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Title: The Visigothic code : Forum Judicum
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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.
BOOK I.
CONCERNING LEGAL AGENCIES.
TITLE I.--_The Lawmaker._
Page
I. What the Method of Making Laws Should Be 1
II. How the Lawmaker Should Act 2
III. What Should be Required of the Lawmaker 2
IV. What the Conduct of the Lawmaker Should Be in his
Daily Life 2
V. How the Lawmaker Should Impart Advice 3
VI. What Manner of Speech the Lawmaker Should Use 3
VII. How the Lawmaker Should Act in Rendering Judgment 3
VIII. How the Lawmaker Should Comport Himself in Public
and Private Affairs 3
IX. What Instruction it is Fitting That the Lawmaker
Should Give 4
TITLE II.--_The Law._
I. What the Lawmaker Should Observe in Framing the Laws 5
II. What the Law Is 5
III. What the Law Does 5
IV. What the Law Should Be 5
V. Why the Law is Made 6
VI. How the Law Should Triumph over Enemies 6
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 11
II. The Royal Power, as well as the Entire Body of the
People should be Subject to the Majesty of the Law 12
III. It is Permitted to No One to be Ignorant of the Law 13
IV. The Business of the King shall First be Considered,
then that of the People 13
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 14
VI. Concerning Those who Abandon the King, or the
People, or their Country, or who Conduct themselves
with Arrogance 17
VII. Of Incriminating the King, or Speaking Ill of Him 19
VIII. Of Annulling the Laws of Foreign Nations 20
IX. No One shall presume to have in his Possession another
Book of Laws except this which has just been
Published 20
X. Concerning Feast Days and Festivals, during which No
Legal Business shall be Transacted 21
XI. No Cause shall be Heard by the Judges which is not
Sanctioned by the Law 22
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 23
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 23
XIV. What Causes shall be Heard, and to what Persons
Causes shall be Assigned for a Decision 24
XV. Judges Shall Decide Criminal as well as Civil Causes 24
XVI. Concerning the Punishment of Those who Presume to
Act as Judges, Who have not been Invested with
Judicial Power 24
XVII. Concerning Those who Ignore the Letters of the Judge,
or His Seal, Calling Them to Court 25
XVIII. Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently or Ignorantly 27
XIX. Where a Judge, either through Convenience to Himself
or through Want of Proper Knowledge, Decides
a Cause Improperly 28
XX. Where a Judge, either through Deceit or Cunning,
imposes Needless Costs upon Either or Both the
Parties to a Suit 29
XXI. What, First of All, a Judge should be Familiar With,
in order that he May Understand a Case 29
XXII. Where the Integrity of a Judge is said to be Suspected
by Anyone of Honorable Rank, or where a Judge
presumes to render a Decision Contrary to Law 30
XXIII. How a Judge should render Judgment 31
XXIV. Concerning the Emoluments and the Punishment of
the Judge, and of the Bailiff 32
XXV. Everyone who is Invested with Judicial Power shall
Legally bear the Title of Judge 33
XXVI. Every Bond which is Exacted by a Judge, after an
Unjust Decree, shall be held Invalid 34
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 34
XXVIII. Concerning the Power Conferred upon Bishops, of
Restraining Judges who Decide Wrongfully 35
XXIX. The Judge, when Inquired of by a Party, should be
able to give a Reason for his Decision 35
XXX. Concerning the Punishment of Judges who Appropriate
the Property of Others 36
XXXI. Concerning Those who Treat the Royal Order with
Disdain 36
XXXII. How the Judge should Inquire into Causes by the
Ordeal of Hot Water 37
TITLE II.--_Concerning Causes._
I. No One can Refuse to Answer because the Plaintiff
Never Presented his Claim to Him 38
II. The Court must be Disturbed by no Clamor or Tumult 38
III. Where there are Many Litigants, Two may be Chosen
who shall have Power to carry on the Suit 39
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 39
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 40
VI. Both Parties shall be Required to Furnish Testimony 41
VII. Concerning the Journey which Anyone Compels an
Innocent Person to Make 42
VIII. Where Anyone Residing in the District of one Judge
has a Cause of Action against a Party Living in the
District of another Judge 42
IX. Concerning Those who Venture to Defend the Suits of
Others 44
X. No Freeman shall Refuse to Answer the Slave of
another in Court 45
TITLE III.--_Concerning Constituents and Commissions._
I. Princes and Bishops should not Conduct their Cases
in Court in Person, but through their Subjects or
Subordinates 47
II. The Judge must inquire of a Litigant, whether the
Suit brought by Him is his Own, or that of Another 48
III. He who cannot conduct his Cause Himself must give
Written Authority to his Attorney 48
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 49
V. If He who has Appointed an Attorney Suffers Delay,
He can revoke his Commission 50
VI. It shall not be Lawful for a Woman to Act as an
Attorney, but She may Conduct her Own Case in
Court 50
VII. The Constituent shall receive the Benefit, and bear the
Loss, resulting from Proceedings Instituted by his
Attorney 51
VIII. If an Attorney should die, his Heirs shall be entitled
to his Fees 51
IX. What Persons those in Power, and those that are
Poor, may appoint to Conduct their Cases 52
X. Those who have Charge of the Royal Treasury, when
the Suit is brought for its Benefit, have authority
to appoint whom they wish to represent them 52
TITLE IV.--_Concerning Witnesses and Evidence._
I. Concerning Persons who are not Permitted to Testify 54
II. Witnesses shall not Testify except under Oath; Where
both parties offer Witnesses which shall be Believed;
and Where a Witness Testifies Falsely 54
III. Where a Witness Testifies Orally, and Written Evidence
Contradicts Him 54
IV. A Slave shall not be Believed unless he Belongs to the
Crown; and When Royal Slaves shall be Believed 56
V. A Witness shall not give his Testimony in Writing, but
Orally, and How Testimony should be Given 57
VI. Concerning Those who give False Testimony 58
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 58
VIII. Concerning Those who Induce Others to give False
Testimony, or Encourage the Slaves of Others to
Seek their Liberty 60
IX. In what Causes Slaves can Testify 61
X. Concerning Those who Bind Themselves in Writing,
not to give True Testimony in the Cause of Others 62
XI. At what Age Minors can Testify 62
XII. A Near Relative or a Kinsman of a Party to a Suit,
cannot give Testimony against a Stranger 62
TITLE V.--_Concerning Valid and Invalid Documents and How Wills
Should be Drawn Up._
I. What Documents are Valid in Law 64
II. No Witness shall Testify as to the Contents of a Document
of which He is Ignorant 64
III. Concerning the Drawing Up of Contracts, and Other
Legal Documents 65
IV. Neither Children, nor Other Heirs, shall contest the
Final Disposition of Property by their Ancestors 65
V. Concerning the Penalties to which those are Liable
who attempt to Repudiate their Written Contracts 65
VI. Contracts and Agreements made by Slaves are Invalid,
unless Ordered by Their Masters 65
VII. Concerning Dishonorable and Illegal Contracts 66
VIII. No One shall be Liable in Person or Property, under
the Terms of any Contract, where Deception has
been Practised; nor shall He be Liable to any
Penalty provided by the same 66
IX. Every Obligation, or Contract, which has been Extorted
by Force, or Fear, shall be Void 66
X. What Contracts entered into by Minors shall be Valid 66
XI. How Wills shall be Drawn Up and Proved 67
XII. How the Wills of those who Die during a Journey shall
be Proved 68
XIII. A Will must be Published in the Presence of a Priest,
or of Witnesses, within Six Months 69
XIV. Concerning the Comparison of Handwriting where
Doubt attaches to any Document 69
XV. Concerning Holographic Wills 70
XVI. Concerning the Comparison of Documents, and the
Infliction of Penalties prescribed by Wills 70
XVII. No Testator shall be Permitted to Dispose of Property
in One Way, in the Presence of Witnesses, and in
Another by a Written Will 72
BOOK III.
CONCERNING MARRIAGE.
TITLE I.--_Concerning Nuptial Contracts._
I. Marriage shall not be Entered Into without a Dowry 75
II. It shall be as Lawful for a Roman Woman to Marry a
Goth, as for a Gothic Woman to Marry a Roman 76
III. Where a Girl Marries against the Will of her Father,
while she is Betrothed to Another 76
IV. When a Gift is made by way of Pledge, a Nuptial
Contract cannot be Rescinded 77
V. Women Advanced in Years shall not Marry Young Men 77
VI. What Property the Dowry shall consist of 79
VII. The Father shall Exact, and Keep, the Dowry of his
Daughter 79
VIII. In case of the Death of the Father, the Disposition of
the Children of both Sexes, in Marriage, shall belong
to the Mother 81
IX. Where Brothers Defer the Marriage of their Sister, or
Where a Girl Marries Beneath her Station 81
X. Where the Items of a Dowry, relating to any kind of
Property, are reduced to Writing, it shall not be
Contested 82
TITLE II.--_Concerning Unlawful Marriages._
I. Where a Woman Marries within a Year after the
Death of her Husband 83
II. Where a Freeborn Woman Marries a Slave, or her own
Freedman 83
III. Where a Freeborn Woman Marries the Slave of
Another, or a Freeborn Man the Female Slave of
Another 84
IV. Where a Freedwoman, or a Freedman, Marries the
Slave of Another 85
V. Where Anyone gives in Marriage his Slave, of Either
Sex, to the Slave of Another 85
VI. Where a Woman contracts a Second Marriage in the
Absence of her Husband 86
VII. Where a Master Marries one of his Slaves to a Freewoman
declaring him to be a Freeman 86
VIII. Where a Freewoman Marries without the Consent of
her Parents 87
TITLE III.--_Concerning the Rape of Virgins, or Widows._
I. Where a Freeman carries off a Freewoman by Force,
he shall not be permitted to Marry her, if she was a
Virgin 88
II. Where Parents remove their Daughter from the Power
of a Ravisher 89
III. Where the Parents of a Girl, who has been Betrothed,
consent that she should be Carried Away by Another 90
IV. Where Brothers, either during the Life of their Father,
or after his Death, consent that Anyone should
Carry Away their Sister by Force 90
V. Where Anyone Carries Away by Violence a Woman
who was Betrothed to Another 90
VI. Where a Ravisher is Killed 91
VII. Within what Time it is Lawful to Prosecute a Ravisher;
and Whether any Marriage Contract can be entered
into with Him by the Girl or her Parents 91
VIII. Where a Slave carries off a Freewoman by Force 92
IX. Where a Slave carries off a Freedwoman by Force 92
X. Where a Slave carries off the Female Slave of Another
by Force 92
XI. Concerning those who Deceive Girls, or the Wives of
Others, or Widows; and Concerning those who
Compel by Force, and without the Royal Command,
any Freeborn Girl or Widow to take a Husband 93
XII. Concerning Freemen and Slaves who are Proved to
have been Implicated in the Crime of Rape 93
TITLE IV.--_Concerning Adultery._
I. Where a Woman Commits Adultery, with or without
the Connivance of her Husband 95
II. Where a Girl or a Woman who has been Betrothed, is
found Guilty of Adultery 95
III. Concerning the Adultery of a Wife 96
IV. Where an Adulterer, along with an Adulteress, are
Killed 96
V. Where her Father, or her Relatives, Kill a Girl who
has been Guilty of Adultery in their House 96
VI. It is not Lawful for Slaves to put Persons to Death
who are taken in Adultery 97
VII. Where a Girl, or a Widow, goes to the House of
Another, in order to Commit Adultery, and the
Man should wish to Marry Her 97
VIII. Where a Freeborn Woman commits Adultery with
Anyone 97
IX. Where a Freeborn Woman commits Adultery with the
Husband of Another 98
X. Slaves of Both Sexes may be Tortured to Reveal the
Adultery of their Masters 98
XI. Whether it shall be Lawful to set a Slave at Liberty,
in order to Conceal the Crime of Adultery 98
XII. Concerning the Property of Persons who have Committed
Adultery 99
XIII. Concerning those Persons who have a Right to bring
Accusations of Adultery, and what Proof of the
Crime should be Made 100
XIV. Where a Freedman, or a Slave, has been Convicted of
having committed Adultery, with Violence, upon a
Freeborn Virgin, or Widow 101
XV. Where a Freeman, or a Slave, without the Knowledge
his Master, commits Adultery with the Female
Slave of Another 102
XVI. Where a Female Slave is proved to have committed
Adultery with Another by Force 102
XVII. Concerning Freeborn Women, or Female Slaves, of
Bad Character, and Where Judges Refuse to
Investigate, or Punish their Crimes 102
XVIII. Concerning the Impurity of Priests and other Ministers
of Religion 104
TITLE V.--_Concerning Incest, Apostacy, and Pederasty._
I. Concerning Incestuous and Adulterous Marriages in
General 106
II. Concerning Incestuous and Adulterous Marriages
and Debauchery, either with Holy Virgins, or with
Widows and other Women while doing Penance 107
III. Concerning Men and Women who Illegally Assume
the Tonsure and Dress of Religious Orders 108
IV. Concerning the Restraint of Fraud Peculiar to Widows 109
V. Concerning Pederasty 110
VI. Concerning Sodomy, and the Manner in which the
Law should be Enforced 111
VII. Concerning Adultery committed with the Concubine of
a Father or a Brother 111
TITLE VI.--_Concerning Divorce, and the Separation of Persons who
have been Betrothed._
I. Where a Woman, justly or unjustly, is Separated from
her Husband 113
II. There shall be No Divorce between Married Persons 114
III. There shall be No Divorce between Persons who are
Betrothed 116
BOOK IV.
CONCERNING NATURAL LINEAGE.
TITLE I.--_Concerning the Degrees of Relationship._
I. The Nature of the First Degree 117
II. The Affinity of the Second Degree 117
III. The Relationship of the Third Degree 118
IV. The Consanguinity of the Fourth Degree 118
V. The Origin of the Fifth Degree 118
VI. The Limits of the Sixth Degree 119
VII. The Persons in the Seventh Degree who are not Mentioned
by the Laws 119
TITLE II.--_Concerning the Laws of Inheritance._
I. Brothers and Sisters shall Share Equally in the
Inheritance of their Parents 121
II. The Children shall Come First in the Order of
Succession 121
III. Where there are no Heirs in the Direct Line, Collateral
Heirs shall Inherit the Property 121
IV. Who shall Succeed to the Property of Those who have
left no Written Wills, or have made no Disposition
of their Possessions in the Presence of Witnesses 121
V. Concerning Inheritance by Brothers and Sisters, and
by such of these as are not descended from the
same Parents 122
VI. Where he who Dies leaves Grandfathers or
Grandmothers 122
VII. Where he who Dies leaves Aunts 122
VIII. Where he who Dies leaves Nephews 122
IX. A Woman shall be entitled to a Share in an Entire
Inheritance 123
X. As a Woman has a Right to a Share of an Entire
Inheritance, so he who is next in Succession shall
inherit the Remainder of the Property 123
XI. Concerning the Inheritance of Husband and Wife,
Respectively 123
XII. Concerning the Inheritance of Property from Clerks
and Monks 123
XIII. After the Death of their Mother, Children shall remain
under Control of their Father; and What Disposition
he shall make of their Property 123
XIV. Where a Mother remains a Widow, she shall have an
Equal Portion of the Inheritance with her Children;
and How a Mother ought to Dispose of the Property
of her Children 125
XV. No Wife can lay Claim to what her Husband has
Gained by the Labor of her Slaves 126
XVI. Concerning such Property as the Husband and Wife
together have Accumulated during their Married
Life 126
XVII. In what way a Child may Inherit Property 127
XVIII. How the Parents of a Child can Inherit from Him 128
XIX. Concerning Posthumous Children 129
XX. He who leaves no Children, has full Power to Dispose
of his Property as he Pleases 130
TITLE III.--_Concerning Wards and Their Guardians._
I. What a Minor Is 131
II. From what date Time is to be Computed in Bringing
Lawsuits relating to Minors 131
III. How the Guardianship of Wards should be Entered
upon; what Portion of their Property they shall
Receive, and what Portion shall be given to their
Guardians 132
IV. Guardians shall have no Right to Exact from Wards
in their Charge any Instruments in Writing whatever 133
TITLE IV.--_Concerning Foundlings._
I. Where anyone Casts Away, or Abandons, a Freeborn
Child, he shall Serve as its Slave 135
II. Where a Male or Female Slave shall be Proved to
have Cast Away a Child, with or without the
Knowledge of his or her Master 135
III. What Compensation for Support anyone shall Receive
for the Bringing up of a Child Committed to his
Care by its Parents 136
TITLE V.--_Concerning Such Property as is Vested by the Laws of
Nature._
I. Concerning the Disinheriting of Children; and What
Disposition Parents should make of their Property 137
II. What Part of her Dowry a Woman has a Right to
Bequeath 139
III. What Property Parents should Bestow upon their
Children, at the Time of their Marriage 140
IV. Concerning Children Born of Different Parents; and
What Distinctions Parents may Make in the Disposition
of their Estates 141
V. Concerning such Property as Children may have
Acquired during the Lives of their Parents 142
BOOK V.
CONCERNING BUSINESS TRANSACTIONS.
TITLE I.--_Ecclesiastical Affairs._
I. Concerning Donations to the Church 143
II. Concerning the Preservation and Restoration of Property
Belonging to the Church 144
III. Concerning Sales and Gifts of Church Property 144
IV. Concerning Church Property in Charge of Those
Devoted to the Service of the Church 145
V. Concerning the Repairs of Churches, and Divers Other
Matters 145
VI. Concerning the Arbitrary Conduct of Bishops 147
VII. Emancipated Slaves of the Church, who are still
Bound to Render it Service, shall not be Permitted
to Marry Persons who are Freeborn 150
TITLE II.--_Concerning Donations in General._
I. A Donation Extorted by Violence is Void 152
II. Concerning Royal Donations 152
III. Concerning Property Given to a Husband or a Wife
by the King 152
IV. Concerning Property, in Addition to the Dowry, Given
to a Wife by her Husband 153
V. Concerning Property Given to a Husband by his Wife;
and Where a Wife has been Convicted of Adultery 153
VI. Concerning Property Donated Verbally, or Conveyed
by Instruments in Writing 154
VII. Concerning Gifts Bestowed upon one Another by
Husband and Wife 155
TITLE III.--_Concerning the Gifts of Patrons._
I. Where Anyone who has been Placed under the Control
of Another, or of the Son of that Person,
Deserts either his Patron, or the Children of the
Latter 156
II. Concerning Arms given to Bailiffs who have been
Appointed for the Defence of Anyone, and the
Acquisitions of said Bailiffs 158
III. Concerning Property Acquired through the Appointment
of a Patron, or which has been Donated by Him 158
IV. Concerning Property Accepted and Acquired through
the Office of Patron 158
TITLE IV.--_Concerning Exchanges and Sales._
I. What Constitutes a Valid Exchange, and what a Valid
Purchase 160
II. If the Vendor is not a Person of Good Character, he
must give a Surety 160
III. Any Sale made under Compulsion shall be Void 160
IV. In Case the Price should not be Paid, after Earnest
Money has been Given 160
V. Where only Part of the Price is Paid 161
VI. Where Fraud is Committed in Stating the Price of
whatever is Sold 161
VII. Where Anyone says that he Sold his Property for Less
than it was Worth 161
VIII. Concerning Those who Sell, or Give Away, the Property
of Others 162
IX. It shall not be Lawful to Sell, or Give Away, Property
whose Ownership is in Dispute 162
X. Where a Freeman Allows Himself to be Sold 162
XI. Concerning Free Men and Free Women sold by Slaves
or Freemen 163
XII. It shall be Illegal for Parents to Sell their
Children or, by any Contract whatsoever, to Place
Them in the Power of Others 163
XIII. Concerning Sales by Slaves 164
XIV. Where a Slave, who has been Sold, Accuses his Former
Master of Crime 165
XV. A Master may Claim the Property of a Slave whom
he has Sold 165
XVI. Whether a Slave may be Redeemed with his own
Private Property 166
XVII. No One, against his Will, shall be Compelled to Sell
his Slaves 166
XVIII. Where a Slave, on Account of a Crime he has Committed,
is Transferred to the Possession of Another 167
XIX. Concerning Property Belonging to Private Persons,
and to the Courts, which may not be Alienated 167
XX. Where Anyone Sells or Gives Away Property, whose
Possession should first have been Transferred by
Judicial Decree 169
XXI. Of Slaves Captured and Sold by the Enemy 169
XXII. For what Price this Book shall be Bought 169
TITLE V.--_Concerning Property Committed to the Charge of,
or Loaned to, Another._
I. Concerning Animals Hired to Another 171
II. Concerning Animals Loaned for the Purpose of Labor 172
III. Concerning Things which have been Loaned, and
afterwards Destroyed by Fire, or Lost by Theft 172
IV. Concerning Lost Money, and the Interest on the Same 173
V. Concerning Property Committed to the Charge of
Another, and Lost by Accident at Sea 173
VI. Concerning Property Entrusted to a Slave without his
Master’s Knowledge 174
VII. Where a Slave Fraudulently Demands Property Entrusted
by his Master to Another 174
VIII. Concerning Legal Interest 175
IX. What shall be Paid for the Use of Fruits of the Soil 175
X. Who are Entitled to Wills, or Instruments in Writing,
which have been Entrusted to the Keeping of Anyone 176
TITLE VI.--_Concerning Pledges and Debts._
I. Where Articles are not Pledged 177
II. Where Pledges are Deposited, and afterwards Stolen 177
III. Where Articles are Pledged as Security for Debts 177
IV. Where a Pledge is not Restored when the Debt is Paid 178
V. Where a Person is Liable for many Debts, or has Committed
many Crimes 179
VI. In what way the Debt of a Person who is Dead, or any
Injury he has Committed, shall be Inquired into 180
TITLE VII.--_Concerning the Liberation of Slaves, and Freedmen._
I. Where Slaves are Liberated, either by Instruments in
Writing, or in the Presence of Witnesses 182
II. Where a Slave Belonging to One, or to Several Persons,
is set at Liberty 182
III. Concerning Those who Declare that they are Free 183
IV. Whether he who is enjoying Liberty, can be Returned
to Slavery 183
V. Whether he who is sought to be Returned to Slavery,
can be Deprived of any of his Property 183
VI. Whether he who has been Declared to be Free by his
Master, in Court, can be again Reduced to Slavery,
on the Demand of said Master 184
VII. Where anyone, Influenced by Fear, Asserts that he is
a Slave 184
VIII. Where a Freeman is Claimed as a Slave; or Where a
Slave Declares Himself to be Free 184
IX. For what Reasons Freedom, once Given, shall be Revoked 185
X. Where a Freedman Inflicts Injury upon him who Gave
him his Freedom 185
XI. A Freedman shall not be Permitted to give Testimony
against his Former Master, or against the Children of
the Latter 186
XII. Freedmen shall not be Permitted to Testify in Court 186
XIII. Concerning the Disposition of the Property of a Person
who has been set Free, should he Die without
Leaving Legitimate Children 186
XIV. Concerning the Conditions Imposed by a Master, where
Slaves are Liberated by an Instrument in Writing 187
XV. Concerning the Liberation of Slaves belonging to the
Crown 188
XVI. Concerning the Property of Slaves belonging to the
Crown, who have been Liberated 188
XVII. Neither Freedmen, nor their Descendants, shall either
Marry into, or Act Insolently towards, the Family of
their Patron 189
XVIII. Freedmen who have Entered any Religious Order, shall
not be Returned to the Service of their Masters 190
XIX. In what manner Royal Freedmen and their Descendants
shall Defend the King, while Serving in the
Army; and with whom Those in the Public Service
shall March 190
XX. Concerning Freedmen who are Guilty of Transgressions 191
BOOK VI.
CONCERNING CRIMES AND TORTURES.
TITLE I.--_Concerning the Accusers of Criminals._
I. A Slave, Accused of a Crime, may be Demanded of
his Master by the Officials of the District 193
II. For what Offences, and in what Manner, Freeborn
Persons shall be put to the Torture 194
III. For what Offences, and in what Manner, Slaves, of
Either Sex, shall be put to the Torture, on account
of the Crimes of their Masters 196
IV. For what Offences, and in what manner, a Slave, or a
Freedman, shall be Tortured 197
V. In what way an Accusation shall be Brought to the
Notice of the King 200
VI. How Kings should Practise the Duties of Mercy 201
VII. He Alone shall be Considered Guilty who Committed
the Crime 201
TITLE II.--_Concerning Malefactors and their Advisers,
and Poisoners._
I. Where a Freeborn Man Consults with a Soothsayer
Concerning the Health, or the Death of Another 203
II. Concerning Poisoners 204
III. Concerning Malefactors and their Advisers 204
IV. Concerning Those who are Guilty of any Illegal Acts,
or any Injury, towards Men, Animals, or any Kind of
Property Whatsoever 205
TITLE III.--_Concerning Abortion._
I. Concerning Those who Administer Drugs for the Production
of Abortion 206
II. Where a Freeborn Man Causes a Freeborn Woman to
Abort 206
III. Where a Freeborn Woman Causes another Freeborn
Woman to Abort 207
IV. Where a Freeborn Man Produces Abortion upon a
Slave 207
V. Where a Slave Produces Abortion upon a Freeborn
Woman 207
VI. Where a Slave Produces Abortion upon a Female
Slave 207
VII. Concerning Those who Kill their Children before, or
after, they are Born 207
TITLE IV.--_Concerning Injuries, Wounds, and Mutilations,
Inflicted upon Men._
I. Concerning the Injury of Freemen and Slaves 209
II. Concerning Insolent Persons and their Acts 210
III. Concerning the Law of Retaliation, and the Amount
to be Paid in Lieu of the Enforcement of said Law 211
IV. Where a Person Deprives a Traveler of his Liberty,
against the Will of the Latter, and with Intent to
do him Injury 214
V. He who Violates the Law by Inflicting Injury upon
Another, shall undergo the same Punishment which
he Himself Inflicted 215
VI. He shall not be Considered Guilty who Struck Another,
when the Latter was about to Strike Him 215
VII. Where a Slave Insults a Freeborn Person 216
VIII. Where one Freeborn Person Strikes Another 216
IX. Where the Slave of Another is Mutilated by a Freeborn
Person 216
X. Where a Slave Strikes a Freeborn Person 217
XI. Where One Slave Mutilates Another Slave 217
TITLE V.--_Concerning Homicide._
I. Where One Kills Another without Knowing it 218
II. Where One Kills Another without Seeing Him 219
III. Where One, being Pushed, Kills Another 219
IV. Where One, Seeking to Strike Another, Kills a Third
Person 219
V. Where One is Killed while Interfering in a Quarrel 220
VI. Where One, Intending to Inflict a Slight Injury, Kills
Another 220
VII. Where One, in Sport, or Recklessly, Kills Another 220
VIII. Where One Kills Another through Immoderate Punishment 221
IX. Where a Freeman Kills a Slave by Accident 221
X. Where a Slave Kills a Freeman by Accident 221
XI. Where One Man Intentionally Kills Another 221
XII. No Master shall Kill his Slave without Good Reason;
and Where One Freeman Kills Another 222
XIII. No One shall Deprive a Male or Female Slave of a Limb 225
XIV. Any Person may bring an Accusation of Homicide 226
XV. Both Relatives and Strangers have a Right to Accuse
a Person of Homicide 227
XVI. Where a Homicide Takes Refuge in a Church 227
XVII. Concerning Parricides, and the Disposition of their
Property 228
XVIII. Concerning Those who Kill Others Related to Them
by Blood 229
XIX. Where One Blood-Relative is Accidentally Killed by
Another 230
XX. Where One Slave Kills Another by Accident 230
XXI. Concerning those who Destroy their Souls by Perjury 230
BOOK VII.
CONCERNING THEFT AND FRAUD.
TITLE I.--_Concerning Informers of Theft._
I. Concerning Informers and Persons who give Information
of Theft 233
II. A Slave, Acting as Informer, must not be Believed,
unless the Testimony of his Master is also Given 234
III. Where the Informer Knew of the Commission of the
Theft 284
IV. Concerning the Compensation of an Informer 235
V. Where an Innocent Person is Accused of Crime by an
Informer 235
TITLE II.--_Concerning Thieves and Stolen Property._
I. He who is Searching for Stolen Property must Describe
it 238
II. Where a Slave Commits a Theft Before or After he
has Received his Freedom 238
III. Where a Slave, who has Become the Property of
Another Master, Commits an Unlawful Act 238
IV. Where a Freeman Commits a Theft in Company with
the Slave of Another Person 239
V. Where a Master Commits a Theft in Company with his
Slave 239
VI. Where a Slave, Belonging to Another Person, is
Instigated by Anyone to the Commission of
Unlawful Acts 239
VII. Concerning Those who Knowingly Associate with
Thieves 240
VIII. Where Anyone, Ignorantly, Buys Stolen Property of a
Thief 240
IX. Where Anyone, Knowingly, Buys Stolen Property of a
Thief 241
X. Concerning Money, and Other Property, Stolen from
the King 241
XI. Concerning the Stealing of Bells from Cattle 241
XII. Concerning the Theft of Mill Machinery 242
XIII. Concerning the Punishment of a Thief 242
XIV. A Thief, when Taken, shall be Brought Before the
Judge; and Where a Freeman Commits a Theft in
Company with a Slave, Both shall Undergo the
Same Penalty 242
XV. Where a Thief, Defending Himself with a Sword, is
Killed 243
XVI. Where a Thief is Killed at Night, while he is Being
Taken 243
XVII. Concerning Property Injured or Destroyed; and the
Reparation to be Made for what has been Damaged
or Stolen 243
XVIII. Concerning Property Rescued from Shipwreck 243
XIX. Concerning the Property and the Heirs of Thieves 244
XX. Concerning Those who Rescue Thieves and Other
Criminals, after their Capture 244
XXI. Where a Slave Steals from his Master, or from a
Fellow-Slave 245
XXII. Within what Time, after his Arrest, a Thief must be
Brought Before the Judge 245
XXIII. Where Anyone Secretly Kills an Animal Belonging to
Another 246
TITLE III.--_Concerning Appropriators and Kidnappers
of Slaves._
I. Where Anyone Seizes the Slave of Another 247
II. Where a Freeman is Convicted of Having Stolen the
Male or Female Slave of Another 247
III. Concerning Kidnapped Children of Freeborn Persons 248
IV. Where one Slave Kidnaps Another Belonging to a
Person not his Master 248
V. Where a Slave, at the Command of his Master, Kidnaps
a Freeborn Person 249
VI. Where a Slave, without the Knowledge of his Master,
Kidnaps a Freeborn Person 249
TITLE IV.--_Concerning the Custody and Sentence of
Condemned Persons._
I. Where a Judge is Asked to Punish Crime, and is
Afterwards Treated with Contempt 250
II. The Governor of the City shall Aid the Judge in the
Arrest of Persons Accused of Crime 250
III. Where a Person Breaks out of Prison, or Influences the
Jailer for that Purpose 251
IV. Concerning the Compensation which may be Received
from those in Custody 251
V. Where a Judge who is Lenient to Offenders Against
the Law, Releases a Criminal 252
VI. Concerning the Punishment of a Judge who Improperly
Discharges a Criminal 252
VII. A Person Guilty of Crime shall receive the Sentence of
the Law not Secretly, but in Public 252
TITLE V.--_Concerning Forgers of Documents._
I. Concerning Those who Forge Royal Orders and Mandates 253
II. Concerning Those who Forge Documents, or Attempt
to Forge Them 254
III. Concerning Those who Forge, or Serve, False Orders in
the Name of the King, or a Judge 255
IV. Concerning Those who Falsify a Will against the Consent
of a Party while Living, or Disclose the Contents
of the Same 256
V. Concerning Those who Attempt to Forge, or Conceal,
the Will of a Person Already Deceased 256
VI. Where Anyone Assumes a Fictitious Name, or Adopts
a False Lineage or Relationship 256
VII. Concerning Documents Fraudulently Dated, Prior to
their Execution 257
VIII. Concerning Later Documents Fraudulently Executed 258
IX. Concerning those who Falsely Write, or Publish,
Decrees and Edicts of the King 259
TITLE VI.--_Concerning Counterfeiters of Metals._
I. Concerning the Torture of Slaves, in Order to Convict
their Masters of Counterfeiting Money; and the
Reward of Witnesses who have given Information
of the Same 261
II. Concerning Those who Debase _Solidi_, or Other Coins 261
III. Concerning Those who Debase Gold by a Mixture of
Other Metals 262
IV. Where Artificers of Metals are Found to have Abstracted
a Portion of what was Entrusted to Them 262
V. No One shall Refuse to Accept a Golden _Solidus_ of
Legal Weight 262
BOOK VIII.
