Chapter XXXII: Book XII (4)

[36] It is probable, from the extreme cruelty of the penalty imposed for professing ignorance of the laws of the land, that this defence had been frequently set up by criminals, and that it had, in not a few instances, been pleaded with success. There is not, in the entire Code, a sentence exceeding this in severity, as the crime itself is supposed to have been sufficiently expiated by the infliction of the _Lex Talionis_.--[ED.]

[37] The various degrees of homicide, as set forth in the preceding chapters, were clearly understood if not specifically designated, by the Visigothic legislator. Chapter XI, which describes the crime corresponding to murder in the first degree, is the only one of undoubted Roman origin; all the others being the acts of Councils, or the edicts of kings. In the first and second chapters, the circumstances which characterize excusable homicide are stated; and in the third, fourth, fifth, sixth, and seventh, the conditions attending the crime of manslaughter are explicitly defined. The vital question of intent, or the existence or non-existence of malice prepense, is referred to repeatedly, both in a positive and negative manner, whenever homicide is described. The humane protection afforded the slave from the cruelty of his master, as provided for by Chapter XII, suggests what frightful abuses must have previously resulted from the unrestrained exercise of magisterial tyranny. The guilt of the accessory-before-the-fact was not considered as great as that of the principal; as the penalty to which the former was liable, while being severe, as well as in the highest degree ignominious, fell short of the infliction of death. The horror with which a parricide has always been regarded, was likewise felt by the Visigoths, as is disclosed by his summary execution by the same means that he employed to take the life of his victim; a form of the _Lex Talionis_ which was only made use of in the case of crimes of peculiar atrocity. The blinding to which a murderer was subjected, who had claimed the right of asylum, was far from being an exhibition of clemency, and certainly entailed greater suffering than the extreme penalty otherwise prescribed by the law. Homicide was justifiable, as has been seen, when committed in self-defence against an attacking party; in certain cases of trespass _vi et armis_, and where a father killed his adulterous daughter in his own home, or a husband caught an adulterer with his wife, _in flagrante delicto_. In the latter instances the offender was especially exonerated from all blame, on account of the provocation; and, therefore, could not be held for manslaughter, as he now can be, under the statutes of the majority of our States. Justification could also be pleaded where a criminal was killed while committing highway robbery, larceny, or burglary; the latter (_furtum nocturnum_) being a much more comprehensive term than ours, and including all kinds of nocturnal depredations. The employment of that popular American fiction, the “unwritten law,” by means of which so many homicides have been acquitted, and which appeals so strongly to the primitive sense of retributive justice which still dominates humanity, was thus openly endorsed by the Visigothic Code. Insanity, as a defence for homicide, was utterly unknown to the legal systems of antiquity; and it is only under the highly artificial conditions of modern civilization that this theory has attained such an extraordinary, and often pernicious, development.--[ED.]

[38] It is rather remarkable that the theft of royal property should only have been punished by the imposition of a fine equal to that prescribed where a private individual was robbed. It is evident that, under a strict construction of this law, no other penalty could be inflicted.--[ED.]

[39] This chapter, a survival of the irresponsible authority exercised by the Roman _dominus_, is the only one in the Code where the fate of a slave, guilty of crime, is specifically and absolutely left to the will of his master. It is possible that, on account of the facility afforded for the commission of such offences, the possession of extraordinary power was supposed to be required, as a safeguard.--[ED.]

[40] The enforcement of the _Lex Talionis_ in case of the kidnapping of a freeborn person indicates the abhorrence with which the crime, ever regarded by all nations as one of the most atrocious in the calendar, was viewed by the Visigoths. As slaves were valuable articles of property, the legislation of the Code was principally directed against those who stole them. The kidnapping of women, having been already provided for under the title of Rape, is, for that reason, not referred to here.--[ED.]

