, the legislator, invariably a member of the ecclesiastical order, was frequently called upon to exercise the exalted functions of the judge. In some instances, the two officials had concurrent jurisdiction; in others, the bishop was authorized to decide questions of law and fact in the absence of the magistrate. Especially was this the case where the interests of the Church were, in any way, concerned. Hence arises the apparent confusion of the duties of legislator and judge, in this and other chapters of the Visigothic Code.--[ED.]

[2] Preambles, such as the above, which are of frequent occurrence in this body of laws, show unmistakably its ecclesiastical origin, and the theocratic principles, which, at all times, dominated those who framed it. The Mosaic Code alone, among those of great antiquity, is constantly pervaded by similar religious sentiments; which, emanating from the high authorities of the Church, undoubtedly exerted great and beneficial influence over an ignorant and superstitious people. Such additions to legal enactments would seem strangely out of place at the present day.--[ED.]

[3] The first sentence of this chapter is directly at variance with the maxim subsequently inculcated with such diligence by the Church of Rome; through the rigid enforcement of which it long maintained its despotic empire, and which it still regards as one of the most important sources of its power: “Ignorance is the mother of Devotion.”

It may be conjectured from the above, that the familiar legal axiom, “_Ignorantia legis neminem excusat_,” already ancient, and well established in the seventh century, is probably as old as the law itself.--[ED.]

[4] The Visigothic Councils, whose authority was presumed to emanate from Heaven, and whose alleged sacred character invested also, to a certain extent, the monarchs elected by them, presumed to legislate for all coming time. Instances often occur where future kings are declared to be bound irrevocably by the acts of their predecessors, and by the decrees of the collected wisdom and piety of the nation, represented by the ecclesiastical assemblies of Toledo. Despite the solemn adjurations of prince and prelate, however, few kings hesitated to repeal or abolish the laws of their ancestors, when those laws either offended their prejudices, or interfered with their ambition.

The manifest injustice and iniquity now recognized by nearly all civilized nations as attaching to _ex post facto_ laws, were not appreciated by the Visigothic legislator, or sovereign. Laws were frequently made retroactive, and were enforced with great severity in cases affecting questions of religious belief, as well as in those relating to the rights and privileges of the Crown.--[ED.]

[5] Considering that the crown was elective; that the monarch was only “_Primus inter pares_,” and that the subject had apparently the right to sometimes admonish his sovereign of his errors, a relic of the sturdy independence which characterized all northern barbarians; the doctrine of _lesé-majesté_ seems to have early acquired great importance among the Visigoths, judging from the severe penalties visited upon those guilty of the offence.--[ED.]

[6] The coins principally in use among the Visigoths were those of the Byzantine Empire at that epoch, as follows:--Gold, The _Libra_, or pound, twelve ounces in weight, and divided into seventy-two _Tremisæ_, or twenty-four _Siliqæ_; and Silver, The _Libra_, containing twenty _Solidi_, and the _Solidus_, containing twenty _Denarii_ of copper. The smaller coins, of which there were many, were those of ancient Rome, and of the Eastern Empire.

The _Libra_ of gold was worth $368, and the one of silver worth $88, or, at the present value of money, $4,048, and $968, respectively. The _Solidus_ ($56 gold, and $44 silver,) was the standard coin in circulation.

The gold _Tremisa_ was the only coin struck by the royal mints during the Visigothic domination. Heavily alloyed, rude in design, and coarse in execution, these clumsy medals disclose the primitive conditions of the numismatic art of the period, being notably inferior to the contemporary examples of Byzantine coinage, themselves far below the artistic models of ancient Rome.

The severe fines imposed under the Visigothic Code, and whose non-payment generally involved the alternative of perpetual servitude, often caused the financial ruin of the offender.