CONCERNING ACTS OF VIOLENCE AND INJURIES.
TITLE I.--_Concerning Attacks, and Plunder of Property._
I. The Patron, or the Master, shall Alone be Held Guilty,
if, by his Orders, a Freeman or a Slave should
Commit any Unlawful Act 264
II. Where a Party in Possession is Expelled by Force 264
III. Where Many Persons Unite in Causing Bloodshed 264
IV. Where a Person is Shut up by Violence, Inside his Own
House, or Within his Gate 265
V. Property, while in the Possession of Another, shall
not be Seized, Except Under Legal Process 266
VI. Where a Person is Guilty of Asking Others to Commit
Depredations 267
VII. A House shall not be Entered in the Absence of the
Master, or while he is on a Public Expedition 267
VIII. Where the Slaves of a Person who is Absent on a
Public Expedition Commit Unlawful Acts 268
IX. Concerning Those who, while on an Expedition, Commit
Robbery or Other Depredations 268
X. He in whose Possession Stolen Property has been
Found, shall be Compelled to name his associates in
the Crime 269
XI. Concerning Those who are Guilty of Giving Directions
to Others for Purposes of Robbery 269
XII. Concerning Those who Rob, or Inflict Annoyance
upon Anyone, while he is on a Journey, or at Work
in the Country 269
XIII. Whether a Person Caught in the Act of Robbery may
be Killed 270
TITLE II.--_Concerning Arson and Incendiaries._
I. Concerning Those who set Fire to Houses either Within
or Without a City 271
II. Where Forests are set on Fire 272
III. Where a Conflagration Results from the Smouldering
Campfire of a Traveller 273
TITLE III.--_Concerning Injuries to Trees, Gardens, or
Growing Crops of any Description._
I. Concerning the Compensation for Cutting Down Trees 274
II. Where Anyone Destroys the Garden of Another 275
III. Where Injury, or Homicide, Results from the Cutting
Down of a Tree 275
IV. Where a Tree is Partially Cut Down, or is Injured
by Fire 276
V. Concerning the Cutting Down, Tearing up, or Burning
of Vines; and the Seizure of Growing Crops 276
VI. Where Fences are Cut Down, or Burned 277
VII. Where Fence Posts are Cut 277
VIII. Where Anyone is Caught with a Vehicle, in a Wood
Belonging to Another 278
IX. Concerning the Unreasonable Enclosure of Orchards,
Vineyards and Pastures 278
X. Where Animals are Voluntarily Loosed in Fields where
there are Crops, or in Vineyards 278
XI. Where Animals Damage Growing Crops 279
XII. Where an Enclosed Field is Ruined by Flocks 279
XIII. Where Fruits of any Kind are Destroyed by Animals 279
XIV. Where, while Anyone is Driving Cattle out of Cultivated
Fields, Another Person Rescues them, or Takes
Possession of them afterwards Secretly or by Force 280
XV. Concerning Animals Found in Vineyards, Fields of
Grain, or Meadows 281
XVI. Where Animals Depart from Fields of Growing Grain
Before they are Driven Out 282
XVII. Where Anyone Mutilates an Animal found in a Field
of Grain 282
TITLE IV.--_Concerning Injuries to Animals, and
Other Property._
I. Where a Horse, or any other Animal, which has been
Tied Up, is Removed, or Injured, in any Way,
Without the Consent of the Owner 284
II. Where any Animal which has been Loaned, is Used
against the Directions, or Will of the Owner,
or is Abused 285
III. Where the Mane or Tail of a Horse, or any Other
Animal, is cut off by Anyone 285
IV. Where Anyone Castrates an Animal Belonging to
Another 285
V. Where Anyone Produces an Abortion upon a Beast of
Burden Belonging to Another 286
VI. Where Anyone Produces an Abortion upon any kind of
Animal Belonging to Another 286
VII. Where Animals of any kind Injure One Another 286
VIII. Where a Person Kills an Animal Belonging to
Another, whether he has been Injured by said
Animal, or Not 286
IX. Where an Ox, Belonging to Another, is Used for
Labor, without the Consent of its Owner 287
X. Where Animals, of any kind, Belonging to Another,
are Overworked in the Threshing of Grain 287
XI. Where Cattle, which have done no Injury, are
Shut Up 287
XII. Where an Animal Causes Injury to Anyone 288
XIII. Where an Animal is Injured, or Killed, by a Blow 288
XIV. Where Cattle, Belonging to Another, with or without
the Knowledge of the Owner, are Mingled with the
Herd or Flock of the Latter 288
XV. Where Anything Intended to Frighten an Animal is
Fastened to it, and it should be either Injured,
or Killed, in Consequence 289
XVI. Where a Vicious Animal, while on the Premises of its
Owner, Kills Anyone 289
XVII. Where Anyone Rids himself of a Vicious Animal, or
Still Retains it in his Possession 290
XVIII. Where Anyone Teases an Animal and is Injured by it,
he Alone shall be Responsible for the Injury 290
XIX. Where a Dog that has been Irritated, whether the
Provocation was Wanton or not, is Proved to have
Injured, or Killed Anyone 291
XX. Concerning a Vicious Dog 291
XXI. Concerning Injuries to Clothing 291
XXII. Where a Trespasser Falls into a Trap set for Wild
Animals 292
XXIII. He who sets Snares or Traps for Wild Beasts, must
Inform his Neighbors of the Places where said
Snares are Set 292
XXIV. Concerning Injuries Resulting from the Obstruction
of Highways 293
XXV. Of the Space that is to be Preserved along Public
Highways 293
XXVI. Where the Animals of Persons Traversing Fields that
are not Enclosed, are Driven Away 294
XXVII. Animals Driven along the Highway Cannot be Excluded
from Open Pastures 295
XXVIII. He who has Land under Cultivation along the Bank
of a River, has a Right to Enclose the Same 295
XXIX. Concerning the Right to Enclose Streams 295
XXX. Concerning Those who Damage Mills, and Ponds 296
XXXI. Concerning Those who Steal Water from Streams
Belonging to Others 296
TITLE V.--_Concerning the Pasturage of Hogs, and
Concerning Strays._
I. Where Hogs are Pastured on Acorns, Either without
Authority, or under Contract 298
II. Where Hogs are Fed on Acorns on Land Belonging to
Several Persons 299
III. Where Hogs Turned on Land to be Fed on Acorns,
under Contract, are Taken away by Stealth, Before
the Tenth Part of said Hogs are Delivered 299
IV. Where Hogs are Found Wandering in Woodland 300
V. Where a Drove of Animals, of any Kind, Enter upon
the Pasture-land of Another Person 300
VI. Public Notice shall be given of Strays by him who
Finds them 301
VII. Whoever Finds any Strays shall take Proper Care of
the Same 301
VIII. No Stray Animal shall be Either Sheared, Branded,
or Appropriated by Anyone 301
TITLE VI.--_Concerning Bees, and the Damage they Cause._
I. Where a Person Finds Bees on his Property 303
II. Where Bees Cause any Damage 303
III. Concerning the Theft of Bees 303
BOOK IX.
CONCERNING FUGITIVES AND REFUGEES.
TITLE I.--_Concerning Fugitives, and Those who Conceal,
and Assist them in Their Flight._
I. Where a Freeman or a Slave is Found to have Concealed
a Fugitive 306
II. Where a Fugitive is Released from his Chains by any
Person 306
III. Within what Time a Fugitive Slave that has been
Found, shall be Produced Before the Judge 307
IV. Where Anyone, Ignorantly, Receives a Fugitive
Slave, and Cares for Him 307
V. Where Anyone Persuades the Slave of Another to
Flee, or Shows him Hospitality 308
VI. Where a Man, Unknown to be a Slave, is Received by
Another, and Remains with him Several Days 308
VII. Where a Slave, Knowingly, Directs a Fugitive Slave
in his Flight 309
VIII. Concerning the Reception of Fugitive Slaves; and
Whether a Master or a Slave may receive a Fugitive
Slave Belonging to Another 309
IX. Where a Fugitive Slave Comes to the House of any
Person, Notice of the Fact must be Given to the
Neighbors and Authorities of the District 311
X. Where a Slave that has been Sold into a Foreign
Country, Returns as a Fugitive, and is Sold a Second
Time, he shall be Entitled to his Freedom 311
XI. Where a Fugitive Slave Takes Refuge with Another
Person, an Investigation must be Made, to Ascertain
whether he was not Sent by his Master, in
Order that the Latter might Receive Compensation
from the Person who Received said Slave 312
XII. Where a Slave, Falsely Declaring that he is Free,
Serves Another for Hire 312
XIII. Where a Fugitive Slave is Found in the House of any
Person 313
XIV. Concerning the Reward for Arresting a Fugitive Slave 313
XV. Where a Fugitive Slave Falsely Declares that he is
Freeborn 314
XVI. Where a Fugitive Slave, Declaring that he is Freeborn,
Marries a Freeborn Woman 314
XVII. Concerning Property Acquired by Fugitive Slaves 315
XVIII. Concerning Those who Refuse to Restore Fugitive
Slaves to their Masters 315
XIX. Where a Freeman, or a Slave, Undertakes the Concealment
of Robbers 316
XX. A Judge must Surrender a Fugitive Slave, with all the
Property Found in his Possession, to his Master 316
XXI. Concerning Fugitive Slaves and those who Shelter Them 316
TITLE II.--_Concerning Those who Refuse to go to War,
and Deserters._
I. Where an Officer of the Army, Corrupted by a Bribe,
Permits a Soldier to Depart, or does not Compel
him to Leave his Home 320
II. Where Conscription Officers Appropriate the Property
of Those they Call to Arms 321
III. Where an Officer of the Army Abandons the War, and
Returns Home, or Permits Others to do so 321
IV. Where an Officer of the Army, Deserting the Service,
Returns Home, or Compels Others to do so 322
V. Where a Conscription Officer Receives a Bribe to Permit
Soldiers who are not Ill, to Remain at Home 323
VI. Concerning those who Appropriate Army Rations, or
are Guilty of Fraud in the Distribution of the Same 323
VII. What Reward he who Rescues Slaves, or Property, from
the Possession of the Enemy, shall be Entitled to 324
VIII. What Conduct shall be Pursued when Public Scandal
Arises within the Bounds of Spain 324
IX. Concerning Those who Fail to Enlist at the Appointed
Time or Place, or Desert; and What Proportion of
the Slaves Belonging to any Person shall join the
Army 327
TITLE III.--_Concerning Those who Seek Sanctuary in a Church._
I. No One, Claiming the Privilege of Sanctuary in a
Church, shall be Taken from Thence by Force,
Unless he Defends himself with Arms 331
II. Where a Person Seeks Sanctuary in a Church, and is
Killed, while Defending himself with Arms 331
III. Concerning the Penalty for Removing a Man from a
Church by Force 331
IV. A Debtor, or a Criminal, Cannot be Forcibly Removed
from a Church, and must Pay such Debts, or Penalties,
as are Due 332
BOOK X.
CONCERNING PARTITION, LIMITATION AND BOUNDARIES.
TITLE I.--_Concerning Partition, and Lands Conveyed by Contract._
I. A Partition Once Made, shall Remain Forever in Force 334
II. No Partition Made Between Brothers shall be Revoked,
Even if it was not Made in Writing but Only
in the Presence of a Competent Witness 334
III. Where a Partition is Made Among Many Persons by
the Majority and those Entitled to the Larger Share,
it shall not be Changed by any Act of the Minority 334
IV. One Heir shall have the Right to Act for all the
Others, either as Plaintiff or Defendant 335
V. Where Anyone Violates a Contract Establishing a
Partition, and Seizes a Portion of the Property 335
VI. Where an Heir Plants a Vineyard, or Erects a House,
on Land Belonging to his Co-Heirs 336
VII. Where one Person Plants a Vineyard on the Land of
Another, to which he has no Title 336
VIII. Concerning the Division of Lands Made Between
Goths and Romans 337
IX. Concerning Forests Still Undivided Among Goths and
Romans 337
X. Whatever Acts a Slave may Perform, without the
Order of his Master, shall be Void, except when
Otherwise Provided by Law 337
XI. Whoever Enters upon Land under a Lease, must
Comply with his Contract 337
XII. Where Lands are Leased, by a written Contract, for a
Term of Years 338
XIII. Where he who Rents Land under Contract, Cultivates
a Greater Area than he has a Right to do, under the
Conditions of the Same 338
XIV. Where a Dispute Arises Between Landlord and Tenant,
Concerning Arable Lands, or Forests, which are
Leased 339
XV. Both Tenants must Pay the Rent for Land which has
been Sublet 339
XVI. Where Goths have Appropriated any of the Third
Part of Land Belonging to Romans, they shall
Restore the Entire Amount to the Romans, under
Order of Court 339
XVII. Concerning the Partition of Property Among the
Blood-Relatives of Slaves, and the Distribution of
their Personal Estates 340
XVIII. All Personal Property shall be Classed under One Title 341
XIX. Where a Contract is not Complied With according to
its Terms 341
TITLE II.--_Concerning the Limitations of Fifty and Thirty Years._
I. After the Lapse of Fifty Years, Neither Goths nor
Romans can Assert a Claim to Property 343
II. No Fugitive Slave shall be Again Reduced to Servitude,
after the Lapse of Fifty Years 343
III. No Suit at Law shall be Brought Thirty Years After
the Cause of Action has Arisen 343
IV. The Limitation of Thirty Years shall Run in all Cases
Excepting those where Slaves of the Crown are
Concerned 344
V. Concerning Claims made within Thirty Years 344
VI. The Limitation of Thirty Years shall not Run while
Persons are Exiled 346
VII. Within what Time Slaves Belonging to the Crown can
Again be Reduced to Slavery 347
TITLE III.--_Concerning Boundaries and Landmarks._
I. How Boundaries and Landmarks shall be Preserved 348
II. Concerning the Destruction and Removal of Landmarks 348
III. What is to be Done when a Dispute Arises Concerning
Boundaries 348
IV. Where One Person makes a Claim to Land Included
within the Boundaries of Another 349
V. Where any Change was made in the Boundaries of Land
During the Time of the Romans, no Claim Based upon
Other Boundaries shall Prevail 350
BOOK XI.
CONCERNING THE SICK AND THE DEAD, AND MERCHANTS
WHO COME FROM BEYOND SEAS.
TITLE I.--_Concerning Physicians and Sick Persons._
I. No Physician shall Presume to Bleed a Woman, in the
Absence of her Relatives 353
II. No Physician shall Visit Persons Confined in Prison 354
III. Where a Physician Treats Disease under a Contract 354
IV. Where a Sick Person Dies, while a Physician is Treating
him under a Contract 355
V. Where a Physician Removes a Cataract from the Eye 355
VI. Where a Freeman or a Slave Dies from Being Bled 355
VII. Concerning the Compensation to be Received for the
Instruction of a Student in Medicine 355
VIII. No Physician shall be Imprisoned without a Hearing 355
TITLE II.--_Concerning Those who Disturb Sepulchres._
I. Concerning Persons who Deface or Injure Tombs 356
II. Where a Coffin is Removed from a Grave 356
TITLE III.--_Concerning Merchants who Come from Beyond Seas._
I. Where Foreign Merchants are Detected Selling Stolen
Property 357
II. Foreign Merchants shall be Judged by their own
Magistrates, and According to their own Laws 357
III. Where a Foreign Merchant Carries Away with him,
from our Kingdom, a Person whom he has Hired 358
IV. Where a Foreign Merchant takes Away a Slave for
Purposes of Commerce 358
BOOK XII.
CONCERNING THE PREVENTION OF OFFICIAL OPPRESSION,
AND THE THOROUGH EXTINCTION OF
HERETICAL SECTS.
TITLE I.--_Concerning the Exercise of Moderation in
Judicial Decisions, and the Avoiding of Oppression
by Those Invested with Authority._
I. Concerning the Admonition of the King, by which
Judges are Ordered to Display Moderation in the
Administration of Justice 359
II. No Official, Invested with Power Over the People and
Supervision Over their Acts, shall Subject them to
Unnecessary Expense, or Other Impositions 360
TITLE II.--_Concerning the Eradication of the Errors
of all Heretics and Jews._
I. Laws Having Been Given to True Believers, it is Now
Necessary to Place Restraints upon Infidels 363
II. Concerning the Renunciation of the Errors of all
Heresies 364
III. Concerning the Laws Promulgated on Account of the
Wickedness of the Jews 365
IV. Concerning the Extirpation of the Errors of the Jews
in General 366
V. Jews shall not Celebrate the Passover According to
their Custom 367
VI. Jews shall not Contract Marriage According to their
Custom 367
VII. Jews shall not Perform the Rite of Circumcision 367
VIII. Jews shall not Divide their Food into Clean and
Unclean, According to their Custom 367
IX. No Jew shall Subject a Christian to Torture 368
X. No Jew shall Testify Against a Christian; and Under
what Circumstances the Descendants of Jews may
Testify 368
XI. No Jew shall Circumcise a Christian Slave 369
XII. Concerning the Penalties to be Inflicted for Offences
Committed by Jews 369
XIII. Concerning Christian Slaves who are Known to have
been Sold or Liberated by Jews 369
XIV. Under no Circumstances shall Christian Slaves Attach
themselves to Jews, or be Admitted into their
Sect 371
XV. All Christians are Forbidden to Defend or Protect a
Jew by Either Force or Favor 374
XVI. Memorial of the Jews Presented to the King 375
XVII. Concerning Judaizing Christians 376
XVIII. Concerning the Perfidy of the Jews 377
TITLE III.--_Concerning New Laws against the Jews, in
which Old Ones are Confirmed, and New Ones are Added._
I. Concerning Old Laws Enacted Against the Transgressions
of the Jews, and the Confirmation of the Same 382
II. Concerning Blasphemers Against the Holy Trinity 384
III. Jews shall not Absent themselves, or Remove their
Children or Slaves, to Avoid the Blessing of
Baptism 385
IV. Jews shall not Celebrate the Passover According to
their Custom, or Practice Circumcision, or Induce
any Christian to Renounce the Church of Christ 385
V. Jews shall not Presume to Keep the Sabbath, or
Celebrate Festival Days, According to their Ritual 386
VI. Every Jew shall Cease from Labor on Sunday, and
on all Appointed Holidays 387
VII. Jews shall not make any Distinction in their Food,
According to their Custom 388
VIII. A Jew shall not Marry a Person Nearly Related to
him by Blood, or Contract Marriage without the
Benediction of a Priest 388
IX. Jews who Insult our Religion, while Attempting to
Defend their own Sect, shall not Betake
themselves Elsewhere; nor shall Anyone Shelter
them while Fugitives 389
X. No Christian shall Accept a Gift from a Jew, to the
Detriment of the Christian Faith 390
XI. Jews shall not Dare to Read Such Books as the Christian
Faith Rejects 391
XII. Christian Slaves shall not Serve, or Associate with,
Jews 392
XIII. Where a Jew Declares that he is a Christian, and, for
this Reason, does not Wish to Dispose of a Christian
Slave 393
XIV. The Confession of Jews; and, In What way Each One
of Them, who is Converted, must Write Down the
Proof of his Conversion 395
XV. Conditions under which Jews must Make Oath, when,
having been Converted, they give in their
Confession of Faith 397
XVI. Concerning the Christian Slaves of Jews, who have not
Proclaimed themselves Christians, and those who
Expose Them 401
XVII. No Jew, under any Authority whatever, shall Dare to
Oppress, Punish, or Imprison a Christian, Except
by Order of the King 401
XVIII. If Slaves of Jews, not yet Converted, should Claim
the Grace of Christ, they shall be Liberated 402
XIX. Jews shall not Rule Christians under the Authority of
Mayors of Towns, or of Superintendents of Estates;
and Concerning the Penalties to be Imposed upon
Such as Appoint them to Office 402
XX. Where a Jew comes from Another Country into any of
the Provinces of Our Kingdom, he must, at once,
Present himself before a Bishop, a Priest, or a
Judge; and What shall be Done under the
Circumstances 403
XXI. How Assemblies of Jews shall Visit the Bishop on
Appointed Days 404
XXII. Where Anyone has a Jew in his Service, and a Priest
Demands him, the Master shall not have a Right to
Retain said Jew 405
XXIII. All Restraint of, and Control over, the Jews shall be
Vested in the Priesthood 405
XXIV. Concerning the Penalties to be Imposed upon Priests
and Judges who Neglect to Enforce the Laws against
the Jews 406
XXV. No Judge shall Presume to Investigate the Offences
of the Jews without the Knowledge of an
Ecclesiastic 407
XXVI. Bishops shall be Immune from Punishment when their
Priests do not Inform them of such Things as
should be Corrected 407
XXVII. Concerning the Mercy to be Shown by Princes towards
Those who have been Truly Converted to the
Christian Faith 408
XXVIII. Bishops shall Give to all Jews a Copy of this Book,
which has been Published for the Purpose of
Correcting their Errors; and their Confessions
and a Record of their Conversion shall be
Deposited among the Archives of the Church 408
LAWS OF THE JUDGES.
BOOK I.
CONCERNING LEGAL AGENCIES.
TITLE I. THE LAWMAKER.
=I.= _What the Method of Making Laws Should Be._
=II.= _How the Lawmaker Should Act._
=III.= _What Should be Required of the Lawmaker._
=IV.= _What the Conduct of the Lawmaker Should Be in his
Daily Life._
=V.= _How the Lawmaker Should Impart Advice._
=VI.= _What Manner of Speech the Lawmaker Should Use._
=VII.= _How the Lawmaker Should Act in Rendering Judgment._
=VIII.= _How the Lawmaker Should Comport Himself in Public and
Private Affairs._
=IX.= _What Instruction it is Fitting that the Lawmaker
Should Give._
=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._
=II.= _What the Law Is._
=III.= _What the Law Does._
=IV.= _What the Law Should Be._
=V.= _Why the Law is Made._
=VI.= _How the Law Should Triumph over Enemies._
=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._
=II.= _The Royal Power, as well as the Entire Body of the
People, should be Subject to the Majesty of the Law._
=III.= _It is Permitted to No One to be Ignorant of the Law._
=IV.= _The Business of the King shall First be Considered,
then that of the People._
=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._
=VI.= _Concerning Those who Abandon the King, or the People,
or their Country, or who Conduct Themselves with
Arrogance._
=VII.= _Of Incriminating the King, or Speaking Ill of Him._
=VIII.= _Of Annulling the Laws of Foreign Nations._
=IX.= _No One shall presume to have in his Possession
another Book of Laws except this which has just been
Published._
=X.= _Concerning Fast Days and Festivals, during which No
Legal Business shall be Transacted._
=XI.= _No Cause shall be Heard by the Judges which is not
Sanctioned by the Law._
=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._
=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._
=XIV.= _What Causes shall be Heard, and to what Persons Causes
shall be Assigned for a Decision._
=XV.= _Judges Shall Decide Criminal as well as Civil Causes._
=XVI.= _Concerning the Punishment of Those who Presume to Act
as Judges, who have not been Invested with Judicial
Power._
=XVII.= _Concerning Those who Ignore the Letters of the Judge,
or His Seal, Calling Them to Court._
=XVIII.= _Where a Judge Refuses to Hear a Litigant, or Decides
Fraudulently or Ignorantly._
=XIX.= _Where a Judge, either through Convenience to Himself,
or through Want of Proper Knowledge, Decides a Cause
Improperly._
=XX.= _Where a Judge, either through Deceit or Cunning,
imposes Needless Costs upon Either, or Both the
Parties to a Suit._
=XXI.= _What, First of All, a Judge should be Familiar With,
in order that he may Understand a Case._
=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._
=XXIII.= _How a Judge should render Judgment._
=XXIV.= _Concerning the Emoluments and the Punishment of the
Judge, and of the Bailiff._
=XXV.= _Everyone who is Invested with Judicial Power Shall
Legally bear the Title of Judge._
=XXVI.= _Every Bond which is Exacted by a Judge, after an
Unjust Decree, shall be held Invalid._
=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._
=XXVIII.= _Concerning the Power, conferred upon Bishops, of
Restraining Judges who Decide Wrongfully._
=XXIX.= _The Judge, when Inquired of by a Party, should be able
to give a Reason for His Decision._
=XXX.= _Concerning the Punishment of Judges who Appropriate
the Property of Others._
=XXXI.= _Concerning those who Treat the Royal Order with
Disdain._
=XXXII.= _How the Judge should Inquire into Causes by the
Ordeal of Hot Water._
=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.
=I.= _No One can Refuse to Answer because the Plaintiff has
Never Presented his Claim to Him._
=II.= _The Court must be Disturbed by no Clamor or Tumult._
=III.= _Where there are Many Litigants, Two may be Chosen who
shall have Power to carry on the Suit._
=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._
=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._
=VI.= _Both Parties shall be Required to Furnish Testimony._
=VII.= _Concerning the Journey which any one Compels an
Innocent Person to Make._
=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._
=IX.= _Concerning Those who Venture to Defend the Suits of
Others._
=X.= _No Freeman shall Refuse to Answer the Slave of another
in Court._
=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.
=I.= _Princes and Bishops should not Conduct their Cases in
Court in Person, but through their Subjects or
Subordinates._
=II.= _The Judge must inquire of a Litigant, whether the Suit
brought by Him is his Own, or that of Another._
=III.= _He who cannot Conduct his Cause Himself must give
Written Authority to his Attorney._
=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._
=V.= _If He who has Appointed an Attorney Suffers Delay, he
can Revoke his Commission._
=VI.= _It shall not be Lawful for a Woman to Act as an
Attorney, but She may Conduct Her Own Case in Court._
=VII.= _The Constituent shall receive the Benefit, and bear the
Loss, resulting from Proceedings Instituted by his
Attorney._
=VIII.= _If a Representative should die, his Heirs shall be
entitled to his Fees._
=IX.= _What Persons those in Power, and those that are Poor,
may appoint to Conduct their Cases._
=X.= _Those who have Charge of the Royal Treasury, when the
Suit is brought for its Benefit, have authority to
appoint whom they wish to represent them._
=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.
=I.= _Concerning Persons who are not 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._
=III.= _Where a Witness Testifies Orally, and Written Evidence
Contradicts Him._
=IV.= _A Slave shall not be Believed unless he Belongs to the
Crown; and When Royal Slaves shall be Believed._
=V.= _A Witness shall not give His Testimony in Writing, but
Orally, and How Testimony should be Given._
=VI.= _Concerning Those who give False Testimony._
=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._
=VIII.= _Concerning Those who Induce Others to give False
Testimony; or Encourage the Slaves of Others to Seek
their Liberty._
=IX.= _In what Causes Slaves can Testify._
=X.= _Concerning Those who Bind themselves in Writing, not to
give True Testimony in the Causes of Others._
=XI.= _At what Age Minors can Testify._
=XII.= _A Near Relative, or a Kinsman, of a Party to a Suit,
cannot give Testimony against a Stranger._
=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.
=I.= _What Documents are Valid in Law._
=II.= _No Witness shall Testify as to the Contents of a
Document of which He is Ignorant._
=III.= _Concerning the Drawing Up of Contracts, and Other Legal
Documents._
=IV.= _Neither Children, nor Other Heirs, shall contest the
Final Disposition of Property by their Ancestors._
=V.= _Concerning the Penalties to which those are Liable who
attempt to Repudiate their Written Contracts._
=VI.= _Contracts and Agreements made by Slaves are Invalid,
unless Ordered by their Masters._
=VII.= _Concerning Dishonorable and Illegal Contracts._
=VIII.= _No One shall be Liable in Person or Property, under
the Terms of any Contract, where Deception has been
Practised: nor shall He be Liable to any Penalty
provided by the same._
=IX.= _Every Obligation, or Contract, which has been Extorted
by Force, or Fear, shall be Void._
=X.= _What Contracts entered into by Minors shall be Valid._
=XI.= _How Wills shall be Drawn Up and Proved._
=XII.= _How the Wills of those who Die during a Journey shall
be Proved._
=XIII.= _A Will must be Published in the Presence of a Priest,
or of Witnesses, within Six Months._
=XIV.= _Concerning the Comparison of Handwriting, where Doubt
attaches to any Document._
=XV.= _Concerning Holographic Wills._
=XVI.= _Concerning the Comparison of Documents, and the
Infliction of Penalties prescribed by Wills._
=XVII.= _No Testator shall be Permitted to Dispose of Property
in One Way in the Presence of Witnesses, and in
Another by a Written Will._
=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.
=ANCIENT LAW.=
=III. Concerning the Drawing Up of Contracts, and Other Legal Documents.=
All contracts and agreements, which have been properly and lawfully
reduced to writing, provided they have been published for a year and a
day, shall be thereafter unalterable.
=ANCIENT LAW.=
=IV. Neither Children, nor Other Heirs, shall contest the Final
Disposition of Property by their Ancestors.=
It shall not be lawful for a son, or other heir, to contest the just
and legitimate provisions of the will of an ancestor, because it is
presumption in him who attempts to nullify the acts of his ancestors.
=V. Concerning the Penalties to which those are Liable who attempt to
Repudiate their Written Contracts.=
He who repudiates a contract, or obligation, lawfully and properly
executed, unless some more powerful person compelled him to do so by
force; and afterwards, before the cause is heard, shall pay the penalty
prescribed by the said contract, or obligation, then the latter shall
be valid. And any contract or obligation, properly drawn up between the
parties, even if it contains no penalty, shall under no circumstances,
be altered or cancelled. And whatever things are set out in writing
in contracts or obligations, shall be perfectly valid; and especially
if a party has drawn them up himself, and they have reference to any
indebtedness incurred by him.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Contracts and Agreements made by Slaves are Invalid, unless Ordered
by their Masters.=
Honor and justice both demand that, where slaves enter into contracts
in writing, or in the presence of witnesses, and not by the order of
their masters, such contracts shall be void.