[41] The mildness of the sentence imposed for the crime described in this chapter, which seems to include the capital offences of treason and _lèse-majesté_, as well as the lesser one of forgery, is most extraordinary and inexplicable. Although “the divinity that doth hedge a king” was not fully recognized or appreciated by the Visigoths of the seventh century, whose monarch was the creature of an ecclesiastical council, and not infrequently deduced his origin from any but a princely house, it is still inconceivable that these offences being particularly directed against the regal dignity, should have been regarded as personal and of trifling moment, for it can be readily conjectured what serious trouble and embarrassment a spurious edict, purporting to emanate from the throne, might cause.

The “notaries” herein referred to were secretaries, shorthand writers or amanuenses.

This law is of Roman origin, and the amputation of a finger or a hand, while not unusual under that system, was a more prominent feature of Greek penal legislation, from which the Romans, at the time of the adoption of the Law of the Twelve Tables, borrowed many of their punishments.--[ED.]

[42] The penalty above described for an offence of such gravity as highway robbery, seems to be grossly inadequate. It is, however, a peculiarity of the Visigothic Code that, for many breaches of the law which we class as misdemeanors, it authorizes punishments generally inflicted for the commission of felony, and _vice versa_. Perhaps the courts construed the expression “complete legal satisfaction,” to mean the sentence usually imposed for theft. There can be little doubt that the obscurity of the language which often characterizes the edicts of the _Forum Judicum_, would, under a less strict and impartial judicial system, have offered many opportunities for the escape of an offender from the legal consequences of his crime.--[ED.]

[43] Between one twelfth and one fourteenth of an acre. The great Roman highways, portions of which are still in good preservation in some of the provinces of the Spanish Peninsula, and especially in Estremadura, were usually from eleven to fifteen feet wide; and, with the space required by the Visigothic laws to be left unenclosed for the passage of cattle, were sometimes sixty to a hundred feet in their entire width.

The Visigothic surface measures were partly Roman, partly Gallic, and partly Gothic. The standard, the _Jugerum_ .622 acre, was older than the Roman Republic; the _Arepennis_, equal to half a _Jugerum_, was used by the Gauls; and the _Aratrum_, or “ploughland,” corresponded to an area of a hundred and twenty acres, approximately, and is of Northern derivation. The _Aratrum_ was divided into “oxgates,” or “oxlands,” being as much arable soil as could be tilled by an ox, usually fifteen acres, but varying according to country and custom. For purposes of description, the latter term, evidently an importation of the Danes or Saxons, is frequently employed in the ancient English works on tenures; particularly where the latter were of the classes designated as “base,” and “in gross”; as well as in conveyances and leases, where absolute accuracy of boundaries was either unnecessary or unattainable. The divisions of “ploughland” and “oxgate” were used much more recently in Scotland than in England.--[ED.]

[44] The reader cannot have failed to remark the striking analogy existing between the laws of the _Forum Judicum_ relating to strays, and our own statutory enactments on the same subject. Indeed, aside from some of the penalties imposed, and the amount of compensation allowed, the regulations are, in many instances, almost identical. Unlike a great part of the Visigothic legislation, where trespass, and other violations of the law of real property are involved, few of the provisions concerning strays are derived from Roman sources. Most of them are unquestionably survivals of the ancient legal traditions of the wandering Gothic tribes, the great bulk of whose wealth consisted of flocks and herds of sheep and cattle.--[ED.]

[45] This law was evidently intended to repeal the preceding one, although this is not specifically stated. Its enactment, as is set forth in the preamble, was demanded by the constantly increasing number of marriages between freeborn persons and slaves. The degradation attending such unions does not seem to have been regarded by the masses with the same prejudice that actuated the law-making power, whose interest it was to rigidly maintain the barriers of caste.--[ED.]