[7] Nothing in the whole system of the Visigoths is more remarkable than the care with which they attempt to preserve the integrity of the judiciary. It is not impossible that the notorious corruption attending the dispensation of justice by the Roman tribunals, in the days of the decadent Empire, may have prompted the drastic legislation against judicial misconduct which is so prominent a feature of the Code. The penalties in extreme cases are but little inferior in severity to that said to have been imposed by Cambyses; who flayed a corrupt judge, and placed his skin in the judgment seat, as a suggestive warning to his successors. It may well be presumed that, in the face of such punishment, the acceptance of bribes was not a common vice among the Visigothic magistrates. The latter did not receive regular salaries, but were paid according to the work they performed; a regulation which would appear, in some instances, rather calculated to encourage, than to suppress litigation.--[ED.]

[8] This chapter does not appear in the Castilian translation. It is the only instance in the Visigothic Code where any ordeal is permitted as a means of obtaining evidence of crime. The other ordeals, subsequently so popular during the Middle Ages, and employed not only in proceedings before judicial tribunals, but also by the clergy to establish the existence of demoniacal possession, do not seem to have been practised by, or even known to, the Visigoths. Nor did they ever appeal to the wager of battle, so congenial to the spirit of the pugnacious barbarian, and which afterwards became one of the institutions of the age of chivalry and feudalism.--[ED.]

[9] “_Decalvatio_” was one of the most dreaded punishments sanctioned by the Visigothic laws. The tonsure was itself considered degrading, among a people who attached the highest importance to a luxuriant growth of hair, even when, as a distinctive mark of their calling, it was undergone by ecclesiastics; and shaving the head, in the execution of a judicial sentence, was often regarded as an indelible mark of infamy. There were several degrees of this punishment, all of which did not entail the same suffering and disgrace. In some cases, the hair was cut in the form of a cross; in others, the head was entirely shaved. He who was “_turpiter decalvatus_,” was scalped, and had the skin entirely stripped from his head above the ears; a practice surpassing in barbarity that peculiar to the American Indian. It was not unusual, in the infliction of this cruel penalty, to include a portion, or even all, of the skin of the forehead; thereby horribly disfiguring the victim for life.--[ED.]

[10] The mutual relations and liabilities of principal and agent, and constituent and attorney, seem to have been well defined among the Visigoths. The attorneys, “_assertori_,” referred to in the Code, were, in reality, attorneys-in-fact. Strictly speaking, lawyers (although the _assertor_ appeared in court, and, to some extent, exercised the functions of an attorney-at-law) did not exist among the barbarians who had migrated from the Euxine and the Danube, and by whom members of the legal profession were looked upon with both suspicion and hatred. It is said that Alaric, by way of mockery, cut out the tongue of a distinguished Roman advocate who fell into his hands. In the Visigothic tribunals each party stated and argued his own case; and, where an attorney was appointed, every precaution was taken to prevent the exertion of that insensible, but none the less weighty, influence which everywhere attaches to the possession of superior wealth, rank and power. The effect of written instruments delegating authority to agents of various kinds, was also well understood, and their validity was insured by the attestation of reputable witnesses.--[ED.]

[11] Branding was a penalty rarely imposed under the Visigothic system, and was deemed especially infamous on account of it being reserved for crimes involving unusual turpitude. He who was “_notatus infamia_” was deeply burned upon the forehead with a red-hot iron, which left an ineffaceable scar. Few offences were more detested by the Visigoths than perjury.--[ED.]