=VII. Concerning Dishonorable and Illegal Contracts.=
We hereby decree that any contract or obligation, entered into by any
person whomsoever, which is injurious and unlawful, shall be void.
=VIII. No One shall be Liable in Person or Property, under the Terms
of any Contract, where Deception has been Practised: nor shall He be
Liable to any Penalty provided by the same.=
The practices of wicked and depraved men should always be opposed by
the authority of the law. For the reason, therefore, that the avarice
of designing persons often fraudulently ensnares others, and induces
them to enter into contracts whereby their liberty and their property
are lost, such transactions are hereby absolutely prohibited. And
whenever a contract is entered into, the penalty for its violation
shall not be more than double the amount involved; or triple the
amount, if a sum of money be in dispute. But, under no circumstances
shall a person be permitted to pledge all his property or his person
for the debt of another, because it is manifestly unjust that any
one should be ruined personally and financially on account of such
indebtedness; and therefore, any obligation or contract made in
violation of this law, shall be void and of no effect.
=IX. Every Obligation, or Contract, which has been Extorted by Force, or
Fear, shall be Void.=
Any contract which a person of high or low rank has extorted by force
or fear; that is, if he who makes it has been put in prison, or
threatened with violent death, or undergone any punishment, or any
indignity whatever, or suffered injury of any kind, in an attempt to
compel its execution; then any obligation or agreement made under such
circumstances shall be void.
=FLAVIUS RECESVINTUS, KING.=
=X. What Contracts entered into by Minors shall be Valid.=
Minors under fourteen years of age who wish to dispose of their
property by will, or in any other manner, whether in writing, or in
the presence of witnesses, shall not be permitted to do so, unless
in case of serious illness, or impending death. But if they should
be impelled by necessity, as aforesaid all minors who are more than
ten years of age, have full liberty to make such disposition of their
property as they may desire. If, however, they should recover from
their illness, whatever they have done shall be void; unless, being ill
a second time, they should confirm what they have previously done; or,
having reached their fourteenth year, they should have full authority
to act for themselves in all matters in which they are interested. All
persons who are insane from infancy, or indeed from any age whatever,
and remain so without intermission, cannot testify, or enter into a
contract, and, if they should do so, it would have no validity. But
such as have lucid intervals, shall not be prohibited from transacting
business during those periods.
=FLAVIUS RECESVINTUS, KING.=
=XI. How Wills shall be Drawn Up and Proved.=
The last will of a dying person, whether it be signed by his hand
and those of witnesses, or confirmed by the seals and signatures of
all parties; or even if the testator could not write, or attach his
seal, and some one else be requested by him to affix his signature,
or seal, instead of his own, along with those of lawful witnesses; or
if the wishes of said testator should only be expressed verbally, in
the presence of others; where any one of the methods above stated is
adopted, the will shall be valid in law. But care must especially be
taken that those wills which are executed according to the first and
second regulations, that is, such as are signed by the testator and
witnesses, or confirmed by the seals of either of these parties, shall
be published in the presence of an ecclesiastic within six months, as
has been provided for in another law. And if it should happen that
the maker of the will, who should have signed it, attaches his seal,
the witness who has signed the will, must establish the fact by oath,
and explain why the testator attached his seal. But those wills that
are executed under the third provision hereinbefore stated, that is,
where a competent witness subscribed it at the request of the testator,
shall be considered valid if published within six months. And he who
signed the will instead of the testator, and the witnesses who had
been requested by the latter to be present, shall make oath concerning
these facts, before the judge, and shall swear that there was no fraud
in the execution of the will signed by them, but that it was drawn up
according to the wishes of the testator himself, and that they appeared
at his request, and thus the act of the agent of the testator who
subscribed the will in his stead shall be proved and confirmed. But a
will made verbally, in the presence of witnesses, which the testator,
being in extremity, was not able to put in writing, shall be fully
proved if the witnesses who heard it, and appeared at the request of
the testator, should confirm by oath, in the presence of the judge,
within the space of six months, what the testator had declared; and
this oath must be signed by the judge as well as by the witnesses. And
when the affair shall have been fully settled, the witnesses shall
receive for their trouble the thirtieth part of the property of the
defunct; but only in money, conveyances, and books, which otherwise
would belong to the heirs. The witnesses must, within six months, serve
notice upon those who are interested in the settlement of the estate,
of the disposition of the same made by the testator.
If any of the witnesses should neglect to carry out the provisions of
this law within the appointed time, they shall be liable to the penalty
of forgery; excepting, however, they should be able to prove that they
had been prevented from performing their duty within the six months
aforesaid, either through the fraud or deception of others, or by the
royal order; under which circumstances no blame shall be attached to
them.
=FLAVIUS CHINTASVINTUS, KING.=
=XII. How the Wills of those who Die during a Journey shall be Proved.=
If any one should die while on a journey, or on a public expedition, if
there should be no freeman with him, he may write his will with his
own hand. But if he does not know how to write, or if, from weakness,
is unable to do so, he may communicate his wishes to his slaves, whose
good faith must subsequently be established by the bishop and the
judge. And if the said slaves, at no time previously, have been guilty
of fraud, their statements shall be received and reduced to writing,
sworn to, and attached by the signatures of the bishop and the judge;
and afterwards, if confirmed by the royal authority, they shall be
valid.
=FLAVIUS CHINTASVINTUS, KING.=
=XIII. A Will must be Published in the Presence of a Priest, or of
Witnesses, within Six Months.=
A written will must be published within six months, either in the
presence of a priest, or of witnesses. And if any one should suppress
a will through fraud, he shall be compelled to pay as much out of his
own property to the beneficiaries of said will, as they are entitled to
according to its provisions.
=FLAVIUS CHINTASVINTUS, KING.=
=XIV. Concerning the Comparison of Handwriting, where Doubt attaches to
any Document.=
Documents of every description, where he who made them and the
witnesses to the same are dead, and in which the signature of the
former and the attestation of the witnesses appear, when brought into
court to be verified, may be proved by comparison of their seals and
signatures with those of other documents; and the proof shall be
sufficient in this investigation, if the seals and signatures of three
or four other documents, when introduced, shall be evidently those
of the parties in question. But if the documents aforesaid shall not
have been published within the time prescribed by law, they shall be
invalid.
=FLAVIUS CHINTASVINTUS, KING.=
=XV. Concerning Holographic Wills.=
It happens frequently, through necessity, that the solemnities of
the law cannot be complied with; and where the locality is such that
witnesses cannot be found, by whom any one may have his will subscribed
according to the regulations required by law, the testator may write
those things in his own hand which he desires to have done; provided it
be specifically stated, what he intends to dispose of, or what business
he wishes any one he may select to transact; the day and the year being
both given in the instrument. And when the will has been written, the
testator himself shall sign it; and if said will should come into the
possession of him for whose benefit it was made, or into that of his
heirs, within thirty years, it must be presented to the bishop or the
judge within six months thereafter. The bishop and the judge--three
other documents having been produced in which the signature of the
testator appears--shall then determine, by comparison of all these
documents, whether the will which the testator wrote with his own hand
is genuine or not, and if it should become evident that it is genuine,
then the bishop, or the judge, or other reputable witnesses, shall
confirm the same by their signatures, and, in this manner, the said
holographic will shall be fully proved and established.
=FLAVIUS RECESVINTUS, KING.=
=XVI. Concerning the Comparison of Documents, and the Infliction of
Penalties prescribed by Wills.=
As we should not, where it is proper to do so, refuse salutary remedies
to those who are in distress, so we should justly impose censure where
irrational contention occurs. Hereafter, when any dispute arises
concerning the will of an ancestor, which appears to have been drawn
up justly and legally, and according to obligations which have been
incurred; if any interested party to whom the will is shown, should say
that he does not know that it is true, he who has produced it must
immediately swear that no fraud or mutilation has been made therein at
any time, by him, or by any one else, so far as he knows; but that it
still remains just as the testator executed it. Then he who refused to
accept it shall be forced to swear that he does not know that said will
is authentic, and does not recognize it, and is not aware that it has
been legally drawn up, or that the seal or signature of the maker is
genuine. Then search must be made by both parties, among the effects
of the deceased, for instruments in writing; so that, by comparison
with the seals and signatures of other documents, it may be properly
established, whether the matter alleged is true or false. Then, if
documents of the testator should not be found, by comparison with
which the will in question can be proved, he who introduced the will
shall make diligent inquiry, wherever he can, for other papers of the
testator, by comparison with which he may prove the will in question.
And if, after all these efforts, the truth should not be ascertained,
he who introduced the will, even if he had summoned witnesses from
a distance, must pay all expenses; and he who refused to accept it,
shall not be liable to any penalty whatever. But in such cases, if he
who declared the will to be fraudulent, did so, not for the sake of
truth, but solely for the annoyance of the other party, and to compel
him to summon witnesses, and incur expense, in order to establish the
genuineness of the will; then he who introduced the will, must prove
by witnesses that it is true and unmutilated; and he who, through an
unjust contention, has caused annoyance and expense to his adversary,
must pay the amount of the penalty mentioned in the will. But if he
has not sufficient property, after an estimate has been made of the
same, to pay the sum which the testator prescribed, or openly refuses
to pay said penalty, he shall be forced to surrender to him whom he has
wronged, all that he would have inherited from the testator. We decree
that this law shall apply to the wills of parents alone; because we see
that sons or grandsons very frequently are involved in unjust disputes
with one another. This exception, however, is made, that if a will
shall be found to be, in any way, opposed to the laws, any one is free
to dispute its validity.
=FLAVIUS CHINTASVINTUS, KING.=
=XVII. No Testator shall be Permitted to Dispose of Property in One Way
in the Presence of Witnesses, and in Another by a Written Will.=
The evidence, either oral or written, by means of which the proof of a
bequest from one person to another is established, and which should be
true and manifest, is often rendered doubtful; so that the intentions
of the testator, concerning the gifts and other matters set forth in
his will, can with difficulty be determined; for the reason that while
he has made certain statements in his will, he has made others, of a
directly contrary character, secretly, in the presence of witnesses.
Thus, by reason of this duplicity, it is evident that there are
practically two wills; for clearness and honesty are excluded, where
one thing is published openly, and another secretly stated in the
presence of witnesses.
And, where any one who has executed a document conveying property of
any kind to another, by gift or sale, shall be found to have made a
different disposition of said property before a witness, than he did
in writing; he shall pay the penalty prescribed in the document to him
upon whom this deceit has been practised; and, in addition to this, he
shall never be permitted to recover what he has surrendered.
Nor shall any witness be allowed to testify concerning anything which
is not contained in a will; so that, hereafter, all temptations for
dispute having been removed, whatever is found to be the manifest and
lawful tenor of such documents may not be brought into dispute, through
the machinations of a corrupt witness.
This law shall have equal force with those already promulgated.
If he who offers a will is of such rank and power that the said will
appears to have been rather exacted by, than offered to him, and this
fact can be proved, then the will shall be declared invalid; and
the property disposed of by it shall be distributed among the heirs
according to law.[15]
BOOK III.
CONCERNING MARRIAGE.
TITLE I. CONCERNING NUPTIAL CONTRACTS.
=I.= _Marriage shall not be Entered Into without a Dowry._
=II.= _It shall be as Lawful for a Roman Woman to Marry a Goth,
as for a Gothic Woman to Marry a Roman._
=III.= _Where a Girl Marries against the Will of her Father,
while she is Betrothed to Another._
=IV.= _When a Gift is made by way of Pledge, a Nuptial Contract
cannot be Rescinded._
=V.= _Women Advanced in Years shall not Marry Young Men._
=VI.= _What Property the Dowry shall consist of._
=VII.= _The Father shall Exact, and Keep, the Dowry of his
Daughter._
=VIII.= _In case of the Death of the Father, the Disposition of
the Children, of both Sexes, in Marriage, shall belong
to the Mother._
=IX.= _Where Brothers Defer the Marriage of their Sister, or
Where a Girl Marries Beneath her Station._
=X.= _Where the Items of a Dowry, relating to any kind of
Property, are reduced to Writing, it shall not be
Contested._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. Marriage shall not be Entered Into without a Dowry.=
Marriage is recognized to have greater dignity and honor, where the
dowry is given before the nuptial contract has been entered into in
writing. For where the dowry has been neither given, nor stated in
writing, what expectation can there be of future conjugal dignity, when
propriety does not confirm the celebration of the marriage, nor the
honorable obligation of the written contract accompany it?
=FLAVIUS RECESVINTUS, KING.=
=II. It shall be as Lawful for a Roman Woman to Marry a Goth, as for a
Gothic Woman to Marry a Roman.=
The zealous care of the prince is recognized, when, for the sake of
future utility, the benefit of the people is provided for; and it
should be a source of no little congratulation, if the ancient law,
which sought improperly to prevent the marriage of persons equal in
dignity and lineage, should be abrogated. For this reason, we hereby
sanction a better law; and, declaring the ancient one to be void, we
decree that if any Goth wishes to marry a Roman woman, or any Roman a
Gothic woman, permission being first requested, they shall be permitted
to marry. And any freeman shall have the right to marry any free woman;
permission of the Council and of her family having been previously
obtained.
=III. Where a Girl Marries against the Will of her Father, while she is
Betrothed to Another.=
Where anyone is betrothed to a girl, either by the consent of her
father, or of any near relative in whom authority in these matters is
vested by all, and the girl, in defiance of the wishes of her father,
desires to marry another than him to whom she has been betrothed; this
we decree shall under no circumstances be permitted. But if the girl,
against the will of her father, should have fled to him who was her
choice, and should have married him, both shall be delivered into the
power of him to whom, with her father’s consent, she had previously
been betrothed. And if her mother, or brothers, or other relatives,
should grant her wishes, and give her to him whom she has chosen,
against the will of her father, those who have plotted this shall pay a
pound of gold to whomever the king may direct. Nor shall the act of the
parties be valid, but both of them, as has hereinbefore been stated,
shall be delivered up, with all their property, to him to whom the
girl had already been betrothed. And we decree that this law shall be
observed where the father shall have made arrangements concerning the
marriage of his daughter, and the amount of the dowry has been agreed
upon, and her father dies before the marriage has been concluded;
in such a case the girl shall be given to him to whom she had been
contracted by either her father or her mother.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. Where a Gift is made by way of Pledge, a Nuptial Contract cannot be
Rescinded.=
Since we have treated of things that are past, we consider it eminently
proper to discuss and determine those that are to come. For the reason
that there are many who, disregarding the betrothal, fail to complete
the nuptial contract; we deem it proper to abolish this abuse, that no
one may delay a marriage according to his will. Therefore, we decree,
from this day, that when the ceremony of betrothal has been performed,
either between the parents or relatives of the parties, or in the
presence of witnesses, and the ring shall have been given or accepted
as a pledge, although nothing may have been committed to writing, the
promise shall, under no circumstances, be broken. Nor shall it be
lawful for either party to change his or her mind, if the other is
unwilling to consent; but if all the provisions relating to the dowry
have been carried out according to law, then the marriage shall be
celebrated.
=FLAVIUS RECESVINTUS, KING.=
=V. Women Advanced in Years shall not Marry Young Men.=
The law of nature is framed in the direct hope of progeny when the
nuptial contract is entered into with all due solemnity. For if a
marriage takes place between persons who are incompetent, either
through age or some personal defect, to properly perform their marital
duties, how can their offspring be other than dwarfed or deformed?
For that cannot be perfect whose origin is defective. We sometimes see
persons who, not observing the laws of nature, but induced by avarice,
dispose of their children in marriage so improperly, that neither the
age, rank, or morals of the parties concerned, are considered by them.
For though men have received their name from the fact that they control
women by their superior strength; some, in violation of the laws of
nature, give the priority to women, when they unite females of advanced
age with boys who are little more than children; and thus, for the sake
of gain, and through unwise delay, encourage the commission of vice
by the former. Therefore, that an end may be put to practices whose
results are unfavorable to future generations, we now decree, that,
hereafter, women shall always marry men who are older than themselves,
and a marriage under other circumstances shall not be valid, if either
of the parties should object. A space of time, not longer than two
years, shall be permitted to elapse from the day of betrothal to the
day of marriage; unless a longer period shall be agreed upon by the
parents or relations, or by the parties themselves, if they are of age.
But if, after the contract has been made, it is determined by common
consent to defer the date of the nuptials; or if one of the persons
should fail to be present, through necessity, this may be done; but the
marriage shall not then be deferred longer than two years more. And if
a second time, or several times, it may be desirable to prolong the
interval, it shall only be for a period of two years; otherwise, the
marriage contract, though made in writing, and accompanied with the
delivery of the dowry, shall not be valid. If any one unnecessarily
or arbitrarily should protract the time, and violate the marriage
contract, he shall be liable to the penalty which is contained in it,
and the contract shall still remain in force. Any woman who has had one
or more husbands, shall after the death of those husbands, be permitted
to marry any man of proper age who has never been married before, or
who has had one or more wives already deceased.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. What Property the Dowry shall consist of.=
As disputes concerning the dowry often arise between parties
contemplating marriage, it is a matter of common advantage that no
doubt should hereafter be possible under this our law. Therefore,
we decree and declare, that the following law shall be perpetually
observed hereafter, to wit: that if any one of the nobles of our
palace, or of the principal personages of the Gothic nation, should
demand in marriage for his son either the daughter of another, or the
widow of any one; or if any one should choose for himself a wife, of
the aforesaid rank; no person shall pay, or bind himself to pay, as the
dowry of the girl or woman, more than the tenth part of his property.
But if it should happen that a parent should wish to give the dowry for
the benefit of his daughter-in-law, he can then give as said dowry,
the tenth part of the property which his son would inherit from him in
case of his death; and, in addition, he must give ten young men and
ten young girls, and twenty horses: or, in ornaments, as much as would
amount in value to a thousand _solidi_. And the wife shall have
absolute liberty to dispose of this property if she should not leave
any sons; and if she should die intestate, this donation shall go to
the nearest heirs of the husband.
It shall not be lawful for the parents of the girl, or for the girl
herself, or for any woman, to ask more as a dowry from the bridegroom,
than is provided for by this law; and, as was permitted by the Roman
laws, the girl, or the woman, may give to the bridegroom as much out of
her own property as she herself has demanded of him, should she desire
to do so. If the bridegroom should promise in writing, or bind himself
by oath, at the time of the marriage, to give a larger sum than is
permitted by this law, he is hereby fully authorized to take possession
of all over and above said sum, whenever he chooses. But if it should
happen that, through reverence for his oath, or, as often is the case,
through negligence, he should be unwilling to revoke or appropriate
the surplus amount which he had given to his bride, or should refuse
to do so; as it is not proper that, through the carelessness of
one, injury should be inflicted upon the many; therefore, when the
parents of the bridegroom, or his relations, shall become aware of the
facts, they may deprive the bride of all over and above the sum above
mentioned as legal; and this they may do as a matter of right, and
without prejudice. If, however, the husband, when a year has passed
since the marriage, should wish, through affection for his wife, to
make her a present of any kind, he shall have full liberty to do so.
But not within the space of a year shall the husband give to the wife,
or the wife to the husband, any present whatever, except the dowry
hereinbefore mentioned; unless either of them should be attacked by
grievous illness, and be in imminent danger of death.
In regard to others who desire to make marriage contracts, we deem it
proper, and so decree; that whoever is known to possess ten thousand
_solidi_, shall give to his bride as a dowry, as much as a
thousand _solidi_ out of all his possessions. And he who has only
a thousand _solidi_ shall, in the same proportion, give a hundred
as a dowry.
This law relating to the dowry shall be observed, without controversy,
in all matters great and small. Given and confirmed on the second day
of the Ides of January, and the third year of our reign.
=ANCIENT LAW.=
=VII. The Father shall Exact and Keep the Dowry of his Daughter.=
The father shall have the right to demand and keep the dowry of his
daughter. If the father or mother should not be present, then the
brothers, or the nearest relatives, shall receive the dowry, and
deliver it untouched to their sister.
=ANCIENT LAW.=
=VIII. In case of the Death of the Father, the Disposition of the
Children, of Both Sexes, in Marriage, shall belong to the Mother.=
If the father should be dead, the right to dispose of the children
of both sexes in marriage shall belong to the mother. If the mother
also should be dead, or if she should have married a second time, the
brothers shall have the right to select the husbands or wives for the
other children. But if any of the brothers should not be of age, which
is indispensable when their brother or sister is to be disposed of in
marriage; then the paternal uncles shall have that authority. Where a
brother is of full age, and declines the advice of his relatives, he
shall have the power to marry without their consent. But if a suitor,
equal to a sister in rank, should seek her in marriage; then her uncle
or her brother should consult with the other relatives as to whether
said suitor shall be accepted, or rejected, by common consent.
=IX. Where Brothers Defer the Marriage of their Sister, or Where a Girl
Marries beneath her Station.=
If the brothers of the girl should put off her marriage, with the
expectation that she, taking refuge with her intended husband, may lose
what she would have inherited from her father according to law; and
they should repulse her suitor two or three times; the girl, as soon
as the deceit of her brothers becomes evident, should she deem that
her suitor is her equal in birth, shall then receive from her brothers
whatever property she is entitled to inherit from her parents. But if,
on the other hand, her brothers should do nothing to affect the rights
of their sister, but only cause delay in order to provide her with a
husband more worthy of her; and she, forgetful of her modesty, and
disregarding her rank, should marry a man inferior to her in station;
she shall lose what she would have inherited from her parents, whether
that inheritance has been divided or not, but she shall still have the
right to inherit from her brothers and her sisters, and from any other
relatives.
=FLAVIUS CHINTASVINTUS, KING.=
=X. Where the Items of a Dowry, relating to any kind of Property, are
reduced to Writing, it shall not be Contested.=
When any one is desirous of contracting marriage, either in his own
behalf, or in behalf of his son, or of any other relative; he shall
have a right to dispose of, as a dowry, any of his own property; or
any given him by the king; or any he has acquired legally, in any way
whatsoever. And whatever has lawfully been stated in writing to be a
dowry, by any person, shall be valid, as such, in every respect.
TITLE II. CONCERNING UNLAWFUL MARRIAGES.
=I.= _Where a Woman Marries within a Year after the Death of
her Husband._
=II.= _Where a Freeborn Woman Marries a Slave, or her own
Freedman._
=III.= _Where a Freeborn Woman Marries the Slave of Another, or
a Freeborn Man the Female Slave of Another._
=IV.= _Where a Freedwoman, or a Freedman, Marries the Slave of
Another._
=V.= _Where any one gives in Marriage his Slave, of Either Sex,
to the Slave of Another._
=VI.= _Where a Woman contracts a Second Marriage in the Absence
of her Husband._
=VII.= _Where a Master Marries one of his Slaves to a
Freewoman, declaring him to be a Freeman._
=VIII.= _Where a Freewoman Marries without the Consent of her
Parents._
=ANCIENT LAW.=
=I. Where a Woman Marries within a Year after the Death of her Husband.=
If any woman, within a year after the death of her husband, should
marry another, or commit adultery, the children by her first marriage
shall receive half of her property; or, if there are no children,
the nearest heirs of the deceased husband shall receive half of her
property, by order of the court. We have especially prescribed this
penalty lest the woman, having been left pregnant by her husband, and
desiring to enter into a second marriage, should destroy her unborn
offspring. We decree, however, that those only shall be exempt from the
operation of this law, who marry within the prohibited time under order
of the king.
=II. Where a Freeborn Woman Marries a Slave, or her own Freedman.=
If a freeborn woman should commit adultery with her own slave, or
freedman, or should marry him; as soon as this has been proved, she
shall be put to death; and both adulterer and adulteress shall be
publicly scourged before the judge, and burned. And whenever any judge
shall be convinced of the commission of such a crime, and shall learn
that any mistress has married her slave, or her freedman; he shall at
once cause them to be separated, in order that the sons of her former
husband, or those of his relatives entitled to it by legal succession,
may obtain possession of her property. But if heirs, to the third
degree, should be wanting, then all her property shall belong to the
royal treasury; for it is not proper that the children born of such a
marriage should be heirs. And the woman, whether she be a virgin or
a widow, shall be liable to the penalty hereinbefore mentioned. But
if she should take refuge at the altar, and claim the privilege of
sanctuary, she shall be given by the king to whomever he chooses, to
serve him forever as a slave.
=III. Where a Freeborn Woman Marries the Slave of Another, or a Freeborn
Man the Female Slave of Another.=
If any freeborn woman should marry, or commit adultery with the slave
of another, even though he should belong to the king; as soon as this
shall come to the knowledge of the judge, he shall order the parties
to be separated immediately, that they may suffer the punishment they
deserve, to wit: each one a hundred lashes. And if, after this, they
should commit the offence a second time, the judge shall order them to
be arrested and brought before him, and they shall each receive another
hundred lashes. And if they should be guilty for the third time, they
shall receive another hundred lashes, and the woman shall be delivered
over into the power of her relatives. And if, at any time afterwards,
her relatives should permit her to return to the slave, she shall
become the slave of the master to whom the latter belongs. And whatever
children shall be born of this union shall follow the condition of the
father, and remain in slavery. The relatives of the woman, however,
shall inherit her property, according to the rules of inheritance. But
if the children who are born of this union shall prove, by a lawful
witness, that for thirty years they have been free, they shall be
exempt from servitude; provided that their parents, within the thirty
years for which time the children have proved themselves to be free,
should have rendered no service to their master, by reason of which
their children might be subject to slavery. And we direct that this law
shall also apply to freeborn men who marry the female slaves of the
king, or those of any one else whomsoever.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. Where a Freedwoman, or a Freedman, Marries the Slave of Another.=
If any woman who has been freed should unite herself with the slave of
another, or should marry him; the master of the slave shall notify her
three times, in the presence of three witnesses, to leave him, and if,
after the third notification, she should be unwilling to do so, she
shall become the slave of the master of him with whom she is living.
But if she should not have been notified before any children are born,
then she shall remain free. It is the rule that the blood relations of
a slave shall belong to his master, because those cannot be free who
are born in this condition. This law likewise shall apply to men who
have been set free, who unite with the slaves of others. But if any
woman who has been set free should marry the slave of another, after
the permission of the master has been granted, through any contract or
agreement with the latter, then such contract shall be valid.
=V. Where any one gives in Marriage his Slave, of Either Sex, to the
Slave of Another.=
Whoever gives his female slave, as a wife, to the slave of another,
without the knowledge of the master of the latter, and this should be
established by certain proof, the said master shall have the wife of
the slave, along with all of her children, as his own slaves. And he
who marries the female slave of another to his own slave, we ordain
shall also be subject to this law.
=VI. Where a Woman contracts a Second Marriage in the Absence of Her
Husband.=
No woman, in the absence of her husband, shall have liberty to marry
another man until she has learned, by certain evidence, that her
husband is dead; and he, also, who wishes to marry her must make
diligent inquiry for that purpose. But if they should neglect to do
this, and should be unlawfully married, and afterwards the former
husband should return, they shall both be delivered up into his power,
to be disposed of at his will, and he shall have the right to sell them
or do whatever he pleases with them.
=FLAVIUS CHINTASVINTUS, KING.=
=VII. Where a Master Marries one of his Slaves to a Freewoman, declaring
him to be a Freeman.=
The acts of wicked men must be resisted, lest unbridled depravity
prevail. Many persons, induced by avarice, are accustomed to wickedly
deceive freeborn women and girls by inducing them to accept their
slaves as husbands, representing them to be freeborn; in order that any
children they have, may afterwards be reduced to slavery. Therefore,
that this fraud may be abolished, we decree by the present law, that
persons guilty of such deception shall be branded with infamy; and
those slaves who are found to have been represented as freemen by the
aforesaid evil-minded persons, shall be, along with their children,
forever free; just as if their masters had publicly liberated them; and
the women or girls who married said slaves shall have, as their own,
all the property which was either received by, or promised to, them
at the time of their marriage; if they can establish by any suitable
proof, that their husbands were given to them under the representation
that they were free. But if any girl or woman, as aforesaid, or her
parents, should not be able to prove this; the master shall possess
said girl or woman, along with her children, as slaves, and shall be
entitled to all their property. And this law shall also apply to those
female servants who are known to have married freemen under similar
circumstances of fraud, as well as to persons who have been set free,
and who are proved to have married the slaves of others.
=ANCIENT LAW.=
=VIII. Where a Freewoman Marries without the Consent of her Parents.=
If any freeborn girl should marry a freeman before the latter has
consulted her parents, and if he then should obtain consent to have
her as his wife, he shall pay the legal dowry to her parents; but if
he can not furnish that sum, the girl shall be again placed under
their control. If she should have been voluntarily married without the
consent and knowledge of her parents, and they should then be unwilling
to receive her, she shall not inherit along with her brothers, for the
reason that she married without the permission of her parents. If her
parents should give her any of their property, she shall have full
liberty to dispose of it at her pleasure.
TITLE III. CONCERNING THE RAPE OF VIRGINS, OR WIDOWS.
=I.= _Where a Freeman carries off a Freewoman by Force, he
shall not be permitted to Marry her, if she was a
Virgin._
=II.= _Where Parents remove their Daughter from the Power of a
Ravisher._
=III.= _Where the Parents of a Girl, who has been Betrothed,
consent that She should be Carried Away by Another._
=IV.= _Where Brothers, either during the Life of their Father,
or after his Death, consent that any one should Carry
Away their Sister by Force._
=V.= _Where any one Carries Away by Violence a Woman who was
Betrothed to Another._
=VI.= _Where a Ravisher is Killed._
=VII.= _Within what Time it is Lawful to Prosecute a Ravisher;
and Whether any Marriage Contract can be entered into
with Him by the Girl or her Parents._
=VIII.= _Where a Slave carries off a Freewoman by Force._
=IX.= _Where a Slave carries off a Freedwoman by Force._
=X.= _Where a Slave carries off the Female Slave of Another by
Force._
=XI.= _Concerning those who Deceive Girls, or the Wives of
Others, or Widows; and Concerning those who Compel by
Force, and without the Royal Command, any Freeborn
Girl or Widow to take a Husband._
=XII.= _Concerning Freemen and Slaves who are Proved to have
been Implicated in the Crime of Rape._
=ANCIENT LAW.=
=I. Where a Freeman carries off a Freewoman by Force, he shall not be
permitted to Marry her, if she was a Virgin.=
If any freeman should carry off a virgin or widow by violence, and she
should be rescued before she has lost her chastity, he who carried her
off shall lose half of his property, which shall be given to her. But
should such not be the case, and the crime should have been fully
committed, under no circumstances shall a marriage contract be entered
into with him; but he shall be surrendered, with all his possessions,
to the injured party; and shall, in addition, receive two hundred
lashes in public; and, after having been deprived of his liberty, he
shall be delivered up to the parents of her whom he violated, or to the
virgin or widow herself, to forever serve as a slave, to the end that
there may be no possibility of a future marriage between them. And if
it should be proved that she has received anything from the property
of the ravisher, on account of her injury, she shall lose it, and it
shall be given to her parents, by whose agency this matter should be
prosecuted. But if a man who has legitimate children by a former wife
should be convicted of this crime, he alone shall be given up into the
power of her whom he carried off; and his children shall have the right
to inherit his property.[16]
=FLAVIUS RECESVINTUS, KING.=
=II. Where Parents remove their Daughter from the Power of a Ravisher.=
If the parents of the woman or girl who has been carried off should
rescue her, the ravisher shall be given up to them, and, under no
condition whatever, shall she be permitted to marry him; and should
they presume to marry, both shall be put to death. If, however, they
should take refuge with the bishop, or should claim the privilege
of sanctuary, their lives shall be granted them; but they shall be
separated and delivered over as slaves to the parents of the woman.
