THE
VISIGOTHIC CODE
(FORUM JUDICUM)

TRANSLATED FROM THE ORIGINAL LATIN, AND EDITED BY

S. P. SCOTT

Author of “Through Spain” “History of the Moorish Empire in Europe”
Member of the Comparative Law Bureau of the American Bar Association

Lex est magistra vitæ

I-II-2

BOSTON
THE BOSTON BOOK COMPANY
1910

Copyright 1910

BY THE COMPARATIVE LAW BUREAU OF THE AMERICAN BAR ASSOCIATION

The Riverdale Press, Brookline, Boston, Mass.

TO

MY FELLOW MEMBERS

OF THE COMPARATIVE LAW BUREAU

IN THE HOPE THAT IT MAY PROVE AN ACCEPTABLE CONTRIBUTION

TO THE LITERATURE OF THE NOBLE SCIENCE OF THE LAW

THIS TRANSLATION

OF ONE OF THE MOST VENERABLE MONUMENTS OF JURISPRUDENCE

IS DEDICATED

EDITOR’S PREFACE

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 its provisions; in the skilful 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 mediæval 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 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 Slavs, 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 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 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 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 eris si recta facis; si autem, non facis, non eris.” “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 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, 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 came 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 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 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 accomplished the Mohammedan conquest of Spain. The most drastic of these regulations against the Jews were enacted under 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.

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 archbishops. 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 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 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 preëminence by a single class, in its turn, favorable to the overwhelming growth of sacerdotal power.

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

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

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

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

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

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

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

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

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

The innumerable details relating to the infringement of the rights of property show that many abuses must have previously existed. The great number of laws designed for the protection of agriculture, indicate the importance with which it was considered by a people who, but a few generations before, had been shepherds and predatory vagabonds. The Visigoths were the first of the nomadic barbarians of the North to acknowledge the privileges and responsibilities attaching to the occupation of a permanent and limited domain. The offences of trespass, and forcible entry and detainer, are clearly and explicitly set forth. Severe penalties are denounced against all who deface, remove, or in any way interfere with, established landmarks. Questions relating to transfers, devises, partition, leases, land belonging to the state, boundaries, disputes concerning the ownership of real-property, and title by adverse possession, are discussed and determined with an ability and an accurate conception of the principles of equity, most remarkable for that age. While enjoyment of liberty was theoretically the unquestioned right of every person except the slave, the limits of castes and classes, adopted, for the most part, from the Roman polity, were strictly defined. Notwithstanding minute and often voluminous provisions, designed for the protection of the people, oppression by the rich and powerful was not unusual, and was sedulously provided against. Cruelty, and persecution of the weak, could be practised by no one, no matter how exalted his dignity, without reprobation and punishment. The interference of individuals of rank in the trial of causes, and their obstruction of the process of the law—evidently a common practice, and a source of endless trouble in former times—is repeatedly prohibited; and every attempt was made to preserve the courts from external influence, and insure the justice and impartiality of their decisions. An appeal could be taken from the decision of the judge to the governor of the city, from him to the governor of the province, and from the latter to the king. Where a person was too poor to incur the ordinary expenses of litigation, he could appeal directly to the bishop; who, as the protector of all within his diocese, was authorized to settle their claims and disputes, and enjoined to interpose his good offices to prevent the exercise of injustice and injury. Founded upon the strict principles of morality which everywhere should control the conduct of mankind, the precepts of the Visigothic Code present a strong and remarkable analogy to those which govern the proceedings of modern judicial tribunals. A contract made under duress, or vitiated by fraud, was void. A principal was liable for the act of his agent, where the latter was known not to have exceeded his authority. A master was responsible in damages for injuries committed by his slave. Guardians were held to strict accountability in the treatment of their wards. The rights and disabilities of minors are clearly and definitely stated. The legal incapacity of insane persons, excepting during lucid intervals, when publicly recognized to be in possession of their faculties, is declared. The questions of lis pendens, res judicata, judgment by default, and vendors’ lien, are treated in much the same way as in modern treatises on those subjects. The laws of inheritance, and the descent of estates, are explained at great length, and with a minuteness corresponding to their importance and effect upon social and domestic life. The relations of husband and wife are exhaustively discussed; no marriage was valid without a dowry, which was given by the husband; the amount was proportioned to the wealth and position of the latter; and a sum in excess of that established by law could not be bestowed through affection, or exacted by improper influence. Patrimonial estates, in the possession of widows, could not be alienated without the consent of a council of relatives; a provision which was, for centuries, the law in Portugal. In the penal legislation of the Code there is a curious mingling of the barbarous and the civilized. The compounding of crimes was permitted by law. The amount of damages to be assessed, like the penalty for the offence, was estimated according to the dignity and possessions of the culprit. The law of retaliation was sanctioned and enforced in cases where the injury was of a personal character; and, in support of this barbarous custom, the authority of the Bible was constantly invoked. The inhumanity of the punishments imposed is another striking indication of the survival of barbarism. Decapitation was the ordinary sentence for capital crimes. The penalty for arson was death by fire. Branding, maiming, scalping, and castration were inflicted for offences not deemed of sufficient gravity to require the imposition of the extreme penalty. Blinding, probably the most cruel of all, though abolished by the Code of Justinian, had been retained by the degenerate Greeks of the Byzantine Empire, from whom the Visigoths acquired it. Scourging was frequently inflicted; the number of blows varied from fifty to three hundred; they were almost always given in public; and even a judge who had been guilty of misconduct in office, was liable to the lash, symbolical at once of suffering and disgrace, and only surpassed in infamy and horror by scalping with fire, or decalvation. Torture, though authorized by law, was sparingly used. Under the Roman system it could only be inflicted upon slaves; the Visigoths, however, countenanced its exercise where the crime sought to be discovered by its means was one implying great moral turpitude; but it was solely employed as a method of eliciting evidence, and never as punishment for crime. With a people so jealous of their liberties, false imprisonment was naturally regarded as one of the greatest of wrongs; while, on the other hand, few penalties are more common than that involving the forfeiture of freedom. Informers, another institution of Byzantine treachery and deceit, were encouraged, and, where they were not participants in illegal acts, were substantially rewarded for their suspicious and ignominious services. The recognition of malice prepense, and criminal intent, especially in cases of homicide, reveals a just perception of the responsibility attending the commission of crime, rare, indeed, among nations just emerging from barbarism, and quite at variance with other provisions asserting the existence of witchcraft, charms, and incantations. Under the Visigothic polity, a crime is expressly declared to die with its author, where he underwent a capital penalty; no blame or reproach attached to his family or his posterity, where they were not implicated in his guilt; and the sweeping and unjust law of attainder, which confiscated the property, and branded the descendants of an offender with infamy, for centuries in force in England, was unknown to the more equitable and indulgent system of the Visigoths.

We are ignorant of the details of the procedure followed by the Visigothic tribunals. They had, however, their summonses and other writs of various kinds, their pleadings, arguments, depositions, appraisements, judicial opinions both oral and written, appeals and executions. The proceedings were conducted with due solemnity; the most assiduous care was exercised to insure the integrity of the magistrate; the rules of propriety were strictly enforced; exhibitions of contempt were punished with exemplary severity; and even a person of the highest rank, if guilty of marked disrespect to the judge, or participating in any unseemly demonstration, was unceremoniously ejected by the bailiffs. By the enforcement of such measures, the courts were not only invested with a proper dignity and importance, but their impartiality was established and secured; and all, even including the people of the lower classes, came to regard these tribunals as fountains of equity, and the protection and mainstay of their liberties. They were almost continually open; the judges had but few hours of rest or recreation; they were made responsible, in both person and property, for a proper determination of the causes brought before them; their remuneration was fixed by law, and was independent even of royal favor; and the crimes of oppression and bribery, when committed by a magistrate, were made the subject of some of the most savage enactments in the Forum Judicum, including degradation from office, forfeiture of property, scourging, decalvation, exile, slavery, and death.

The employment of compurgators under the Visigothic system was an important and popular one. Their number is not stated, and does not appear to have been limited, but originally it consisted of twelve. The probable predecessor of our system of trial by jury, this institution was derived from the Saxons, and was, without question, of remote antiquity. The oath, under other systems of jurisprudence, rarely employed in purgation of crime, was frequently resorted to by the Visigothic magistracy, as it formerly had been under the primitive legal procedure of the Germans. An accused party, if he had hitherto borne a good character, was entitled to establish his innocence by this means; a proceeding which could be confirmed and accompanied by the affidavits of his friends, neighbors, and kinsmen, who, being persons best acquainted with his character and habits, came into court, and swore to their belief in his innocence. No testimony was offered in their presence, and no arguments were made before them, as with the modern jury. With more correct notions of the requisites and effect of legal evidence than their German predecessors, the Visigothic courts did not admit the intervention of compurgators, except under circumstances where competent proof had failed to conclusively establish the guilt of the accused. It is a curious fact that their services were enlisted by criminals and litigants in the courts of England until comparatively recent times. At first limited to criminal prosecutions, their introduction was subsequently extended to various civil actions, and especially to those brought for the recovery of debts; and, recognized by the Canon Law, compurgators were sworn in England as late as the reign of Elizabeth. This remarkable institution, which bears so plainly the impress of ecclesiastical influence, appealing to the piety and superstitious fears of the ignorant, evinces, by the surprising vitality which it exhibited, its peculiar adaptation to the purposes of legal procedure in the age when it prevailed.

While members of the sacerdotal order were, to a certain extent, subject to secular justice under the Visigothic polity, the reverence with which they were universally regarded, the great power they exerted over the institutions of the kingdom, and their superior intelligence, which with the ignorant of all classes, invested them with mysterious powers, rendered their appearance in courts of law most infrequent.

The history of the Visigothic monarchy, especially after its adoption of Catholicism in 587, is, therefore, as has already been remarked, closely interwoven with that of the Visigothic Church. The Crown possessed little real authority. The complete and universal municipal organization, instituted by the Romans, had disappeared with the Gothic occupation. Civil and judicial officers, although appointed by the Crown, were subject to ecclesiastical supervision; not only in the parish and the diocese, but in the tribunals of justice, in the most intimate relations of domestic life, in the determination and settlement of secular disputes, and even in the presence of the throne. The influence of the priest increased in the same ratio in which that of the soldier declined. It reached its climax at the time of the Saracen invasion, when, to all but the most discerning eye, the rule of the Church seemed destined to endure through many centuries, and its civil and political power appeared impregnable. The illusory character of this apparent greatness was soon to be exhibited. Two years after the last of the Gothic kings ascended the throne, the Moorish armies were in possession of the Spanish Peninsula.

The enactments of the Visigothic Code, from their promulgation to the present day, have been never entirely abrogated by the legislative powers of Spain, and, as the foundation of the national judicature, many of its precepts and its rules still maintain their original force and power in the legal and ecclesiastical tribunals of the Spanish Peninsula. During the Moslem domination, their authority was unquestioned in the different Christian kingdoms of the North. The voluminous compilation, known as Las Siete Partidas, published by Alfonso el Sabio in 1348, was largely borrowed from the Forum Judicum. Charles III. in 1788, expressly declared that the provisions of the latter had never been repealed by subsequent statutes, and ordered that they should prevail in a contest involving the law of inheritance, where the property of a deceased monk was claimed both by his monastery and his relatives, in the royal chancery court of Granada. Not only are some of these laws still recognized as binding in the Peninsula, but they were long used in Southern France, and the capitularies of the early kings of that country bear unmistakable internal evidence of their derivation from this same source.

