Preface of the Visigothic Code (Forum judicum)
[v] It was well said by Gibbon that “Laws form the most important portion of a nation’s history,” for from them, more impartially than from any other source, we derive information of the customs, virtues, vices, political ethics, faults, follies, and religious prejudices of a people. Especially is this true of the Visigothic Code. In it are depicted the traditions and history of a race which, originally nomadic, with unprecedented rapidity became stationary; and, from being for ages subject to institutions formed by the desultory acts of tumultuous assemblies, often dictated by caprice and enmity, in less than two generations acknowledged obedience to a government partly imperial, partly theocratic. In the annals of no people so recently barbarian, is to be found more marked and substantial progress, from the primitive surroundings of pastoral and predatory life, to the tastes, the laws, the refinements, and the social usages of civilization.
An analysis of the Visigothic Code may be made under three heads: historical, descriptive, comparative. Its story is practically that of the Gothic monarchy in Spain. In the variety and scope of [vi] its provisions; in the skillful adaptation of its canons to the purposes of ecclesiastical supremacy; in the care with which it preserves the distinctions of caste; in the accuracy and conciseness of its maxims defining the principles of equity; in the elaborate, yet simple, arrangement of its judicial system; in the thoroughly philosophical spirit that pervades the greater portion of its pages; it is radically different from, and, in many respects superior to, all other collections of legal enactments of ancient or medieval times.
It is far more instructive and suggestive than a chronicle. Nowhere have the purposes of the law been more ably stated than in its terse and expressive phraseology. It proclaims the sentiments of a lofty morality. It appreciates the true object and end of legislation. In its stern and inflexible disregard for the arrogant claims of superior wealth and station, it assured to the most lowly the administration of impartial justice.
The Goths, a branch of the Indo-Germanic race, from which the Caucasian of modern times is descended, and whose habitat once extended from Western Europe to the great plains of Central Asia, seem to have wandered farther, and to have changed more materially, as regards their laws, customs, and religious belief, than other tribes of migratory barbarians. Distinct from the Germans, or Teutons, they have, nevertheless, often been confounded with them; a fact due to their nomadic [vii] tendencies, personal appearance, and general habits of life. The similarity which characterized the vast hordes, or vagrant multitudes, which issued in ancient times from the officina gentium, has been the cause of much confusion in the more or less fanciful accounts of classic annalists and historians. The coincidence of numerous terms of the Gothic language with those of Sanscrit, and the identity of many roots of words in both languages, have established the origin of the Goths to be Indian, and not Scandinavian, as was once generally supposed. It is related by Herodotus, that Darius, a thousand years before Christ, repelled from the confines of the Persian dominions, across the Danube, a great migration of barbarians, moving and living on horses and in chariots. This people, known as Scythians in antiquity, were the ancestors of the modern Slays, and kindred of the Goths. Driven back by the Persians, they, with others who followed them, distributed themselves over Northern Europe, whence, in time, they descended to overwhelm, with their numbers and their valor, the decadent and tottering Roman Empire.
The original Goths were typical savages. They had practically no political organization; dressed in skins; disdained all labor; showed no mercy to their enemies; killed their parents, when they became old and infirm; had few religious ideas; worshiped a drawn sword as a divinity; were filthy [viii] in their personal habits; and recognized only the law of the strongest. From such unpromising progenitors was derived the race destined to be, in large measure, the lawgivers of Europe.