=III. Where the Parents of a Girl, who has been Betrothed, consent that
she should be Carried Away by Another.=
If parents should connive at their daughter being carried away, after
she has been betrothed to another, they shall be compelled to pay the
latter four times the amount of the dowry agreed upon; and the ravisher
shall be delivered up as a slave, absolutely, under the law, to the man
who was betrothed to the girl.
=ANCIENT LAW.=
=IV. Where Brothers, either during the Life of their Father, or after
his Death, consent that any one should Carry Away their Sister by Force.=
If, during the life of their father, any brothers should consent to, or
connive at, the carrying off of their sister, they shall receive the
penalty to which ravishers are liable, excepting that of death. But it,
after the death of their father, they should give up their sister to a
ravisher, or permit her to be carried off by him; for the reason that
they have disposed of her in marriage to a person of vile character,
or against her own will, when they should have protected her honor,
they shall lose the half of their property, which shall be given to
their sister, and, in addition, they shall each receive fifty lashes
in public: so that others, admonished by this, may take warning. All
accessories, who were present, shall receive the punishment prescribed
by another law. And the ravisher, inexcusable by a former law, shall
lose both his property and his rank.
=ANCIENT LAW.=
=V. Where any one Carries away by Violence a Woman who was Betrothed to
Another.=
If any one should carry off a woman betrothed to another, we hereby
decree that half of the property of the ravisher shall be given to
the girl, and the other half to her betrothed. But if he should have
little or no property, he shall be given up, with all his possessions,
to those above mentioned; so that the ravisher having been sold as a
slave, they may have an equal share in the price paid for him. The
ravisher himself, if the crime shall have been consummated, shall be
punished.
=ANCIENT LAW.=
=VI. Where a Ravisher is Killed.=
If any ravisher should be killed, it shall not be considered criminal
homicide, because the act was committed in the defence of chastity.
=FLAVIUS CHINTASVINTUS, KING.=
=VII. Within what Time it is Lawful to Prosecute a Ravisher; and Whether
any Marriage Contract can be entered into with Him by the Girl or her
Parents.=
The ravisher of a virgin or a widow can only be prosecuted within
thirty years after the commission of the crime. If a marriage contract
should be entered into by him with the parents of the girl, or with the
girl herself, or with the widow, said contract shall not be illegal.
After thirty years have elapsed, as aforesaid, all prosecutions shall
be barred.[17]
=FLAVIUS RECESVINTUS, KING.=
=VIII. Where a Slave carries off a Freewoman by Force.=
It is the province of equity to make laws concerning the future, where
doubt exists in the present. Where slaves, with the knowledge, or under
the order of their master, carry off any woman by force, the master
shall be required by the judge to give the satisfaction required by
law. And if slaves should perpetrate such crimes against the will of
their master, they shall be arrested by the judge, and, after having
been scalped, shall receive three hundred lashes with the scourge.
Any slave who has violated a freeborn woman shall undergo the extreme
penalty of the law.
=FLAVIUS CHINTASVINTUS, KING.=
=IX. Where a Slave carries off a Freedwoman by Force.=
If a slave should be convicted of having carried off a woman who has
been freed, and if the said slave is of good character, and the woman
also, his master shall pay a hundred _solidi_ on his behalf.
Should he be unwilling to do this, he must surrender the slave, without
delay, so that it may not be possible for him to marry the woman. If,
however, they should be married at any time, and children should be
born to them, the master shall have both the slave and his children,
as slaves. But if a slave should be known to be coarse and degraded,
and should be convicted of having carried off a freedwoman of good
character, his master shall pay to the aforesaid woman as much as the
slave is worth, and the latter shall receive a hundred lashes with the
scourge, shall be scalped, and shall forever remain in servitude in the
power of his master.
=FLAVIUS CHINTASVINTUS, KING.=
=X. Where a Slave carries off the Female Slave of Another by Force.=
If a slave should carry off the female slave of another by force, he
shall receive two hundred lashes, and have his head shaved; and, if
the master of the female slave desires it, he shall be separated from
her.
=XI. Concerning those who Deceive Girls, or the Wives of Others, or
Widows; and Concerning those who Compel by Force, and without the Royal
Command, any Freeborn Girl or Widow to take a Husband.=
Everything that pollutes the honor and dignity of human life must
be restrained by law. Therefore those who solicit wives to commit
adultery, or deceive the daughters of others; or widows; or women who
are betrothed; whether they use, as their agents, persons who have
been freed, or who are born free, or slaves of either sex; as soon as
their crime shall be made apparent by positive testimony, they shall
be arrested, along with their emissaries, by order of the judge; and
shall be delivered up into the power of him, whose wife, daughter,
or betrothed relative, they are convicted of having solicited, to be
disposed of at his pleasure; as he is the person whom the conjugal
condition, or the relationship by blood, designates as the legal
avenger of such a crime. Any person who shall, by force, compel a
freeborn girl or widow, without the royal order, to take a husband,
shall be compelled to pay five pounds of gold to him to whom the injury
was done; and the marriage shall be declared void, unless the woman
shall consent to it of her own free will.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XII. Concerning Freemen and Slaves who are Proved to have been
Implicated in the Crime of Rape.=
Any one who is known to have assisted, or to have been present, at the
carrying off of any woman by force, if he is a freeman, shall pay a
fine of six ounces of gold, and shall publicly receive fifty lashes
with the scourge. If he is a slave, and acted without the consent of
his master, he shall receive a hundred lashes. But if he should commit
this crime with the consent of his master, the latter must give such
satisfaction in his stead as has already been stated.
TITLE IV. CONCERNING ADULTERY.
=I.= _Where a Woman Commits Adultery with, or without, the
Connivance of her Husband._
=II.= _Where a Girl or a Woman who has been Betrothed is found
Guilty of Adultery._
=III.= _Concerning the Adultery of a Wife._
=IV.= _Where an Adulterer, along with an Adulteress, is Killed._
=V.= _Where her Father, or her Relatives, Kill a Girl who has
been Guilty of Adultery in their House._
=VI.= _It is not Lawful for Slaves to put Persons to Death who
are taken in Adultery._
=VII.= _Where a Girl, or a Widow, goes to the House of Another,
in order to commit Adultery, and the Man should wish
to Marry Her._
=VIII.= _Where a Freeborn Woman commits Adultery with Any One._
=IX.= _Where a Freeborn Woman commits Adultery with the Husband
of Another._
=X.= _Slaves of Both Sexes may be Tortured to reveal the
Adultery of their Masters._
=XI.= _Whether it shall be Lawful to set a Slave at Liberty,
in order to Conceal the Crime of Adultery._
=XII.= _Concerning the Property of Husbands or Wives who have
committed Adultery._
=XIII.= _Concerning those Persons who have a Right to bring
Accusations of Adultery, and what Proof of the Crime
should be Made._
=XIV.= _Where a Freedman, or a Slave, has been Convicted of
having committed Adultery, with Violence, upon a
Freeborn Virgin, or Widow._
=XV.= _Where a Freeman, or a Slave without the Knowledge of
his Master, commits Adultery with the Female Slave of
Another._
=XVI.= _Where a Female Slave is proved to have committed
Adultery with Another by Force._
=XVII.= _Concerning Freeborn Women, or Female Slaves, of Bad
Character; and Where Judges Refuse to Investigate, or
Punish their Crimes._
=XVIII.= _Concerning the Impurity of Priests and other
Ministers of Religion._
=ANCIENT LAW.=
=I. Where a Woman Commits Adultery with, or without, the Connivance of
her Husband.=
If any one should have intercourse with the wife of another by force,
and the party who committed the crime should have legitimate children
by a former marriage; he himself, without his property, shall be
delivered up to the husband of the woman. But if he should have no
legitimate children to whom his property can legally descend, he
shall be surrendered, with all his possessions, into the power of the
husband, to be disposed of at his pleasure. And if the woman should
have consented to the act, both of them shall be delivered up to the
husband.
=ANCIENT LAW.=
=II. Where a Girl or a Woman who has been Betrothed is found Guilty of
Adultery.=
If a marriage contract has been entered into between an intended
husband and the parents of an intended wife; or with the woman herself,
if she has the right to make the contract; the dowry being duly given,
and an agreement made in writing, before witnesses, according to
custom, and as is prescribed by law; and, afterwards the girl or the
woman is convicted of having committed adultery, or of having betrothed
herself to another man, or of having married; she, along with her
unlawful husband, or adulterer, or betrothed to whom she has given
herself contrary to her solemn agreement, shall be delivered up as
slaves, with all their property, to the person to whom she was first
betrothed; in case the adulterer, or violator of the law, should have
no children by a former marriage, or the woman herself should not have
any. But if it should be proved that they have legitimate children,
then all their possessions shall belong to those children. But the
man and the woman who have committed adultery, or have betrothed
themselves, or have married, shall both be delivered up as slaves into
the power of him to whom the aforesaid woman bound herself by her
marriage contract.
=ANCIENT LAW.=
=III. Concerning the Adultery of a Wife.=
If the wife of any one should commit adultery, and not be caught in the
act, her husband may accuse her before a judge by the introduction of
competent evidence. And if the adultery of the woman should be plainly
manifest, both adulterer and adulteress, according to the provisions of
a former law, shall be given up to the husband, to be disposed of in
any way he may select.
=ANCIENT LAW.=
=IV. Where an Adulterer, along with an Adulteress, is Killed.=
If the husband, or the man who was betrothed to the woman, should kill
the adulterer along with the adulteress, it shall not be considered
criminal homicide.
=FLAVIUS RECESVINTUS, KING.=
=V. Where her Father, or her Relatives, Kill a Girl who has been Guilty
of Adultery in their House.=
If a father should kill his daughter, while she is in the act of
committing adultery in his own house, he shall be liable to no penalty
or reproach. But if he should wish to spare her life, he shall have
full power to dispose of her and the adulterer, according to his will.
Likewise, her brothers or her uncles, after the death of her father,
shall have the same power.
=ANCIENT LAW.=
=VI. It is not Lawful for Slaves to put Persons to Death who are taken
in Adultery.=
While parents have the undoubted right to kill adulterers caught in
their houses, slaves have no such authority. But if slaves should
discover them, they may keep them in honorable custody, until they can
be delivered over to the master of the house, or to the judge; and,
after having been found guilty by reliable evidence, the legal penalty
shall be inflicted upon them.
=ANCIENT LAW.=
=VII. Where a Girl, or a Widow, goes to the House of Another, in order
to commit Adultery, and the Man should wish to Marry Her.=
If a freeborn girl, or a widow, should go to the house of another for
the purpose of committing adultery, and the man who is implicated
should wish to marry her, and her parents, if she has any, should
acquiesce; he shall give to the parents of the girl as large a sum as
they may demand, or as much as shall be agreed upon between him and the
woman herself. But the woman shall not share with her brothers in the
inheritance of her parents, unless the latter desire it.
=ANCIENT LAW.=
=VIII. Where a Freeborn Woman commits Adultery with Any One.=
If any freeborn woman should be detected in having voluntarily
committed adultery with any man, and if, afterwards, he should wish
to marry her, he shall be permitted to do so. But if he should be
unwilling, she shall be considered guilty of having voluntarily
committed a crime.
=ANCIENT LAW.=
=IX. Where a Freeborn Woman commits Adultery with the Husband of
Another.=
If any freeborn woman should commit adultery with the husband of
another, and should be convicted of it by conclusive evidence,
she shall be surrendered to the wife of the husband with whom she
was guilty, that the revenge of the woman injured may be fully
satisfied.[18]
=ANCIENT LAW.=
=X. Slaves of Both Sexes may be Tortured to reveal the Adultery of their
Masters.=
In order to prove the commission of adultery by either a master or
a mistress, their slaves of both sexes may be put to the torture,
in order that the truth may be the more certainly discovered and
established, beyond question.
=ANCIENT LAW.=
=XI. Whether it shall be Lawful to set a Slave at Liberty, in order to
Conceal the Crime of Adultery.=
If any one, for the sake of concealing the truth, and for fear a slave
may be tortured in order to prove an act of adultery, should liberate
that slave, his act shall be void.
=XII. Concerning the Property of Husbands or Wives who have committed
Adultery.=
We have already decreed, by a former law, that an adulterous wife,
as well as the adulterer, shall be delivered up to her husband.
And, because doubt concerning the disposition of their property may
sometimes arise in the minds of the judges, therefore we consider it
necessary to especially provide, that if the adultery of the wife
should be manifest upon evidence introduced by her husband, and if
neither adulteress nor adulterer should have legitimate children by a
former marriage, the entire inheritance of both of them, along with
their persons, shall be delivered up into the power of the husband of
the woman. But if the adulterer should have legitimate children by a
former marriage, his property shall belong entirely to them, and only
his person shall be surrendered to the husband of the adulteress. But
if the adulterous wife should be known to have legitimate children,
either by a former, or later marriage, the portion belonging to the
children of the former marriage shall be set apart and delivered to
them; but the husband shall have the portion which would otherwise
belong to her children born after she had been convicted of adultery,
and he may bequeath it, after his death, to those children. And, after
the adulterous wife has been brought back into the power of her husband
it shall not be lawful for any marital relations to exist between them.
If, in violation of this, such relations should thereafter exist, he
himself shall have none of her property, and all of it shall be given
to her legitimate children; or, if there are no children, to her other
heirs. A similar decree is hereby made concerning persons who have been
betrothed.
=FLAVIUS CHINTASVINTUS, KING.=
=XIII. Concerning those Persons who have a Right to bring Accusations of
Adultery, and what Proof of the Crime should be Made.=
If the law does not punish the perpetrators of crime, their audacity
will have no bounds. For this reason, and because certain: wives who
hate their husbands abandon themselves to adultery, and so affect
the minds of their husbands, either by the administration of drugs,
or by the devices of witchcraft, that they are unable to publicly
accuse their wives or to leave them, on account of the affection they
bear them; therefore, in such cases it is hereby decreed, that if the
adulteress or her husband have any legitimate sons who are of age, it
shall be lawful for them to act in the place of the husband, and to
prove the fact of adultery in court. But if there are no sons, or they
have not the proper age or experience to conduct this matter lawfully;
in order that there may be no delay in the punishment of adultery; or
for fear that the adulteress may kill her husband; or her children
or relatives may, for this reason, be deprived of her property; it
is hereby decreed that the relations of the husband, shall have the
power, under such circumstances, of accusing the said adulteress. And
if, after accepting this trust, the adultery of the woman should be
plainly proved in court, then both parties who have been convicted of
this crime shall be at once given up, with all their property, to serve
as slaves to those who, according to the provisions of the law, have
proved this accusation.
We make, however, an exception in favor of such as have manifested
signs of repentance, and seem to be worthy of pity; and we hereby
decree that they shall receive the punishment of the scourge. And if
the sons of the adulteress were not of sufficient age, at the time the
crime was committed, to appear in court, the relatives of the husband,
after the death of the latter, if there are no sons, shall be entitled
to the property of the woman. If the sons should be unwilling, or not
of a sufficient age or experience to prosecute the adulteress; then
the nearest relative of the husband, who produced evidence of the
crime, shall have the fifth part of the property of the adulteress
for his pains, and the other four-fifths shall belong to the sons
aforesaid. If there should be any lukewarmness on the part of the
relatives, or negligence on the part of the sons, or if the parties
should be corrupted by gifts; the conduct of such matters shall not
be committed to persons of this character; and should the cause come
to the knowledge of the king, he shall determine, according to his
mercy, either by whom the case must be prosecuted, or how much of
the property of the woman the prosecutor shall have as a fee for his
trouble. But because it is difficult to prove the adultery of a woman
by the evidence of persons who are free, as generally this crime is
perpetrated in secret; henceforth, whenever the evidence of a freeborn
person is not available to prove adultery, it shall be lawful for the
person aforesaid, to whom it is granted by the present law to bring
an accusation of this kind, to put the slaves of both parties to the
torture, that the crime may be proved in court.
=ANCIENT LAW.=
=XIV. Where a Freedman, or a Slave, has been Convicted of having
committed Adultery, with Violence, upon a Freeborn Virgin, or Widow.=
If any one should compel a virgin or widow, who is freeborn, to commit
adultery or fornication; if he should be freeborn, he shall be scourged
with a hundred lashes, and be given forever to serve as a slave her
whom he has injured. A slave convicted of such a crime shall be burned.
And a freeman who has been proved to be guilty of a crime of this kind,
shall never be permitted to marry her whom he has violated. But if the
woman herself, after she has received the man as a slave, should marry
him, she shall then undergo the penalty of her base action, and shall,
along with all her property, be delivered over to her own heirs, to
forever serve as a slave.
=ANCIENT LAW.=
=XV. Where a Freeman, or a Slave without the Knowledge of his Master,
commits Adultery with the Female Slave of Another.=
If any one should be convicted of having committed adultery with a
female slave outside the house of her master, the latter shall have the
power of punishing only the female slave. Where either a freeman or
a slave is convicted of the commission of such a crime with a female
slave in the house of her master; if he should be freeborn, and the
slave of good reputation and superior rank, he shall receive a hundred
lashes, without any imputation of infamy. If the slave is of inferior
rank, she shall receive fifty lashes; and a male slave, guilty of such
an offence with the female slave of another, shall receive a hundred
and fifty lashes.
=ANCIENT LAW.=
=XVI. Where a Female Slave is proved to have committed Adultery with
Another by Force.=
If any one should violate the person of a female slave, and should
be seized in the house of her master; or if he should be convicted
of having committed the crime anywhere else; if a slave, he shall
receive two hundred lashes; if a freeman, fifty; and the latter shall
be compelled to pay, in addition, thirty _solidi_ to the master
of the female slave. But if the master should have ordered the slave
to commit the act, the latter shall undergo the penalty and scourging
prescribed by a former law.
=ANCIENT LAW.=
=XVII. Concerning Freeborn Women, or Female Slaves, of Bad Character;
and Where Judges Refuse to Investigate or Punish their Crimes.=
If any freeborn girl or woman should publicly practise fornication, be
known as a harlot, and be shamelessly given to soliciting men; after
having been arrested by the governor of the city, she shall receive in
public two hundred lashes, and shall be sent away, under the condition
that she shall not, afterwards, be guilty of similar conduct, or ever
again enter the city. And if she should ever return, she shall be
sentenced by the governor to receive three hundred lashes more, and
shall be given as a slave to some pauper, and never be permitted to
go freely about the city again. And if she should admit that she has
pursued her evil life with the knowledge of her father and mother, and
thus should seem to have acquired her degradation through association
with her parents, and her father and mother should be convicted of
having had such guilty knowledge; each of them shall receive a hundred
lashes.
If a female slave should be convicted of leading such a life, she shall
be arrested by order of the judge; shall receive three hundred lashes
in public; and, having had her head shaved, shall be returned to her
master, with the understanding that he will cause her to be removed to
such a distance from the city, or will sell her in such a locality,
that she shall be unable to return. But if he should be unwilling to
send her away, or to sell her, and she should return, he shall receive
fifty lashes in public; and the said female slave shall be given to
some pauper whom the king, judge, or governor may select, with the
admonition that she be not again permitted to enter the city. If she
should declare that she had acted with the consent of her master,
gaining money for him through her vicious practices, and he should be
publicly convicted of this, he shall receive the same number of lashes
as she would otherwise have received.
And, in like manner, we decree that all others should be dealt with,
who either in villages or towns, have been arrested for similar crimes.
If any judge should be unwilling to investigate such offences, or
prosecute, or correct them, he shall receive a hundred lashes by order
of the governor of the city, and shall pay thirty _solidi_ to him
whom the king shall designate.
=FLAVIUS RECESVINTUS, KING.=
=XVIII. Concerning the Impurity of Priests and other Ministers of
Religion.=
As sacred authority demands purity of life, so it should also be
required of its ministers; and it is our duty to put an end to all
unlawful conduct, and attempt to act in compliance with the Divine
commandments. Therefore, if it should be established by undoubted
evidence, that any priest, deacon, or sub-deacon, has married or
committed fornication or adultery with a widow doing penance, a virgin,
a wife, or any other woman; as soon as the fact shall come to the
knowledge of the bishop, or the judge, he shall put an end to such a
connection at once.
When the offender has been brought back under the power of his
ecclesiastical superior, he shall be placed in confinement, and
compelled to do penance according to the holy canons of the Church; and
if the bishop, through indulgence, should neglect to place him under
restraint as aforesaid, he shall pay two pounds of gold to the royal
treasury, and shall no longer be permitted to delay the punishment of
the offender. Where the bishop is unwilling to act, he shall either
call a council, or bring the matter to the attention of the king.
Such women as are implicated in the aforesaid enormities, shall be
given a hundred lashes by order of the judge; and all access to them
shall be prohibited; and the law, as established by the canons of the
Church concerning this offence, shall be enforced by the bishops. In
avenging such crimes, we do not grant the right to accuse or punish to
every one indiscriminately, unless the proof should be overwhelming,
or the guilt of the parties fully established; as we disclaim all
intention of opposing the precepts of the Holy Fathers, or of
violating, in any way, their ancient and sacred privileges.[19]
TITLE V. CONCERNING INCEST, APOSTASY AND PEDERASTY.
=I.= _Concerning Incestuous and Adulterous Marriages in
General._
=II.= _Concerning Incestuous and Adulterous Marriages and
Debauchery, either with Holy Virgins, or with Widows
and other Women while doing Penance._
=III.= _Concerning Men and Women who Illegally Assume the
Tonsure and Dress of Religious Orders._
=IV.= _Concerning the Restraint of Fraud Peculiar to Widows._
=V.= _Concerning Pederasty._
=VI.= _Concerning Sodomy, and the Manner in which the Law
should be Enforced._
=VII.= _Concerning Adultery committed with the Concubine of a
Father, or a Brother._
=FLAVIUS CHINTASVINTUS, KING.=
=I. Concerning Incestuous and Adulterous Marriages in General.=
No one shall marry, or maintain incestuous relations with, any woman
belonging to the family of his father, or his mother; or of his
grandfather, or his grandmother; or with the betrothed of his brother,
or the widow of any of his relatives. Therefore, it shall not be lawful
to defile the blood of such as are related even to the sixth degree,
either by marriage or otherwise; those persons only being excepted, who
have been married with the permission of the king, before the making
of this law, and the said persons shall, in no way, be affected by its
provisions. This law shall also apply to women. If any person should
violate it, the judge shall immediately order them to be separated, and
shall cause them to be placed in monasteries, according to their sex,
there to perform perpetual penance. The disposition of the property of
these offenders has been provided for by another law.
=FLAVIUS RECESVINTUS, KING.=
=II. Concerning Incestuous and Adulterous Marriages and Debauchery,
either with Holy Virgins, or with Widows and other Women while doing
Penance.=
It is our royal duty to promulgate laws to be enforced throughout all
the provinces of our kingdom, to the end that crime may be prevented
in the future, and that justice may put an end to the deeds of the
wicked. Many persons, in defiance of the admonitions of the Divine Law,
and in opposition to the honorable duties of life, are accustomed,
either by violence, or with consent, to contract marriage with virgins
who have been devoted in the service of God, and have taken the vow
of chastity with the benediction of the priest, and according to the
canons of the Church; or with other women nearly related to themselves;
and, in this way, have polluted with vice that chastity which was
dedicated to God, or which should have been respected on account of
the ties of consanguinity. Such conduct, whether it relates to men or
women, is both abhorrent to good morals, and a reproach to the True
Faith. Therefore, in the name of God and the Holy Catholic Church,
we decree that, hereafter, as is also provided by the ecclesiastical
canons, no one, either by force or consent, shall take as a wife, any
virgin devoted to God, or any widow who has assumed the habit of any
order; or any one who is performing penance; or any near relative of
their own; or any one with whom his connection might be branded with
infamy; because that cannot be a true marriage, which from good becomes
evil, and which, under a false name, is nothing more than incest and
fornication. And if any other persons in our kingdom should attempt to
commit a crime of this kind, they shall be separated, and condemned to
perpetual exile, at the instance of the judge or priest, even if no
one should accuse them; nor shall any time which may have elapsed, be
pleaded in their defence.
The property of such persons which has been seized for the crime, shall
belong to the children of a former marriage; and if there should be no
such children, to those born of this marriage; and the latter shall
not be liable to reproach on this account, for those who are born out
of wedlock are purified by the ceremony of baptism. But if there should
be no children whatever, the inheritance shall descend to those to whom
the provisions of former laws have given legitimate succession. The
same regulation shall apply to persons in orders, whom the Canon Law
forbids to marry.
Those women are excepted from this decree who have been forced into
marriage, and have not subsequently given their consent thereto. Any
judge, or priest, who is aware that such an offence has been committed,
and neglects to punish it, shall be compelled to pay five pounds of
gold to the royal treasury; and, in case he should not be able or
willing to inflict such punishment, he shall bring the matter before
the king, in order that he may impose the penalty which is not in the
power of the magistrate or priest to inflict.
=FLAVIUS CHINTASVINTUS, KING.=
=III. Concerning Men and Women who Illegally Assume the Tonsure and
Dress of Religious Orders.=
We should eradicate the reproach of apostasy, in order that we may
enjoy the favor of God. For if we think it is an evidence of piety to
punish sins of less importance, to a much greater extent should we
visit with severe censure any crime committed against the Divine Power.
Therefore, we decree by this law, which shall remain perpetually in
force hereafter; that whoever adopts the dress of a religious order,
and assumes the honorable mark of the tonsure, either for the purpose
of performing penance, or through the pious wishes of parents, and
without any suspicion of fraud; or through their own will and devotion
to the Church; and afterwards, apostatizing, resumes intercourse with
the laity; shall, at the instance of any one, be brought again by force
under the control of the religious order to which they belong; and,
branded with infamy, shall be forever confined in monasteries, and
subjected to the severest penance. In cases of this kind, indulgence
shall only be shown to those who have been influenced by the deceit
of others, or such as have returned to the order of their own accord;
provided that among such persons a man has not taken another wife,
or a woman another husband. And those also shall be exempt from the
operation of this law, who assumed their vows when they neither
knew what they were doing, nor remembered what they had done. The
property of persons practising such deception shall belong to their
sons and their relatives, as follows: if the man is married and has
children, and should have received any gift from his wife, it shall
be transferred to her, and, after her death, shall descend to their
children. But if she should be dead, or they should have no children,
the lawful heirs of the offender shall have the property. But whatever,
at any time, the husband received through his wife, shall belong to her
nearest heirs.
This law shall also apply to women; for instance, where any virgin
or widow, as a penitent lays aside the clothing of the laity, and
afterwards resumes it; or marries; she shall undergo the same penalty
and loss of property as has been decreed concerning men, to wit:
the children and heirs of such a woman shall have her property.
The relatives of a husband, however, shall be entitled to any gift
previously presented by him to his wife. And, since women are more
frequently involved in the fraud of apostasy, we hereby decree that
whatever should be given by a man to his betrothed, or to his wife,
before or after the nuptials, by way of dowry, shall belong, not to the
heirs of the wife, but to the heirs of him who gave the dowry. Persons
guilty of such offences shall not have the right to accuse any one,
or to testify, or to transact any business whatever in court; because
those cannot be trusted in secular matters, who have been proved guilty
of sacrilege in affairs relating to our Holy Religion.
=FLAVIUS EGICA, KING.=
=IV. Concerning the Restraint of Fraud Peculiar to Widows.=
Certain widows are accustomed to shrewdly mingle fraud with devotion,
and, by the union of religious and secular garments, give themselves
an opportunity for transgression at their will. Thus, during the time
of their mourning, they put on a religious dress; and, afterwards, for
purposes of deception, put on other garments under the religious habit;
and for this reason, to those who see them, appear other than what
they are. Wherefore, that an end may be put to fraud of this kind, we
decree, by this law, that hereafter, when any widow wishes to excuse
herself for practising this deception, that within she wears one kind
of dress, and outside another; that portion which is visible, and
which she has assumed for purposes of duplicity, shall be considered
as designating her as a member of a religious order; and thus, not
what she has adopted for the commission of sin, but what the eyes of
every one perceive, is to be accepted as the sign of her religious
profession. Any widow who, hereafter, attempts to excuse herself in
this way, shall not only be subject to the penalties of the law, but
shall also undergo the punishment prescribed by the canons of the
Church, and shall not escape the justice of the king.
=FLAVIUS CHINTASVINTUS, KING.=
=V. Concerning Pederasty.=
That crime must not be unpunished which, in the violation of morality,
has always been considered most execrable; we therefore decree, in
cases of pederasty, where their guilt has been proved after proper
investigation by the judge, that both parties shall be emasculated
without delay, and be delivered up to the bishop of the diocese where
the deed was committed, to be placed in solitary confinement in a
prison; so that, against their will, they may expiate the crime which
they are convicted of having voluntarily perpetrated.
If, however, any one should have been forced to commit this horrible
offence, and is proved to have done so unwillingly, he shall then
not be liable to punishment, if the person who discovered the crime
should be present as a witness; but he who engaged in it voluntarily
shall undergo the full penalty. The children, or legitimate heirs of
married men who have been found guilty of this crime, shall have their
property; and it shall be lawful for their wives, having received back
their dowries, and retaining all their possessions, to afterwards marry
whomsoever they will.
=FLAVIUS EGICA, KING.=
=VI. Concerning Sodomy, and the Manner in which the Law should be
Enforced.=
The doctrine of the orthodox faith requires us to place our censure
upon vicious practices, and to restrain those who are addicted to
carnal offences. For we counsel well for the benefit of our people and
our country, when we take measures to utterly extirpate the crimes of
wicked men, and put an end to the evil deeds of vice. For this reason
we shall attempt to abolish the horrible crime of sodomy, which is
as contrary to Divine precept as it is to chastity. And although the
authority of the Holy Scriptures, and the censure of earthly laws,
alike, prohibit offences of this kind, it is nevertheless necessary to
condemn them by a new decree; lest if timely correction be deferred,
still greater vices may arise. Therefore, we establish by this law,
that if any man whosoever, of any age, or race, whether he belongs
to the clergy, or to the laity, should be convicted, by competent
evidence, of the commission of the crime of sodomy, he shall, by order
of the king, or of any judge, not only suffer emasculation, but also
the penalty prescribed by ecclesiastical decree for such offences, and
promulgated in the third year of our reign.