The Castilian version of the Visigothic Code, notwithstanding its coarseness, its ambiguities, and its errors, is still most useful for the purposes of the philologist and the historian. It displays the beginning and the development of the noble and elegant Spanish idiom, from its origin, full of barbarisms, down to its perfection of to-day; from the crude and awkward expressions of the chronicle and the missal, to the perspicuous and polished diction of Calderon, Mendoza, and Cervantes. We detect in its labored and awkward sentences the corrupt Latin of the times when classic purity was lost, and the Romance languages had not yet been formed; an epoch of transition, abounding in abbreviated words and crabbed expressions, curious etymology, phrases constructed with little regard to the rules of syntax, incorrect quotations from Scripture, provincial peculiarities of construction and nomenclature, archaic terms, whose meanings are now forgotten, words of purely Arabic derivation, the names of animals and objects, then, for the first time, introduced into Castilian,—much of it confusing, yet all instructive in revealing the customs and prejudices of a people, and depicting the various gradations accompanying the formation and growth of a language.

Such are our obligations, legal, historical, ethical, philological, and economic, to the Visigothic Code. Its harsh, inelegant style, its repetitions and absurdities, its incoherence, its superstitions, and its savage treatment of heretics, may well be forgotten in the services it has rendered to mankind. All modern systems of government are infinitely indebted to it, for it forms to-day the basis of the jurisprudence of a large portion of the civilized nations of the earth. A great number of the principles it inculcates would reflect credit upon any legal treatise, human or divine. Its translation into Castilian aided, more than any one literary work, to invest with beauty, grace, and symmetry, what is now one of the most magnificent and sonorous languages spoken by the tongue of man. It has delineated, with a fidelity not to be found in tradition or chronicle, the state of a society, remarkable in its characteristics, still devoted to barbarian customs, yet evincing sentiments and impulses usually only to be encountered under conditions of the most advanced moral and intellectual development.

Prefixed to the Code, yet clearly indicating by their position and contents that they have properly no more right to be included in it than scores of other products of ecclesiastical legislation to be encountered in the canonical compilations and ancient chronicles of Spain, are ten pages of decrees and fragmentary ordinances of various Councils, purporting to relate to the election of kings and their duties, but which, in reality, are mainly taken up by edifying homilies, invocations of the Deity, and fulminations against such as venture to dispute the divine authority of the Church. These pages fairly swarm with repetitions, anachronisms, and absurdities; their diction is far more barbarous and perplexing than even that of the Code itself; and their general features strongly suggest that they may have been inserted by some ignorant monk, zealous for the superior privileges of his order. For these reasons, as well as because much of what they contain is repeated in the body of the work, they have been omitted.

The translation of this ancient body of laws has been a laborious undertaking, and one to which little assistance has been afforded by the obscure Castilian version. Equivalents for many of the Latin terms do not exist in English. Some passages are of doubtful significance, others absolutely unintelligible. In not a few instances, the text is so involved that only paraphrases can be employed. Despite these serious obstacles, in the treatment of the subject, I have endeavored to observe, as far as practicable, the spirit of the original, and have preferred to render the words and expressions literally—where this can be done—rather than to make use of the terms of modern legal phraseology.

Philadelphia, May 1, 1908.

CONTENTS.

LAWS OF THE JUDGES.

BOOK I.
CONCERNING LEGAL AGENCIES.

TITLE I. THE LAWMAKER.

I. What the Method of Making Laws Should Be.

We, whose duty it is to afford suitable assistance in the formation of the laws, should, in the execution of this undertaking, improve upon the methods of the ancients, disclosing as well the excellence of the law to be framed, as the skill of its artificer. The proof of this art will be the more plainly evident, if it seems to draw its conclusions not from inference and imitation but from truth. Nor should it stamp the force of argument with the subtlety of syllogism, but it should, with moderation, and by the use of pure and honorable precepts, determine the provisions of the law. And, indeed, reason plainly demands that the work be performed in this manner. For, when the master holds in his hand the finished product, in vain is sought the reason for its having been impressed with that particular form. On subjects that are obscure, reason eagerly seeks to be informed by examination; in matters, however, that are well known and established, action alone is required. Therefore, when the matter in question is not clear because its form is unfamiliar, investigation is desirable; but it is otherwise in affairs known to all men, where not speculation, but performance, becomes essential, As we are more concerned with morals than with eloquence, it is not our province to introduce the personality of the orator, but to define the rights of the governor.

II. How the Lawmaker Should Act.

The maker of laws should not practise disputation, but should administer justice. Nor is it fitting that he should appear to have framed the law by contention, but in an orderly manner. For the transaction of public affairs does not demand, as a reward of his labors, the clamor of theatrical applause, but the law destined for the salvation of the people.

III. What Should be Required of the Lawmaker.

First, it should be required that he make diligent inquiry as to the soundness of his opinions. Then, it should be evident that he has acted not for private gain but for the benefit of the people; so that it may conclusively appear that the law has not been made for any private or personal advantage, but for the protection and profit of the whole body of citizens.

IV. What the Conduct of the Lawmaker Should Be in his Daily Life.

The framer of laws and the dispenser of justice should prefer morals to eloquence, that his speech may be characterized rather by virtuous sentiments, than by elegance of expression. He should be more eminent for deeds than for words; and should discharge his duties rather with alacrity than with reluctance, and not, as it were, under compulsion.[1]

V. How the Lawmaker Should Impart Advice.

He should be mindful of his duty only to God and to himself; be liberal of counsel to persons of high and low degree, and easy of access to the citizens and common people; so that, as the guardian of the public safety, exercising the government by universal consent, he may not, for personal motives, abuse the privileges of his judicial office.

VI. What Manner of Speech the Lawmaker Should Use.

He should be energetic and clear of speech; certain in opinion; ready in weighing evidence; so that whatever proceeds from the source of the law may at once impress all hearers that it is characterized by neither doubt nor perplexity.

VII. How the Lawmaker Should Act in Rendering Judgment.

The Judge should be quick of perception; firm of purpose; clear in judgment; lenient in the infliction of penalties; assiduous in the practice of mercy; expeditious in the vindication of the innocent; clement in his treatment of criminals; careful of the rights of the stranger; gentle toward his countrymen. He should be no respecter of persons, and should avoid all appearance of partiality.

VIII. How the Lawmaker Should Comport Himself in Private and Public Affairs.

All public matters he should approach with patriotism and reverence; those concerning private individuals and domestic controversies he should determine according to his authority and power; so that the community may look up to him as a father, and the lower orders of the people may regard him as a master and a lord.

He should be assiduous in the performance of his duties so that he may be feared by the commonalty to such a degree that none shall hesitate to obey him; and be so just that all would willingly sacrifice their lives in his service, from their attachment to his person and to his office.

IX. What Instruction it is Fitting that the Lawmaker Should Give.

Then, also, he should bear in mind that the glory and the majesty of the people consist in the proper interpretation of the laws, and in the manner of their administration. For, as the entire safety of the public depends upon the preservation of the law, he should attempt to amend the statutes of the country rather than the manners of the populace; and remember that there are some who, in controversies, apply the laws according to their will, and in pursuance of private advantage, to such an extent that what should be law to the public is to them private dishonor; so that, by perversion of the law, acts which are illegal are often perpetrated, which should obviously be abolished through the power of the law itself.

TITLE II. THE LAW.

I. What the Lawmaker Should Observe in Framing the Laws.

In all legislation the law should be fully and explicitly set forth, that perfection, and not partiality, may be secured. For, in the formation of the laws, not the sophisms of argument, but the virtue of justice should ever prevail. And here is required not what may be prompted by controversy, but what energy and vigor demand; for the violation of morals is not to be coerced by the forms of speech, but restrained by the moderation of virtue.

II. What the Law Is.

The law is the rival of divinity; the oracle of religion; the source of instruction; the artificer of right; the guardian and promoter of good morals; the rudder of the state; the messenger of justice; the mistress of life; the soul of the body politic.

III. What the Law Does.

The law rules every order of the state, and every condition of man; it governs wives and husbands; youth and age; the learned and the ignorant; the polished and the rude. It aims to provide the highest degree of safety for both prince and people, and, in renown and excellence, it is as conspicuous as the noon-day sun.

IV. What the Law Should Be.

The law should be plain, and not lead any citizen to commit error or fraud. It should be suitable to the place and the time, according to the character and custom of the state; prescribing justice and equity; consistent, honorable, worthy, useful, and necessary; and it should be carefully noted whether its provisions are framed rather for the convenience, than for the injury, of the public; so that it may be determined whether it sufficiently provides for the administration of justice; whether or not it appears to be contrary to religion, and whether it defends the right, and may be observed without detriment to any one.

V. Why the Law is Made.

Laws are made for these reasons: that human wickedness may be restrained through fear of their execution; that the lives of innocent men may be safe among criminals; and that the temptation to commit wrong may be restrained by the fear of punishment.

VI. How the Law Should Triumph over Enemies.

Domestic peace having been once established and the plague of contention having been entirely removed from prince, citizen, and the populace, expeditions then may be made safely against the enemy and he may be attacked confidently and vigorously, in the certain hope of victory; when nothing is to be anticipated or feared from dissensions at home. The entire body of the people being prosperous and secure, through the influence of peace and order, they can set forth boldly against the enemy and become invincible, where salutary arts are aided by just laws. For men are better armed with equity than with weapons; and the prince should rather employ justice against an enemy than the soldier his javelin; and the success of the prince will be more conspicuous when a reputation for justice accompanies him, and soldiers who are well governed at home will be all the more formidable to a foe. It is a matter of common experience, that justice, which has protected the citizen, overwhelms the enemy; and that those prevail in foreign contests who enjoy domestic peace; and while the moderation of the prince insures temperance in the enforcement of the law, so the united support of the citizens promotes victory over the enemy. For the administration of the law is regulated by the disposition and character of the king; from the administration of the law proceeds the institution of morals; from the institution of morals, the concord of the citizens; from the concord of the citizens, the triumph over the enemy. So a good prince ruling well his kingdom, and making foreign conquests, maintaining peace at home, and overwhelming his foreign adversaries, is famed both as the ruler of his state and a victor over his enemies, and shall have for the future eternal renown; after terrestrial wealth, a celestial kingdom; after the diadem and the purple, a crown of glory; nor shall he then cease to be king; for when he relinquished his earthly kingdom, and conquered a celestial one, he did not diminish, but rather increased his glory.

BOOK II.
CONCERNING THE CONDUCT OF CAUSES.

TITLE I. CONCERNING JUDGES AND MATTERS TO BE DECIDED IN COURT.

I. When Amended Laws should come in Force.

In assigning their place to laws which have been amended, we have considered it proper to give them the most important tank, for, as clearness in the laws is useful in preventing the misdeeds of the people, so obscurity in their provisions interferes with the course of justice. For many salutary edicts are drawn up in obscure and contradictory language, and are instrumental in promoting the controversies of litigants; and, while they should put an end to chicanery, they, in fact, give rise to new sophisms and abuses. For this reason, therefore, litigation increases; disputes between parties are encouraged; the judges become undecided, so that, in attempting to dispose of false claims and charges, they are unable to form definite conclusions, as all seems perplexed and uncertain. And because all questions which arise in suits at law, cannot be disposed of in a few words, except those which have been determined in our presence; we have decided that certain laws should be amended in this book; that doubtful matters should be made clear; that profit should be extracted from those things that are evil; clemency from those that are mortal; clearness from those that are obscure; and that perfection should be given to those that are incomplete; whereby the people of our kingdom, whom our peaceful government alone restrains, may be checked and controlled, hereafter, by the aid of said amended laws. And therefore, these laws as amended, and approved by us, and our new decrees, as set forth in this book and its titles, as well as such as may be subsequently added, shall be enforced from the second year of our reign, and the twelfth Kalends of November, and shall be binding thereafter upon all persons subject to our empire, irrespective of rank. Those laws, however, which we have promulgated against the offences of the Jews, we decree shall be valid from the date when they were confirmed by us.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

II. The Royal Power, as well as the Entire Body of the People, should be Subject to the Majesty of the Law.

The Omnipotent Lord of all, sole Founder and Provider of the means of human salvation, ordered the inhabitants of the earth to learn justice from the sacred precepts of the law. And, because the mandate of Divinity has been thus imposed upon the human race, it is fitting that all terrestrial creatures, of however exalted rank, should acknowledge the authority of Him whom even the celestial soldiery obey. Wherefore, if God should be obeyed, justice should be highly esteemed, which, if it were thus esteemed, would be constantly practised, as every one loves justice more truly and ardently when a feeling of equity unites him with his neighbor.[2] Willingly, therefore, carrying out the Divine commands, let us give temperate laws to ourselves and to our subjects; laws such as we and our successors, and the whole body of the people, may readily obey; so that no person of whatever rank or dignity may refuse to submit to the power of the law, which the necessity and will of the King has deemed it proper and salutary to inculcate.