The Visigoths, in the course of conquest firmly established in Gaul and Spain, and everywhere victorious over the Romans by arms, were, in their turn — as inevitably happens under similar circumstances — both enervated and subjugated by the arts of luxury and peace. Despite their surroundings, they, for a long period, preserved their ancient habits and traditions. For more than a century they went about half-clad and unkempt, as they had done on the shores of the Euxine and the Baltic, to the astonishment and disgust of the polished Roman provincials, who had inherited the luxurious tastes, courteous manners, and artistic conceptions of Greece and Italy. To the last, they wore long hair as a badge of sovereignty; a barbarian custom which first became known to the Romans, when the city was saved by Marius from the invasion of the Cimbri and Teutons. In the early days of their domination in the West, the laws of the Goths, like those of all other unlettered races, were based upon custom and oral tradition. They carried with them in all their migrations the same principles which had guided them in distant countries, and under a far different political and climatic environment. Many of their rules and customs [ix] were never abrogated, and eventually constituted no unimportant part of their Code. Under new conditions of government and society, changes became necessary in their jurisprudence. Roman laws, generally subjected to modification, and rarely adopted in toto, were incorporated into their statutes. Never, however, was servile obedience, without remonstrance, offered to despotic authority. Their government was strictly one by law. The Crown, long elective, and unsuccessfully attempted to be made hereditary within a quarter of a century of the Saracen invasion, while at first bestowed by the votes of the entire people, ultimately became dependent upon the choice of the clergy. The Throne and the Altar were thus closely connected, and, to a certain extent, necessary to one another. The bishops, having the power of election, and likewise of deposition, exercised unbounded influence over the king, who was indebted to them for his throne. On the other hand, the sovereign had many opportunities for granting favors and privileges to the ecclesiastical order, a prerogative which he did not hesitate to frequently exercise. Ecclesiastical supremacy, however, rarely countenanced oppression in the early ages of the Gothic monarchy. The Visigoths, in common with others of their race, professed the Arian heresy, whose adherents, unlike their successors, the Catholics, were never noted for bigotry or intolerance, and, as a rule, never [x] accepted a point of religious faith or discipline without free and careful deliberation and debate. The omnipresent sacerdotal order, basing its claims upon Divine precept and example, discouraged, with unfaltering persistency, the tyranny of the Crown, The coronation oath of the king was long and minute and abounded in promises to support and defend the interests of his subjects. When invested with the insignia of royalty, he was admonished “Rex ejus cris si recta facis; si autem, non facis, non cris.” “Thou shalt be king so long as thou dost do right; but if thou do not do right, thou shalt no longer be king.”
The legal and political events of the Visigothic domination are written in the annals of its ecclesiastical councils, which designate the chief events of every reign. These were of three kinds, national, provincial, diocesan. Of the national councils there were nineteen in all; one of which was held in the fifth century, two in the sixth, and sixteen in the seventh; all, after the sixth council, being held at Toledo, which gave to that venerable city vast and permanent prestige and influence in the affairs of the hierarchy and the kingdom. The national councils assembled at the order of the king, who also presided over them; and this prerogative, strange to say, was assumed and exercised, without remonstrance from Christian prelates, by the emirs of Moorish Spain. These ecclesiastical convocations which have been frequently referred to as the [xi] first representative popular assemblies of Europe, were very far from deserving that title. While, originally, the laity were admitted to their deliberations and participated, to some extent, in the discussion of secular matters, the clergy, at all times, were supreme in power, as they were superior in learning and eloquence. By degrees, laymen were excluded; the secular element lost its influence; there was no representation, even theoretical, either of the nobility or of the people; the sovereign was but the presiding officer of the assembly; legislation Was wholly inspired by the priesthood; and the authority of the clergy became absolutely paramount. The State became synonymous with the Council; the theory of popular representation had vanished; and, while the monarch still assumed the name and state of royalty, the government of the once independent and liberty-loving Goths was, in fact, purely and essentially theocratic, and the clergy, from being teachers, advisers, and pious mediators, were now the absolute rulers of the Peninsula. This predominance, progressive from the very beginning, was felt and acknowledged in everything, whether of greater or minor importance, which affected the welfare of the kingdom. Although the bishops sometimes imposed upon the weakness of their kings, their rule was, in the main, beneficent; and the theocratic character, which they imparted to the government, elicited the respect of the nobility, [xii] and the reverence of the people. These wise and pious legislators contributed, by their tact and piety, to the thorough fusion of the victorious and subjugated races. They confirmed the royal power. They stifled conspiracy, and suppressed rebellion. They crushed the treasonable aspirations of many a daring aspirant to the throne. The truculent impulses of the barbarian rabble, never entirely extinguished, were quietly, but effectually, restrained by their judicious display of gentleness, firmness, and devotion. By anointing the sovereign with holy oil, at his coronation, they confirmed his title, and instituted a ceremony which carne to be regarded as essential to the royal accession. As they possessed a monopoly of the meagre knowledge of the age, they enjoyed an immense advantage over all other classes, which they did not hesitate to employ, by every available means, for the maintenance and perpetuation of their authority.