=FLAVIUS CHINTASVINTUS, KING.=
=VII. Concerning Adultery committed with the Concubine of a Father, or a
Brother.=
It was decreed by a former law, what should be done in cases where
incest was committed by persons related by blood. And because it is
not of less importance that the bed of the father or brother be not
polluted, we command, in addition, that no blood relative of theirs
shall ever commit adultery with either the concubine of his father or
his brother, nor with any one whom he knew his father or his brother
had ever sustained intimate relations with, whether she be a freewoman
or a slave; nor shall the father commit such adultery with the
concubine of his son. And if any one should knowingly commit such an
offence, his heirs, should he have no legitimate children, shall obtain
his property; and he himself shall be subjected to penance, and shall
undergo the punishment of perpetual exile.
TITLE VI.--CONCERNING DIVORCE, AND THE SEPARATION OF PERSONS
WHO HAVE BEEN BETROTHED.
=I.= _Where a Woman, justly or unjustly, is Separated from her
Husband._
=II.= _There shall be No Divorce between Married Persons._
=III.= _There shall be No Separation between Persons who are
Betrothed._
=I. Where a Woman, justly or unjustly, is Separated from her Husband.=
No one can legally marry a freewoman who has been repudiated by her
husband, unless he knows that they have been divorced, either by
written evidence, or in the presence of witnesses. And if any one
should act otherwise, as soon as the governor of the city, or his
deputy, or the judge of the district, shall become aware of the fact,
where the parties are noble, and the judge is unable to imprison or
separate them; he must straightway bring the affair to our attention,
that they may receive the punishment which they deserve. But if they
are persons of inferior rank, the judge shall immediately cause them
to be separated. And the woman who, without the consent of her former
husband, has married again, as well as the man who ventured to take her
as a wife, shall be delivered up absolutely to her former husband, to
be dealt with according to his pleasure. If, however, the case between
the former husband and his wife has not yet been decided; or if her
former husband has married another woman; or, indeed, if he has left
his wife unjustly; he shall lose the dowry which he gave her, and it
shall absolutely belong to her, nor shall he be entitled to receive any
of her property. If he should have sold, or fraudulently disposed of,
any of the property of his wife, the judge shall compel him to make
restitution. Where the woman, through fear of her husband, or deceived
by any of his representations, should have made any written agreement
concerning her property for his benefit, her agreement shall be null
and void, and all the property which it disposed of shall be restored
to her.
=FLAVIUS CHINTASVINTUS, KING.=
=II. There shall be No Divorce between Married Persons.=
If the violation of the wife of another is a crime, how much more
is she to be condemned who voluntarily commits this sin. For the
reason that there are many reckless men who, either through ambition
or desire, or induced by some fraud, and despising their own wives,
seek those of others, we therefore decree by this law, which is to
be perpetually observed; that no man, except for the manifest cause
of fornication, shall at any time, leave his wife, nor shall he
divorce himself from her, either in the presence of a witness, or by
any instrument in writing, or under any pretext whatever. Where her
husband is able to prove her guilty of adultery, the crime having
been established by sufficient evidence, she shall be given up to him
by the judge to be disposed of as he pleases; in accordance with the
provisions of a former law. If, however, she should manifest a desire
to enter a religious order, the priest shall ascertain the wishes
of both of them, so that, afterwards, neither will be able to offer
any excuse for their conduct, in case either should marry again. But
if, under any other circumstances, a man, rejecting his wife, should
fraudulently obtain from her a document in writing, relating to a
separation, such document shall have no validity whatever, and the
wife shall be entitled to recover the sum she received as a dowry;
and if the unprincipled husband should have any property, it shall be
given to their children. But if there should be no children by this
marriage, or by a former one of the husband, the wife shall receive
his entire property, in addition to her dowry, as aforesaid; and if
she should be dead, her sons shall have the right to bring the matter
before the court; so that, the crime being proved, the man may undergo
the sentence of the law. All the children either by this marriage or by
a preceding one of the husband, shall, as we have said, share equally
in the property. But if the parties should have no children; and there
should be none living of the first marriage of the husband; and it
should appear that the woman has children by a previous marriage of
her own; it shall be lawful for the latter to share in their mother’s
rights in this property; and, on their application, under the present
law, they may obtain the entire possessions of the man who has been
condemned. Where there are no children of the aforesaid persons,
husband and wife, her nearest relatives shall be entitled to the
inheritance of her property, providing they should have instituted
proceedings leading to the conviction of the husband. Where a husband,
for the sake of divorce, or for security to himself, extorts any
instrument in writing from his wife, or, without doing this, having
abandoned his wife, should marry another; he shall receive two hundred
lashes in public, and shall be scalped, as a mark of degradation; or
he may be condemned to perpetual exile, or be given as a slave to any
one whom the king may select. Any woman who, knowing at the time, or
having discovered subsequently, that her husband has another wife
living, shall make no objection to this; shall, at once, be given up
to the former wife of her husband; so that, with the exception of
depriving her of life, she may have the privilege of disposing of
her as she pleases. And if, even after the death of the first wife,
this crime should be proved by her children, or, if there should be
no children, by such heirs as have the right to prosecute; the guilty
woman shall be given into their power, to be disposed of in the same
manner as the injured wife would have had a right to dispose of her,
the infliction of death alone being excepted. And, for the reason that
women are accustomed very frequently to cause scandal by leaving their
own husbands, on account of their attachment to kings and judges;
therefore, we decree that if any woman either by the aid of the
king, or through inducements held out to her by any one else, should
separate from her husband, or consent to marry another man; she shall
be surrendered, with all her property, into the hands of her lawful
husband, and shall be liable to the same penalty imposed upon the
husband under similar circumstances, as hereinbefore stated, and her
property shall be disposed of in a similar manner.
Likewise, this same rule shall apply to men, where one shall presume
to marry the wife or the betrothed of another; the following cases
being excepted: where the husband of the woman should have been found
guilty of pederasty; or should have surrendered his wife to another
man against her will; or should have permitted this to be done; and,
for the reason that such villainy ought always to be condemned by
Christians, that man shall never be permitted to marry another woman,
if he should desire to do so. Where the spurious marriage has actually
taken place, the husband must be delivered up as a slave to some one,
according to due process of law; and if the woman should be unwilling
to longer live with her legal husband, she must afterwards live a
chaste life; nor shall she be permitted to marry again until her
aforesaid husband is dead.
=FLAVIUS RECESVINTUS, KING.=
=III. There shall be No Separation between Persons who are Betrothed.=
We have elsewhere prescribed the same punishment for transgressions
committed by persons of equal rank. Therefore, the provisions of a
former law relating to the persons as well as property, of men and
women who have been betrothed, shall be, and is, hereby confirmed;
and if any person after the dowry has been given, or the marriage
contract has been legally drawn up, in violation of his, or her,
solemn obligations, should marry any one else, without the consent
of all parties; he, or she, shall be liable to all the penalties of
a former law; and if it should appear that on account of sickness,
rather than through fraud, such person is desirous of entering some
religious order, he or she shall be permitted to do so, subject to the
regulations of the above-mentioned former law.
BOOK IV.
CONCERNING NATURAL LINEAGE.
TITLE I. CONCERNING THE DEGREES OF RELATIONSHIP.
=I.= _The Nature of the First Degree._
=II.= _The Affinity of the Second Degree._
=III.= _The Relationship of the Third Degree._
=IV.= _The Consanguinity of the Fourth Degree._
=V.= _The Origin of the Fifth Degree._
=VI.= _The Limits of the Sixth Degree._
=VII.= _The Persons in the Seventh Degree who are not Mentioned
by the Laws._
=I. The Nature of the First Degree.=
In the first rank of the first degree are included the father and the
mother; in the second rank, the son and the daughter; but no other
persons.
=II. The Affinity of the Second Degree.=
In the second degree and the first rank, are included the grandfather
and the grandmother; in the second, the grandson and the granddaughter;
in the collateral line, the brother and the sister, which persons have
a twofold origin, for the father and the mother are derived from both
the grandfather and grandmother; the grandson and granddaughter, from
both son and daughter; the brother and sister, from both father and
mother. And likewise, the persons in the following degrees, in whatever
relationship they stand to each other, are, in the same manner, of
twofold origin. Persons in the second degree are thus said to be of
double derivation, because there are two grandparents, paternal and
maternal; and two kinds of grandchildren, descended either from the
son or from the daughter. The brother of the father, or the brother
of the mother, who are called respectively the paternal or maternal
uncles, belong to the collateral line, and they, in like manner, are of
double origin.
=ANCIENT LAW.=
=III. The Relationship of the Third Degree.=
The third degree includes, first the great-grandfather and
the great-grandmother; second, the great-grandson and the
great-granddaughter; in the collateral line, the son and the daughter
of the brother and the sister; the paternal uncle and the paternal
aunt, that is to say, the brother and the sister of the father; and the
maternal uncle and the maternal aunt, that is to say, the brother and
sister of the mother.
=ANCIENT LAW.=
=IV. The Consanguinity of the Fourth Degree.=
In the fourth degree come first the great-great-grandfather and
the great-great-grandmother, and then the son and daughter of
a great-grandchild; in the collateral line, the grandson and
granddaughter of the brother and the sister; then the cousins of both
sexes, the sons and daughters of the paternal uncle, and the children
of the maternal uncle and aunt; then other cousins, the children of
the father’s sister; and also cousins who are born of two sisters;
and besides, the great-uncle and the great-aunt by the father’s side;
then the great-uncle and great-aunt by the mother’s side. There is no
necessity of explaining this any further than is here stated.
=ANCIENT LAW.=
=V. The Origin of the Fifth Degree.=
The fifth degree includes, in the first place, the
great-great-great-grandfather and the great-great-great-grandmother;
secondly, the great-great-great-grandson and the
great-great-great-granddaughter, and, in the collateral line, the
greatgrandsons and great-granddaughters of brothers and sisters;
male and female cousins by the father’s side, the sons and daughters
of cousins by the father’s side, and the children of great-uncles and
aunts on both father’s and mother’s side. Next come the brothers and
sisters of the paternal great-grandfather and the brothers and sisters
of the maternal great-grandfather. The above-mentioned degrees of
relationship we cannot define by other means, or in other words, than
those in which they are here set forth.
=ANCIENT LAW.=
=VI. The Limits of the Sixth Degree.=
To the sixth degree belong, first, the
great-great-great-great-grandfather and the
great-great-great-great-grandmother; then
the great-great-great-great-grandson and the
great-great-great-great-granddaughter; next, in the collateral line,
the son and the daughter of a great-grandchild of the sister; the
sons of a father’s brother and the sons of a father’s sister; cousins
on both sides of the house; paternal and maternal great-aunts,
and the grandsons and granddaughters of paternal great-uncles and
maternal great-aunts. To whom are added, in the collateral line, the
children of the great-uncles and the great-aunts of both father and
mother; that is to say, of the brother and the sister of the paternal
great-great-grandfather, and of the brother and sister of the maternal
great-great-grandmother. No better explanation of this matter can be
given than we have written above.
=VII. The Persons in the Seventh Degree who are not Mentioned by the
Laws.=
In the seventh degree those who are related in the direct line are not
specifically designated by name; but the collateral line embraces the
sons and daughters of great-grandchildren of brothers or sisters, and
the sons and daughters of their cousins of both sexes. There exist,
then, seven degrees of relationship, and no more, because, according
to the nature of things, names could not be found for others, nor more
heirs be begotten in the space of an ordinary lifetime.
TITLE II. CONCERNING THE LAWS OF INHERITANCE.
=I.= _Brothers and Sisters shall Share Equally in the
Inheritance of their Parents._
=II.= _The Children shall Come First in the Order of
Succession._
=III.= _Where there are no Heirs in the Direct Line, Collateral
Heirs shall Inherit the Property._
=IV.= _Who shall Succeed to the Property of Those who have
left no Written Wills, or have made no Disposition of
their Possessions in the Presence of Witnesses._
=V.= _Concerning Inheritance by Brothers and Sisters, and by
such of these as are not descended from the same
Parents._
=VI.= _Where he who dies leaves Grandfathers or Grandmothers._
=VII.= _Where he who Dies leaves Aunts._
=VIII.= _Where he who Dies leaves Nephews._
=IX.= _A Woman shall be entitled to a Share in an Entire
Inheritance._
=X.= _As a Woman has a Right to a Share of an Entire
Inheritance, so he who is next in Succession shall
Inherit the Remainder of the Property._
=XI.= _Concerning the Inheritance of Husband and Wife,
respectively._
=XII.= _Concerning the Inheritance of Property from Clerks and
Monks._
=XIII.= _After the Death of their Mother, Children shall remain
under Control of their Father; and What Disposition
he shall make of their Property._
=XIV.= _Where a Mother remains a Widow, she shall have an Equal
Portion of the Inheritance with her Children; and
How a Mother ought to Dispose of the Property of her
Children._
=XV.= _No Wife can lay Claim to what her Husband has Gained by
the Labor of her Slaves._
=XVI.= _Concerning such Property as the Husband and Wife,
together have Accumulated during their Married Life._
=XVII.= _In what way a Child may Inherit Property._
=XVIII.= _How the Parents of a Child can Inherit from Him._
=XIX.= _Concerning Posthumous Children._
=XX.= _He who leaves no Children, has full Power to Dispose of
his Property as he Pleases._
=I. Brothers and Sisters shall Share Equally in the Inheritance of their
Parents.=
If the father or mother should die intestate, the sisters shall have
the property equally with their brothers.
=II. The Children shall Come First in the Order of Succession.=
If a man should die intestate, his children shall stand first in the
order of succession; if there are no children, the inheritance shall
descend to the grandchildren; if there are no grandchildren, then the
great-grandchildren shall have a right to it; and if the decedent
should leave neither children nor grandchildren, nor father nor mother,
then his grandfather or grandmother, should either be living, may claim
the inheritance of his estate.
=ANCIENT LAW.=
=III. Where there are no Heirs in the Direct Line, Collateral Heirs
shall Inherit the Property.=
When any of the above-named persons of the first or second degree,
in the direct line of succession, are not living, then collateral
heirs shall be sought for to inherit the property of the man who died
intestate. And such persons as are only distantly related can claim
nothing while nearer heirs are still living.
=IV. Who shall Succeed to the Property of Those who have left no Written
Wills, or have made no Disposition of their Possessions in the Presence
of Witnesses.=
In the case of those who die, and make no disposition of their property
either by gift or by will, or do not declare their intentions in the
presence of witnesses; their next of kin shall inherit from them.
=V. Concerning Inheritance by Brothers and Sisters, and by such of these
as are not descended from the same Parents.=
Where a man leaves only brothers and sisters, they shall inherit his
property, share and share alike, provided they are all children of
the same father and mother. But if some should be descended from a
different father or mother from the others, the inheritance shall go
to the brothers and sisters having the same father and mother as the
decedent. Such children as are born of different parents, but of the
same mother, shall inherit the property of the mother, share and share
alike. Those also who are descended from different mothers, but the
same father, shall share in a like manner.
=VI. Where he who Dies leaves Grandfathers or Grandmothers.=
If any one should leave a paternal grandfather and grandmother, his
entire property shall descend to them. So also if he should leave a
paternal grandfather and maternal grandmother, they shall inherit his
estate equally; and the same disposition of it shall be made, if he
should leave both a paternal and a maternal grandmother. This equitable
division of his estate shall apply only to such portions of it as he
has acquired by his own efforts; and whatever he may have inherited
from his ancestors, or his parents, shall descend to the heirs of the
latter in the direct line of succession.
=VII. Where he who Dies leaves Aunts.=
Where the decedent dies intestate, and leaves only a paternal uncle and
aunt, and a maternal uncle and aunt, they shall inherit the property in
equal parts.
=ANCIENT LAW=.
=VIII. Where he who Dies leaves Nephews.=
Where the decedent does not leave any brothers or sisters, but does
leave nephews and nieces; if one of them should be the son of one
brother, and the others the children of another brother or sister, the
inheritance shall be divided among them, share and share alike.
=IX. A Woman shall be entitled to a Share in an Entire Inheritance.=
A woman shall inherit, equally with her brothers, the property of
their father or mother; of their grandparents, on the paternal and
the maternal side, as well as of their brothers and sisters; and also
any property which may be left by a paternal uncle, or a cousin, or
a nephew, or a niece. For it is only just that those who are nearly
related by blood, should enjoy the benefit of hereditary succession.
=X. As a Woman has a Right to a Share of an Entire Inheritance, so he
who is next in Succession shall Inherit the Remainder of the Property.=
Women shall share all property left by relatives on the maternal side,
with those in the same degree of relationship, whether they be uncles,
aunts, or cousins. For those should have the inheritance who are the
most nearly related to the deceased.
=ANCIENT LAW.=
=XI. Concerning the Inheritance of Husband and Wife, respectively.=
Husband and wife shall inherit from each other, respectively, when they
leave no relatives nearer than the seventh degree.
=XII. Concerning the Inheritance of Property from Clerks and Monks.=
The church to which they are attached shall inherit the property of
all clerks, monks, and other persons in orders, who have left no heirs
under the seventh degree, and who have made no disposition of their
estate.
=XIII. After the Death of their Mother, Children shall remain under the
Control of their Father; and What Disposition he shall make of their
Property.=
If the mother should die, the children shall remain under the control
of the father. And, if she should die while her husband is still living
and he should not marry again, he shall have charge of the children
born of the marriage, and may retain possession of their property, with
the understanding that he is not to sell, damage, or dispose of it in
any way, but shall preserve it intact for the benefit of his children.
But, in common with his children, he shall enjoy the income from said
property, and shall be entitled to reserve from it all their necessary
expenses. If, however, the father should marry again, he shall not
relinquish the care of the children, because it is not just that his
authority over them having been abandoned, they should be placed under
the guardianship of another; but he shall still retain control over
them and their property, as hereinbefore mentioned. But he must at
once draw up an inventory of their property in his own hand, in the
presence of a judge, or of the heirs of his deceased wife; and he must
also bind himself by a written obligation, that those relatives who are
legally entitled to it shall have the guardianship of the children in
the case of his death; in order that none of the property of the latter
may be lost, but may be protected by him, in every way, from injury or
diminution in value. If the father, after having married a second time,
should refuse to act as guardian of his children, then the judge shall
appoint the nearest relative of the mother to take charge of them as
guardian. And if either his son or daughter should marry, they shall
at once receive their portion of their mother’s estate; excepting the
third part, which he may reserve for himself, as authorized by law.
The father, as soon as a son or daughter has reached the age of twenty
years, shall give to them half of what they are entitled to from their
mother’s estate, provided that they should not have already married.
The remaining half the father shall reserve for himself during his
lifetime, and, after his death, it shall descend to his children. This
same regulation shall apply also to grandchildren. When the father has
alienated any of the aforesaid property, or has retained it beyond the
time prescribed by law, everything belonging to his children by right
of inheritance from their mother, shall be given to them, at once, by
way of complete restitution.
=ANCIENT LAW.=
=XIV. Where a Mother remains a Widow, she shall have an Equal Portion of
the Inheritance with her Children; and How a Mother ought to Dispose of
the Property of her Children.=
A mother, during her lifetime, or so long as she remains a widow, shall
share equally with her children in the income derived from the estate
of her deceased husband. But she cannot give away, or sell, or bestow
upon any of her children her share of the aforesaid property. And if
the children should become aware that their mother, either through
negligence, or through hatred of them, was about to dispose of any of
said property, they may, at once, make application to the governor of
the city, or to the judge, in order that the latter may warn their
mother not to alienate such property, and only to use the income of
it. She, however, shall have the right to give to her children any
or all of said income, and she can unquestionably dispose of any
profits derived from the same. And if it should be proved that she has
alienated any of her portion, full restitution must be made therefor
after her death.
After the death of the mother, whatever she received from her husband
shall be equally distributed among the children, because they must not
be defrauded of their paternal inheritance. If the mother should marry
again, from that very day the children can claim as their own that
portion of their father’s property which their mother received at his
death.[20]
=XV. No Wife can lay Claim to what her Husband has Gained by the Labor
of her Slaves.=
If the husband should acquire any property through the labor of his
wife’s slaves, or in any foreign enterprise, his wife shall have no
right to such property, either during his lifetime, or after his death
for a husband who has control of his wife, as stated in the law of
the Holy Scriptures, shall also have full authority over her slaves;
and everything which he has gained by the services of the latter, or
by those of his own slaves, in any undertaking, shall belong to him
absolutely. And if the said slaves, while they are engaged with their
master in any expedition or enterprise, should commit any wrong, or do
any injury, he who brought them with him shall be responsible for their
conduct, and shall make restitution, should they be found guilty. It
has thus very properly been determined that, as their master profits
by their labors, he should also be responsible for any damage they may
cause.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XVI. Concerning such Property as the Husband and Wife together have
Accumulated during their Married Life.=
When persons of equal rank marry one another, and, while living
together, either increase or waste their property, where one is
more wealthy than the other; they shall share in common the gains
and losses, in proportion to the amount which each one holds. If
the value of their possessions is the same, neither has a right to
assume superiority over the other. For, it is not unusual, where
such property is equal in amount, for one party, in some way, to
take advantage of the other. And if it should be evident that the
possessions of one exceed those of the other in value, as above stated,
there shall be an apportionment of it made, showing what either shall
have the right to claim after the death of the other, and what either
shall have a right to dispose of to his or her children, or to heirs,
or in any other way that may be desired. This provision shall apply to,
and be observed in, all cases relating to the estates of both husbands
and wives. The distribution and possession of other property concerning
which an agreement in writing has been entered into by both parties,
shall be held and enjoyed by them according to the terms of that
written agreement. If the husband should acquire any property, either
from strangers, or during any public expedition, or by the donation of
the king, or of a patron, or of any of his friends, his children or his
heirs shall have a right to claim it, and shall have absolute power to
dispose of it as they wish. The same rule shall apply to women who have
received gifts from any source.
=XVII. In what way a Child may Inherit Property.=
Ambiguity frequently produces error where a reasonable explanation is
not given to elucidate a fact that is doubtful. Many persons deny that
a child dead in infancy can have, at any time, a right to inherit from
its parents, and we desire now to put an end to such disputes. For the
origin of nature is such, that he who is born uses the senses of sight
and touch before anything else. Who, therefore, can inherit any earthly
possessions who died almost before he was sensible to light? And in
what way can he be the possessor or property for whose control he was
not destined, and who has scarcely had the use of the elements of which
he was formed? And he who has hardly been blessed by the light of
heaven; how can the unexpected inheritance of the world enrich him when
suddenly removed by death? With what reason can he claim the rights of
the living, who is more nearly associated with death than with life,
and who thus quickly dying in the midst of light, has fallen back into
darkness? Therefore, that the inheritance of an infant may belong
to its nearest relatives, and the fact that he was living be clearly
proved; and as the child had a right to eternal life, so also that it
may have a right to terrestrial life; we hereby decree that no child of
either sex shall inherit, unless it has been proved that it lived for
the space of ten days after its birth, and shall have received the holy
sacrament of baptism, so that the father or mother of the child who
shall be entitled to its inheritance, may, before its death, prepare
it for its entrance into heaven; and that while still living, it shall
obtain the possessions of the earth with their transitory benefits. And
thus, while heavenly possessions are provided for it, it shall also be
permitted to acquire those of the earth; and although while dead, it
cannot benefit by the things of earth, it can, at least, enjoy those of
heaven.
=FLAVIUS CHINTASVINTUS, KING.=
=XVIII. How the Parents of a Child can Inherit from Him.=
Where the father is dead and the son or daughter should have lived
ten days or longer, should have been baptized, and then should die;
whatever either would have inherited from the estate of his or her
father, may be claimed by his or her mother. And, in like manner, if
the mother should die, the father shall not be entitled to the share
of the deceased child, unless he be able to prove that that child has
lived ten days, or longer, and has been baptized. And if neither father
nor mother in whom these rights are vested, should leave any children,
the entire inheritance shall be divided among the other descendants;
but they shall not have the power to give to each grandchild more than
the third part of the aforesaid property. And if they should wish to
give any of it to the Church, or to freedmen, or to any one else, they
shall have the right to dispose of only the fifth part of it in this
manner, as prescribed by a former law. But where neither children nor
grandchildren, nor great-grandchildren should be living, they shall
have the right to make such disposition of their property as they
desire.
If said parents should die intestate, then such other of their
relatives as are next of kin shall be entitled to the aforesaid
property. Thus, if after the death of a child, the father should
inherit its estate, and should die intestate, the inheritance shall
belong to those heirs who are entitled to it by law. In like manner, if
the mother should inherit the estate of her deceased child, and should
die intestate, all interest in that estate shall belong to her nearest
heirs; on this condition, that the grandchildren of the son or daughter
who died while their father and mother were living, shall inherit
such a portion of the estate of their grandfather or grandmother as
their own parents would have inherited had they been living. But if
a son having a wife and children should die during the life of his
father, before his father has given him all that he was entitled to
from his estate, and his sons should also die during the life of their
grandfather, the daughter-in-law shall receive only so much as the
father had formerly set aside for her husband. Nor can the widow claim
any more than this from her father-in-law or any of his relatives. But
if the son had been living with the father, and had not yet received
anything from him; the son’s widow shall then only be entitled to what
she obtained as a dowry at the time of her marriage. Where the son, in
obedience to his father’s wishes, permitted the latter to retain what
he was entitled to from his mother’s estate, and should bequeath it at
his death to his wife, or to any one else; such bequest for the benefit
of the wife or of others, if made in writing, shall be valid: provided
his mother did not have other sons by the same husband. If, however,
other sons should be living, the provisions of the former law must be
carried out.
=FLAVIUS CHINTASVINTUS, KING.=
=XIX. Concerning Posthumous Children.=
We fulfil the injunctions of the Divine Law when we provide for those
who are yet unborn. Therefore, when a man cut off by death, leaves his
wife pregnant, we decree that the child who is born afterwards shall
share equally with those who are already born. But if he should leave
no issue, and should bequeath his property to any person, the latter
shall only be entitled to receive the fourth part of it. The three
remaining parts shall descend, without question, to the posthumous
child. Where a husband and wife before they have children, enter into a
written agreement, mutually bestowing their property upon one another,
and, afterwards, should have children; such a disposition of property,
if their children are living, shall be void; and the children may take
and hold the entire property of their parents, with the exception of
the fifth part, which the parents shall have the right to dispose of
otherwise. But if one of them, that is to say, either the husband or
wife, before the marriage was consummated, should be proved to have
made for the benefit of the other a written agreement disposing of
property, it shall remain in full force; and such donation cannot, in
any way, be overthrown by children subsequently born of their marriage.
=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=
=XX. He who leaves no Children, has full Power to Dispose of his
Property as he Pleases.=
Every freeborn man and woman, whether belonging to the nobility,
or of inferior rank, who has no children, grandchildren, or
great-grandchildren, has the unquestionable right to dispose of his or
her estate at will; nor can any arrangement that either may make, be
set aside by any relatives of theirs belonging either to the direct or
to the collateral line. For those belonging to degrees of relationship
other than the above, in the direct line, cannot, in the order of
nature, receive the inheritance. Such relatives can, however, inherit
from the intestate in accordance with the law which defines their
rights.
TITLE III. CONCERNING WARDS AND THEIR GUARDIANS.
=I.= _What a Minor Is._
=II.= _From what date Time is to be Computed in Bringing
Lawsuits relating to Minors._
=III.= _How the Guardianship of Wards shall be Entered upon; what
Portion of their Property they shall Receive, and what
Portion shall be Given to their Guardians._
=IV.= _Guardians shall have no Right to Exact from Wards in
their Charge any Instruments in Writing whatever._
=FLAVIUS CHINTASVINTUS, KING.=
=I. What a Minor Is.=
It is a part of the practice of the duties prescribed by law, to
so care for the rights of minors that they shall suffer no loss of
their inheritance. Up to this time, little children left by a father
have been called minors, for the reason that the mother has not less
responsibility and care, on their account, than when both parents were
living; and therefore we now decree, that henceforth any children left
by father or mother, and who have not yet attained the age of fifteen
years, shall be designated minors.
=FLAVIUS CHINTASVINTUS, KING.=
=II. From what date Time is to be Computed in Bringing Lawsuits relating
to Minors.=
Where a question arises concerning the time within which an action at
law can be maintained for the recovery of property in which minors are
interested, we decree that an estimate must be made of the period which
has elapsed since the parents have lost possession of said property;
that is to say, it must be determined whether the entire number of
years from that date, when added to those of the minor shall amount
to fifty; and, if the number should be greater than that, the minor
shall not be entitled to recover. And, moreover, if the parents of the
minor in their lifetime, shall have neglected to assert their rights
for the space of thirty years, the said minor shall not be permitted to
prosecute such a claim as their representative.[21]
=III. How the Guardianship of Wards shall be Entered upon; what Portion
of their Property they shall Receive, and what Portion shall be Given
to their Guardians.=
After the death of the father, the mother shall have the guardianship
of the minor children, if she should wish it, provided she remains
a widow; and she shall make an inventory of the property to which
the children are entitled, by means of which their rights to their
inheritance may be established. But if the mother should marry again,
any one of the sons who has attained his majority, that is, who has
reached the age of twenty years, may assume the guardianship of his
younger brothers; and shall see that their property is not alienated,
or dissipated through neglect, by themselves, or by any one else.
But, in case he himself should use it up, or sell it, or give it
away, or permit it to be lost through his own negligence: as soon as
his brothers shall have become of age, he shall be compelled to make
restitution out of his own share, of whatever was wasted by him. He
shall, however, be allowed the tenth part of the income for the purpose
of living, to the end that he may not burden with extravagant expenses
what should be reserved for the minor heirs. Where he spends his own
money, or uses his own property for the necessaries and business of
all, and this fact is brought to the attention of the judge, he shall
be reimbursed for his expenditures out of the entire estate left by
his father. If any of the brothers should not be of lawful age, or of
proper character to undertake the guardianship of orphans, a paternal
uncle of a cousin may assume this duty; and if neither the paternal
uncle nor his son should be found worthy, then a guardian shall be
selected by the other relatives in the presence of the judge.
Where neither the mother, nor any one else, assumes the guardianship,
an inventory of all the property which the father left shall be drawn
up and signed by her and by witnesses, from the number of three to
five, and shall be placed in the keeping of any bishop or priest whom
the relatives may select, to be delivered to the children when they
have attained their majority.