FLAVIUS RECESVINTUS, KING.

III. It is Permitted to No One to be Ignorant of the Law.

All true science declares that ignorance should be detested.[3] For while it has been written, “he need not understand who desires to act with propriety,” it is certain that he who does not wish to know, despises an upright life. Therefore, let no one think that he can do what is unlawful because he was ignorant of the provisions of the laws, and what is sanctioned by them; for ignorance does not render him innocent, whom guilt has subjected to the penalties of the criminal.

FLAVIUS RECESVINTUS, KING.

IV. The Business of the King shall First be Considered, then that of the People.

God, the Creator of all things, in his arrangement of the human form, placed the head above the body, and caused all the different members of the latter to originate from it, and it is, therefore, called the head; there being formed the brightness of the eyes, by which all things that produce injury can be discerned; there being born also the power of intelligence, through which the members connected with, and subject to, the head, may be either controlled or protected. For this reason it is the especial care of skilful physicians to provide the remedies for the head before treating the other members of the body; which, indeed, may not be thought unreasonable, when properly explained; because, if the head should be healthy, it is reasonable to suppose that the other members can be readily cured. For if disease attacks the head, health cannot be imparted by it to the members which are constantly being wasted by weakness. The most important duties of the prince are, therefore, the preservation of health and the defence of life; so that the proper method may be adopted in the conduct of the affairs of the people; and while the health of the king is cared for, the preservation of his subjects may be the better maintained.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

V. How the Avarice of the King should be Restrained in the Beginning, and How Documents Issued in the Name of the King should be Drawn Up.

Earthly greatness appears the more sublime when compassion for our neighbors is displayed; and, therefore, it should be the duty of every monarch to pay more attention to the safety of his subjects than to his own personal advantage. For the greater the number of his subjects, the greater the benefit to be derived by him from them; as, however much the king may desire to profit by his individual efforts alone, there is little to be gained therefrom. Hence, the wellbeing of the people, whose bounds are not defined by the will of one, but affect the prosperity of all, is directly concerned. Wherefore, that the favor of the prince may not seem to be manifested rather in words than in deeds, he should be attentive to the unspoken wishes of his subjects; and thus unsolicited compassion may often effect what otherwise crowded assemblies would hardly be able to obtain.

For the reason that, in former times, the unbridled greed of princes despoiled the people of their possessions, and the wealth of the state was persistently wrung from the misery of its citizens; as we have already given laws to the subject, we deem it in accordance with the teachings of the Holy Spirit to place restraints upon the exactions of the prince. Hence, after sincere deliberation, as well for our own glory as for that of our successors; God being our mediator; we decree that no king shall, by any means, extort, or cause to be extorted, any documents whatever in acknowledgment of any debt, whereby any person can unjustly, and without his consent, be deprived of his property. And, if by the free will of any one the king should receive a gift, or should openly profit by any transaction, the character of the transaction or contribution should be clearly set forth in the document; by which means either the influence of the prince or the fraud of his accomplice may be readily detected. And, if it should appear that the document had been exacted from any one against his will, either the dishonesty of the prince shall be atoned for, and he shall cancel his corrupt contract, or, if he should be dead, the document shall be declared void as against him from whom it was extorted, or his heirs, and this shall be done without delay.[4] But the ownership of property whose acquisition is free from all suspicion, shall vest absolutely in the prince, and be his own forever. And whatever disposition he wishes to make of any of these things, he can make according to his judgment. But as sincerity and truth confirm all matters of this kind, whenever any documents are made for the advantage of the prince, the witnesses who have attested those documents shall be carefully examined, and if no indication of corrupt or forcible influence by the prince is apparent, or should any fraud in the execution of the document be detected; according to these circumstances the instrument shall either stand as properly made, or, having been proved to be illegal, it shall be declared void.

Similar arrangements concerning lands, vineyards, and bodies of slaves shall be observed, even when such disposition has been made of them verbally and in the presence of witnesses. In regard to all property that has been acquired by princes since the time of King Chintilanus, or that hereafter shall be acquired by others; and whatever property a king has left, or shall leave undisposed of, when it is proved to have been acquired by the head of the government; we decree that it shall belong to his successor in the kingdom, and he shall have the power to dispose of it according to his pleasure. But property obtained from relatives, or inherited from parents, shall descend to his sons, or, if he have no sons, to his legitimate heirs, as their rights may appear, or as they are acknowledged by the laws of succession: but if it should happen that he has left undisposed of any property inherited from his parents or his relatives, or derived from any contribution, or obtained by any legal contract; it shall belong, not to the successor of the kingdom, but to the sons or heirs of him who has thus acquired it. For whatever the prince is known to have possessed before his accession to the throne, either as his own property, or gained through honorable transactions with others, he shall have absolute power to dispose of according to his will, and his sons shall have full right to its inheritance; but, if he should have no sons, such property as he did not dispose of, shall descend to his lawful heirs. This law shall apply solely to, and shall be observed in, the affairs of the prince, and shall be forever enforced, and no one shall ascend the royal throne before making oath that he will observe it in all its details.

Whoever, either through an insurrection of the people, or by secret machinations, shall attain to supreme power, shall, with all his adherents, be accursed, and shall be excommunicated from the society of all Christians; and every Christian who shall have any intercourse with him shall undergo the same condemnation and pay the same penalty. And if any one holding an office in the royal palace, shall, through malice, criticise this law, or evade it in any way, or murmur against it; or shall have been convicted of having openly condemned it; he shall be deprived of all his employments and privileges, shall be stripped of half of all his possessions, shall be forcibly restrained of his liberty, and be excluded from the society of the palace. Any one in holy orders who has shared his offense, shall undergo the same confiscation of his property.

FLAVIUS CHINTASVINTUS, KING.

VI. Concerning Those who Abandon the King, or the People, or their Country, or who Conduct Themselves with Arrogance.

The extent to which the country of the Goths has been afflicted by domestic strife, and by the injuries caused by deserters and their abominable pride, is not generally known; yet it is evident in the diminution of the population; and these disturbances are the source of more trouble to the country than enterprises against the enemy. Therefore, that such contemptible conduct may be abolished, and the manifest crimes of these transgressors may no longer go unpunished, we have decreed by this law, which shall prevail through all ages, that whoever, from the time of King Chintilanus of sacred memory, until the second year of our reign, has deserted, or shall desert to the enemy; or shall repair to any foreign country; or even has wished, or shall wish, at any time, to act with criminal intent against the Gothic people; or shall conspire against his country; or, perchance, has attempted at any time to conspire against it; and has been, or shall be captured or detected in the commission of any of these offences; and if, either from the first year of our reign has attempted, or, hereafter, any one within the limits of the country of the Goths shall attempt, to foment any disorder, or cause any scandal to the detriment of our government, or of the people; or, what is unworthy to be even mentioned, may have seemed to have plotted our death or injury, or shall hereafter plot against subsequent kings; or has appeared, or shall appear, to manifest, in any way, the intentions of a traitor; whoever shall be found guilty of all of these crimes, or of any one of them, shall undergo sentence of death; nor shall any leniency be shown him, under any condition, except that his life alone may be spared through the considerate pity of the prince. But this shall not be done until his eyes have been put out, so that he may not see the wrong in which he wickedly took delight, and may henceforth drag out a miserable existence in constant grief and pain. The property of such atrocious criminals shall belong absolutely to the king, and whoever he bestows it upon shall possess it in security forever; and no succeeding king, at any time, shall presume to review the cause, or shall interfere, in any way, with this sentence. But, as many are found who, having been implicated in these, and in similar wicked designs, and have fraudulently transferred their property to the Church, or to their wives, or to their sons and friends, or to other persons; or have secretly conveyed said property to foreign countries, in order that they may claim said property, and demand its possession thereafter; when, in fact, none of said property has been alienated, and the papers evidencing its transfer are fraudulent, making false representations under an appearance of truth; therefore, we have decided to abolish this most iniquitous fraud by the decree of this law; so that, wherever documents have been drawn up with a manifest intention to wrong or deceive, any property owned by a person who has been convicted of such criminal practices shall be confiscated for the use of the royal treasury; and it is hereby declared that all such property above mentioned shall be at the disposal of the king, and he shall hereafter do with it whatever his judgment dictates, but whatever other provisions relating to a fraud of this description are contained in other laws, are hereby confirmed in all their force.

All persons to whom pardon has been granted by preceding kings are expressly excepted from the penalties of this decree; and if, through motives of humanity, the king should wish to bestow anything upon a criminal, it should not be taken from the property belonging to the malefactor, but must be obtained from such other source as it may please the king; and it shall be only lawful for him to give an amount equal to the twentieth part of the inheritance of the criminal.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

VII. Of Incriminating the King, or Speaking Ill of Him.

As we have forbidden all persons to either plot treason, or to institute violence against the king, so it shall also be unlawful to either accuse him of crime, or utter maledictions against him. For the authority of the Sacred Scriptures does not permit evil to be spoken of one’s neighbor, and declares that he who curses the prince, is an offender against the people. Wherefore, whoever shall accuse the prince of crime or shall utter curses against him, and, instead of humbly and respectfully admonishing him as to his life, shall boldly insult him with pride and contumely; or, in order to degrade him, shall refer to him in ignominious, base, and injurious language; if the offender should belong to the nobility or to a family of high rank, no matter whether he is a member of the clergy or of the laity, as soon as he has been detected and convicted, he shall forfeit half of all his property, which the prince shall have the privilege of disposing of according to his pleasure. If, however, he should belong to the lower classes, or those without dignity and position, both his property and his person shall be at the absolute disposal of the king. And even should the king be dead, these same provisions shall apply to whoever dares to defame his memory.[5] For the living vainly cast the darts of slander against the dead, who, having departed this life, cannot be affected by abuse, or influenced by criticism. But, for the reason that he is evidently insane who heaps detraction upon one who cannot comprehend it; the slanderer shall receive fifty lashes, and his presumption shall be silenced. But the privilege is given freely to all, while the prince is either living or dead, to discuss all matters pertaining to any cause he may have before the legal tribunals and to use such arguments as may be proper and right, and obtain such judgment as he may be entitled to; for, by this means, we endeavor to establish reverence for human dignity, as well as to maintain faithfully the justice of God.

FLAVIUS CHINTASVINTUS, KING.

VIII. Of Annulling the Laws of Foreign Nations.

We both permit and desire that the laws of foreign nations shall be studied for the sake of the useful knowledge that may be obtained from them, but we reject and prohibit their employment in the business of the courts. For although they may be couched in eloquent language, they abound in difficulties; and so long as the methods, principles and precepts contained in this body of laws suffice for the purposes of justice, we are unwilling that anything more be borrowed, either from the Roman laws, or from the institutions of foreigners.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

IX. No One shall presume to have in his Possession another Book of Laws except this which has just been Published.

No one of our subjects, whosoever, shall presume to offer to a judge as authority, in any legal proceeding, any book of laws excepting this one, or an authorized translation of the same; and any person who does this shall pay thirty pounds of gold to the treasury.[6] And if any judge shall not at once destroy such a prohibited book when it is offered him, he shall undergo the above named penalty. But we decree that those shall be exempt from the operation of this law, who have cited former laws, not for the overthrow of ours, but in confirmation of causes which have previously been determined.

THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.

X. Concerning Fast Days and Festivals, during which no Legal Business shall be Transacted.

No litigation shall be commenced on Sunday, for religion should take precedence of all legal matters, and upon that day no one shall presume to subject another to annoyances either for the trial of a case, or for the payment of a debt; nor shall any person be permitted to bring a suit at Easter; that is, for fifteen days, the seven which precede the celebration of that festival, and the seven which follow it. The days of Christmas, of the Circumcision, of the Epiphany, of the Ascension, and of Pentecost shall be observed with the same reverence; and, in like manner, during the harvest festivals, from the fifteenth Kalends of August, to the fifteenth Kalends of September, the same pious conformity shall be required. But in the province of Carthage, by reason of the constant ravages of the locust, we decree that the harvest festival shall be celebrated from the fifteenth Kalends of July to the fifteenth Kalends of August; and, on account of the vintage, from the fifteenth Kalends of October to the fifteenth Kalends of November.

This provision we decree shall be obeyed by all; so that, during these festivals, no one may be summoned to court, or subjected to prosecution, unless the suit in which he is concerned has already been brought before the judge. For there can be no reason, if the action should still be undecided, that he who has been sued should be placed at any disadvantage on account of holidays. And if either of the parties is a person of credit and honor, he may depart the court, under his promise to return. But if he should be of doubtful faith, he shall provide securities for such time as is necessary; either until the cause has been decided, or until the judge shall appoint a time for it to be heard. An exception should be made, however, against those who have committed a crime punishable with death, who may be arrested upon any of the hereinbefore mentioned days, and kept in close custody, until Sunday or the above-named festivals shall have passed, when they shall be subjected to the vengeance of the presiding judge. The harvest or vintage festivals shall, in no way, interfere with the punishment of criminals and malefactors worthy of death. But the law shall not hold him excusable who, not yet having been brought into court, knows that he shall eventually be summoned there, and who, concealing himself for the rest of the time, appears in the presence of him to whom he is liable, only on the festival days aforesaid, thinking that, through no process of the law, he can be held until the cause is heard: such a person we decree shall be placed under restraint until the case of plaintiff shall have been disposed of. And if there should be any one concerning whose good faith there may be suspicions, and who cannot find security, he shall remain in custody, until, the holidays having expired, the cause in which he has been summoned shall be decided. And if any one shall presume to act contrary to the decree of this law, and shall come to the judge with a complaint upon the days which are prohibited, as aforesaid, he shall be scourged in public with fifty lashes.

XI. No Cause shall be Heard by the Judges which is not Sanctioned by the Law.

No one has a right to hear a cause which is not authorized by the laws; but the governor of the city or the judge, either in person, or by their messengers, may cause both parties to appear before the king, that the matter may be disposed of at his discretion; and, after this promulgation, such decisions shall have all the force of law.

FLAVIUS RECESVINTUS, KING.

XII. When Causes have once been Determined, at no Time shall They be Revived; but They shall be Disposed of according to the Arrangement of this Book: the Addition of Other Laws being One of the Prerogatives of the King.

Whatever legal proceedings have heretofore been begun, but remain unfinished, we decree shall be disposed of according to these laws. But those causes which, before these laws have been amended by us, have been legally decided, that is, according to the tenor of the laws which prevailed previous to our reign, shall under no circumstances whatever be revived. But, if the judgment of the prince should approve it, and conditions require it, he shall have the right to add other laws, which shall have the same validity and force as those now in existence.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

XIII. It shall be Lawful for No One to Hear and Determine Causes except Those Whom either the King, the Parties by Voluntary Consent, or the Judge, shall have Invested with Judicial Powers.

It shall be lawful for no one to decide causes unless authorized either by the mandate of the prince, or by the consent of the parties evidenced by an agreement made in the presence of three witnesses, and attested by their seals or signatures. If those, however, who have received from the king authority to preside in court, or those who exercise judicial functions either through the appointment of magistrates or judges, should delegate their powers in writing to others who are properly qualified, the latter shall have the same power in determining or settling affairs pertaining to their offices, as the judges themselves, or the other officials from whom they received their commissions.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

XIV. What Causes shall be Heard, and to what Persons Causes shall be Assigned for a Decision.

While deputies are permitted to render judgment in certain criminal and civil cases, they must not presume to release criminals under the sentence of the law, but shall see that said sentence is duly executed; and those who choose such deputies, should solemnly impress upon them that, during their absence, they should act with moderation and decide with justice.

THE GLORIOUS FLAVIUS RECESVINTUS, KING.

XV. Judges Shall Decide Criminal as well as Civil Causes.

The judges shall have all of the business of the court under their control, as they have full authority to dispose of all criminal and civil business. But Defenders of the Peace cannot dispose of other causes than those which the royal power has permitted them to determine. The Defender of the Peace is he who has been appointed by the royal authority for the sole purpose of settling legal disputes between the parties.

FLAVIUS CHINTASVINTUS, KING.

XVI. Concerning the Punishment of Those who Presume to Act as Judges, who have not been Invested with Judicial Power.

No one shall presume, either by decree, or by means of a bailiff, to either imprison or oppress any person, in any way, in a district over which he has not been appointed, or where he has no judicial authority, unless by the order of the king, or by agreement of the parties, or under instructions of a governor or a judge, in accordance with what has been stated in a former law relating to the appointment of judges. And, where a non-appointed judge, as aforesaid, is guilty of usurpation, and unlawfully presumes to do things that are prohibited; as soon as this fact shall come to the knowledge of the governor of the province, whether he is acting in his own proper person, or by a deputy, he shall cause the illegal act to be punished; and the magistrate who has thus exceeded his authority shall pay a pound of gold to him whose rights have been affected, if insult or injury have alone been committed. But if said person who has illegally assumed judicial functions, shall boldly deprive anyone of any property, or order it to be done, he shall not only make restitution, but shall be compelled to surrender an equal amount of his own property to the party injured. And if any judge shall appoint his own slave, or the slave of another, to transact any legal business, the judge who appointed him shall render full satisfaction to the law for whatever injustice said slave shall commit. Any bailiff who, acting under the orders of such an usurper of judicial authority, shall arrest or imprison any one, or remove any of his property, shall be scourged with a hundred lashes, and, in this way, shall pay the penalty of his insolence.

FLAVIUS CHINTASVINTUS, KING.

XVII. Concerning Those who Ignore the Letters of the Judge, or His Seal, Calling Them to Court.

When application has been made to the judge by a plaintiff, he may compel the other party to come into court, either by means of a letter or by his seal, in this manner, to wit: that the messenger of the judge shall offer the letter or seal to him who has been summoned, in the presence of respectable witnesses. And if after having received said summons, he should either delay, or refuse to appear, he shall forfeit five golden solidi to the plaintiff, on account of his delay or refusal, and five more to the judge on account of contempt. But if he should not have the means to pay this fine, he shall, for each offence, receive fifty lashes in the presence of the judge, but they must be so inflicted as to place upon him no permanent mark of infamy. But if he should only be guilty of contempt, and should not have the means wherewith to render satisfaction, he shall receive thirty lashes, without further penalty. And if he who has been sued shall declare, before he receives punishment from the judge, that he has, in no way, been guilty of delay or contempt, and shall be unable to prove this fact by witnesses, and shall make oath that, at no time, has he been guilty of contempt as aforesaid, he shall be exempt from the condemnation and punishment hereinbefore mentioned. But if any bishop, relying upon the privileges of the sacerdotal order, shall ignore the summons of the judge, and neglect to give security for his appearance, he shall, without delay, be compelled, either by the presiding judge, or by the governor or lord of the province, to pay a fine of fifty solidi: of which sum the judge shall receive twenty solidi, on account of contempt, and the plaintiff the remaining thirty. But if any priest, deacon, clerk, or monk, after receiving the letter or seal of the judge, should delay to answer either in his own person or by a representative, or should continue obstinately in contempt, he shall undergo the punishment hereinbefore mentioned, according to the provisions of the law relating to the laity; and if he should not have the means to pay his fine, the bishop may be notified, that he may have the privilege of paying the same for him, if he so desires. But if he should be unwilling to do so, the bishop must bind himself by oath, in the presence of the judge, that he will place the above-named person under such restraint that he shall be compelled to fast continuously for the space of thirty days, and shall only receive each day at sunset, a little bread and water; that, by this means, his contumacy may be punished in a proper manner. It shall always be in the discretion of the judge, that if it should be evident that, either through age or sickness, a severe sentence could not be endured; the judge shall not inflict the extreme penalty upon any one belonging to any rank of the clergy, or upon a layman; but the illness or age of the offender being taken into consideration, he may impose such a penalty that the person in contempt may not thereby undergo either great weakness or exhaustion, or death. Any one who refuses to obey the mandate of the judge, and conceals himself, so that the judge cannot easily find him, and does not present himself in court within four days after the appointed time, but presents himself upon the fifth day, shall not be subject to the sentence of this law. In like manner, if any one who, at the time, is distant more than a hundred miles, should appear upon the eleventh day after the appointed time, he shall not undergo the penalty of this law. And also, if he who is distant two hundred miles, should present himself in court on the twenty-first day after he has been summoned; he shall be free from punishment under this law. And a similar regulation shall prevail where the length of the journey is still longer. And, finally, if he to whom reasonable time has been given, should purposely delay, and does not appear, upon the last day prescribed by law, the judge shall at once grant the prayer of the plaintiff; and if, subsequently, the other party should appear in court, and the twenty-first day shall have passed, he shall be fined twenty solidi of gold. And if he that is distant more than a hundred miles, should exceed the term of eleven days, he shall be liable to a fine of ten solidi: of which the judge shall reserve for himself half, and the other half shall be given to the plaintiff. But if sickness should prevent one who is summoned from appearing; or if he should be hindered by an inundation; or his paths across the mountains should be obstructed by snows; this must plainly appear; and the truth must be established either by credible witnesses, or by the oath of the party himself.

FLAVIUS CHINTASVINTUS, KING.

XVIII. Where a Judge Refuses to Hear a Litigant, or Decides Fraudulently, or Ignorantly.

If any one should file a complaint against another before a judge, and the latter should refuse to hear him, or deny him the use of his seal, or, under different pretexts, should delay the trial of his cause, not permitting it to be heard, through favor to a client or a friend, and the plaintiff can prove this by witnesses, the judge shall give to him to whom he has refused a hearing, as compensation for his trouble, a sum equal to that which the plaintiff would have received from his adversary by due course of law; and he who brought the suit may have it continued until the time appointed by law; and, when it comes before the court for trial, he shall receive the judgment to which he is entitled. But if the plaintiff should be unable to prove either the fraud or undue procrastination of the judge, the latter shall make oath that he, through no malice, nor through favor or friendship, has delayed the hearing, and, by reason of this oath, the judge shall in no manner be deemed guilty.

The judge shall be permitted, for two days in every week, or every day during the noon hour, to desist from holding court, and to repose in quiet at home. But, for the remaining time, he shall attend to the business of his office, and, without any unnecessary delay, determine such matters as may be brought before him.

XIX. Where a Judge, either through Convenience to Himself, or through Want of Proper Knowledge, Decides a Cause Improperly.