[12] There were various degrees of slavery recognized by the Visigoths. Slaves in the service of the Crown were often highly educated and accomplished for that age; exercised important and responsible employments at court; enjoyed many privileges, and were exempt from many restrictions ordinarily attaching to the servile condition. They were rather serfs than bondsmen; and could themselves own, and, under certain conditions, dispose of, slaves: a singular anomaly which could hardly exist, for any length of time, in a thoroughly civilized state. While the Roman master, under the law, was invested with absolute control over his slave, even to the extent of putting him to death, the Visigoth could exert no such irresponsible power. The worst features of the Roman System, rendered necessary where slaves existed in immense numbers, were rejected by the Visigoths, who displayed, in this instance, far more humanity than their polished and corrupt predecessors. Among them the Roman legal axiom, “_Partus sequitur ventrem_,” did not exclusively prevail; as the children followed the condition of the father as well as that of the mother. In both the Roman and the Visigothic codes the slave was considered as devoid of all personality; and was merely a chattel, with which debts and other obligations could be discharged, as with any other article of portable property. The _servus idoneus_, or slave of superior rank, was distinguished for his ability and integrity, or for the confidence reposed in him by his master; the _servus vilis_ was ignorant, debased, and frequently criminal. In the infliction of penalties, a distinction was made between the individuals belonging to these two classes, and always in favor of the former. Freeborn persons who, by the sentence of the law, were reduced to slavery, a common occurrence under the Visigothic system, and a penalty from which tyrannical and corrupt judges were not exempt, were designated _mancipia_. Slaves belonging to the Church were generally of a high order of ability and trustworthiness, like those who were the property of the Crown. The owner was made liable in damages for any injury committed by his slave; as the latter not being a person, and still less a free agent, was legally presumed to be under the control of his master, who, consequently, was responsible for his acts. The Visigothic Code in comparison with others, protects the rights of slaves with great impartiality, and often treats their minor offences with marked indulgence.--[ED.]

[13] This is probably the first instance on record, of a law authorizing the taking of depositions. It will be observed that no provision is made for the service of notice on the other party to the suit. The art of cross-examination does not seem to have been either recognized, or practised, by the Visigothic tribunals. The rigid investigation by the judge, who examined all witnesses, was presumed to be amply sufficient to elicit the truth--[ED.]

[14] In the words of the text, “_pari simul sententia falsarii teneantur_.” Subornation of perjury was, as will be seen from the above, placed in the same category with perjury. The penalty for the latter crime varied with the social status of the culprit, from the loss of the fourth of his property, to scourging, and perpetual servitude. See Book VII, Title V, Chapter II.--[ED.]

[15] A large part of the preceding Book has been borrowed from the Roman jurisprudence, and some of it is older than the Twelve Tables. It is hardly necessary to remark that the intelligence and experience of semi-barbarians are unequal to the task of the framing, construction, and execution of enactments relating to the enforcement of civil obligations, and the testamentary disposition of property, as set forth in these chapters. The power to distrain, referred to in Chapter VIII as effecting the property of a surety for a debt, is a remedy whose origin antedates all history. It was the _pignoris captio_ of the Romans, among whom it was a summary proceeding, undertaken without previous application to a judicial tribunal. It was supplemented by the _manus injectio_, or seizure of the person of a debtor or wrongdoer; followed by his subjection to hard labor, and often to cruel treatment, until the unpaid claim was satisfied, or the tort he had committed, had, in the opinion of the injured party, been sufficiently punished. This form of execution was much used by the Visigoths, and its severity was somewhat modified by their laws; but while its most oppressive features were eliminated, enough remained to render the proceeding liable to great abuse.

The rules relating to the execution, attestation and proof of wills and other legal documents, contained in the _Forum Judicum_ were, for the most part, derived from the Codes of Theodosius and Justinian. The provisions governing nuncupative and holographic testaments are very similar in all these collections. The will made by a traveller or a soldier, while on a journey or absent in the service of the government, is merely the _peculium castrense_, or military will of the Roman legionary. Codicils, introduced by the laws of Justinian, were unknown to the Visigoths.--[ED.]

[16] The crime of rape was considered by the Visigothic legislator in the original and broader acceptation of the term, and not according to the more limited significance attaching to it at the present day. It included, therefore, the offences of abduction and kidnapping; all survivals of practices observed by mankind in their natural condition; one of whose customs, marriage by capture, still prevails among certain barbarous nations. By the Visigoths, as by the Romans, rape, theft, and some other crimes, were classed as private wrongs, to be expiated by the infliction of personal vengeance. For this reason, the ravisher was delivered up to the tender mercies of the relatives of the victim; or, reduced to servitude, he was compelled to serve the latter for life.--[ED.]