It is also hereby provided that if any suits are brought against
minors, their guardian, should he desire it, has a right to defend such
actions. If, however, he should neglect to do so, a judgment shall be
rendered by the court in favor of the plaintiff, without prejudice to
the rights of the minors to have the matter reviewed, when they shall
become of lawful age. If the party who made the claim should lose his
case when the minor has reached his majority, he shall be compelled
to restore to the minor, or to his relatives, or to any one who may
have a right to it, whatever property he obtained under the judgment
aforesaid, along with any income it may have produced, and any profits
which may have accrued from its possession; and he shall be compelled
to pay ten _solidi_ in addition, because he has prosecuted a claim
which was not valid in law. Where a guardian desires to defend any
action brought against his ward in court he shall have full authority
to do so; but if the rights of the ward should be affected, or his
property impaired or lost through his neglect, the guardian shall
afterwards be compelled to make restitution.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=IV. Guardians shall have no Right to Exact from Wards in their Charge
any Instruments in Writing whatever.=
As minors are unable to care for themselves or their property, it has
been wisely provided by the laws that they should be subjected to the
authority of guardians, and that their business should be transacted
for them for a stated number of years. For the reason, however, that
certain guardians, by means of either persuasion or threats, defraud
those whose interests it is their duty to carefully protect, and compel
them to enter into agreements that they will not demand an accounting
of their property, or exact bonds or other written instruments from
their wards, by means of which they seek to prevent inquiry into their
actions: therefore, that our solicitude for the rights of such wards
may the better appear in all matters where such rights are involved, we
hereby decree that the following law must be strictly observed, to wit:
that in the case of such wards, even when they have passed the age of
fourteen years, where the guardian or guardians who had charge of their
persons and property shall be found to have caused the execution of
any bond or written instrument of any description, which enures to the
benefit of said guardians or any person designated by them, then such
bond or instrument shall be void, and of no force whatever in law.
When the time shall come that he who has been under guardianship
shall have the right to assume the management of his own affairs,
the guardian shall give a complete account of the care of his ward’s
property, in the presence of a priest or a judge, and shall receive
from his former ward a full discharge from all obligations; so
that, all restraint being removed, the said ward may come into full
possession of his property, and have the right to dispose of it at his
pleasure. But if it should happen that, while the guardianship is in
force, the ward should be attacked by a dangerous illness, and should
wish to dispose of his property by will, he can do so, provided he has
completed his tenth year, according to the provisions of a former law.
If the guardian, while living or dying, should give any of the
property belonging to his ward to his own children, or to any persons
whomsoever, and no account of the same was made to the wards,
according to the terms of the inventory which was made at the time
the guardianship was accepted, and proof of this should be legally
established, those who received said property from the guardian shall
make full restitution to the wards. All wards shall have the benefit
of this legal remedy, except where, by the lapse of time, and having
passed the age of fifteen years, their rights shall be extinguished by
law.
TITLE IV.--CONCERNING FOUNDLINGS.
=I.= _Where Anyone Casts Away, or Abandons, a Freeborn Child,
he shall Serve as its Slave._
=II.= _Where a Male or Female Slave shall be proved to have Cast
Away a Child, with, or without the Knowledge of his or
her Master._
=III.= _What Compensation for Support anyone shall Receive for
the Bringing up of a Child committed to his Care by
its Parents._
=I. Where Anyone Casts Away, or Abandons, a Freeborn Child, he shall
Serve as its Slave.=
If anyone, induced by compassion, should rescue, and care for a child,
of either sex, who has been abandoned, and such child, after having
been brought up, should be acknowledged by its parents; where the
latter are freeborn persons, they shall either give a slave, or the
price of one, as compensation for the service performed. If they should
neglect to do this, compensation shall be made by order of the judge of
the district; and the parents who have been guilty of such wickedness
shall be condemned to perpetual exile. Where he who casts away the
child has not sufficient property to redeem it, he shall serve as
its slave; and he whom the pity of others has preserved, shall enjoy
complete freedom. It shall be lawful for the judge both to prosecute
and impose sentence for this crime whenever committed.
=II. Where any Male or Female Slave shall be Proved to have Cast Away a
Child, with or without the Knowledge of his or her Master.=
If a slave, of either sex, in order to defraud his or her master,
should expose and abandon their own child, without the knowledge
of said master, and anyone should bring it up, the latter shall be
entitled to receive the third part of its value; but, under such
circumstances, the master must swear or prove that he was ignorant that
his slave had abandoned the child. If, however, it should be shown
that the master was aware of the fact, the child shall become the slave
of him who reared it.
=III. What Compensation for Support anyone shall Receive for the
Bringing up of a Child committed to his Care by its Parents.=
If anyone should accept from its parents a little child to be reared,
he shall receive as compensation one _solidus_ every year, until
the child has reached the age of ten; but he shall be entitled to no
further compensation after it has completed its tenth year, because
after that time the services of the child should be sufficient to pay
for its support. And if he who seeks to take the child again should
be unwilling to pay this sum, it shall be held in slavery by him who
reared it.
TITLE V. CONCERNING SUCH PROPERTY AS IS VESTED BY
THE LAWS OF NATURE.
=I.= _Concerning the Disinheriting of Children; and What
Disposition Parents should make of their Property._
=II.= _What Part of her Dowry a Woman has a Right to
Bequeath._
=III.= _What Property Parents should Bestow upon their
Children, at the Time of their Marriage._
=IV.= _Concerning Children Born of Different Parents; and
What Distinctions Parents may Make in the Disposition
of their Estates._
=V.= _Concerning such Property as Children may have Acquired
during the Lives of their Parents._
=I. Concerning the Disinheriting of Children; and What Disposition
Parents should make of their Property.=
As soon as we have ascertained that any unlawful acts have been
committed, it behooves us to prevent, by legal measures, similar
occurrences in the future. For many persons living reckless lives,
squander their property upon strangers, either on account of riotous
living, or through the unwise counsel of others, and, as a result
of this, leave their inoffensive children or grandchildren weak
and penniless; for those cannot be of any benefit whatever to the
community upon whom the duty of labor has not been enjoined by the
example and virtues of their parents. And, in order that, under such
circumstances, the rights of the community may not be sacrificed, or
children or grandchildren be deprived of the benefits of that natural
affection which should be bestowed upon them, the law, by which a
father or mother, or grandfather or grandmother, have the right to
give their property to a stranger, should they wish to do so, or a
woman to dispose of her dowry in any way that she pleases, is hereby
abrogated; and we decree that the following more equitable law shall be
observed by all, to wit: that neither parents nor grandparents shall
have the absolute right to dispose of all their property, nor that
children nor grandchildren shall, through an unjust will, be deprived
of the inheritance of their parents and grandparents; therefore, any
father or mother, grandfather or grandmother, who wish to bestow any
of their property upon their children or grandchildren, must observe
the following rule, viz: that in the bestowal of said gifts upon their
children or grandchildren they do not exceed the third part of their
property; nor shall it be lawful for them to transfer any of their
property to any stranger, unless they should not have any legitimate
children or grandchildren living.
The following, however, we decree shall be observed, as being in
accordance with the dictates of reason: that if the father or mother,
grandfather or grandmother, should decide to bequeath, by any
instrument in writing, any portion of the third part of their property,
as aforesaid, to their children or grandchildren, in compliance with
the laws governing inheritances, all such proceedings shall be forever
inviolable; and whatever bequest concerning said property may be made,
shall have full and uncontrovertible validity. Nor shall it be lawful
for the child or grandchild who has received any of the said third
part of the estate from their parents, to claim anything more, unless
they should prove to be entitled to it by some former bequest of their
parents or grandparents.
If those having children or grandchildren, should wish to bestow
anything upon the Church, or upon freedmen, or upon anyone else, they
shall have the right to dispose of the fifth part of what remains,
after the said third part has been reserved. The authority of such
persons to dispose of the said fifth part is indubitable; but, in such
cases, either the third part of the property which is to be bequeathed
to the children, or the fifth part which is to be otherwise disposed
of, as aforesaid, must be separated from the remaining property, and
a proper estimate made of the same. But whatever anyone has received
through the generosity of the king, shall, under no circumstances, be
included in the estimate of either the third or the fifth parts of the
estate aforesaid; for, according to another law, whatever anyone has
acquired through the royal bounty shall be absolutely at his disposal.
It has been already provided that children and grandchildren cannot
be disinherited by their parents for any trifling offence. The
grandfather and grandmother, as well as the father and mother,
shall have the right to chastise and restrain their children and
grandchildren, as long as they remain members of the family. And if a
son or daughter, grandson or granddaughter, should attempt to inflict
any serious injury upon their parents or grandparents; that is to say,
if he or she should give any of them a blow with the fist; or a kick;
or strike them with a stone, or with a scourge, or with a whip; or
should insolently seize any of them by the foot, or by the hair, or
even by the hand; or be guilty of any shameless assault upon them; or
should publicly accuse them of crime; then, any child or grandchild
convicted of such an offence, shall receive fifty lashes with the
scourge, in the presence of the judge, and shall forfeit all claim to
the inheritance of its grandparents or parents, should the latter so
desire. But if, repenting of its conduct, it should implore the pardon
of those whom it has offended; and, through the love of its parents,
it should be again received into favor, and designated as an heir; it
shall not be deprived of its inheritance, or be accounted infamous, on
account of the punishment which it has received.
=FLAVIUS CHINTASVINTUS, KING.=
=II. What Part of her Dowry a Woman has a Right to Bequeath.=
For the reason that many women to whom the privilege was granted of
disposing of their dowries as they pleased, have been found to have
bestowed them upon persons with whom they were living illegally, to
the injury of their children or grandchildren; therefore, we declare
it to be both necessary and proper that those for the rearing of
whom the marriage was celebrated, should receive some benefit from
said property. In pursuance whereof we decree that, if any woman has
children or grandchildren, and should wish to bestow a gift upon the
Church, or upon freedmen, or upon any other person or persons; she
shall not have the right to dispose of more than the fourth part of
her dowry in this manner. Three fourths of it shall be left, without
question, to her children or grandchildren, whether there be one,
or many of them. On the other hand, a wife shall have full power to
dispose of her entire dowry, in any way she pleases, when she leaves
no legitimate children or grandchildren. Nevertheless, it shall not
be lawful for any woman who has married two husbands, or more, to
give the dowry she has received from one husband, to the children or
grandchildren of another; but the children and grandchildren born in a
certain line of descent shall, after the death of their mother, have
the entire dowry given by their father or grandfather.
=FLAVIUS CHINTASVINTUS, KING.=
=III. What Property Parents should Bestow upon their Children, at the
Time of their Marriage.=
Wherever wrong is done by parents to the interests of their children
it must be remedied by law. Therefore, because the duplicity of
parents sometimes prompts them to deprive their children of what they
have given them at the time of their marriage, we hereby declare such
acts to be void; and decree that the following law shall hereafter be
observed forever, to wit: that if any property should be transferred
to any person, either by writing, or in the presence of witnesses, at
the time of his or her marriage, excepting such as is usually given
in the way of ornaments or clothes, as a marriage gift, whether said
property consists of slaves, lands, vineyards, buildings, clothing, or
jewels, presented by the parents to the children, either at the time
of the marriage, or after it, the said children shall have full power
to dispose of such property as they wish, with this exception: that,
after the death of their parents, the inheritance shall belong to the
children exclusive of what said parents have previously given to them
according to law, and an equal distribution of said inheritance shall
be made among the heirs; so that a son or daughter shall have full
power to dispose of what they received from their parents at the time
of their marriage, according to the provisions aforesaid.
After the death of the parents, an inventory shall be made, and the
property which was donated at the time of the marriage shall be
appraised, and the other heirs shall receive an equivalent in value to
the amount of said property; and all shall then share equally in the
remainder of the estate of the parents.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. Concerning Children Born of Different Parents; and What
Distinctions Parents may Make in the Disposition of their Estates.=
If a man marries several wives, and has children by all of them, and
any of his sons or daughters should die intestate, his or her brothers
or sisters shall be entitled to the estate, provided the decedent left
neither children nor grandchildren; and said heirs shall have a right
to claim it after proving that they are descended from the same father
and mother. Where there are children by one father and by different
mothers, those only who are descended from the same father have a right
to an equal division of the property belonging to him. With regard
to those who are sprung from one mother and different fathers, we
prescribe the following regulations, to wit: that if a woman should
have children by different husbands, only those brothers and sisters
who are the children of the same father and mother shall have a right
to the inheritance, descending either in the paternal or maternal line
from such as have died intestate, or without offspring or descendants.
As it has been established by a former law that the grandchildren shall
not be deprived of the third part of the estate of their grandparents,
it shall be lawful for the grandsons and granddaughters who have lost
either of their parents, to share equally with their paternal or
maternal uncles in the estates of their grandfathers and grandmothers;
that provision only of said law remaining valid, by which it was
decreed that parents and grandparents may bestow their property upon
their children and grandchildren, or may give away what they please to
a stranger.[22]
=V. Concerning such Property as Children may have Acquired during the
Lives of their Parents.=
Any son who, while his father and mother are living, acquires any
property, either through the favor of the king, or through the
generosity of his patron, shall be entitled to absolute control of the
same, and shall have the right to sell, or give it away to any one he
chooses, as has already been provided by our laws; nor can his father
or mother claim any of said property while the son is living. Where, on
the other hand, a son obtains property, not through royal generosity,
but by his own labor, or during some public expedition; should he be
living with his father at the time, the latter shall be entitled to the
third part of said property, and the other two-thirds shall belong to
the son.
BOOK V.
CONCERNING BUSINESS TRANSACTIONS.
TITLE I. ECCLESIASTICAL AFFAIRS.
=I.= _Concerning Donations to the Church._
=II.= _Concerning the Preservation and Restoration of Property
Belonging to the Church._
=III.= _Concerning Sales and Gifts of Church Property._
=IV.= _Concerning Church Property in Charge of Those Devoted to
the Service of the Church._
=V.= _Concerning the Repairs of Churches, and Divers Other
Matters._
=VI.= _Concerning the Arbitrary Conduct of Bishops._
=VII.= _Emancipated Slaves of the Church, who are still Bound to
Render it Service, shall not be Permitted to Marry
Persons who are Freeborn._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. Concerning Donations to the Church.=
If we are compelled to do justice to the merits of those who serve us,
how much greater reason is there that we should care for the property
set apart for the redemption of our souls and the worship of God, and
preserve it intact by the authority of the law. Wherefore, we decree
that all property which has been given, either by kings, or by any
other believers whomsoever, to houses devoted to Divine worship, shall
eternally and irrevocably belong to said churches.[23]
=II. Concerning the Preservation and Restoration of Property Belonging
to the Church.=
We are of the opinion that it vitally concerns the interests of our
kingdom, to provide by our laws that the temporal rights of the church
shall be protected. Therefore, we hereby decree, that, as soon as a
bishop has been consecrated, he shall straightway proceed to make
an inventory of the property of his church in the presence of five
freeborn witnesses; and to this inventory the said witnesses shall
affix their signatures. After the death of a bishop, and as soon as
his successor has been consecrated, the latter shall require a second
inventory of the church property to be made; and if it should appear
that said property had, in any way, been diminished, then the heirs of
said bishop, or those to whom his estate was bequeathed by will, shall
make up the deficiency. If a bishop should sell any of the property of
the church, his successor shall lay claim to that property, along with
all its rents and profits, and restore it to the church, after having
returned the price paid for it to the purchaser, and no reproach shall
attach to such proceedings. And we hereby decree that this law shall be
observed in every respect by priests and deacons, as well as by bishops.
=ANCIENT LAW.=
=III. Concerning Sales and Gifts of Church Property.=
If a priest or bishop, or any other member of the clergy, should sell
or give away any of the property belonging to the church, without the
consent of the other ecclesiastics, we declare that such a transaction
shall not be valid, unless said sale or donation should have been made
in accordance with the holy canons.
=IV. Concerning Church Property in Charge of Those Devoted to the
Service of the Church.=
Where heirs of a bishop or of other ecclesiastics, who have placed
their sons in the service of the church, obtain lands or any other
property through the generosity of the clergy, and then return to
the laity, or abandon the service of the church whose lands or other
property they hold, they shall at once forfeit all such possessions.
And this provision must also be observed by all the clergy holding
ecclesiastical property, even though they have held it for a long time;
for the reason that the canons have so decreed. The widows of priests
or of other ecclesiastics, who have devoted their sons to the service
of the church, solely through gratitute to the latter, shall not be
deprived of any property possessed by the fathers, which was originally
derived from the church.[24]
=FLAVIUS EGICA, KING.=
=V. Concerning the Repairs of Churches, and Divers Other Matters.=
The different regulations established in former times by the Holy
Fathers concerning ecclesiastical affairs shall be still observed,
so far as they are consistent with the interests of the church. As
antiquity, which has been the cause of the destruction of many lofty
buildings, has not spared the houses of God; it is eminently proper
that such of the latter as are in danger of destruction should be
repaired. As a result of this necessity it has been made a source of
reproach to our organization, that the greed of certain priests has
caused their parishes to be oppressed by repeated forced contributions;
and that many churches have been impoverished under pretence of
repairs. Consequently it has been decreed and confirmed by our Council
that the third part of the ecclesiastical revenues, which the ancient
canons have set apart for that purpose, shall be used for the repairs
of churches, whenever required. And when churches are to be repaired,
it is better to learn this fact from the worshippers themselves, and
the repairs should then be made under the personal care and direction
of the bishop. For, although according to the provisions of the ancient
canons, every bishop has the right to reserve for himself the third
part of the revenues of his diocese, if he should desire to do so; so,
also, he had no right to exact from the parish churches, by means of
arbitrary proceedings, the remaining two-thirds of the said revenues;
nor was he at liberty to give away any of such property to anyone by
way of compensation for services performed. We deem it necessary to
decree that a single priest shall never have charge of more than one
church at a time; nor hold any other office; nor by ecclesiastical
authority act as guardian; nor, in any way, have charge of the property
of wards; and any congregation which possesses ten pieces of property
is entitled to a priest, but such as have less than ten shall be
united with other churches. And if any bishop should disregard this
our regulation, and should hereafter venture to disobey it, he shall
expiate his offence by two months’ excommunication.[25]
=THE GLORIOUS FLAVIUS WAMBA, KING.=
=VI. Concerning the Arbitrary Conduct of Bishops.=
God, the just Judge, who loves right eternally, does not wish
that justice should be subject to time, but rather that time
should be governed by the principles of equity. God himself is the
personification of justice, and to him should be given whatever is
bestowed by the faithful upon the church through motives of devotion;
for God, as mediator, accepts the vows of every true and sincere
worshipper. And vows should never be renounced which are known to
have proceeded from, and been confirmed by, a sense of justice; and,
therefore, he commits a fraud upon God who unjustly takes from him
his property. He also violates the rules of justice who corruptly
interferes with the vows of others. While, as has been said, God is
justice, what madness is it for anyone to remove from God’s possession
any property under the claim of prescription, alleging that he has held
it for thirty years? For many rash bishops, prompted by avarice, are in
the habit of bestowing upon their cathedral churches, or upon various
individuals, or paying out as wages for labor performed, the donations
that have been given to their dioceses by the faithful, and, in this
way, they not only break the vows of the donors, but are also guilty
of sacrilege, in that they thereby defraud the Church of God; for it
has been long established that to defraud the church is sacrilege. And
when they are urged to make restitution, they decline to do so, because
their predecessors acted in the same manner; or refuse to make amends,
because they claim to have held the property in question for thirty
years. Thus they attempt to maintain their cupidity and rapacity by
right of prescription; and instead of at once making reparation for
their fault, they attempt to confirm and legalize it by the operation
of time. He must be considered a person of great impiety who asserts
such a claim, and acknowledges that, for thirty years, he has done
injury to God, and refuses to make amends for the injury after that
period has elapsed.
Therefore, since these most iniquitous abuses are defended under a
pretence of justice, and as we are not concerned with the past, but
with the future, we shall now proceed to make regulations applicable
to the time of our own reign. For the reason that, hereafter, all
temptation to avarice may be removed, we hereby decree that it shall
not be lawful for a bishop to appropriate any property belonging to
the churches of his diocese; or, if any has already been appropriated,
to allege that he is entitled to the same on account of his possession
for thirty years; but, whenever the facts have been established, he
must make restitution at once. As, in order that a long period may pass
without a claim being made, the nobility sometimes are guilty of such
oppression of ministers of the church that the latter do not dare to
assert their rights against such eminent persons, concerning property
which has been appropriated by the latter, and lest the voice of the
despoiled church remain forever silent, we decree that hereafter, it
shall be lawful, where this offence has been admitted by the parties or
detected by anyone, in any place, that the claim shall be instituted
with all possible speed in the following manner, to wit: that the heirs
of the founders of the church shall act as prosecutors, if they are
present; but, if they should not be present, and even if they should
be, but are unwilling to act, then the governor of the province, or the
governor of the city, or the deputy of either of them, or anyone else
who has legal cognizance of the matter, shall have the right to act as
accuser and prosecutor.
Where any bishops who, in past times, have committed the offences
hereinbefore mentioned, and have been in adverse possession of church
property for thirty years, and declare that they hold said property
by the right of prescription; such persons we leave to the justice of
God, for we decline to pass judgment upon them. But whoever, up to
the time when this law is promulgated, shall not have had possession
of such property for the space of thirty years, shall be compelled
to restore it intact to the church, but no penalty shall be required
of them. And where any bishop, who from the day of the adoption of
this law, should appropriate anything given by the faithful to the
churches of God, and should use such property for his own benefit,
or for that of his cathedral church, or should bestow any of it upon
any person whomsoever, his act shall not be confirmed by any lapse of
time; and, according to the above-mentioned decree, whenever he shall
have been convicted of the commission of such acts by anybody, he
shall be compelled to restore the property which he took, along with
lawful amends out of his own possessions, to that church which has been
defrauded. If he should not have the means to make full restitution out
of his own property, on account of his abuse of authority, he shall
undergo the penalty of excommunication prescribed by the canon of
the eleventh Council of Toledo; that is to say, if the property that
was appropriated was worth ten _solidi_, he shall purge himself
of guilt by twenty days of penance. If the value of the property
appropriated should be greater or less, the proportion of days to be
passed in penance shall always be doubled; and he also shall undergo
a similar penalty who retains possession of any property taken from a
diocesan church, which has been appropriated by his predecessor.
Any judge who neglects to carry out the provisions of this law, or
delays the proceedings without just cause, or does not notify the king
that he may take cognizance of the affair, shall be liable to the same
penalty as the bishop who committed the offence, and shall pay said
penalty out of his own property to the church whose cause he neglected
to decide. This law not only applies to property which has been
bestowed upon minor and diocesan churches, but to that in which all
assemblies included under the general name of churches are concerned;
that is to say, monasteries and convents of men and women.
We also think it proper to add the following provisions to this law:
that all bishops who ordain priests and rectors in the churches of
their dioceses shall give them instructions concerning the rights of
the churches to which they are ordained; that is to say, if any bishop
should have in his keeping any document defining the rights of any
church in his diocese, he shall show it to the rector of that church,
so that the latter may be familiar with the rights of said church, as
well as with the documents conferring the same, and not be ordained
in ignorance of them, and, what is worse, through the wickedness and
duplicity of the bishop, the will of the benefactor of the church be
not publicly known. It is also decreed that priests and rectors shall
not only have the opportunity to inspect such documents, but shall also
be entitled to copies of the same, confirmed under the hand of the
bishop, to enable them to direct the affairs of the church committed
to their care without any uncertainty, and to enforce the rights to
which it is justly entitled. Given and confirmed in the name of God, at
Toledo, on the tenth day of the Kalends of January, in the fourth year
of our reign.
=THE GLORIOUS FLAVIUS WAMBA, KING.=
=VII. Emancipated Slaves of the Church, who are still Bound to Render it
Service, shall not be Permitted to Marry Persons who are Freeborn.=
Great confusion of lineage results where inequality of rank causes
degradation of offspring; for what is derived from the root is
inevitably found in the fruit of anything. For how indeed can he
bear a title of honor, whose parents are bound by the obligation of
servitude? We refer to this matter because many of the slaves of the
church are set free, but nevertheless do not enjoy absolute liberty;
for the reason that they are still bound to serve the church from which
they deduce their origin; and who, contrary to natural laws, contract
marriages with freeborn women, and seek to have freeborn children
who, in fact, are not so; and thus what ought to enure to the public
good, becomes in fact a burden to it, both in respect to person and
property; as whatever children are born from such an infamous marriage,
following the position inferior in rank, from birth become the property
of the church, along with all their possessions. Wherefore, that such
insolent conduct may be put an end to hereafter, we decree by this
law, that if a slave of any church, while it is still entitled to his
services, should be freed, and accept his liberty from the priest,
he shall not be permitted to marry a freeborn woman. Those, however,
who have been freed in the regular manner, and are absolutely exempt
from all service to the church by the Canon Law, shall have the right
to marry freeborn women, and shall be entitled to claim all honor and
respectability for their offspring.
But if any of those set free, who are still under the dominion of the
church, should venture hereafter to marry any freewoman; as soon as the
judge shall be apprised of the fact, both parties shall be scourged
three times, as has been provided in a former law concerning freemen
and slaves, and the judge shall cause them to be immediately separated;
and where they are unwilling to be separated, each shall remain in the
condition in which he or she was previously, and any children born of
them shall become slaves to the king.
Whatever property has been bestowed by any free person upon any
freedman, together with such property as a child of either sex sprung
from them can acquire, possess, or waste, shall belong entirely to
the heirs of said free person at his death; and, if such heirs should
be lacking, it shall become the lawful possession of the king, to be
disposed of absolutely at his pleasure. This law shall not only apply
to men, but also to women; that is to say, where either a freedman or a
freedwoman owing services to the church should be so bold as to marry a
freeborn person.
The following exception shall be observed in the execution of this
law, to wit: whoever shall be born of such parents within thirty years
of its promulgation, shall not follow the condition of that parent
who is bound to give service to the church, but shall be free, along
with all the property inherited from his or her parents, both noble
and plebeian. Given and confirmed at Toledo, on the twelfth Kalends of
January and the fourth year of our reign.
TITLE II. CONCERNING DONATIONS IN GENERAL.
=I.= _A Donation Extorted by Violence is Void._
=II.= _Concerning Royal Donations._
=III.= _Concerning Property Given to a Husband or a Wife by the
King._
=IV.= _Concerning Property, in Addition to the Dowry, Given to a
Wife by her Husband._
=V.= _Concerning Property Given to a Husband by his Wife; and
Where a Wife has been Convicted of Adultery._
=VI.= _Concerning Property Donated Verbally, or Conveyed by
Instruments in Writing._
=VII.= _Concerning Gifts Bestowed upon One Another by Husband and
Wife._
=ANCIENT LAW.=
=I. A Donation Extorted by Violence is Void.=
A gift extorted by force and fear has no validity whatever.
=II. Concerning Royal Donations.=
Donations conferred by royalty upon any person whomsoever, shall belong
absolutely to him to whom they are given; so that he who is thus
honored by the royal munificence shall have the power to dispose of any
property derived from such a source in any way that he chooses. If he
who received such gifts should die intestate, the donations aforesaid
shall belong to the legal heirs in regular succession, according to
law, and the royal favor can in no way be infringed upon; because it
is not fitting that the will of the prince should be interfered with,
where the recipient of royal bounty has not been guilty of crime.
=III. Concerning Property Given to a Husband or a Wife by the King.=
We especially decree that a wife shall be entitled to no part of any
property presented by the king to her husband, unless the latter should
bestow a portion of it upon her by way of dowry. And, likewise, should
the gift be made to a wife, her husband shall have no right to any of
it; nor can he lay claim to it after her death, unless his wife should
give or bequeath it to him.
=ANCIENT LAW.=
=IV. Concerning Property, in Addition to the Dowry, given to a Wife by
her Husband.=
If a wife should, at any time, in addition to her dowry, accept from
her husband property acquired by him as a gift, or by profligate
conduct, or the proceeds of claims collected by him, she shall have
the absolute disposal of said property until the day of her death,
according to the terms of the will of her husband, even though there be
children born of that marriage. She shall have the power to expend or
use the income of such property, just as the testator has designated by
will; and, during her lifetime, she shall enjoy unhampered possession
of all such property, the income of which shall be used for her
expenses. But if the testator should not make any special disposition
of said income, his children shall have the right to said property
after his death; and, upon no occasion, shall his wife be allowed to
alienate any part of it, excepting the income. Where there are no
children by said marriage, the wife shall have full control of all
property given her by her husband, according to the terms of his will.
But if she should die intestate, the said property shall revert to
her husband if he is living, and if he should not be living, it shall
belong to his heirs. And we decree that the same rule shall apply to
husbands who, at any time, have received gifts of property from their
wives.
=ANCIENT LAW.=
=V. Concerning Property given to a Husband by his Wife; and Where a Wife
has been Convicted of Adultery.=
If a husband should give any property to his wife, and she, after his
death, should remain chaste, or should marry another husband, she
shall have the power of disposing of the property given her by her
first husband according to the terms of his will, if she should have
no children. If she should die intestate and without children, the
property shall revert to her husband if he is living, and if not, it
shall belong to his heirs. But if she should have been convicted of
adultery, or other meretricious conduct, she shall lose any property
which she obtained from her husband, and it shall belong to his heirs,
or to his legitimate children.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Concerning Property Donated Verbally, or Conveyed by Instruments in
Writing.=
Any property given away in the presence of witnesses can under no
circumstances be reclaimed by the donor. And even if it should happen
that what is given is situated elsewhere, the donation cannot, for
that reason, be revoked, provided it is made in writing; because it
is evident that the gift is absolute, when the instrument conveying
it is in the name of, and for the benefit of him who receives it. It,
however, must be noted, that if the donor should say that he neither
delivered such an instrument nor directed it to be delivered, but that
it was taken from him; then the party to whom the property was given
may prove by witnesses that it was transferred to him, or directed to
be so transferred by the donor, or placed under his control by the will
of the testator; and, when he shall have produced such testimony, the
gift shall be deemed valid. Where he neglects to introduce competent
testimony, he who executed the instrument shall make oath that he
neither delivered it, nor directed it to be delivered, nor that he
voluntarily executed it; and the instrument shall then be returned to
him by whom it was claimed, and shall remain invalid, if the latter
so desires. But it is proper to add, that if anyone should execute
an instrument disposing of any property for the benefit of any one
whomsoever, and, in his lifetime, should not deliver it to him for
whose benefit it was made, and it should be found after the death of
the former; he for whose benefit the donor has made disposition of said
property, shall have the right to claim it, along with all the property
therein described; for it is evidently just that a document which the
donor, while living, preserved, and which never appeared to be altered
in any way, should have full force in law. If, however, the donor while
living did not relinquish possession of either the instrument or the
property, but kept them, and made other dispositions in his will, the
latter shall be valid; because a will always takes precedence in law
of documents previously executed, but not delivered. If he to whom the
property was given should die before receiving it it shall belong to
the donor or to his heirs. And where the gift should be made under this
condition, to wit, that the donor should have possession of it during
his lifetime, and that, after his death, it should go to him for whom
he intended it, he shall have the privilege of changing his mind when
he wishes, even though he should have suffered no injury; because the
case is similar to that of the execution of a will. But if he who is
deceived by a fraudulent gift, and with the expectation of profiting by
an empty promise, shall expend anything for the benefit of the donor,
he shall be entitled to receive from the donor himself, or from his
heirs, compensation in damages for any loss he may have sustained on
that account. And if anyone should choose to give away any property
he has received, either by ordinary gift or by the authority of any
written document, the party to whom he gives it shall have the same
right to it as the original donor. If he who received the gift should
die during the life of the donor, he shall have the right to dispose of
said gift at his pleasure; and should he die intestate, the gift shall
not revert to the donor, but shall descend to the heirs of him who
received it.
=VII. Concerning Gifts Bestowed upon One Another by Husband and Wife.=
If a husband should give any property to his wife, he must describe
it in a written instrument and affix his signature or seal thereto.