[46] The great value of slaves, as articles of personal property, and the manifest sympathy of the people with them, seem to have prompted the enactment of this law, by which the inhabitants of an entire district were to be turned into a corps of detectives for the capture of fugitives; and the severest penalties were denounced against all, irrespective of age, sex, social standing, or rank, for non-compliance with its provisions. The statement that no community, large or small, was without a number of fugitive slaves, who, sure of the assistance of their neighbors, scarcely took the trouble to conceal themselves, indicates that human servitude was not popular with the majority of the people of the Iberian Peninsula. It would appear, also, that the magistrates, whose executive delinquencies rendered them liable to the same punishment as the offenders themselves, were frequently loth to execute the law. The marked consideration always shown the clergy by their legislative brethren, is again disclosed by the amusing inequality of penalties prescribed for the neglect of official duties. There is a great and painful difference between the limitation to one meal a day, for a month (a privation, it is hardly necessary to add, which might be readily evaded) and two hundred lashes, laid on vigorously with a scourge. This law gives us a curious insight into life in those times, and one that could have been derived from no other source; and it is especially instructive in the information it affords concerning the feelings entertained by all, except the comparatively few members of the privileged classes, towards those in the servile condition.--[ED.]

[47] The military organization of the Visigoths bore a striking resemblance to those of modern armies, and coincided, in only a few unimportant particulars, with that of the Roman legion. Division by means of the decimal system, popular among all semi-barbarian races on account of its simplicity, and the facility of arrangement it affords, was universally employed. The commander-in-chief, styled in the Code, _præpositus hostis_, was usually a _dux_, or duke; the lieutenant-general a _comes_, or count. The commander of a thousand men, corresponding to our colonel, was denominated _tiuphadus_; next in rank came the _quingentarius_, who had charge of a battalion of five hundred; then the centurion, and the decurion, in command of a company of a hundred, and a squad of ten men, respectively. The conscription officers were called _compulsores exercitus_, and the quarter-masters or commissaries, _annonarii_.

This military gradation was also maintained in civil life, in time of peace. The _dux_ was the governor of the province in which he lived; the _comes_, the governor of the chief city of his district; the _tiuphadus_ was responsible for the behavior of the thousand men, and their families, over whom he exercised control. All these, with several other civil functionaries, had the privilege of holding court, and were invested by the law with the title of judge: “_judicis nomine censeantur ex lege_.” See Code II, 1–25.--[ED.]

[48] While this is an early instance of the recognition of the offence of _scandalum magnatum_, subsequently regarded as a heinous crime against the Lord’s anointed, and still, under the name of _lèse majesté_, punished with exemplary severity by many of the monarchs of Europe, it here assumes a broader significance than it did in later times, as it applies also to the people, and thus includes the torts of slander and libel.--[ED.]

[49] The _gardingus_ was the third in rank of the Visigothic nobility, coming after the _dux_ and _comes_. Unlike either of them, however, he, as a rule, exercised no public employment; and being ordinarily a person of great wealth, and descended from a long line of ancestors, materially contributed, by the richness of his appointments, and the number of his retinue, to the pomp and splendor of the royal court.--[ED.]

[50] The intricate questions relating to the leasing, conveyance, descent, and forfeiture of real property are, as has been seen, elaborated and set forth with great skill and learning in the Visigothic Code. Not a single chapter treating of this subject is designated _Antiqua_, to indicate that it is derived from the Civil Law. And this is the more remarkable when the nomadic origin and barbarous customs of the not remote ancestors of those who enacted these important regulations, are considered. A nation of shepherds and marauders could not be supposed to be familiar with the tenures, contracts, transfers, boundaries, and torts, by which the title to landed estates is either acquired or lost; yet the Visigoths framed their laws with due consideration for the principles of equity, and the general welfare of all classes of freeborn citizens. In many respects their laws were superior to those of the Romans. Only two years by the Twelve Tables, and twenty under the Code of Justinian, were necessary to create a prescriptive right to the ownership of land. Under the Roman jurisprudence, until the population became debased by servile and barbarian marriages, no foreigner could legally hold or convey real-property. The Visigothic Code, on the other hand, carefully guarded the rights of the subject race, and prevented them from being prejudiced by the fraud or oppression of their rulers. The inferior classes under the Republic and the Empire, were practically serfs, living in a condition of abject villenage; those of corresponding station subject to the domination of the Visigoths, were often thrifty tenants of indulgent landlords, or, at the worst, were bound by exacting contracts which they had entered into of their own free will. The extreme solicitude manifested for the protection of the rights of all parties, where the title to real-property is concerned, is disclosed by the manifold precautions enjoined, and the stringent rules to be observed, in determining the existence of adverse possession. A contract for the rental of land, which would be valid in any of our courts, could easily be drawn from the laws of the Code relating to leaseholds.--[ED.]