[17] The Statute of Limitations could be pleaded in few crimes, under the Visigothic Code, and especially was this true where the defendant had been guilty of what we would call a felony. The reason for its adoption in this instance is obscure, and this law may have been enacted for some special purpose, or to fit some particular case; retroactive legislation being common under the Visigothic Monarchy. In all other laws published under this Title, marriage between the parties is not only absolutely prohibited, but every precaution is taken to make it impossible. As the former decrees and enactments are not stated to have been abrogated by the promulgation of the above-mentioned law, its application and enforcement would seem to have been difficult, to say the least. Such conflicting legislation was, however, not unusual under the polity of the Visigoths.--[ED.]

[18] No one can doubt that, under such conditions, it was “fully satisfied.” This is another instance where the punishment of a personal injury was regarded, not as an offence against the community, and a breach of good morals, but as a case demanding private retribution, as is specifically stated in the law itself.

The distinctions between the crimes of rape, adultery and fornication, as now established, are not clearly set forth in the Visigothic Code. Intercourse with a widow is designated adultery. The rape of a woman of any condition, is frequently called adultery with violence. The excessively harsh penalties prescribed for such offences, and which, as a rule, were only limited by the caprice or compassion of the party injured, are a relic of the customs of the Northern barbarians, with whom female chastity was as much the rule as, on the other hand, it was the exception among the warmer-blooded nations of Southern Europe. Most of the laws relating to crimes against women are termed “ancient,” showing their derivation from a remote antiquity, or Roman origin.--[ED.]

[19] The extraordinary leniency shown by this law to ecclesiastical culprits, as compared with laymen guilty of the same offence, openly displays the bias of the legislative power. There was one rule for the priest, and another, and a very different one, for his parishioners. It will be noted, also, that no provision is made for the punishment of the higher clergy; while it was notorious that the bishops and metropolitans were the greatest of all offenders, where women were concerned. As they framed the laws which governed the people, and were presumed to receive their inspiration from heaven, they naturally came to regard themselves as above their own decrees, and not liable to their penalties and restrictions. The dissolute character of the priesthood in those times, and long subsequently, is well known to every student of history. The indulgence with which the bishop was accustomed to regard the failings of his subordinates is disclosed by the fine imposed upon him for neglect to discipline the former. No mercy is shown to the women involved, and, what is unusual, no distinction is made where the latter belong to different castes, or stations in society. It is probable that this law, so far as the punishment of the clergy was concerned, “was more honor’d in the breach than the observance.”--[ED.]

[20] The right of dower, established by the Visigothic Code, is Roman in origin. It was derived from the bestowal of the dowry, “_res uxorica_,” which was an almost indispensable part of every marriage contract, and with which it is sometimes now confounded. While, under the Roman law, the dowry was given by the intended wife or her relations to the intended bridegroom, or to some member of his family, with the Visigoths it came from the bridegroom, and represented, in fact, the purchase money paid for the bride; a survival of the ancient barbarian custom of marriage by purchase, just as the wedding-ring is symbolical of the presumed subordination of the wife to her husband, a ceremony whose purpose, as well as significance, have both long since been forgotten.

Both the rights of dower and curtesy, as defined by the legal polity of the Visigoths, it will be seen, are practically the same as they now exist under the laws of England, and of those of many of the States of the Union. Considering the lapse of time, the differences of race and religion, the wide divergence of political systems, and the antagonistic character of many of the social usages observed during epochs separated by thirteen centuries, this fact is very remarkable. While the wife had a right to the use of half of the deceased husband’s property during her lifetime, he had a right to the use of only one third of hers, as he has to-day. The favor generally shown to the wife in the stipulations of the marriage contract, are largely the result of the independence enjoyed by the sex under Teutonic and Scandinavian customs.--[ED.]

[21] There is some ambiguity in this and in the preceding chapter, growing out of the use of the term _pupillus_ in the text; it denoting indiscriminately, minor, ward, and orphan. The provisions would apply with equal propriety to any or all of these, but it is most probable that minors alone were intended to be designated.--[ED.]