And, in order that his gift may be valid, it is necessary that two or
three freeborn witnesses should attest the document. This law shall
also apply to a wife who wishes to confer any gift upon her husband,
provided the gift was not extorted by the husband through violence; to
the end that the provisions of the law relating to the disposition of
property may be, in every respect, preserved.
TITLE III. CONCERNING THE GIFTS OF PATRONS.
=I.= _Where Anyone who has been Placed under the Control of
Another, or of the Son of that Person, Deserts either
his Patron, or the Children of the Latter._
=II.= _Concerning Arms given to Bailiffs who have been
Appointed for the Defence of Anyone, and the Acquisitions
of said Bailiffs._
=III.= _Concerning Property Acquired through the Appointment of a
Patron, or which has been Donated by Him._
=IV.= _Concerning Property Accepted and Acquired through the
Office of Patron._
=I. Where Anyone who has been Placed under the Control of Another, or of
the Son of that Person, Deserts either his Patron, or the Children of
the Latter.=
Where anyone, having a client under his protection, gives him arms
or anything else, such gifts shall be the absolute property of the
client. If the latter should desire to select another patron, he shall
have full authority to do so, for one cannot restrain a freeborn man
because he happens to be under his control; but, in such a case,
everything to which the patron is entitled shall be given to him. The
same rule shall apply to the children of a patron as well as to those
of him who was under his protection; and the former shall have a right
to any donations that have been given to the latter. Where a client
abandons his patron without the latter’s consent, he shall be required
to restore to him any property which the patron may have given to the
parents of the client. And if anyone who has been placed under the
protection of another, should acquire any property while he is under
such control, half of said property shall belong to the patron or his
children, and the other half shall remain in the possession of him
who earned it. Where a client leaves a daughter and no sons, in such
case we decree, that the daughter shall remain under the protection of
the patron. If the patron should provide a husband for her, of equal
rank, and anything should be given to her father or her mother, it
shall belong to her by right of inheritance. But if, contrary to the
will of her patron, she should select for herself a husband of inferior
rank, whatever has been given to her father by the patron or by his
relatives, shall be restored to said patron or to his heirs.[26]
=ANCIENT LAW.=
=II. Concerning Arms given to Bailiffs who have been Appointed for the
Defence of Anyone, and the Acquisitions of said Bailiffs.=
Arms given to bailiffs for purposes of defence, can under no
circumstances be reclaimed by the donor, but whatever property a
bailiff acquired, while in office, shall remain in the possession of
his patron.[27]
=III. Concerning Property Acquired through the Appointment of a Patron,
or which has been Donated by Him.=
As has been hereinbefore stated, if anyone, while under the protection
of another, should acquire any property while living with him, and
should prove unfaithful to his patron, or wish to abandon him; the
patron shall be entitled to half the property so acquired, and the
other half shall belong to him by whose exertions it was obtained, and
whatever the patron has given him he shall be entitled to keep.
=ANCIENT LAW.=
=IV. Concerning Property Accepted and Acquired through the Office of
Patron.=
As has been stated elsewhere, if anyone should abandon his patron and
claim the protection of another, and he to whom he applies should give
him land, the patron whom he has deserted is entitled to any land, and
to whatever else he himself may have given him.
TITLE IV. CONCERNING EXCHANGES AND SALES.
=I.= _What Constitutes a Valid Exchange, and what a Valid
Purchase._
=II.= _If the Vendor is not a Person of Good Character, he
must give a Surety._
=III.= _Any Sale made under Compulsion shall be Void._
=IV.= _In Case the Price should not be Paid, after Earnest
Money has been Given._
=V.= _Where only Part of the Price is Paid._
=VI.= _Where Fraud is Committed in Stating the Price of
whatever is Sold._
=VII.= _Where Anyone says that he Sold his Property for Less
than it was Worth._
=VIII.= _Concerning Those who Sell, or Give Away, the Property
of Others._
=IX.= _It shall not be Lawful to Sell, or Give Away, Property
whose Ownership is in Dispute._
=X.= _Where a Freeman Allows Himself to be Sold._
=XI.= _Concerning Free Men and Free Women Sold by Slaves or
Freemen._
=XII.= _It shall be Illegal for Parents to Sell their Children,
or, by any Contract whatsoever, to Place Them in the
Power of Others._
=XIII.= _Concerning Sales by Slaves._
=XIV.= _Where a Slave, who has been Sold, Accuses his Former
Master of Crime._
=XV.= _A Master may Claim the Property of a Slave whom he has
Sold._
=XVI.= _Whether a Slave may be Redeemed with his own Private
Property._
=XVII.= _No One, against his Will, shall be Compelled to Sell
his Slaves._
=XVIII.= _Where a Slave, on Account of a Crime he has Committed,
is Transferred to the Possession of Another._
=XIX.= _Concerning Property Belonging to Private Persons, and
to the Court, which may not be Alienated._
=XX.= _Where Anyone Sells, or Gives Away Property, whose
Possession should first have been Transferred by
Judicial Decree._
=XXI.= _Of Slaves Captured and Sold by the Enemy._
=XXII.= _For what Price this Book shall be Bought._
=ANCIENT LAW.=
=I. What Constitutes a Valid Exchange, and what a Valid Purchase.=
An exchange, if not made under fear or force, shall have the same
validity as a purchase.
=ANCIENT LAW.=
=II. If the Vendor is not a Person of Good Character, he must give a
Surety.=
If the vendor is not a person of highly respectable character, he shall
give a freeborn bondsman as surety to the purchaser, and the sale shall
then be valid.
=ANCIENT LAW.=
=III. Any Sale made under Compulsion shall be Void.=
Any sale evidenced by an instrument in writing shall be perfectly
valid. If there should be no written evidence of it, and it should
be proved that the price was paid in the presence of witnesses, the
purchase shall be legal. A sale shall be void in case it was extorted
by violence or fear.
=ANCIENT LAW.=
=IV. In Case the Price should not be Paid, after Earnest Money has been
Given.=
He who receives earnest money for the sale of anything, can be forced
to fulfil his contract. But if the purchaser, either through sickness
or unavoidable necessity, cannot be present upon the designated day,
he may appoint any one he chooses to pay the price at the time agreed
upon. But where he himself is not present, or does not appoint any one
to act for him, he shall only be entitled to receive the earnest money
which he gave, and the contract shall be cancelled.
=ANCIENT LAW.=
=V. Where only Part of the Price is Paid.=
If only a part of the price is paid, and the balance should not be
forthcoming, the sale shall not be invalid on this account. But if
the purchaser should not pay the balance of the price at the time
appointed, he shall pay interest on what he owes; unless it should be
agreed upon by both parties that the property in question shall be
returned to the vendor.
=FLAVIUS RECESVINTUS, KING.=
=VI. Where Fraud is Committed in Stating the Price of whatever is Sold.=
If, in the sale of property, a smaller price is paid than was agreed
upon, and the purchaser should, fraudulently, and against the will of
the vendor, declare that he has paid a higher price than he should have
done, he shall be compelled to pay to the vendor double the amount of
which the latter has been defrauded.
=ANCIENT LAW.=
=VII. Where Anyone says that he Sold his Property for Less than it was
Worth.=
This rule must be observed in all sales where any property consisting
of lands, slaves, or any species of animals, is disposed of, to wit:
that no one shall attack the validity of the transaction by declaring
that he sold the property for less than it was worth.
=ANCIENT LAW.=
=VIII. Concerning Those who Sell, or Give Away, the Property of Others.=
Whenever a dispute arises concerning the ownership of property
which has been sold or given away: that is to say, if it should be
established that anyone has sold or given away what belonged to
another, no blame shall attach to the purchaser. But he who has been
so bold as to sell or give away the property of another, shall be
forced to pay double its value to the owner thereof, shall return the
price which he has received to the purchaser, and shall undergo the
penalty prescribed by the bill of sale. Whatever the purchaser, or he
who received the gift, shall have added to the value of the property
which was bought, shall be estimated by the judges of the district; and
full satisfaction of the same shall be made, either by the vendor or
the donor of said property, to him by whose efforts its value has been
increased. The same rule shall apply to every description of property,
including slaves and animals.
=ANCIENT LAW.=
=IX. It shall not be Lawful to Sell, or Give Away, Property whose
Ownership is in Dispute.=
It shall not be lawful to give, or sell, or in any way transfer
possession of, any property whose ownership is in dispute: that is to
say, which any one else claims, or of which he has a reasonable hope of
recovery.
=ANCIENT LAW.=
=X. Where a Freeman Allows Himself to be Sold.=
Any freeman who permits himself to be sold, and shares the price
with the vendor, and, afterwards, desiring to cheat the purchaser,
publishes the fact for the sake of reclaiming his liberty, shall not
be heard, but shall remain in slavery; for it is dishonorable that a
freeman should voluntarily subject himself to servitude. But if he who
sold himself, or permitted himself to be sold, should have sufficient
property to redeem himself; or, if his parents should choose to give
the price of his redemption to him who owns him; then the entire amount
for which he was sold shall be returned to the purchaser, and the
person who was the object of the sale shall regain his freedom.
=ANCIENT LAW.=
=XI. Concerning Free Men and Free Women Sold by Slaves or Freemen.=
If anyone should dare to sell or give away a freeborn person, the judge
shall at once cause the offender to be arrested. And in order that the
said freeborn person may be restored to his proper rank, the judge
shall require the vendor of such person to pay a hundred _solidi_
of gold; and if he should not have sufficient property to pay this sum,
he shall receive a hundred lashes in public, and shall be delivered
over as a slave to him whom he had the audacity to sell, or give away.
If a slave should treat a freeborn person in this manner, after being
arrested he shall receive two hundred lashes in public, by order of
the judge, and having been scalped he shall be condemned to perpetual
servitude. This rule shall apply also to donations and sales of
freeborn women.
=ANCIENT LAW.=
=XII. It shall be Illegal for Parents to Sell their Children, or, by any
Contract whatsoever, to Place Them in the Power of Others.=
It shall not be lawful for parents to sell, give away, or pledge their
children. And no one who purchases or receives a child under such
circumstances, shall have any legal right to it whatever, but, on the
other hand, he shall lose the price, or the amount advanced as a loan,
which he paid to the parents of said child.[28]
=FLAVIUS CHINTASVINTUS, KING.=
=XIII. Concerning Sales by Slaves.=
The property of another cannot be sold contrary to the will of him
who is entitled to legal ownership of the same. Therefore, for the
reason that an ancient law declared all sales by slaves invalid, which
were made at the expense of their masters, we have determined to
promulgate a more equitable decree, in order to bring the laws of the
country within the bounds of justice; for it is better to amend the
acts of those who have fallen into error, than to err in like manner.
Wherefore, if any one, hereafter, should knowingly receive from any
slave of either sex, who belongs to another person, a house, or land,
or a vineyard, or any personal property, upon any terms whatsoever,
the sale, gift, or pledge, made by such a person shall be invalid,
and the delivery of the property shall not be required. Where the
sale is attended with expense to the purchaser, the property shall be
returned intact to the master of the slave, and the purchaser shall
lose the price he paid for it; for it is but just that he should
sustain loss who attempted to appropriate the property of another for
his own advantage. But if the aforesaid slave should sell any animals,
or any personal property, or any ornaments of any kind, which belong
to himself, or which he had received from his master to be disposed
of, such transaction shall be forever valid; and if the master of any
servant who has made such a sale should wish to rescind the sale, and
should declare that the property which was sold did not belong to
the slave, but was his own, the sale shall not be rescinded, unless
he who proposes to do so shall establish, either by the testimony of
legitimate witnesses, or by his own oath, that the property which he
seeks to recover did not belong to the slave, but to himself, and
has been disposed of without his permission. This law shall apply
only to chattels of trifling value, for the authority of the master
is necessary in order to confirm a contract relating to the sale of
property of great value and importance.
=ANCIENT LAW.=
=XIV. Where a Slave, who has been Sold, Accuses his Former Master of
Crime.=
If anyone should sell a slave, and the latter should accuse his former
master of crime, he who sold him may recover said slave from the
purchaser by returning the price for which he was sold, in order that
he may avenge upon him the crime of which he himself was accused. And
we decree that the same law shall be observed concerning female slaves.
No servant of either sex, whether sold, given, or exchanged, shall be
tortured to obtain evidence against his or her former master, nor shall
he or she be believed if they should accuse their former master of
crime.
=XV. A Master may Claim the Property of a Slave whom he has Sold.=
If any one should sell a slave, and not know what property he
possessed, he shall have power to make full inquiry, and to claim as
his own, whatever property belonging to said slave that he can find.
=ANCIENT LAW.=
=XVI. Whether a Slave may be Redeemed with his own Private Property.=
If a slave should be ransomed with his own money, and his master should
be ignorant of his possession of the same, he shall not be entitled to
his freedom; because the ransom that he paid was not his own, but the
property of his master.
=ANCIENT LAW.=
=XVII. No One, against his Will, shall be Compelled to Sell his Slaves.=
Laws frequently arise from legal disputes in court, and when evidence
of fraud exists, it becomes necessary to promulgate new decrees to
restrain acts dictated by shrewdness and duplicity. Many slaves of both
sexes, influenced by the suggestions of others, are in the habit of
taking refuge in churches, and there complaining of the injustice and
oppression of their masters; in order that, through the intercession of
priests, and the aid of religion, they may compel their masters to sell
them. In this manner frequently an injury is inflicted upon the master;
as when a priest, or any one else, representing himself as a purchaser,
buys the slave, while in fact he is acting for another party; and,
by this collusion, it sometimes happens that the slave is sold to an
enemy without his master’s knowledge, and thus, some one, under such
circumstances, may obtain possession of the slave who could not have
purchased him openly. We declare that, henceforth, the following shall
be the law, viz: that no one, against his will, shall sell his slave;
but the priest or custodian of the church, as provided by other laws,
shall at once deliver the slave to his master, providing the latter
pardons him for the fault he has committed; for it is highly improper
that the slave should maintain his obstinacy and rebellion by taking
refuge in a place where the doctrines of restraint and punishment are
preached.
If any one should deceive a master in the manner aforesaid, he himself
shall forfeit a sum equal to the price which was paid by him while
acting as the agent of another; and, whether the master became aware
of the fraud at the time of the transaction, or afterwards, he shall
be entitled to recover the slave upon application to the court. He who
acted fraudulently as the agent of another in the sale, shall be forced
to give another slave of equal value to the master whom he deceived,
in order that the wickedness of such a dishonorable transaction may be
suitably punished.
=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=
=XVIII. Where a Slave, on Account of a Crime He has Committed, is
Transferred to the Possession of Another.=
We must not omit to provide, by legal enactment, for the settlement
of questions frequently involved in dispute. For this reason, if a
slave who has been guilty of crime should be transferred, either by
gift, sale, or exchange, to another master, his former master shall
either cause him to be delivered up to justice to be punished for said
crime, or shall render full satisfaction to the party who has been
injured. In case he who bought said slave is unwilling to answer for
him, or to render satisfaction for his crime, he must return him to his
former master, on receipt of the price which he paid; and his former
master must answer to the person making the complaint, for the offence
committed by his slave while under his control.
=FLAVIUS CHINTASVINTUS, KING.=
=XIX. Concerning Property Belonging to Private Persons, and to the
Court, which may not be Alienated.=
If the care of private property must not be neglected, how much
more important is it to guard the interests of the public, whose
possessions should always be preserved, or increased. For this
reason, persons attached to the court, or private persons who are
under obligations to furnish horses to the king, or who exercise any
duties in connection with the royal treasury, shall have no right
to sell, give, or exchange, any property in their possession. But
if it should happen that any of them, either willingly, or impelled
by necessity, should transfer all of his property, either by sale,
donation, or exchange; both he who disposed of, and he who received
it, shall have an inventory of the same drawn up, in which all of said
property shall be specifically described; but he who has received
only half of the said property, or a certain portion of the same, in
slaves, lands, vineyards, and houses, shall be accountable for only
the price of the portion which has been thus disposed of. And if any
one purchasing property of any kind from such persons, should not,
as aforesaid, within a year, render an account of the transaction in
writing, showing the source from which said property was derived; as
soon as information of this shall come to the king, or the governor,
or the judge, the former possessor shall lose the price he received,
as well as the property which was disposed of; but the king shall have
the power to either restore said property to him who transferred it, or
to bestow it upon any one else, should he desire to do so. It shall,
however, be lawful for persons attached to the court, as well as for
private persons, to sell, give, or exchange, property among themselves,
provided he who receives said property shall not refuse to account for
it publicly; but no plebeian shall have the right to sell his land. And
if any one, after the adoption of this law, should purchase vineyards,
lands, houses, or slaves from men employed in the public service, he
shall inevitably lose the price paid for said property.
=ANCIENT LAW=
=XX. Where Anyone Sells, or Gives Away Property, whose Possession should
first have been Transferred by Judicial Decree.=
If anyone should sell or give to any person any property which is in
litigation, before the claim of his adversary to said property shall
have been judicially determined, or should permit any one to make
use of said property, so that the possessor may be deprived of its
control, without an order of court, he in whose possession the property
formerly was shall have it at once restored to him by the judge, and
the adverse party shall not be permitted to claim it again, even if his
title to the same is found to be good. And he who gave such property,
or permitted it to be made use of, as aforesaid, for the reason that
he can allege no just excuse for such conduct, shall be forced to give
something of equal value to said property, or to the price paid for it,
to his adversary; because he appropriated something before his title to
it was legally established.
=XXI. Of Slaves Captured and Sold by the Enemy.=
If any slaves, residents of our kingdom, should be taken by an enemy,
and said slaves should be recovered by our subjects, every one who
recaptures a slave shall have one-third of what is estimated to be his
just value, and shall restore him to his master; but if said slave was
sold by the enemy to him, he shall make oath as to the price which he
paid for him, and shall receive from the master said amount, together
with a sum equal to any increased value which may have accrued since
the capture of said slave, and the latter shall be at once restored to
his master.
=XXII. For what Price this Book shall be Bought.=
In order that any extortion on the part of a vendor and any unnecessary
expenditure by a purchaser, may alike be prevented, it is decreed by
the present law, that it shall not be legal for a vendor to sell a
copy of this book for more than four hundred _solidi_, or for the
purchaser to give more than that sum. And if any one should presume
either to give, or to receive, an amount greater than that above
mentioned, he shall receive a hundred lashes by order of the judge.[29]
TITLE V. CONCERNING PROPERTY COMMITTED TO THE CHARGE OF,
OR LOANED TO, ANOTHER
=I.= _Concerning Animals Hired to Another._
=II.= _Concerning Animals Loaned for the Purpose of Labor._
=III.= _Concerning Things which have been Loaned, and
afterwards Destroyed by Fire, or Lost by Theft._
=IV.= _Concerning Lost Money, and the Interest on the Same._
=V.= _Concerning Property Committed to the Charge of Another,
and Lost by Accident at Sea._
=VI.= _Concerning Property Entrusted to a Slave without his
Master’s Knowledge._
=VII.= _Where a Slave Fraudulently Demands Property Entrusted
by his Master to Another._
=VIII.= _Concerning Legal Interest._
=IX.= _What shall be Paid for the Use of Fruits of the Soil._
=X.= _Who are Entitled to Wills, or Instruments in Writing,
which have been Entrusted to the Keeping of Anyone._
=ANCIENT LAW.=
=I. Concerning Animals Hired to Another.=
If anyone should take in charge a horse, or an ox, or an animal of any
kind, in consideration of a certain sum of money, and the animal should
die, he shall give something equal to its value; whether the sum agreed
upon was for the mere keeping of the animal, or for the use of it. But
if he who had charge of said animal, should receive no compensation,
and should prove that the animal was dead, he shall be entitled to
nothing, and nothing shall be required of him, for this reason; as he
who had charge of the said animal has established by oath that its
death was not due to his guilt or negligence, no liability shall attach
to him for the same. The same rule shall apply to property which has
been loaned.
=ANCIENT LAW.=
=II. Concerning Animals Loaned for the Purpose of Labor.=
Where anyone rents or hires to another a beast of burden, horse, or any
other animal, and it should die of disease while under the control of
him who received it, the latter shall make oath that said animal did
not die either through his fault or neglect, and he shall escape all
liability. But if the death of said animal should have been caused by
want of exercise, or by overloading, or by too much work, or by abuse,
an animal of equal value shall be given to the owner. But if said
animal should cause any injury or damage to anyone, he who had charge
of it at the time shall be liable for the same.
=ANCIENT LAW.=
=III. Concerning Things which have been Loaned, and afterwards Destroyed
by Fire, or Lost by Theft.=
If any gold, silver, ornaments, or money, which have been entrusted
to anyone either for safe keeping, or to be sold, should be lost,
or consumed by fire, along with his own property, in the house of
him who had charge of them, and the latter should produce witnesses,
and give a written statement specifying the property which has been
lost, and should swear that nothing has been saved, he shall incur no
liability, except for the gold and silver, which cannot be burned.
And if any person, while the house was burning, under pretext of
affording assistance, should appropriate any property, the owner shall
make diligent inquiry, and, if detected, the culprit shall pay four
times the value of the article stolen; and if any of the property
which has been loaned should be found, it shall be restored at once
to the owner. Where it is proved that the article in question had
been stolen, a reasonable time shall be granted for the pursuit and
arrest of the thief; and if he should be caught, he shall be forced
to restore to the original owner the property of the latter, and
whatever else may be obtained from the thief shall belong to him to
whom the stolen property was entrusted. But if the thief should not
be arrested within the appointed time, a sum equal to half the value
of the property loaned or hired, shall be paid to the owner by him
who had charge of the same, so that the loss may be equally borne by
both. If, subsequently, the owner of the property should find it in the
possession of him to whom it was entrusted, and who had declared that
it had been lost or stolen, when, in fact, it had been fraudulently
concealed by him, he shall undergo the penalty for theft as prescribed
by law.
=ANCIENT LAW.=
=IV. Concerning Lost Money, and the Interest on the Same.=
If anyone should receive a sum of money and bind himself in writing to
pay interest on the same, and the money should be lost through no guilt
or negligence of the debtor, the creditor shall be entitled to the
principal alone, and cannot collect interest. But if the money was lost
through his own fraud or crime, the borrower shall pay both principal
and interest; and where the latter has gained any profit from the use
of said money, and it should afterwards be lost, if the profit should
be as great as the principal the borrower shall be liable for both
principal and interest.
=ANCIENT LAW.=
=V. Concerning Property Committed to the Charge of Another, and Lost by
Accident at Sea.=
Where anyone entrusted with the property of another loses it, either
by fire, shipwreck, or some other accident, but at the same time saves
all his own property from destruction, he shall be compelled to render
full satisfaction for what was in his charge, and shall not be suffered
to set up any defence. But if he is known to have saved any portion of
his own property, he must return to him whose goods he had charge of,
a sum in proportion to the property lost or saved, which a court shall
decide to be equitable. If he should lose all his own possessions,
and save the property which was entrusted to his care, the same rule
shall apply; and he shall receive such a part of what he has saved as a
judge, after due consideration, shall decide him to be entitled to. For
in such cases it is not just that he alone who has exposed himself to
great danger should sustain loss, and, while he was attempting to save
articles of inferior value belonging to another, should lose all his
own possessions.
=ANCIENT LAW.=
=VI. Concerning Property Entrusted to a Slave without his Master’s
Knowledge.=
If any property entrusted to a slave for safe keeping, without the
knowledge of his master, should be lost, no responsibility therefor
shall attach to either the master or the slave. For the fault is his
who entrusted his property to the slave of another, the master being
ignorant of the fact. If the property aforesaid should be an animal,
and it should be lost through the fraud of shepherds, the master shall
be compelled to pay for it. The same rule shall apply to property
entrusted to another, which has been consumed or wasted through the
fraud or malice of those to whose charge it was committed.
=ANCIENT LAW.=
=VII. Where a Slave Fraudulently Demands Property Entrusted by his
Master to Another.=
If a master desiring to borrow, or to hire any property, should send
his slave for the same, and the latter should abscond with said
property, the master shall be compelled to make restitution. But if
the slave should falsely represent that his master had sent him, and
the property should be given him to be taken to his master, and he
should either destroy or lose said property, and absconding, cannot
be found, the master shall make oath that he had not sent the slave
upon such an errand, and that he did not know that he had gone; and,
under such circumstances, he shall incur no liability. The master, as
well as the person who entrusted the slave with the property, shall
exert themselves to the utmost to find him. We hereby decree that this
same rule shall apply to all property entrusted to anyone without
compensation.
=ANCIENT LAW.=
=VIII. Concerning Legal Interest.=
Where anyone loans money at interest, he shall not have a right
to demand more than three _siliquæ_ per annum, for every
_solidus_; the debtor shall pay one _solidus_, as annual
interest, for every eight _solidi_, and the creditor may claim
from the debtor the principal and the aforesaid interest. If the
creditor, by a written agreement, should extort from the necessities
of the debtor a sum, as interest, in excess of the above amount,
the contract, being contrary to law, shall be invalid. But if any
one should thus violate the law, and should receive the sum which
was agreed upon in writing, the usurious interest shall not be
returned.[30] ]
=ANCIENT LAW.=
=IX. What shall be Paid for the Use of Fruits of the Soil.=
Whoever shall lease to another the dry and moist fruits of the earth,
that is to say, wine and oil, or any other kind of provisions, shall
not be entitled to receive for the use of the same more than the
third part; that is to say, he shall pay a _modius_ as rent for
every two others which he receives. This law we direct shall apply to
the fruits of the earth alone, as we have already published decrees
concerning the loaning of money.
=ANCIENT LAW.=
=X. Who are Entitled to Wills, or Instruments in Writing, which have
been Entrusted to the Keeping of Anyone.=
A will which has been entrusted to the keeping of anyone, after its
attestation by witnesses, as is provided by law, shall be delivered to
the heir who has the largest interest in the inheritance. But if it
should be given to anyone else, or should be delivered to an enemy, he
who delivered it shall pay a double fine to the person he wished to
defraud. Where anyone is entrusted with a document in which parties
have a joint interest, that is to say, wills, decrees, agreements,
donations, or other legal instruments of this kind, and should give
them to one person in the absence of another who is equally interested
therein, he who surrendered such documents must recover them, and
restore them without delay, to all those who have a common interest in
their preservation.
TITLE VI. CONCERNING PLEDGES AND DEBTS.
=I.= _Where Articles are not Pledged._
=II.= _Where Pledges are Deposited, and afterwards Stolen._
=III.= _Where Articles are Pledged as Security for Debts._
=IV.= _Where a Pledge is not Restored when the Debt is Paid._
=V.= _Where a Person is Liable for many Debts, or has Committed
many Crimes._
=VI.= _In what way the Debt of a Person who is Dead, or any
Injury he has Committed, shall be Inquired Into._
=FLAVIUS RECESVINTUS, KING.=
=I. Where Articles are not Pledged.=
All persons shall not have the right to pledge property; and if any
freeborn person should seize a pledge belonging to another, and which
he has refused to accept as such, he shall be compelled to pay double
its value. A slave, however, shall be required to restore only the
pledge, and shall receive a hundred lashes.
=ANCIENT LAW.=
=II. Where Pledges are Deposited and afterwards Stolen.=
Where anyone deposits a pledge with another, as security for a debt,
and it should be stolen, he who deposited it shall bear the loss.
=ANCIENT LAW.=
=III. Where Articles are Pledged as Security for Debts.=
If a pledge is deposited as security for a debt, and the debt be
evidenced by an instrument in writing, and he who deposited the
pledge should not pay the debt at the appointed time, the pledge
shall be kept safely for its owner for the space of ten days, or it
shall be carried to him, if he is at hand, and he shall be notified
to make payment. But if the debtor should, through negligence, fail
to come on the appointed day, or should put off the payment of the
debt, additional interest may be collected. But if the ten days have
elapsed, as has been hereinbefore stated, and the debtor should not
discharge his obligation, the creditor may bring the article pledged
before the judge, or the governor of the city, and shall have the right
to collect, after the seizure of said pledge, whatever amount may be
deemed equitable, in the opinion of the judge or in that of three
respectable persons. The creditor can afterwards reserve whatever is
due him from the proceeds of the sale of the property pledged, and the
owner of the same shall be entitled to the remainder.
=FLAVIUS RECESVINTUS, KING.=
=IV. Where a Pledge is not Restored when the Debt is Paid.=
If anyone who has loaned money upon a pledge and, after the
debt has been paid at the time appointed, should delay the
restoration of the property pledged to its owner; or should sell
the same before the time appointed by law, as aforesaid; or
should appropriate it for his own use; or should bestow it upon
another; or should maliciously refuse to surrender it; he shall
be compelled to restore the pledge intact to its owner, and to
pay him, in addition, half its estimated value.[31] ]-----File:
=FLAVIUS CHINTASVINTUS, KING.=
=V. Where a Person is Liable for many Debts, or has Committed many
Crimes.=
Where an individual has been guilty of offences against many persons,
or owes debts to different creditors, he who first establishes his
claim either in writing, or by oral testimony, or by the acknowledgment
of the party himself, and has thereby shown that he is liable to him
for damages, or is indebted to him for money loaned, shall have the
preference; and said person shall be required to satisfy the claim,
regardless of its priority in time; or shall be sentenced by the judge
for the offence he has committed against the law. Where several parties
to whom he is indebted, should proceed against him at one and the same
time, he shall satisfy his obligations to such persons according to the
value of their claims; or, should he prove insolvent, he shall serve
all of them as a slave. But in the settlement of the claims, it must
be taken into consideration by the judge, that the largest creditor is
entitled to the greater portion of the property, and that the remainder
should be divided among the other creditors as the judge himself
may determine. If the debtor should not have property sufficient to
discharge his obligations, as soon as this fact has been established
the debtor shall be given up by the judge to his creditors, to serve
them, for all time, as a slave.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. In what way the Debt of a Person who is Dead, or any Injury he has
Committed, shall be Inquired Into.=
If the guilt of any person has not been established during his
lifetime, it is undoubtedly monstrous to accuse him of crime after his
death. Where anyone, hereafter attempts to commit such acts, in order
to defraud the heir of a person who is dead, he shall be restrained by
the following law, to wit: that if any person shall accuse one who is
dead of having been guilty of violence toward himself, or of having
fraudulently deprived him of his property, or of having destroyed it,
or of having owed him money, or of having perpetrated any unlawful
act, as provided for in a former law, no credit shall attach to his
assertions, unless he shall be able to indubitably establish their
truth by competent written or oral evidence. And if he should be able
to prove his allegations, and the deceased person concerned should
have left no children, but should have bequeathed his property to
freedmen, or to other persons, the said persons shall be forced, under
the instructions of the judge, to pay, in proportion to the property
they have received, the amount due the creditor of the deceased. And if
the latter should have left children, and they should have possession
of his property, they shall be required to settle all claims which the
creditor has proved to be due him from their father. If the aforesaid
debtor should have died without making any disposition of his estate,
his nearest relatives, or those who claim, or are in possession of,
said estate, shall be liable for his pecuniary obligations. But if he
who is said to have been liable for any such claims, should die without
leaving any property, his children and his relatives shall be free from
all liability and reproach. Where the deceased leaves some assets,
but not enough to satisfy all the claims against him, and his sons or
relatives, or those who are in possession of his estate, should be
unwilling to satisfy the said claims in full out of their own property,
they must immediately deliver to the creditor all the property which
has been left by the deceased.