If any judge should render judgment for the sake of gain, and direct that any one should be treated with injustice, he who has been benefited by the decision of the said judge shall make restitution. And the judge himself, who has thus acted contrary to the precepts of equity, shall surrender to the losing party the same amount of his own property, as he has ordered him to be deprived of; that is to say, that in addition to the restitution that has been made, he shall, in satisfaction for his improper conduct, give to him whom he unjustly condemned, a sum equal to that which was disposed of by his decree. But if he should not have sufficient property wherewith to make amends, he shall be deprived of all that he is known to possess, and shall be delivered as a slave to him to whom he is indebted, or, after having been exposed in public, he shall receive fifty lashes. But if he shall have rendered an unjust judgment through ignorance, and can declare under oath that he has done this only through want of knowledge, and not through partiality or cupidity, or for the sake of profit, his judgment shall be invalid, and he himself shall not be considered guilty.[7]

FLAVIUS CHINTASVINTUS, KING.

XX. When a Judge, either through Deceit or Cunning, Imposes Needless Costs upon Either, or Both the Parties to a Suit.

It is part of our duty quietly and carefully to admonish judges not to subject litigants to unnecessary delay, or impose heavy costs upon them. But, if it appears that, through craft or cunning, a judge has so delayed matters that one or both parties have suffered injury, he shall be compelled to refund to them all costs that have been incurred after eight days from the time the action was begun; the facts having been established under oath. But if either through illness or from considerations of public utility, the judge should be prevented from performing his duties, he shall not subject the litigants to delay, but shall dismiss them at once, and shall appoint a time for the hearing of the cause.

XXI. What, First of All, a Judge should be Familiar With, in order that he may Understand a Case.

In order that he may be perfectly familiar with a case the judge should first interrogate the witnesses; then he should examine the documents, if any there be; and, that the truth may the more certainly be determined, the oaths of the parties should finally be taken with all due reverence. The true investigation of justice demands that written instruments should take precedence over everything else; and that necessity alone justifies the administering of oaths to the parties. But in those cases where there is no documentary evidence, or other proof, or where the judge shall not be able to decide without it, the parties to the suit shall be sworn.

FLAVIUS CHINTASVINTUS, KING.

XXII. Where the Integrity of a Judge is said to be Suspected by Any One of Honorable Rank, or where a Judge presumes to render a Decision Contrary to Law.

If any one should declare that he suspects the integrity of either a judge, a governor, a vice-governor, or any other official, and demands access to his superior, or shall even allege that he has suspicions of that superior himself, he shall not be subject to delay on this account, especially if he should be poor. But those who decide the case shall do so with the bishop of the diocese, and their opinions and judgment shall be reduced to writing, and be signed by them; and he who has declared that he suspected the judge, should he desire to bring a suit against him, after judgment has been rendered in the case in question, shall have the right to summon that judge to appear before the king. And if a judge or an ecclesiastic should be convicted of having decided wrongfully in any cause, the property of which the complainant has been deprived shall be restored to him, and an equal quantity of property shall be given him by way of satisfaction, by those who are proved to have rendered an unrighteous judgment. And if anyone should lodge an unjust complaint against a judge, and it should appear that the cause in question has been properly decided, the accuser shall undergo the same penalty which the judge would have suffered. And if he should not have the property wherewith to make amends, after having been exposed in public he shall receive thirty lashes in the presence of the judge himself.

If anyone, however, should allege that he possesses information which relates to the interests of the Crown, access to our presence shall not be denied him.

FLAVIUS CHINTASVINTUS, KING.

XXIII. How a Judge should render Judgment.

If the lawsuit is important, of matters involving the ownership of valuable property are in question, the judge shall, in the presence of both parties, make two copies of the decree, which shall be exactly similar in text and signature, and each party shall be given one of them. But where affairs of minor importance are concerned, only such things as have been testified to in favor of him who prevailed, shall be reduced to writing by the judge. He who has been defeated shall be entitled to a transcript of the decree and of the testimony of the witnesses, should he desire it. But if the party who has been brought into court in any case, shall declare in the presence of the judge that it is not necessary for the plaintiff to introduce any evidence, the judge shall put the decree in writing, and confirm it with his signature, however insignificant the action may be, in order that the matter may not, under any circumstances, be brought up again in the future. But if, under an order of the court, one party should offer witnesses, and, at the time that their testimony is to be heard, the other party should absent himself without the knowledge of the judge, the testimony of the witnesses shall be received, and what they have established by their evidence shall be given in writing, under seal, to him who produced them. It shall not be lawful for him who fraudulently left the court to afterwards offer any evidence in the case, but he shall have the privilege, before the death of any witness who has testified against him, to adduce any reasonable accusation against him, which shall be heard by the judge; and if the accused witness should have been manifestly guilty of perjury, his testimony shall be rejected. And if, after such examination, all the witnesses should be impeached but one, he who has offered the testimony, must produce other witnesses to prove his case, within the space of three months. But, if he is unable to find any, the property in question shall remain in the possession of him who formerly held it. The judge shall always keep copies of the judgment which he has rendered, to prevent a renewal of any controversies in the future.

FLAVIUS CHINTASVINTUS, KING.

XXIV. Concerning the Emoluments and the Punishment of the Judge, and of the Bailiff.

There are some judges who, on account of cupidity, and in violation of the provisions of the law, presume to reserve for themselves the third part of the property involved in the causes which are brought before them; wherefore, we now decree by the present law, in order to effectually abolish this practice, that no judge shall accept more for his trouble, after the case has been properly considered and decided, than has been fixed by a former law, to wit, twenty solidi. If any one should fraudulently attempt to extort more than this sum, he shall lose the entire compensation which he would have lawfully received; and also, because he has unjustly appropriated more than twenty solidi, contrary to the provisions of the law, he shall pay double that amount to him from whom he directed it should be taken. And likewise, because we are aware that certain bailiffs who busy themselves in the affairs of others, receive greater compensation for their labor than they deserve; we also decree by this law, that no bailiff who is employed in any lawsuit, shall have more than ten solidi for his fee. And if any one should presume to extort more than this established amount, he shall not only lose his legitimate fee, but also he shall restore to the person from whom he received it, double the amount which he has extorted. The fees of both judge and bailiff shall be paid by the party against whom judgment is rendered; and if a case should occur where a settlement cannot be made, the legal compensation of the judge and the bailiff shall be required of both parties. The same rule shall apply to a debtor who did not return upon the appointed day, the money which he has borrowed; as well as to one who unjustly retains the property of another; and also, in cases of partition, where both parties demand their rights from the judge, it shall be required of each of them, that he pay to the court his portion of the fees aforesaid. And, likewise, where no crime has been proved; or no contempt, unlawful possession, or indebtedness have been established; this provision shall be in force, and the fees of the judge and the bailiff shall be paid by both parties.

In cases of partition, where one of the parties causes unnecessary delay; as soon as the fact shall come to the knowledge of the judge, he may exact his fee and that of the bailiff from him who has delayed to assert his claims within the specified time. If any corrupt bailiff should fail to execute an order of the judge, when the property involved is worth an ounce of gold, or less, the bailiff shall pay to him who is entitled to the judgment, a solidus of gold; and where the property is worth more, he shall pay for every ounce, a solidus, on account of his delay. And if the property in question should be worth more than two ounces, and not more than a pound of gold, said bailiff shall receive ten lashes, and the number of lashes shall increase with the number of pounds of gold.

If the cause or the party is of minor importance, and the bailiff must travel to perform his duties, he shall be entitled to two common horses, from the plaintiff, in addition to his fees. But if the cause should be important, and the party of high rank, the bailiff shall not be entitled to demand more than six horses for the purpose of his journey.

FLAVIUS RECESVINTUS, KING.

XXV. Every one who is Invested with Judicial Power shall Legally bear the Title of Judge.

As the remedies of the law are applied in many ways, it is decreed, that a duke, count, vicar, deputy, and any other official, who, either by the royal order, or by consent of the parties, has been, or shall be, selected to determine questions of law; or any person of whatever rank invested with the legal right to preside in court; as well as all to whom has been delegated the power to decide causes; shall be invested with the name of judge, and shall be entitled to the rights, and subject to the liabilities of that office, whether these relate to the emoluments or the penalties attaching to the same.

XXVI. Every Bond that is Exacted by a Judge, after an Unjust Decree, shall be held Invalid.

We occasionally find that justice is distorted, and deprived of its proper force, by unjust judges; and see injustice, confirmed by their decrees, prevail in its stead. And, indeed, certain judges after they have rendered unjust decrees, cause one or both the parties to bind themselves in writing, in order that the wrongful judgment that has been rendered may not at any time thereafter be remedied; but where such a transaction is not fair and honorable, but entered into with the manifest intention of oppressing any one whose cause is just, the matter may be reviewed; and all obligations relating thereto shall be declared invalid, and not, in any way, authorized by law.

FLAVIUS RECESVINTUS, KING.

XXVII. An Unjust Decree, or an Unjust Interpretation of the Law, Prompted by Fear of the Throne, or Made by Order of the King, shall be Invalid.

Sometimes the influence of power defeats the ends of justice, and although it often prevails, it is certain that it always inflicts injury; for, when the abuse of authority once causes oppression, it never permits the restoration of justice to its original integrity. Therefore, as judges through fear, or at the command of princes, sometimes decide questions contrary to law, for the sake of the peace of our kingdom we have determined to cure two diseases with one remedy; declaring that when it should have been discovered that any document has been drawn up, or any judgment rendered, not according to justice or to the established laws, but by the command or through the dread of the king, then that which is evidently contrary to justice and to the laws shall be void; and those who have rendered the judgment or have caused it to be rendered, shall receive no mark of infamy, nor be subjected to any punishment whatever; and any judge shall be immune from the penalties of the law, if he will swear that he has decided wrongfully, not through his own depravity, but on account of royal compulsion.

FLAVIUS RECESVINTUS, KING.

XXVIII. Concerning the Power, conferred upon Bishops, of Restraining Judges who Decide Wrongfully.

We direct the ministers of God, to whom the Divine authority has been committed to remedy the misfortunes of oppression and poverty, that they admonish, with paternal piety, such judges as oppress the people with unjust decrees, by which means such wrongs may be remedied. But if any magistrate, invested with judicial functions, has either decided unjustly, or has imposed a wrongful sentence upon any one, then the bishop in whose diocese this has been done, shall summon the judge who is alleged to have acted unjustly, and shall render a just decision, sitting along with him, in the presence of ecclesiastics, or other persons of respectability. But if the judge, moved by perversity, refuses to correct the iniquitous judgment given by him, after the bishop has exhorted him to do so, then the bishop shall have the privilege of reviewing the case, and of rendering judgment alone; and the wrongful decision of the judge, subsequently set aside by him, as well as his own decision, shall be committed to writing, and be deposited among the records of the court. The bishop shall so act toward the party who has been oppressed, and liberated by him from that oppression, that truth may be established and confirmed by our authority. If the judge should prevent the party whom he has oppressed from appearing before the bishop, he shall forfeit two pounds of gold to the king.

FLAVIUS CHINTASVINTUS, KING.

XXIX. The Judge, when Inquired of by a Party, should be able to give a Reason for His Decision.

Every judge is hereby admonished that if a demand is made upon him by any one, he shall give the reasons, in their proper order, for the decision he has made; and this he shall do, either in the presence of the governor of the city, or of those whom the governor has chosen to represent him. And if the matter has been brought before the king, those judges whom the king shall appoint for the purpose, shall decide the cause, without the presence of the bishop and the other judges. And if, after the action has been brought to an end, either before the bishop or before the governor, either of the parties should present himself, a second time, with the royal order, he who heard or decided the cause in the first place, must account for his conduct to those who have been specially appointed judges by the royal decree; so that in case he should be found to have rendered an improper decision, he may give satisfaction therefor to the plaintiff before the law. And if the plaintiff shall have filed an unjust complaint, he shall be condemned to suffer the legal penalty prescribed for the same.