[51] “_Ludibrium interdum adcrescat._” It would appear from this precautionary measure, that the members of the medical profession, in that age, did not differ greatly from some of their brethren of to-day. The practice of medicine was not highly regarded by the Visigoths, a nation of warriors, and it was often exercised by slaves, as formerly at Rome, and subsequently by barbers and charlatans during the Middle Ages. Malpractice was a term of the broadest significance; the risks assumed by the practitioner, even in ordinary cases, were not compensated for by the fees he was entitled to receive, when successful; and the danger of damages and penalties he incurred where he lost a patient, made the profession anything but an alluring one. After rendering conscientious and assiduous services, to be considered guilty of homicide, and be surrendered to the exasperated relatives of the deceased patient, as a subject for the savage excesses of the _Lex Talionis_, was not a prospect calculated to advance the interests of medical science.

Not until three centuries later, under the Moorish domination, did the physician and the surgeon acquire the extensive knowledge, and attain the professional eminence, which made the medical colleges of the Spanish Peninsula the centre of that branch of learning, not only of Europe, but of the then known world.--[ED.]

[52] This law, which grants to every foreign trader the privilege of being judged by his own magistrates, is the precursor of modern legislation establishing consular and other tribunals instituted to protect the commercial interests, and define the judicial rights, of persons transacting business in another country, and is of unknown antiquity. It is, however, at least thirteen hundred years old. A people capable of appreciating and adopting such a measure, must have had intelligent conceptions of the maxims and requirements of international law and have made no inconsiderable progress in the arts of civilization.--[ED.]

[53] This pleasing homily, which precedes a collection of the most atrocious laws ever devised for the suppression of human thought and the persecution of heretics--with the sole exception of the rules of the Inquisition, of which it is the prototype--is extremely edifying. The confidence and assurance of a heavenly recompense, expressed by the pious king in whose name this edict was promulgated, reveals the degrading superstition of the time, and the absolute domination of the monarch by his spiritual advisers.--[ED.]

[54] The translator has interpolated between this and the succeeding title, in the Castilian version, another, of nine chapters, under the head of “Concerning insults and opprobrious language.” Part of it relates to false accusations of physical deformity and disease, or slander; part to assault, or attempted assault, where no apparent injury resulted; and the remainder is devoted to laws punishing those who call Christians Saracens, or assert that they have been circumcised. The moderate penalty of a hundred and fifty lashes was prescribed for the last two offences.--[ED.]

[55] In the words of the text, “_veretri ex toto amputatione plectetur_.” The sentence will not bear translation, and, in the words of a famous writer referring to a similar case, “must be veiled in the obscurity of a learned language.” While certainly to be classed under “cruel and unusual punishments,” it reveals a fiendish ingenuity in adapting the penalty to the so-called offence.--[ED.]

Transcriber’s Notes:

1. Obvious printers’, punctuation and spelling errors have been corrected silently.

2. Where hyphenation is in doubt, it has been retained as in the original.

3. Some hyphenated and non-hyphenated versions of the same words have been retained as in the original.

4. Italics are shown as _xxx_.

5. Bold print is shown as =xxx=.