[22] As the law of primogeniture, so popular with mediæval and modern nations, was not recognized by the Roman jurisprudence, so it was also rejected by the Visigothic legislator. The testamentary distribution of estates under the Code was governed by far more equitable principles than obtain, even in our time, among many peoples who have enjoyed, for centuries, the experience and advantages of a highly developed civilization. While the testator was, for the most part, unhampered in the final disposition of his property, he could not disinherit any of his children without just cause, and that cause was required to be specifically stated in his will. Where children or grandchildren shared equally in the estate of their parents or grandparents, all cause for family dissensions on account of favoritism or undue influence, was absolutely removed. As it was provided by law that the estate of the decedent must descend in the direct line, to the exclusion of stepchildren, another source of dissatisfaction and temptation to fraudulent interference with the rights of the next of kin was permanently disposed of.

The interests of all heirs were jealously guarded. Even the dowry of the wife, peculiarly her own property, as it represented the purchase price paid for her by her husband, could not be alienated, to the prejudice of her children. The dutiful conduct of the latter was insured by the law which declared all their rights in the estates of their parents to be forfeited, in case they were guilty of gross insult or violence toward the former. In the case of wards and minors, there is probably no body of laws which protects with more solicitude the interests and property of such helpless beings, than do the provisions of the Visigothic Code.--[ED.]

[23] This decree, promulgated about 660, is one of the first of the statutory declarations recognizing the principle of mortmain. The Codes of both Theodosius and Justinian contained similar, but far less sweeping provisions relating to the acquisition of property by the Church; but these were concerned, for the most part, with bequests. From the nature of the case, however, in the organization and perpetuation of ecclesiastical societies, custom and necessity must early have rendered real property inalienable by bodies which never die; and which are encouraged to add to their wealth by every expedient, honorable and dishonorable, but are prohibited by tradition, policy, and legal enactment from conveying their possessions to the laity.--[ED.]

[24] Priests and deacons, under the Visigothic ecclesiastical system, which, it must not be forgotten, was at all times practically independent of papal authority, were permitted to marry; as were their Arian predecessors. Such a union, however, was subject to certain restrictions. It could only be entered into once; the bride had to be a virgin; and where the husband was raised to a higher dignity in the Church he was compelled to, at once, repudiate his wife. The marriage itself was an impediment to promotion, as priests without families were much more sure to rise in their profession than those who had contracted marital obligations.--[ED.]

[25] The holding of a plurality of livings by a single ecclesiastic, an abuse which, in after times, assumed such gigantic proportions under papal rule, especially in England, where, by reason of the hardships it produced, it promoted in no small degree the progress of the Reformation, was scarcely known to the Arian, or Catholic clergy of Spain. The enjoyment of the revenues of one, or a greater number of benefices by a layman, no matter how wealthy or powerful the latter might be--a custom elsewhere so prevalent--was not provided for by the sacerdotal legislature of the Visigoths in their Code of laws; for the reason, no doubt, that such a thing was deemed too improbable for serious consideration.--[ED.]

[26] The institution of patron and _libertus_, or client, adopted by the Visigoths almost without alteration, dates back to the primitive ages of Rome. The regulation was recognized by the Law of the Twelve Tables, and was modified by various enactments during the eras of the Republic and the Empire. Its survival, during all the vicissitudes attending the Roman domination, attests its peculiar adaptability to the national character, and to the political and social organization of the people who established it. It presents a greater analogy to the Highland clan than to any other modern institution, although marked and radical differences exist between the two; the strongest resemblance being in the devoted allegiance due to both the _patronus_ and the chieftain. By the ordinary act of manumission the slave became a _libertus_ or freedman; a term of much more limited significance than it has at present. The former master then became the protector and guardian of his freedman; and, in return for this protection, the latter was bound to perform certain duties, which he could not evade without the reproach of ingratitude, and the certainty of punishment. One of these obligations was that of military service, which differed from those subsequently required by the law of the Feudal System, only in that it was not especially rendered as a condition for the tenure of a fee. The relation of patron and client, which, under the Romans, could only be dissolved between individuals by death, or by the loss of his freedom by the client for misconduct or insolence, was not so strictly observed among the Visigoths. Under their system, the freedman had a right to transfer his allegiance to another patron; an act which caused the forfeiture to his former master, of at least half his property. Not only individuals, but churches, and municipal bodies, could exercise patronal rights. While the term client was generally applied by both nations to a manumitted slave, it had in fact, a much broader meaning; and denoted any person who voluntarily placed himself under the care or supervision of another of superior rank or power. This institution had more influence in preserving and perpetuating the distinctions of caste--that most pernicious and fatal of evils which cause the disintegration of nations and overthrow of governments--than any other arbitrary and oppressive regulation of ancient times.