Thus, under the Arian system, the government of the clergy was, all things considered, highly salutary. With the conversion of the nation to the Catholic communion, the organization of the hierarchy was little altered; but a far different spirit animated the legislative assemblies: Heresy was punished by the most barbarous laws. The Jews, whose wealth and intelligence had long been conspicuous in the Peninsula, were made the subjects [xiii] of legal enactments especially devised to deprive them of their property and their liberty. Every expedient was employed to bring them within the pale of the Church. Authority over them was vested in the priesthood, and where a Jew was tried for a criminal offence, it was provided that an ecclesiastic should always be present. Such Jews as refused to profess Christianity were subjected to the most stringent and harassing regulations. They were placed under the constant supervision of spies. Exorbitant taxes were levied upon them, and, in addition to their own, they were compelled to pay those of their apostate brethren. They were not permitted to testify in the courts, to sue, or to defend an action at law, unless the adverse party was one of their own sect. Under the pretence of loans, enormous sums were wrung from their unwilling hands. By means of frivolous pretexts and false accusations, they were frequently reduced to servitude. The laws even went so far as to prohibit them from entertaining thoughts relative to the customs and observances of their sect. Yet, under all these oppressive restrictions, the Hebrews prospered. They were the wealthiest class in the kingdom, and well understood how to employ their riches for their own preservation and profit; while the heavy penalties prescribed for the bribery of judges and other officials, indicate how common and widespread was the influence of such corruption. The [xiv] extraordinary intelligence and information of the Jew rendered his advice and assistance always acceptable, and often indispensable, to the ignorant and profligate noble; services which were often requited with open protection. Nor was this tolerance and partiality confined to the laity. Not only were the clergy often remiss in enforcing the laws against the Hebrews, but the Code specifically and significantly prohibits their intimacy with Jewish women. In certain offences where punishment was meted out to them for breaches of the law, they underwent the Biblical penalty of being stoned to death; and this was inflicted by certain of their brethren, who, it appears, were appointed for that very purpose, and were recompensed for their treachery with the property of their victims. The persecution of the Hebrew under these atrocious laws, exercised indirectly a great influence upon the destinies of Europe. The Jews of the Peninsula had long entertained intimate relations with their co-religionists of the northern coast of Africa; the oppression under which they languished; the confiscation of their property; the seizure of their children; their enforced proselytism; and the prospect of the ultimate annihilation of their race, tightened the bonds of union existing between them and their African brethren; established an understanding between itinerant traders and the Moorish conquerors of the West; and thus invited and [xv] accomplished the Mohammedan conquest of Spain. The most drastic of these regulations against the Jews were enacted tinder the reign of Ervigius, in the latter part of the seventh century; and, less than forty years afterwards, the whirlwind of Saracen invasion swept the Visigothic monarchy from the face of the earth.
The cruel and unrelenting pursuit of the Jews, commanded by the Visigothic Code, was the foundation of the Spanish Inquisition and its diabolical procedure. From it were derived many of the dogmas, tortures, and penalties, of that awful tribunal; with the exception, that what was once only directed against a single sect, was destined eventually to include the votaries of every heresy. That the descendants of a nation renowned throughout all antiquity as ardent lovers of liberty, should, in a few short generations, be transformed into the most merciless of persecutors, is one of the most remarkable political anomalies to be met with in history. Even San Isidoro, referring to driving the Jews to baptism, and into enforced communion with the Church, declared indignantly that it was “non secundum scientiam;” a remark which, made under the reign of Sisibutus, in the beginning of the seventh century, is one of remarkable significance, as emanating from a Father of the Church, in an age of almost universal ignorance and religious prejudice.