FLAVIUS RECESVINTUS, KING.

XXX. Concerning the Punishment of Judges who Appropriate the Property of Others.

While it is evident that judges have been appointed for the purpose of remedying evils, some of them, on the other hand, with all the insolence of power, attempt to attack those very things which, according to the principles of equity, they ought to defend. For, once invested with authority, some judges do not hesitate to assume illegal control over the property of others; and do not fear, under almost any pretext, to subject them to unreasonable expense in the exercise of official tyranny. Henceforth, any judge who shall take any property belonging to another, contrary to an order of court, or in violation of law, or shall injure said property in any way, shall be condemned to suffer the same penalty which he, acting in his judicial capacity, would have imposed upon any one guilty of the same offence.

FLAVIUS RECESVINTUS, KING.

XXXI. Concerning those who Treat the Royal Order with Disdain.

Any freeman who shall have been convicted of having disobeyed the royal summons, or shall have been proved to have acted in such a manner that his duplicity is apparent, and shall say contrary to the truth, that he has neither seen nor received the summons; if he is a person of noble birth, he shall pay three pounds of gold to the treasury; but, if he should not have sufficient property to pay this fine, he shall receive a hundred lashes with the scourge, without any degradation of rank. But if he should have been prevented from travelling by sickness, tempest, inundation, or snow, or by unavoidable trouble of any kind, and this should be established by the testimony of reliable witnesses, he shall not be considered guilty of disobedience to the royal order, or be liable to any punishment, as it is evident that the delay was the result of manifest necessity.

XXXII. How the Judge should Inquire into Causes by the Ordeal of Hot Water.

We are aware that many persons assert that they have received injuries at the hands of freeborn citizens; and it is our opinion that torture should be applied in such instances, where an amount exceeding three hundred solidi is involved; and we now declare this to be a salutary measure, and decree that whenever crime has been committed by any one, where a small amount of property is concerned, the ordeal by hot water be instituted by the judge; and should the accused appear to be guilty, the judge shall not hesitate to put him to the torture, and after confession has been obtained, he shall inflict upon the criminal the sentence of the law provided in such cases. If, after the test, he should prove to be innocent, his accuser shall incur no reproach whatever. This test shall also be applied to suspicious persons who present themselves in court to give testimony against others.[8]

TITLE II. CONCERNING CAUSES.

FLAVIUS RECESVINTUS, KING.

I. No One can Refuse to Answer because the Plaintiff has Never Presented his Claim to Him.

No one can interpose a defense to the action of any plaintiff by saying that the latter has no right to bring a suit, because he has not made formal demand upon him for his claim, unless he can show that the time within which the suit may be brought, has expired.

FLAVIUS CHINTASVINTUS, KING.

II. The Court must be Disturbed by no Clamor or Tumult.

The court shall not be disturbed by any tumult or clamor whatever; those who have no interest in the case shall be compelled to withdraw; and only such as are known to be concerned in the proceedings shall come into the presence of the court. But if the judge desires spectators to be present, he can permit it, in case he should wish to confer with them about the case. But if he should be unwilling, no one shall be allowed to enter the court room, either to aid one party by improper suggestions, or to interpose objections to the conduct of the other, whereby either party may be unnecessarily annoyed. And if any one, having been admonished by the judge to be silent, should not obey, nor desist in his attempts to aid either party, and should, in defiance of this warning, continue to interfere, he shall be compelled to pay ten golden solidi to the judge. And if he should still persist in his conduct, he shall be unceremoniously ejected from the court.

III. Where there are Many Litigants, Two may be Chosen who shall have Power to carry on the Suit.

If the litigants are more numerous on one side than on the other, both sides, in turn, shall select from their number, parties to carry on their case. For all ought not to participate in the conduct of the action, but, as we have said, those chosen by both sides should alone appear in court, so that all noise and confusion may be avoided.

FLAVIUS CHINTASVINTUS, KING.

IV. Both Parties may be Compelled by the Judge, or the Bailiff, to be Present in Court on the Day when the Case is to be Heard.

Often, through the negligence of the judges or the bailiffs, when security is not required of the parties, one or the other of them unnecessarily suffers inconvenience or injury. For when one party is present in court, and the other is absent, no little expense is often incurred by the former. Therefore, we decree that all judges, and all upon whom judicial power has been conferred, whenever the time arrives in any suit for the giving of security; or when a cause is about to be heard, or settlement to be made; both parties, that is the plaintiff as well as the defendant, shall be required to give bond, that, upon the day appointed for trial, either in person, or by representatives, they shall be present in court, in order that the case may be heard, or the claim otherwise disposed of; and if either party should refuse to come, and absent himself upon the appointed day; or if sickness, or any accident during his journey, should prevent him from coming; and he should not communicate the fact to the judge or his attorney; and should not appear in court within the time prescribed by law, and the case should be delayed on that account; he shall pay the amount of the bond to him before whom he entered into the obligation. And if either the judge or the bailiff should neglect to exact security from both parties, as aforesaid, and, while compelling one party to give bond should excuse the other, he shall pay out of his own property, a sum equal to that for which he wished to make him liable whom alone he placed under bond. And if, to the injury of either party, the judge or the bailiff should restore to one the undertaking which he had exacted from the other, or should destroy or conceal it, he shall pay him on account of whom the bond was executed, out of his own property, a penalty equal to that which was inserted in the bond.

He who brought the suit may then insist that it be carried on without further delay. The penalty, although declared in the bond to be payable to the judge or the bailiff, shall not entirely belong to them; but, after the case has been decided, they shall be entitled to half of said penalty, and the other half shall be given to the party who gains the suit.

V. Those whose Affairs have been brought before a Tribunal for a Decision, shall, under no Circumstances, enter into a Compromise before the Case has been Decided.

If cases are not permanently disposed of by the temperate decision of the judge, not only do great difficulties arise in settling the disputes of litigants, but the course of justice is often interfered with, through the irreconcilability of adverse claims; for many persons, after they have brought their disputes before the royal tribunal to be finally determined, in order to avoid the legal penalty for their conduct, settle, by agreement between themselves, the cause which they have brought to the hearing of the king. Lest, therefore, any party by means of such a fraud may escape the justice of the court, we decree, by this law, that whoever, hereafter, shall apply to the royal tribunal for the determination of his case against another, shall, under no circumstances, absent himself, or make any compromise with his adversary, but shall prosecute the cause already begun until the king shall have given a decision in the matter. And, if either plaintiff or defendant should neglect to carry on the action before the king, or before those whom he has chosen to hear it, or should enter into any arrangement with the other party, each shall pay to the Crown the sum which he who filed the petition, could have obtained, had he gained the suit; and whatever shall be thus obtained by the king in this proceeding he can dispose of at his pleasure. All those shall be liable to a similar penalty, who seek to have their disputes settled by a judicial decision, and, after the cause has been begun, refuse to proceed with it and presume to compromise with one another.

The judge and the bailiff shall have the right to divide the aforesaid penalty between them. But if the parties should not have sufficient property to pay said penalty, each shall receive one hundred lashes with a scourge, and the judge shall terminate the suit forthwith. We decree, however, that those shall be free from the operation of this law to whom the royal mandate was especially directed, as well as those whom the judge, who heard the cause, shall have dismissed, after a settlement has been effected with his consent.

FLAVIUS CHINTASVINTUS, KING.

VI. Both Parties shall be Required to Furnish Testimony.

Whenever a cause is heard, both parties, that is, plaintiff as well as defendant, shall be required to produce evidence, and the judge shall decide which side is entitled to a decree. But if, after the testimony has been taken, the truth does not appear to have been established, the defendant shall declare under oath that the property in question, if any has been demanded of him, has never been, and is not now, in his possession, and that he is not aware of any reason why he should be sued, and that he truly does not know that he has done anything to render him liable, in any way, to the party who complains of him, and after the defendant has thus made oath, the plaintiff shall be compelled to pay him five solidi.

FLAVIUS RECESVINTUS, KING.

VII. Concerning the Journey which any one Compels an Innocent Person to Make.

All those whose innocence is established, should be free from injury, and exempt from annoyance by unprincipled men. Henceforth, whenever any one shall cause another to be wrongfully summoned before the king, or brought, without cause, before a court; as soon as it has been proved that the claim of the plaintiff was not well founded; if the party has, in obedience to a summons, been compelled to come fifty miles, or less, he shall receive from the plaintiff five solidi, on account of the unjust demand by the latter. If he has been forced to come a distance of sixty miles, the unjust plaintiff shall pay him six solidi; and so on, the number of solidi increasing at the rate of one for every ten miles; and, for the distance of one hundred miles, ten solidi shall be given by said plaintiff to him who has been subjected to annoyance and trouble; and thus the number of solidi shall increase as aforesaid, in the ratio of five for every fifty miles, and ten for every hundred miles; the amount of pecuniary satisfaction being always proportionate to the length of the journey.

FLAVIUS CHINTASVINTUS, KING.

VIII. Where any one Residing in the District of one Judge has a Cause of Action against a Party Living in the District of another Judge.

If any freeman or slave has a cause of action against anyone residing outside of the province in which he lives, and within the jurisdiction of another judge, the judge of the district to which the plaintiff belongs shall send a letter under his signature and seal, to the other judge, and direct him to hear the cause of the complainant, without delay; and if he should neglect or deny this request, then the judge in whose district the plaintiff resides, shall seize as much of the property belonging to the judge to whom he sent the letter, as the sum amounts to, concerning which the plaintiff brought the suit; wherever he can find said property in his jurisdiction; which property, however, must not be delivered into the possession of the plaintiff. And he who receives it shall hold it, so that, when the case has been disposed of, the costs and expenses may be paid out of the income derived from the same. If the judge who, on the reception of the letter from the other judge, refused to hear the cause of the plaintiff, should afterwards conclude to do so, such property of his as was seized by the former judge, shall be restored to him without delay; but none of the amount which has been expended for reasonable costs shall be returned. And if, after the case has been decided according to the rules of justice, the judge shall be found to have lost anything by reason of the unjust demands of the plaintiff, then the latter shall make full restitution to the said judge, and shall be compelled to pay him in addition, an equal amount from his own property. And if that judge who was the cause of the delay, has no property, in the jurisdiction of the other judge who notified him, wherewith to reimburse the plaintiff, the latter judge may seize the property of the former, wherever he can find it, even when it is not in his jurisdiction; or he may deliver to the plaintiff a memorandum under his seal, in which the amount of the sum involved is set forth, by authority of which the plaintiff may have the power to seize said property.

If one whose property was illegally taken for a debt should complain of this to the king, the judge, or the governor; a judge convicted of unnecessary delay in hearing the case, shall pay all damages incurred, and four times their amount besides, out of his own purse. But if a creditor should privately accept from his debtor, a sum equal in value to the amount of property involved, the judge cannot be required to give satisfaction as above stated. If the judge who was notified should hear the cause of the plaintiff without delay, and should find that there is no justice in his claim, he must send a copy of the decree in writing, carefully made out, and signed with his hand and sealed with his seal, to the judge by whom he has been notified, as hereinbefore stated. And if, after the decision, the wrong-doing of him who made the claim should appear; if he is a freeman, he shall pay double the amount of the property involved, that is, a sum equal to what the other party lost, and as much more. Any slave who shall have been detected in the commission of such acts, shall receive one hundred lashes with the scourge; shall be scalped as a mark of infamy; and shall at once restore the entire amount of property which he had seized, as security.[9] And all concerned in the seizure, if they are slaves, and did so willingly, shall each receive a hundred lashes; but if they are freemen, they shall restore to the owner as much as they are proved to have taken from him, without the sum usually given as indemnity by him who has been convicted of having acted wrongfully in similar cases.