[27] Among the clients owing services to a patron, were the _buccelarii_, who derived their appellation from the _buccela_, or ration, furnished them. They may be designated “bailiffs,” as their duties resembled, in many respects, those of the Spanish _alguazil_. They formed part of the armed retinue of the patron, accompanied him to war, and guarded his property in times of revolution and disorder.--[ED.]

[28] The irresponsible, and more than despotic authority vested by the Roman laws in the father over the son, was thoroughly repugnant to the Visigothic conception of justice and freedom, which had been transmitted through many generations of barbarian ancestors. The Roman father not only possessed the power of life and death over his children, but had the undisputed right to sell them into slavery. The parental and filial relation was hedged about with such restrictions that it was almost impossible to sever it during life. By the law of the Twelve Tables a son could not be free, unless he had been sold as a slave and manumitted, three times. His reduction to a condition of servitude carried with it many civil disabilities which could never be removed. The independence of a son of his father’s control rendered his inheritance of the parental estate impossible. These oppressive regulations were either greatly modified, or entirely abrogated, by the more equitable policy of Visigothic legislation. In the case of female children also, under the latter system, principles more consonant with ideas of justice prevailed. The emancipation of the sex from arbitrary restraint also made great progress, when it is remembered that a woman, no matter what her age or position, was always considered by the Romans to be in a condition of tutelage.--[ED.]

[29] This affords curious and instructive information as to the cost of books in the seventh century. The silver _solidus_ is meant, as, where any coin referred to is of gold, the fact is always stated in the _Forum Judicum_. As the _solidus_ was nominally worth $4.00 of our money, but in reality $44.00, taking into consideration the difference of values at that and the present time, it will be seen that the price fixed by law, of a copy of the Visigothic Code, was $17,600.00. This appears incredible, but it must be borne in mind that all books were in manuscript; that few persons were qualified to write them; and, as ignorance was almost universal, the demand for literature was extremely limited. The preparation of a literary work was then a formidable and expensive undertaking. Most of the books of that age, and, indeed, for centuries subsequently, were of a religious character, such as missals, fabulous chronicles of the Church, and spurious and imaginary biographies of saints. Making the sale of a collection of laws at a price above a certain sum a penal offence, punishable with the scourge, is an example of crime unique among the _mala prohibita_.--[ED.]

[30] Twelve and a half per cent was the ordinary rate; but, in some instances, it was much higher. The law against usury was habitually violated by the Jews, who extorted enormous rates of interest both from individuals and from the Crown.--[ED.]

[31] All the laws relating to bailments, included under this and the preceding Title, are of ancient origin; that is, borrowed, almost without change, from the Roman jurisprudence. The responsibility of the bailee for property entrusted to him, is determined by the same principles which experience and a sense of equity, in all ages, have demonstrated to be just and expedient, and which form the basis of similar contracts at the present day. The requirement of ordinary or extraordinary diligence and care was then, as now, dependent upon the question whether one or both parties derived benefit from the bailment. In case of gross negligence or fraud, the bailor was entitled to an animal or article of equal value to the one lost or destroyed; just as he can now, under similar circumstances, recover damages in a suit at law. The forfeiture of half the value of the property loaned, when it was stolen, and negligence was not established, or even alleged, is a novel regulation, and one especially calculated to render the bailee more careful and alert. The custom of pawning property as security for money loaned is, no doubt, as ancient as any business transaction, and is the _pignori acceptum_ of the Roman, and Civil and Common Law authorities. The question of negligence does not seem to have been considered where a pledge was stolen; for, in this case, the entire loss was sustained by the bailor, and not half of it, as when the article was merely loaned by way of accommodation, and no remuneration for its use was expected.--ED.

[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.]