[xvi] The Hispano-Gothic church was absolutely independent of Rome. The supremacy of the pope was not recognized, and, in all the annals antedating the Reconquest, there is no mention of an appeal to the Holy See on questions of government, ceremonial, or doctrine. The bold and haughty spirit of the Basques and Iberians, animated the ecclesiastics of both the Arian and Catholic churches of Spain. Before the Saracen conquest there were no archibishops. The metropolitans, or bishops of the principal churches, were equal in rank in the hierarchy, until the national councils began to be regularly held in the sixth century; when, gradually, by common consent, Toledo became the seat of the Primacy, a distinction which it has ever since maintained. The dominance of the priesthood in the government, once established, advanced with prodigious strides. In the eighth Council of Toledo, seventeen nobles and fifty-two bishops sat; in the sixteenth Council, held fourteen years afterwards, there were in attendance sixteen palatines and counts, and seventy-seven prelates, and; with this preponderating ratio of ecclesiastics, the authority and importance of the latter naturally increased. The morals of the clergy in that age, while far from being blameless, were not subject to the reproach which they so justly incurred from the profane and ribald poets and novelists of subsequent times. Their influence over the people was unbounded, and [xvii] their popularity, for the most part, well deserved. Their intervention in behalf of the oppressed effectually curbed the ferocious instincts of the monarch and the noble. The criminal, pursued to the doors of the church, or to the foot of the altar, could not be removed from their sacred precincts without the consent of a priest, or a bishop; and the mere fact that he sought refuge in the House of God rendered him exempt from the death penalty, no matter how grave the character of his offence might be. To the bishop was granted the right of supervision over the conduct of the judge, when the latter exceeded his powers, or rendered decisions manifestly in violation of justice. The Goths, the most plastic and obedient of proselytes, regarded their spiritual advisers with peculiar respect and veneration. They were their guides, their protectors, their benefactors. Nor was the potent influence of the clergy in the maintenance of justice and right, confined to the lower orders. They pronounced anathemas against treason; excommunicated pretenders to the throne; curbed the ambition and greed of marauding nobles; compelled the reverence of aspirants to the royal office; and exacted from the king, who was often their creature, the deference and submission which they considered due to their sacred office and authority. The people of the Peninsula, while apparently attached to the Arian heresy, evinced little steadfastness [xviii] in faith with the appearance of orthodox Christianity. Confident in their power, and well aware that no monarch would venture to promulgate an edict menacing their supremacy, or, in any way, conflicting with the privileges of the Church, the priesthood did not require, as an essential condition of its validity, that every law should be confirmed by the voice of a council. Consequently many regulations were established by the sole authority of the king; and this privilege, at first merely a concession, came, in due time, to be considered and accepted as a royal prerogative. The appeal to the sovereign instead of to the pope, further strengthened the authority of the throne; but never, at any time, was the king permitted to forget to whom he owed his election and his title; and that the same power which had raised him to that exalted position could, at any time he violated his coronation oath, depose him, and reduce him again to the subordinate and comparatively obscure position, from which ecclesiastical favor, aided, perhaps, by his own talents and ability, had raised him.
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 preeminence by a single class, in turn, favorable to the overwhelming growth of sacerdotal power.
[xix] 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. [xx] 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 [xxi] 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 repubilic (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 flavos, 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 [xxii] 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 [xxiii] wealthy land owners persistently violated the law requiring them to bring into battle one tenth of their slaves, thoroughly armed and equipped. The ninth hook of the Code contains stringent regulations against such delinquents as, under various pretenses, 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, hut one cause of the amazing and unprecedented success of the Saracen power. The Mohammedan squadrons, impelled by the mighty force of fanaticism, could not he 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 [xxiv] 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 [xxv] 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 [xxvi] 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 [xxvii] 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 [xxviii] 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 he 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 appeals 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 [xxix] 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 [xxx] 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 medieval 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 [xxxi] 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.
The innumerable details relating to the infringement of the rights of property show that many [xxxii] 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 practiced by no [xxxiii] 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. [xxxiv] 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 [xxxv] 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; [xxxvi] 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, appraisments, judicial opinions both oral and written, anneals and executions. The proceedings were [xxxvii] 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 Visigothie system was an important and popular one. Their number is not stated, and does not [xxxviii] 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 [xxxix] 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 uf all classes, invested them with mysterious powers, rendered their appearance in courts of law most infrequent.
The history of the Visigothic monarchy, especially aher 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 [xl] 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 [xli] 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 today; 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 [xlii] 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 today 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 he 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 [xliii] 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 [xliv] 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.
PHILADELPHIA, May 1, 1908.