IX. Concerning Those who Venture to Defend the Suits of Others.

Whoever has recourse to a person of high rank or influence, that, through his aid in court, he may be able to oppress his adversary, shall lose his case, even though his cause be just; and as soon as the judge perceives that any powerful person is interfering in a case, he shall order him to desist. But if the said person should defy the judge, and, obstinately resisting, should refuse to leave the court, or to cease interfering with the proceedings, the judge shall have authority to fine him two pounds of gold, one of which shall be for his own benefit, and the other for the benefit of the party injured by the said powerful adversary, and the latter shall be violently thrown out of court. Any freeman or slave who refuses to desist from interference with the business of the court, after having been warned by the judge, shall receive fifty lashes with the scourge, in public.

FLAVIUS CHINTASVINTUS, KING.

X. No Freeman shall Refuse to Answer the Slave of another in Court.

In order that insolence may be the more easily punished, the law regards excuses as superfluous. Sometimes freemen do not hesitate to injure the slaves of others, and then refuse to answer the petition of a slave in court; declaring that they should not be compelled to answer any one from whom they cannot collect damages, if they should chance to be victorious. But lest, through this delay, the slave himself should unjustly suffer injury; though his master should be distant fifty miles, or any objection should be made by his master on account of his employment at the time; after due deliberation, we hereby decree that a hearing shall be denied to no one. If, however, a slave should assert that he has any claim of his own, or any business to transact in court on behalf of his master or mistress, he against whom he files a complaint, shall straightway be compelled to appear and answer; and, in the end, make such compensation as is authorized by law, if he be vanquished by the slave; but if the slave is unable to prove what he has adduced, then the freeman shall declare under oath that he has no knowledge of, nor has in his possession, the property to which claim is made; nor has done, nor has caused to be done, any of those things of which he is accused. And, after this oath has been taken, the slave or the freeman, as the case may be, must not delay to make amends for filing his unjust complaint. But if, in the settlement of these damages, where the claim is for a small amount, it should appear that his master is only worth ten solidi, the slave shall be compelled to pay only half the penalty, that is to say, two half solidi. But if it should appear that the master of the slave is distant less than fifty miles, his slave cannot bring an action against any freeman, unless the master is unable, in person, to be present in court; or should send a letter, written in his own hand, and signed with his signature, authorizing the slave to appear for him, by the latter as messenger to the judge.

If the slave, acting on behalf of his master, should cause him any injury, either through fraud or neglect, or should lose the case, it shall be lawful for the master to have it reviewed, either upon his own application, or upon that of a lawful representative, and have it justly decided by the testimony of such witnesses as he may be able to produce.

TITLE III. CONCERNING COMMISSIONERS AND COMMISSIONS.

FLAVIUS RECESVINTUS, KING.

I. Princes and Bishops should not Conduct their Cases in Court in Person, but through their Subjects or Subordinates.

As it is the office of persons in power to decide questions of law, and as, in many instances, they should not be needlessly subjected to the annoyances resulting from litigation; therefore, if either the king or a bishop should have a lawsuit with any one, he may select a personal representative to whom the transaction of the business shall be intrusted; for the reason that it would seem an insult to the dignity of persons of such high rank, if those of a lower class should contradict their evidence in court. And again, if the king should choose to personally assume the conduct of his case in any matter, who is there who would dare to contradict him? Therefore, lest the fear of royal power should suppress the truth, the case should be conducted, not by the king, but by some of his subjects.

II. The Judge must inquire of a Litigant, whether the Suit brought by Him is his Own, or that of Another.

The judge must, in the first place, make inquiry of a litigant whether he is conducting his own case, or that of another. He shall also be asked whom he represents; and, after the judge has decided the case, he shall include in the decree him by whose order the action was prosecuted, and, in addition, he shall receive a copy of the authority of the representative, to be filed with the record of the judgment. And it shall be lawful for the defendant to examine the commission given by the plaintiff, in the presence of the judge, so that he may know, without doubt, for what reason he was brought into court, as well as ascertain the contents of the order granting the authority.

III. He who cannot Conduct his Cause Himself, must give Written Authority to his Attorney.

If any one is unable to conduct his own cause, or is unwilling to do so, he must appoint a representative, by an instrument in writing, under his own hand, confirmed by the seals and signatures of witnesses. And if any such representative should be guilty of collusion with his adversary, so that he is defeated, he shall pay to his principal, as much of his own property as the latter has lost, or as much as he ought to have obtained. But it shall not be lawful for a slave to conduct any case whatever, through the commission of another, unless on behalf of his master or mistress, or of the Church, or of some poor person, or under the commission of the royal treasury. If, through either the neglect or misconduct of the judge, or through the perjury of a witness, the provisions of this law should not be carried out, then it shall be the duty of the king to enforce the same.

FLAVIUS CHINTASVINTUS, KING.

IV. Torture shall, in no Case, be inflicted upon Persons of Noble Birth who are acting as Representatives of Others; and, In what way a Freeman of the Lower Class, or a Slave, may be subjected to Torture.

No person of noble rank shall, under any circumstances, be put to the torture by authority of a commission given to another. It is, however, hereby permitted that any freeborn person of low rank who is poor, and has already been convicted of crime, may be tortured under such a commission; but only when the principal gives authority in writing to do this, signed by him, and attested by three witnesses, which shall be entrusted for delivery, to a freeman, and not to a slave. And if he should cause the torture to be inflicted upon an innocent person, the aforesaid principal is hereby admonished, that he has incurred the penalty of the law which is found in the sixth book, first title, second chapter; wherein it is stated for what things freeborn persons are to be put to the question. It is lawful for other criminal causes to be prosecuted under commission; and, as has been said above, tortures may be applied to a freeman by the representative of another who is also free. And it is granted by the law to a freeman or a slave, to subject a slave to torture, with this provision, to wit: that if either torture or injury should be inflicted upon an innocent person, the principal shall be compelled to give complete satisfaction, under the instructions of the judge. Nor is he to be discharged who received the commission, until either the principal may be produced in court, or shall make amends according to law. And whoever desires to inflict the torture, having received authority to do so under a commission, shall be compelled by the judge to give bond.

V. If He who has Appointed an Attorney Suffers Delay, he can Revoke his Commission.

He who conducts a case as the representative of another should proceed with it as rapidly as possible; and if he is dilatory, and the case which should have been prosecuted with alacrity, is retarded unnecessarily, or is fraudulently postponed, the principal may have recourse to the judge. And if he who receives the commission to conduct the case should, through malice or corruption, cause delay for ten days after he has received the order of the judge to proceed with the same, the adversary or the judge being present, then the principal can either conduct the case himself, or appoint any one else whom he may select, to conduct it for him.

ANCIENT LAW.

VI. It shall not be Lawful for a Woman to Act as an Attorney, but She may Conduct Her Own Case in Court.

No woman can conduct a case under the authority of another, but she is not forbidden to transact her own business in court. Nor can a husband conduct the case of his wife without authority from her; and, indeed, he should protect himself with such an instrument in writing, that the wife may not repudiate the whole proceeding; and if she should repudiate it, the husband shall undergo the penalty to which he is liable who presumed to conduct a case without the authority of his wife. And if the husband should lose a case which he prosecuted without the order of his wife, her rights shall in no way be prejudiced; and she can afterwards either prosecute the case herself, or can authorize any one she wishes to do whatever is proper in the matter. And if the case should justly go against the husband, and the wife should believe that the adversary who prevailed should again be sued; and, after the second trial, it should be apparent that her husband was not unjustly beaten in the first trial, the wife shall render satisfaction as prescribed by law, not only to the judge who first heard the case, but also to the other party whom she brought into court for the second time.

ANCIENT LAW.

VII. The Constituent shall receive the Benefit, and bear the Loss, resulting from Proceedings Instituted by his Attorney.

He who authorizes a case to be conducted by another as his attorney, shall enjoy the profit, or endure the loss resulting from the same, according to the circumstances; and he who carried on the action in compliance with his instructions, and exerted himself faithfully in the performance of his duty, shall not be deprived of his commission by his constituent; nor shall the latter be permitted to afterwards transfer the conduct of the case to another; because it is unjust that he who is known to have labored faithfully in the business which he has undertaken, should be deprived of his reward. He who is about to assume the conduct of a case should have an understanding with his constituent beforehand, and ascertain what amount he is to receive as a recompense for his services after the cause has been decided. And if he who conducted the case shall neglect to deliver to his constituent, within three months, any property which came into his hands under the decree, he shall lose the compensation for his services which he would otherwise have received; and shall be compelled by order of court to deliver to his constituent, whatever he was entitled to under the decision.

VIII. If an Attorney should Die, his Heirs shall be entitled to his Fees.

Where any person authorizes another to conduct a case for him, and dies before it is heard, said authority shall determine; and if he who received it should be surprised by death before the cause is heard, then also the order addressed to him before his death shall have no validity. But if the cause has been heard and energetically prosecuted through his diligence, and yet, for some reason or other, it was not entirely concluded, or some payment should remain to be made before final settlement; and if the case has been prosecuted as far as he who was commissioned to conduct it should have carried it; then, his heirs shall be entitled to receive from the constituent whatever compensation their ancestor would have been entitled to.

FLAVIUS CHINTASVINTUS, KING.

IX. What Persons those in Power, and those that are Poor, may appoint to Conduct their Cases.

It shall not be lawful for any one who selects an attorney to conduct his case, under any circumstances, to appoint a person who is more powerful than himself, so that the capacity to oppress, or terrify, may be greater than his own. For if a powerful person should be involved in a lawsuit with one who is poor, and is unwilling to conduct it himself, he cannot appoint any one else to carry it on but one of equal standing with, or perhaps inferior to, the other party. But, on the other hand, if a poor man chooses, he may select as his attorney any one of equal rank and power with his adversary.

FLAVIUS CHINTASVINTUS, KING.

X. Those who have Charge of the Royal Treasury, when a Suit is brought for its Benefit, have authority to appoint whom they wish to represent them.

Nothing should be done rashly in matters relating to the royal treasury. And whenever it appears advisable to proceed against any one on behalf of the treasury, he who is charged with that duty shall have the right to conduct the case before either the governor of the city, or the judge. If, however, he should happen to be absent from the place where the business is to be transacted, or should be prevented by any accident, or even should be unwilling to appear in his own person, he shall have the unquestionable right to appoint any one he chooses, to bring an action in which the public interests are involved.[10]

TITLE IV. CONCERNING WITNESSES AND EVIDENCE.

FLAVIUS CHINTASVINTUS, KING.

I. Concerning Persons who are not Permitted to Testify.

Murderers, malefactors, thieves, criminals, poisoners, ravishers, perjurors, or those who are addicted to the practice of sorcery or divination, shall under no circumstances be permitted to testify.

II. Witnesses shall not Testify except under Oath; Where both parties offer Witnesses which should be Believed; and Where a Witness Testifies Falsely.

The judge, as soon as the cause is heard, the witnesses having been sworn according to law, shall render judgment. No witnesses shall be permitted to testify without having first been sworn. If evidence should be offered by both sides, its weight shall be duly considered, and the judge shall determine on which side it preponderates.

If any one, after having been warned by the judge, should refuse to testify concerning any matter within his knowledge; and should either say that he does not know the facts, and hesitates to take the oath, or should suppress the truth through favor to any one, or through bribery; if he is a person of noble rank, he shall not be permitted to give testimony afterwards in any cause in court, nor shall his testimony be taken in any proceeding whatever. But if he who refuses to testify, should be an ordinary citizen, or a person of inferior rank, he shall be considered infamous, and shall receive a hundred lashes; because it is no less criminal to suppress the truth, than to commit perjury.

FLAVIUS CHINTASVINTUS, KING.

III. Where a Witness Testifies Orally, and Written Evidence Contradicts Him.

Whenever a witness testifies to something contrary to what is contained in any document, which he is known to have signed, although he may directly contradict the text of the document, the latter shall be preferred as evidence. But if witnesses should testify that the document offered is not valid, he who introduced it must confirm it by the testimony of witnesses; and if he cannot prove it by them, and by the production of other documents, the judge must require the witness who denies that it is in his hand, to write a similar document, in order that the truth may be the more readily established. And the judge shall make every effort to find other documents which may be compared with the one in question. And if all these efforts should fail, he shall not delay to make the witness swear that he had never signed the document; and if, afterwards, in any way it should become evident, that the latter had lied for the purpose of suppressing the truth, he shall be branded with the mark of infamy; and, if he is a person of high position, he shall be compelled to pay, by way of satisfaction, to the person affected by his false testimony, double the sum which the latter would have lost.[11] But if he is a person of inferior rank, and has not sufficient property wherewith to make amends, he shall never again be allowed to testify, and shall receive a hundred lashes with the scourge.

In regard to the two credible witnesses, whose evidence the authority of a former law declared should be received as sufficient; it must be required, not only that they should be reputable, that is, unquestionably freemen, but also of honorable rank and possessed of property. For care must be taken lest any one oppressed by poverty, and unable to bear his privations, should, without due reflection, perjure himself.

FLAVIUS CHINTASVINTUS, KING.

IV. A Slave shall not be Believed unless He Belongs to the Crown; and When Royal Slaves shall be Believed.

A slave is not to be believed at all if he should try to prove any one else guilty of crime, or if he should endeavor to implicate his master in any offence. And even if he should be subjected to torture, and should confess what he has done, still he must not be believed; an exception, however, being made in the case of such slaves as have been transferred to the royal service, and are deservedly honored with the offices of the palace; that is to say, the chiefs of the grooms, of the fowlers, of the silversmiths, and of the cooks; or any besides these who are superior to them in rank or position. Moreover, to any slaves who are well and favorably known to the king, and who have never been guilty of depravity or crime, permission is granted by the law to testify, as well as to persons who are freeborn. But it must not be thought that other slaves in the royal service can be called as witnesses, for no credit shall attach to any of them, unless the king should especially authorize their testimony to be taken.[12]

FLAVIUS CHINTASVINTUS, KING.

V. A Witness shall not give His Testimony in Writing, but Orally; and How Testimony should be Given.

Witnesses shall not give testimony by letter, but present, in person, they shall be required to tell the truth, as far as lies in their knowledge. Nor shall they testify concerning foreign matters, but only concerning those which they know to have taken place under their own eyes. But if the witnesses, or their relatives, or friends, should either be oppressed with age or infirmity, or resident in a foreign or distant province, and should think that their testimony should be taken, and if all those concerned in the case are not residents of the same province, they shall assemble in that province, where he who is the highest in rank among the parties lives, and, either in the presence of the judge of the district, or of those whom he shall select, and those interested having been duly summoned, shall give their evidence under oath. Any other proceeding relating to such matters shall be void and of no effect in law.[13]

FLAVIUS CHINTASVINTUS, KING.

VI. Concerning Those who give False Testimony.

If any one should give false testimony against another, and be detected, or should acknowledge his crime; if he is a person of rank, he shall give as much of his own property to him against whom he testified falsely, as the latter would have lost by his evidence, and he shall never again be permitted to testify in court. If he is a person of inferior rank, and does not possess the means wherewith to make amends, he shall be delivered as a slave to him against whom he testified falsely. But the cause shall by no means be lost by reason of such false testimony, unless the truth shall have been established otherwise; that is, either by a lawful and approved witness, or by just and legal documents in writing. If any one should corrupt another, either by a gift, or by fraud, and should thereby induce him to perjure himself, then, as soon as this fact shall become apparent, the instigator of the crime who aimed at the injury of another, as well as he who was induced by avarice to swear falsely, shall undergo the penalty of forgery.[14]

FLAVIUS CHINTASVINTUS, KING.

VII. Concerning Those who are Proved to have given False Testimony; and Concerning the Space of Six Months in which a Witness may be Declared Infamous. It shall not be Lawful to give Testimony concerning One who is Dead.

The wickedness of those who give false testimony is not limited to this offence merely, but attempts to add another crime to that of perjury. And, therefore, because such detestable criminals are condemned to death by the Divine Law, we decree that those whom judicial authority has proved to have given false witness against their brethren, shall henceforth not be permitted to testify, as they have already been declared worthy of death, not by human, but by the Divine decree. And if any one should give evidence in court concerning any matter in dispute, and the case should be gained by his testimony, and this witness should subsequently declare that he had given false testimony in the first place, and should then testify in such a manner that his former evidence shall be overthrown; he having been influenced by friendship, or fear, or by a gift from that party against whom he formerly testified; we decree by this new law, the old one still remaining in force, that the testimony of said witness shall not be entitled to credit; and that the cause in which he perjured himself shall not be lost by reason of his testimony, unless it happens that the judgment shall be reversed by the introduction of more reliable, legitimate witnesses, or by means of properly verified documents; so that it may be proper to have a rehearing of the case, and a second decision, as hereinbefore stated. If a party desiring to accelerate the progress of his case should produce a witness in court, and his adversary being present, the latter should declare that he cannot offer anything to contradict said witness, the matter in question shall be settled by the judge in favor of him whose witness has testified. We, however, grant the privilege to the party who declared that he did not know what he could adduce to contradict the witness, to discover, if possible, within six months, the means of contradicting him, and to remedy the defects of his case. But if, within six months, he cannot impeach this witness, and establish his infamy in court, no further time shall be given him in which to do so, or to introduce other witnesses in his behalf; and whatever has been proved by the aforesaid testimony, shall remain established for all time. And, on the other hand, if he who has the right to impeach the aforesaid witness within six months, shall be able to prove his assertions within the appointed time, and if he can thereby establish the infamy of said witness, it shall be lawful for the said party to produce evidence to contradict any witness who is living. But if it should be proved that any witness who formerly testified, is dead, no testimony to impeach him shall be given. Nor shall the testimony of a living witness, in contradiction of one who is dead, ever be taken; excepting in the case of a lawful and manifest instrument in writing, in which he who is dead, confessed, over his own signature, that he was guilty of crime, or that he has been rendered publicly infamous by the sentence of a court of justice. And these statements concerning the infamy which renders any one incompetent to testify in court are sufficient. But if a debt is due from a person who is dead; or if he is accused of wrong; it shall be lawful for a party, according to another law, to prove, either by a competent witness, or by a legal document, either the existence of the debt or the commission of the wrong; and to obtain such redress as he may be entitled to.

FLAVIUS CHINTASVINTUS, KING.

VIII. Concerning Those who Induce Others to give False Testimony, or Encourage the Slaves of Others to Seek their Liberty.

Any one convicted of having induced another to give false testimony against a freeman, shall pay the same amount to him whom he attempted to injure by that false testimony, as the latter could have justly obtained by a judgment in court. But if a witness, asked by another to testify, is known to have given false testimony against a freeman or a liberated slave, and the latter has been reduced to servitude by his evidence, and he who introduced the witness shall not have been convicted of the fraud; the witness himself is to be subjected to the penalty hereinbefore stated; that is, he shall be liable to him whom he wished to injure by his testimony, for the full sum involved in the suit. And if he should not have the means to make amends, he shall be delivered over, with all his property, to the party he attempted to defraud, to forever serve him as a slave. We hereby decree that the same penalty shall be inflicted upon those who have been convicted of giving false testimony in order to liberate the slaves of others; or who, by their schemes, have manifested an intention to deprive freemen of their liberty.

FLAVIUS CHINTASVINTUS, KING.

IX. In what Causes Slaves can Testify.

What relates to the general benefit of the public must not be neglected in our decrees, nor shall the facility for committing crime be such, that any person may think that he is exempt from the operation of the law. Since, therefore, when an affray takes place among freemen whereby death results, and no freeman is present who can give evidence of the crime, slaves may testify; so that it may be ascertained from their evidence how the homicide was committed. But for the reason that, under other circumstances, the course of justice would be obstructed; as, for instance, when the accused freeman shall be some distance away, or, if at hand, should not be recognized; therefore slaves shall be permitted to testify when no freemen were present, or those who were there are implicated in the affair in question. But slaves shall not be allowed to give testimony in other cases, nor in matters of great importance, but only in such as are comparatively insignificant; as those involving the title to lands, vineyards, or buildings, which are of lesser moment, and concerning which disputes often arise between heirs or neighbors. A slave shall also be believed in matters in which he is personally interested; as, for instance, if he should be seized by others, or be illegally detained by them, and also where another slave has escaped; on his statement, when true, the former may be returned to his master; and by reliable information imparted by a slave, any dispute which has arisen on account of the ownership of another, may be ended. Nevertheless, slaves shall be considered unworthy of credit, unless they are known to be innocent of all crime, and are not grievously oppressed by poverty; and their testimony can, under no circumstances, be received to contradict that of freemen; unless, as has been hereinbefore stated, it should happen that a homicide has been committed.

FLAVIUS CHINTASVINTUS, KING.

X. Concerning Those who Bind themselves in Writing, not to give True Testimony in the Causes of Others.

We are aware that many persons are in the habit of entering into obligations in writing, binding themselves to promptly give evidence in their own behalf, or in that of their friends; but to furnish no information in case any one else should bring a suit against them. And because it is well established that they are contrary to truth and equity, all judges shall have the power to at once examine such contracts, cancel them, and inflict a hundred lashes on all who are mentioned in them. Yet that this punishment may not fix upon said persons any mark of infamy, it is granted to them by this law, that they shall afterwards have the right to testify, and that their liberty shall, in no way, be restrained.

FLAVIUS CHINTASVINTUS, KING.

XI. At what Age Minors can Testify.

It is hereby decreed that after a boy or girl has reached his or her fourteenth year, they shall be competent to testify in any case in court.

XII. A Near Relative, or a Kinsman of a Party to a Suit, cannot give Testimony against a Stranger.

Brothers, sisters, half-brothers, uncles, aunts, or their children, also grandsons and granddaughters, shall not be permitted to give evidence in court against strangers; unless relations belonging to the same family should have lawsuits among themselves, or there should not be any other freeman who can testify in the case.

TITLE V. CONCERNING VALID AND INVALID DOCUMENTS; AND HOW WILLS SHOULD BE DRAWN UP.

FLAVIUS CHINTASVINTUS, KING.

I. What Documents are Valid in Law.

All documents which have been drawn up for a year and a day, and are known to have been executed according to law; or which are confirmed by the seals or signatures of the parties, or of witnesses; shall be deemed valid. Such documents also, as any person, on account of sickness, was unable to sign, but requested witnesses to affix their signatures thereto, in his presence, shall be equally valid. And, also, where any one is requested to affix his seal or signature to a document, instead of the party himself; it shall be valid only under the condition that if the maker of said document should recover from his illness, and desiring that that which has been thus attested be irrevocably established, should confirm it by his own signature, then it shall have complete validity.

If a testator should die after making a will attested by another, as aforesaid, he who was called as a witness shall see that the will is proved by him within six months, as provided by another law.

FLAVIUS EGICA, KING.

II. No Witness shall Testify as to the Contents of a Document of which He is Ignorant.

Where any one is asked to witness a document of any kind, he must not sign it before he has read it, or has heard it read. And if he should do so, and then attempt to testify concerning what he has done negligently, his evidence shall not be received, because he was ignorant of the contents of the paper to which he affixed his signature; nor shall the document be valid, because its authenticity has not been established by legal proof.