TITLE VII. CONCERNING THE LIBERATION OF SLAVES, AND FREEDMEN.
=I.= _Where Slaves are Liberated, either by Instruments in
Writing, or in the Presence of Witnesses._
=II.= _Where a Slave Belonging to One, or to Several Persons,
is set at Liberty._
=III.= _Concerning Those who Declare that they are Free._
=IV.= _Whether he who is enjoying Liberty, can be Returned to
Slavery._
=V.= _Whether he who is Sought to be Returned to Slavery, can
be Deprived of any of his Property._
=VI.= _Whether he who has been Declared to be Free by his
Master, in Court, can be again Reduced to Slavery,
on the Demand of said Master._
=VII.= _Where anyone, Influenced by Fear, Asserts that he is a
Slave._
=VIII.= _Where a Freeman is Claimed as a Slave; or Where a
Slave Declares Himself to be Free._
=IX.= _For what Reasons Freedom, once Given, shall be Revoked._
=X.= _Where a Freedman Inflicts Injury upon him who Gave him
his Freedom._
=XI.= _A Freedman shall not be Permitted to give Testimony
against his Former Master, or against the Children of
the Latter._
=XII.= _Freedmen shall not be Permitted to Testify in Court._
=XIII.= _Concerning the Disposition of the Property of a Person
who has been set Free, should he Die without Leaving
Legitimate Children._
=XIV.= _Concerning the Conditions Imposed by a Master, where
Slaves are Liberated by an Instrument in Writing._
=XV.= _Concerning the Liberation of Slaves belonging to the
Crown._
=XVI.= _Concerning the Property of Slaves belonging to the
Crown, who have been Liberated._
=XVII.= _Neither Freedmen, nor their Descendants, shall either
Marry, or act Insolently towards, the Family of their
Patron._
=XVIII.= _Freedmen who have Entered any Religious Order, shall
not be Returned to the Service of their Masters._
=XIX.= _In what manner Royal Freedmen and their Descendants
shall Defend the King, while Serving in the Army; and
with whom Those in the Public Service shall March._
=XX.= _Concerning Freedmen who are Guilty of Transgressions._
=ANCIENT LAW.=
=I. Where Slaves are Liberated, either by Instruments in Writing, or in
the Presence of Witnesses.=
If anyone at the point of death, should liberate his slaves either by
an instrument in writing, or in the presence of witnesses; his will
shall be valid, provided it be proved within six months by from three
to five credible witnesses. And if said testator should give anything
to said freedmen, and the fact should be proved by either written or
oral evidence, said freedmen shall be entitled to said property.
=II. Where a Slave Belonging to One, or to Several Persons, is set at
Liberty.=
If anyone should liberate the slave of another, or one belonging to
several persons, with intent to defraud the master or masters, of
said slave, his act shall be void in law; and whoever sets free the
slave of another, shall be compelled to give one to his master in his
place. But if the master should consent to his emancipation, he shall
be entitled to two slaves in his stead; and the liberated slave shall
enjoy complete freedom; and this law, we decree, shall apply also to
female slaves. If anyone wishes to grant unconditional freedom to any
slave whom he owns in common with another, and such an act should
take place in the presence of a priest or deacon, said ecclesiastic
must prevent it; because the liberation of any slave made under such
circumstances is illegal. Where a party desires to confer freedom upon
a slave, he must first make terms with the other owners, and obtain the
absolute proprietorship of said slave, by means of money, or by gift
of their interest in him; and then, if he should wish to set him free
in the presence of a priest or a deacon, the act of manumission shall
be valid. But if anyone should confer absolute freedom upon a slave
owned in common, in the presence of a priest or deacon, without the
consent of the other owner, or owners, he shall lose his share of said
slave, and his associates shall be entitled to the same. If, however,
he should wish to dispose of his share of said slave he shall have the
right to do so.
=ANCIENT LAW.=
=III. Concerning Those who Declare that they are Free.=
If a slave should declare that he is free, the judge shall give him
protection, and afford him time to produce evidence, either written or
oral, establishing the fact of his freedom. But only such time shall be
granted that the service he owes to his master will not be lost, or his
own rights suffer injury.
=ANCIENT LAW.=
=IV. Whether he who is enjoying Liberty can be Returned to Slavery.=
Where any person in the enjoyment of liberty is claimed by another as a
slave, he shall not be immediately delivered into the possession of the
claimant, and the judge must determine previously whether said claimant
shall give security not to treat said person with injustice or cruelty.
=V. Whether he who is Sought to be Returned to Slavery, can be Deprived
of any of his Property.=
If anyone should deprive a freeman or one who has been set free, of any
property, and, afterwards, should wish to claim him as a slave, he must
restore what he deprived him of, before prosecuting his claim.
=FLAVIUS CHINTASVINTUS, KING.=
=VI. Whether he who has been Declared to be Free by his Master, in
Court, can be again Reduced to Slavery on the Demand of said Master.=
If anyone, in court should declare by his testimony that a person was
free, and, afterwards, should wish to claim him as a slave, he shall
give the person whom he attempted to oppress another slave, by way of
reparation, and he whom he endeavored to injure shall remain free.
=ANCIENT LAW.=
=VII. Where Anyone, Influenced by Fear, Asserts that he is a Slave.=
Anyone who, influenced by fear, declares himself to be a slave, shall
not be restrained of his liberty, but shall be brought into court,
and should he prove that he is free, shall be dismissed by the judge;
but if it should be shown that he is a slave, he shall straightway be
returned to his master.
=ANCIENT LAW.=
=VIII. Where a Freeman is Claimed as a Slave; or where a Slave Declares
Himself to be Free.=
If anyone wishes to claim a freeman as his slave, he must show what
right he has to his possession and service; and if the slave should
assert that he himself is free, he must, in like manner, establish
the existence of his freedom. The judge must take the testimony of
persons of highly respectable character, and there must be more than
one witness on each side. But if the judge, having been corrupted by a
bribe, should unjustly oppress an innocent person, he, as well as the
claimant, shall immediately be compelled to pay the penalty prescribed
by law in the case of those who render unjust decrees.
=ANCIENT LAW.=
=IX. For what Reasons Freedom, once Given, shall be Revoked.=
If anyone should liberate a male or female slave, and it should
be proved that this has been done in the presence of two or three
witnesses; that is to say, if he should deliver the instrument
granting freedom to said slave publicly, in the presence of legitimate
witnesses, and should specify in said instrument that the slave himself
should be free from the time said instrument was executed, without
conditions, and with no reservations, whatever, in favor of himself;
he shall have no power to revoke said act of manumission, unless the
liberated slave should be insolent to him, or do him some injury, or
accuse him of some crime; and for the commission of such offences,
his freedom may be revoked. But if the master shall say he liberated
the slave under certain conditions, or with some reservation of his
authority over him, and these facts do not fully appear from the terms
of the written instrument, the witnesses who were present shall testify
concerning the terms of the instrument aforesaid, and, afterwards,
judgment shall be rendered according to what the terms of said
instrument are found to be.
=ANCIENT LAW.=
=X. Where a Freedman Inflicts Injury upon him who Gave him his Freedom.=
If a freedman should wrong his former master in any way; or should
strike him with his fist, or with any weapon; or should pursue him with
false accusations, whereby he may be in danger of his life; the said
master shall have power to reduce said freedman to slavery, provided he
proves the commission of said offences in court.
=ANCIENT LAW.=
=XI. A Freedman shall not be Permitted to give Testimony against his
Former Master, or against the Children of the Latter.=
It shall be unlawful for a child, or other heir, to revoke the
manumission of a slave liberated by his father; for the act of a parent
must always be religiously respected by his children; nor shall a
freedman, or any of his descendants, be permitted to testify against
the children of him to whom they are indebted for their freedom; and if
they should offer any testimony of this kind, they shall not be heard
by the court, but shall be reduced to their former servitude. But in
other matters they shall have a right to assert their claims against
the children or grandchildren of their patron, so far as is consistent
with the principles of justice.
=FLAVIUS RECESVINTUS, KING.=
=XII. Freedmen shall not be Permitted to Testify in Court.=
Neither freedmen nor freedwomen shall be permitted to testify in any
cause, except where the testimony of freeborn persons is not available,
as is allowed in the case of slaves; because we deem it improper that
by the evidence of freedmen injury should be done to those who are
freeborn. Persons, however, who are descended from freedmen, shall be
fully competent to testify.
=ANCIENT LAW.=
=XIII. Concerning the Disposition of the Property of a Person who has
been set Free, should he Die without Leaving Legitimate Children.=
Where a liberated slave dies without leaving any legitimate children,
and his patron should have given him anything after he had been set
free; or even if he should have forsaken his service, and attached
himself to another; all his property shall revert to his former
master, or to the heirs of the latter. And if said freedman should
remain on the estates of his patron, and should acquire any property
by the fruits of his labor, half of said property shall belong to the
patron, and the freedman shall have a right to dispose of the other
half at his pleasure. If he should place himself under the protection
of another patron, and, while in his service, he should acquire any
property, the master who liberated him shall be entitled to half of
it, and the other half shall descend to the nearest relatives of the
freedman, whether they be slaves or free; or he shall have the right
to bestow said half of said property upon anyone he may select; but
whatever he received from his former master shall belong to the latter.
The same rule shall apply in the case of female slaves who have been
liberated, and we add the following provision, as being conformable
to justice, to wit: that no freedman or freedwoman who has received
his or her liberty from either master or mistress, shall abandon the
latter while they are living. And should they venture to do so, they
shall lose the property which they have received, and shall be forcibly
returned to the service of their master or mistress.
=FLAVIUS CHINTASVINTUS, KING.=
=XIV. Concerning the Conditions Imposed by a Master, where Slaves are
Liberated by an Instrument in Writing.=
When anyone confers liberty upon a slave by an instrument in writing,
and specifies therein that it shall not be lawful for him to dispose
of his own property; and afterwards the person who has been set free
sells it, or gives it away, his act shall be absolutely void; and his
patron, or the children of the latter, shall be entitled to all of said
property. But if no such condition was made, the freedman shall have a
right to do what he pleases with his own possessions; and should he die
intestate, and leaving no legitimate children, even though his master
has inserted no other condition in the instrument conferring liberty
upon him, his patron or the children of the latter, shall be entitled
to his entire estate.
=FLAVIUS CHINTASVINTUS, KING.=
=XV. Concerning the Liberation of Slaves belonging to the Crown.=
If no ambiguity should arise in the determination of legal questions,
we should not be under the necessity of making laws for future
generations. For the reason that, under the pretence of liberty
fraudulently asserted by slaves, the public service is often
injuriously affected, and without any prejudice to the well-deserving,
but as a warning to those who act rashly, we hereby decree, that,
should freedom be granted hereafter to a slave of the Crown, the act
shall be invalid, unless confirmed by the royal signature.
=ANCIENT LAW.=
=XVI. Concerning the Property of Slaves belonging to the Crown, who have
been Liberated.=
We do not permit freedom to be given to slaves of our court without
our consent, and if this should be done, the act shall be void, and
only that freedom shall be legal which is bestowed under our direction.
And, in like manner, it shall be unlawful for the slaves of our court
to sell their own slaves or lands to freemen; for they shall have the
right to make such sales only to other royal slaves; and if they should
wish to give their lands or slaves to the Church or to the poor, such
gift or disposition by will, shall be void. We, however, grant the
following concession to them for the sake of piety: that they shall
have a right to bestow a certain portion of their property upon the
Church, or the poor, for the benefit of their souls; and if they have
no possessions excepting lands and slaves, we grant them authority to
dispose of said lands and slaves, but only to others of our slaves,
as has been hereinbefore mentioned, and no freeman shall be permitted
to purchase said property; but they shall have the right to give the
proceeds of said sales of lands and slaves to the Church, or the poor,
for the benefit of their own souls, as hereinbefore stated.
=THE GLORIOUS RECESVINTUS, KING.=
=XVII. Neither Freedmen, nor their Descendants, shall either Marry into,
or act Insolently towards, the Family of their Patron.=
We occasionally see excessive arrogance displayed by slaves, and are
compelled, at the same time, to pity the degradation of their masters.
For some slaves, after they have obtained freedom, or the descendants
of such slaves, aspire to marry into the family of their masters; or do
some wrong to the children or grandchildren of the latter. And as an
inferior rank is ennobled by the gift of freedom, so, in like manner,
an illustrious race is disgraced by marriage with an inferior caste.
Thus a distinguished family is degraded by such a connection, through
the acts of those very persons who, by its means, have enjoyed the
blessings of liberty. Therefore, that the splendor of natural lineage
may not be deprived of its dignity; and the slave, remembering his
former condition, may not aspire to privileges to which he is not
entitled, and which cannot be granted him: it is hereby decreed that
if any freedman, or the descendants of said freedman, belonging to the
class of manumitted slaves, or anyone connected with them by affinity
or blood, however distantly related, should attempt to contract
marriage with any of the family of his former master, or with any
of his descendants; or should bring any action at law against them,
except for just and legal cause, either on his own behalf, or on behalf
of others; or should inflict any injury upon them; or should cause
them any vexation or annoyance; or should oppose them as members of
an opposite political faction; he shall be at once delivered up as a
slave to those against whom he committed these offences. And, indeed,
it is impious that when a condition of slavery has been abolished, the
dignity of freedom should be degraded; and that, while the slave is
exalted, the master is abased, and the children of the latter suffer
injury, because the slave has power to inflict it.
=FLAVIUS RECESVINTUS, KING.=
=XVIII. Freedmen who have Entered any Religious Order, shall not be
Returned to the Service of their Masters.=
Any freedman who has been honored by presentation to the Church by his
master, or whom the condition of his emancipation, or his membership in
a religious order, has devoted to the service of the Church, can under
no circumstances whatever, be returned to the control of his former
master, or of his heirs. For whatever is known to belong to God can
never be again subjected to the dominion of man.
=THE GLORIOUS FLAVIUS EGICA, KING.=
=XIX. In what manner Royal Freedmen and their Descendants shall Defend
the King, while Serving in the Army; and with whom Those in the Public
Service shall March.=
We attempt to rule the country subject to our crown by the adoption
of just laws, when, for the public good, we provide defenders who may
protect it against enemies. And while there is no lack of defenders of
the throne, it is not improper that the numbers of the same should, for
the purpose of repelling foreign foes, be increased by the addition of
such slaves as have received their freedom through the royal favor.
Wherefore, because it is necessary that such persons should afford
their assistance to those to whom they are indebted for their liberty,
we especially decree by this law, that all such freedmen and their
descendants shall, in time of war, be included among the guards of the
king; and the latter shall assign them their places in the ranks, and
prescribe the duties they shall perform. And if any freedman should,
in time of war, remain at home; and should not, in obedience to the
royal order, join the army with the rest; he shall be delivered up as
a slave to the person from whom he received his liberty. Those only
shall be exempt from this penalty, who, by order of the king, or the
governor, have been charged with the performance of some other duty; or
who were prevented from joining the army by sickness, or by some other
unavoidable necessity.
=FLAVIUS EGICA, KING.=
=XX. Concerning Freedmen who are Guilty of Transgressions.=
We have often heard of freedmen who, after the restraints of servitude
have been removed, desert those who set them free, and assert that they
are the equals of their masters, or of their descendants. Wherefore,
we now, with all due deliberation, publish the following decree, to
wit: that if any person, of either sex, who has been set free, or
any of their children, should be guilty of any subtlety or deceit,
or fraudulent conduct towards their former masters, or towards their
children, grandchildren, or any descendants of the latter, or should
show them any disrespect, at any time, they shall be immediately
returned to slavery. And the children of persons guilty as aforesaid,
shall be delivered up to perpetual servitude, according to the
provisions of a former law.
BOOK VI.
CONCERNING CRIMES AND TORTURES.
TITLE I. CONCERNING THE ACCUSERS OF CRIMINALS.
=I.= _A Slave, Accused of a Crime, may be Demanded of his
Master by the Officials of the District._
=II.= _For what Offences, and in what Manner, Freeborn Persons
shall be put to the Torture._
=III.= _For what Offences, and in what manner Slaves, of Either
Sex, shall be put to the Torture, on account of the
Crimes of their Masters._
=IV.= _For what Offences, and in what manner, a Slave, or a
Freedman, shall be Tortured._
=V.= _In what way an Accusation shall be Brought to the Notice
of the King._
=VI.= _How Kings should Practise the Duties of Mercy._
=VII.= _He Alone shall be Considered Guilty who Committed the
Crime._
=ANCIENT LAW.=
=I. A Slave, Accused of a Crime, may be Demanded of his Master by the
Officials of the District.=
Where a slave is charged with a crime, the judge shall first notify the
master, superintendent, or agent, who has control of the accused, and
order him to produce the slave in court; and should he refuse to do so,
the governor of the city, or the judge may compel him to produce said
slave. If the master, or he who has charge of his affairs, cannot be
found, the slave shall be arrested and tried by the judge.
=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=
=II. For what Offences, and in what Manner, Freeborn Persons shall be
put to the Torture.=
If moderation is displayed in the treatment of crimes, the wickedness
of criminals can never be restrained. Therefore, if anyone should, in
behalf of the king or the people, bring an accusation of homicide or
adultery against a person equal to him in rank, or in palatine dignity,
he who thus seeks the blood of another shall first have an opportunity
to prove what he alleges. And if he cannot prove it in the presence
of the king, or those appointed by the royal authority, an accusation
shall be drawn up in writing, and signed by three witnesses; and the
accused person may then be put to the question.
If the latter, after undergoing the torture, should prove to be
innocent, the accuser shall at once be delivered up to him as a
slave, to be disposed of at his will, except that he shall not be
deprived of life. But if he should be willing to make a compromise
with his accuser, he may accept from the latter as large a sum as may
compensate him for the sufferings he has endured. The judge shall take
the precaution to compel the accuser to specifically describe the
alleged offence, in writing; and after he has done so, and presented
it privately to the judge, the torture shall proceed; and if the
confession of him who is subjected to the torture should correspond
with the terms of the accusation, his guilt shall be considered to
be established. But if the accusation should allege one thing, and
the confession of the person tortured the opposite, the accuser must
undergo the penalty hereinbefore provided; because persons often
accuse themselves of crime while being tortured. But if the accuser,
before he has secretly given the written accusation to the judge as
aforesaid, should, either in his own proper person, or by anyone else,
inform the party of what he is accused, then it shall not be lawful
for the judge to subject the latter to torture, because the alleged
offence has become publicly known. This rule shall also apply to all
other freeborn persons. But if the accusation should not be that of
a capital crime, but merely of theft, or of some minor breach of the
law, nobles, or persons of superior rank, such as the officials of our
palace, shall, upon such an accusation, under no circumstances, be put
to the question; and if proof of the alleged offence is wanting, he who
is accused must declare his innocence under oath.
All persons of inferior rank, and freeborn persons, when accused
of theft, homicide, or any other crime, shall not be tortured upon
such an accusation, unless the property involved is worth more than
fifty _solidi_. But if the property is of less value than fifty
_solidi_, and the accused is convicted upon legal testimony, he
shall be compelled to make restitution, as prescribed by other laws; or
if he should not be convicted, after purging himself by oath he shall
receive the satisfaction granted by the law for those who have suffered
from an improper demand for torture.
We hereby especially provide that a lowborn person shall not presume
to accuse a noble or one of higher rank than himself; but if such a
person should accuse another of crime, and proof of the same should be
wanting, the person accused shall at once purge himself of all guilt
by oath, and swear that he never took, nor has in his possession, the
property on account of which he was prosecuted; and oath having been
made, as aforesaid, he who brought the false accusation shall undergo
the penalty for the same, as prescribed by a former law. But whether
the person subjected to the torture is a noble, one of inferior rank,
or a freeman, he must be tortured in the presence of the judge, or of
certain respectable men appointed by him; and in such a way as not
to lose his life, or the use of any of his limbs; and because the
torture must be applied for the space of three days, if, as the result
of accident, or through the malice of the judge, or the treachery of
anyone else, he who is subjected to it should die; or if the judge,
having been corrupted by the bribes of the adversary of the accused,
should not prohibit the infliction of such torments as are liable to
produce death; the judge himself shall be delivered up to the nearest
relatives of the accused person, that, on account of his injustice, he
may undergo at their hands the same sufferings which he unlawfully
inflicted upon the accused.
If, however, he should declare himself under oath to be innocent, and
witnesses who were present should swear that death did not result from
any malice, treachery, or corruption of which he was guilty, but only
as a result of the torture itself; for the reason that the said judge
did not use his discretion to prevent excessive cruelty, he shall be
compelled to pay fifty _solidi_ to the heirs of the deceased; and
if he should not have sufficient property to pay said sum, he shall
be delivered up as a slave to the nearest heirs of the former. The
accuser shall be surrendered to the nearest relatives of the deceased,
and shall suffer the penalty of death, which he suffered who perished
through his accusation.[32]
=ANCIENT LAW.=
=III. For what Offences, and in what manner, Slaves, of Either Sex,
shall be put to the Torture, on account of the Crimes of their Masters.=
No slave, of either sex, shall be tortured in order to obtain evidence
of crime against either his or her master or mistress, unless for
adultery; or for some offence against the Crown, or against their
country; or for counterfeiting, homicide, or witchcraft. And if slaves
tortured for such reasons should be proved to be cognizant of the
crimes of their masters, and to have concealed them, they shall be
punished along with their masters in such way as the king may direct.
But if they should voluntarily confess the truth before being put to
the question, it will be sufficient if they undergo the torture in
order to confirm their testimony, and they shall not suffer the penalty
of death. But any slave of either sex, who, after being put to the
torture for a capital crime, should also implicate his or her master,
and the commission of said crime can be proved by competent evidence,
they shall be subject to the same punishment as their master.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. For what Offences, and in what manner, a Slave, or a Freedman,
shall be Tortured.=
Where a slave is accused of any crime, the accuser must, before the
torture is inflicted, bind himself to give to the master in his stead,
another slave of equal value, if the innocence of the slave should
be established. But if the accused slave should be found innocent,
and should die, or be disabled from the effects of the torture, the
accuser must at once give to the master two other slaves, each equal
in value to the one killed or disabled. The one who was injured shall
be free, and remain under the protection of his master; and the judge
who neglected to use moderation in the infliction of torture, and thus
violated the law, shall give to the master another slave equal in value
to the one who perished by torture.
In order that all doubt may be removed concerning the value of slaves
in dispute, no statement of artificial or fraudulent value of the same
shall be accepted; but information of their age and usefulness shall
be obtained by personal examination of the slaves themselves; and
if he who was disabled was skilled in any trade, and he who injured
him when he was innocent possesses no slave proficient in the same
trade, he shall be forced to give to the master a slave skilled in
some other trade; but if he should not have such a skilled artisan,
and he whose slave was injured by the torture should not be willing to
accept another in his stead, then the accuser shall pay to the master
the value of the slave that was injured, according to a reasonable
estimate made by the judge, or by men of respectability and established
character. It must, however, be observed, that no one shall presume to
subject any freeborn person or slave to torture, unless he shall make
oath in the presence of a judge, or his representative, the master of
the slave or his agent being also present, that through no artifice,
fraud, or malice, he is inflicting torture upon an innocent person.
And if, after having been put to the question he should die, and his
accuser should not have the means to make the reparation required by
law, he himself shall be reduced to slavery, for the reason that he
was the cause of the death of an innocent man. And if anyone, through
treachery, should attempt to subject the slave of another to torture,
and the master of said slave should prove that he was innocent of
crime, the accuser shall be compelled to give to the master of the
accused slave another of equal value, and to reimburse said master for
any reasonable expense that he has incurred in defence of his slave,
until, in the opinion of the judge, full satisfaction has been rendered
by the unjust accuser to the master of the innocent slave.
In case a slave is found guilty of a minor offence, the master, if he
chooses to do so, shall have a right to compound the same; but every
thief shall be scourged according to the degree of his guilt. Where
a master is not willing to give satisfaction for graver offences, he
must immediately surrender the slave to justice. Any freeborn person
who desires to subject a respectable freedman to the torture, in the
case of a capital crime, or of offences of less gravity, shall not be
permitted to do so, unless the value of the property involved in the
accusation amounts to at least two hundred and fifty _solidi_.
But if said freeborn person should be of inferior rank, and a boar,
he may be tortured, if the value of the property amounts to a hundred
_solidi_.
Where he who is put to the question should, through want of proper
care, be disabled, then the judge who did not exercise moderation in
the infliction of torture, shall pay two hundred _solidi_ to him
who suffered by his negligence; and he who caused him to be tortured
unjustly, shall be compelled to pay him three hundred _solidi_;
and if he should die while undergoing torture, the judge, as well as
the accuser, shall each pay to the nearest relatives of the deceased
the sums of money aforesaid. And, in like manner, in the case of
freedmen of still lower rank, should anyone of them undergo mutilation
or death, through want of caution on the part of those employing
the torture, half of the sum hereinbefore mentioned as applying to
respectable freedmen shall be paid to him who was tortured, should he
be still living, or, if he is dead, to his heirs.[33]
=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=
=V. In what way an Accusation shall be Brought to the Notice of the
King.=
If any person should bring a false accusation against another before
the king, and should allege that he has plotted against the throne, the
people, or his country, or that he was committing, or had committed
some act to their prejudice; or had been guilty of some fraudulent act
against the authority of the Crown, or of those exercising judicial
functions; or had executed, or published any forged document; or had
coined any spurious money; or had been guilty of giving poison, or
of practising witchcraft; or of committing adultery with the wife of
another; he who brings accusation of these and similar crimes, the
punishment of which involves the loss of life and property, where he
can establish the truth of his charges, shall, in no way, be subject to
censure. But if his assertions should prove to be false, and it should
be evident that he had only made them through hatred, and in order that
he whom he attempted to accuse might suffer death, or bodily injury,
or the loss of his property; he shall be delivered over into the power
of him he accused, that he may himself suffer the penalty which he
endeavored to inflict upon an innocent person.
Where anyone states that he is in the possession of any fact which
should be brought to the notice of the king, and should be, at the
time, in the place where the court was sojourning, he shall straightway
reveal all that he knows, or shall communicate it to the ears of the
king through the agency of some reliable person. If, however, at the
time, the king should be at a distance, and the said party should
believe that information in his possession relating to the accusation
of another, ought to be sent to the king by the hands of a messenger,
he must draw up a letter, and in it set forth plainly what he wishes to
say concerning the alleged guilt of the accused; and he must do this in
the presence of him whom he has selected to convey the information to
the king. And, in order that he may not be able to deny the aforesaid
communication, three witnesses, known to be men of respectable
character, must, in the presence of one another, affix their seals or
signatures to said letter.
=FLAVIUS CHINTASVINTUS KING.=
=VI. How Kings should Practice the Duties of Mercy.=
Whenever a supplication is made to us on behalf of those who have
been implicated in any crime against our majesty, we willingly give
attention to such appeals, and exercise the prerogative of mercy when
it is consistent with our power. We must, however, refuse to interfere
when a crime of this kind has been committed against the nation and
our country. Yet, if a prince should desire to be merciful to persons
of such wicked character, he shall have the right to do so, with the
approval of the ecclesiastics and the principal officers of the court.
=VII. He Alone shall be Considered Guilty who Committed the Crime.=
Punishment for all crimes shall be visited upon the authors of the
same; and a father shall suffer no penalty on account of his son; nor
a son on account of his father; nor a wife on account of her husband;
nor a husband on account of his wife; nor a brother on account of
his brother; nor one neighbor on account of another; nor any person
on account of a relative; but he alone shall be adjudged to be guilty
who is responsible for the offence, and the crime shall die with
him who committed it. Neither successors nor heirs shall, under any
circumstances, be placed in jeopardy on account of the acts of their
parents.
TITLE II. CONCERNING MALEFACTORS AND THEIR ADVISERS,
AND POISONERS.
=I.= _Where a Freeborn Man Consults with a Soothsayer
Concerning the Health, or the Death of Another._
=II.= _Concerning Poisoners._
=III.= _Concerning Malefactors and their Advisers._
=IV.= _Concerning Those who are Guilty of Acts of Witchcraft, or
any Injury, towards Men, Animals, or any kind of Property
whatsoever._
=FLAVIUS CHINTASVINTUS, KING.=
=I. Where a Freeborn Man Consults with a Soothsayer Concerning the
Health, or the Death of Another.=
Whoever plots the death of the king or any of his subjects, and, with
a view to the execution of such a crime, consults diviners, augurs,
or soothsayers; should he be freeborn, he shall be scourged, and
be condemned to perpetual slavery in the public service, after the
confiscation of all his property, or he shall be delivered up as a
slave to anyone whom the king may select; and those who have given him
advice shall undergo the same penalty. And if any children should be
implicated in the crime of their parents, they shall be punished in
like manner. But if said children should be innocent, they shall not
be degraded in rank, and shall enjoy full and undisturbed possession
of all the property which their parents have lost. Slaves who are
implicated in such offences shall be tortured in various ways, sold,
and transported beyond sea; as the vengeance of the law does not excuse
those who have voluntarily participated in such infamous proceedings.
=FLAVIUS CHINTASVINTUS, KING.=
=II. Concerning Poisoners.=
Different kinds of crimes should be punished in different ways; and,
in the first place, freemen or slaves who are guilty of preparing,
or administering poison shall be punished in like manner; as for
instance, if they should give poisoned drink to anyone and he should
die in consequence; in such a case those who are guilty shall be put
continuously to the torture, and be punished by the most ignominious
of deaths. But if he who drank the poison should escape with his life,
the party who administered it shall be given up into his power, to be
disposed of absolutely as he may desire.
=FLAVIUS CHINTASVINTUS, KING.=
=III. Concerning Malefactors and their Advisers.=
Enchanters, and invokers of tempests, who, by their incantations, bring
hail-storms upon vineyards and fields of grain; or those who disturb
the minds of men by the invocation of demons, or celebrate nocturnal
sacrifices to devils, summoning them to their presence by infamous
rites; all such persons detected, or found guilty of such offences by
any judge, agent, or superintendent of the locality where these acts
were committed, shall be publicly scourged with two hundred lashes;
shall be scalped; and shall be dragged by force through ten villages
of the neighborhood, as a warning to others. And the judge, lest,
hereafter, the aforesaid persons may again indulge in such practices,
shall place them in confinement, and see that they are provided with
clothing and food, to deprive them of an opportunity of inflicting
further injury; or he may lay the matter before the king, to be
disposed of at his royal pleasure. Those who are convicted of having
given advice to such persons, shall each receive two hundred lashes in
the assembly of the people, in order that all who have aided in the
commission of such a crime may not go unpunished.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. Concerning Those who are Guilty of Acts of Witchcraft, or any
Injury towards Men, Animals, or any kind of Property whatsoever.=
We decree, by the present law, that if any freeman or slave, of either
sex, should attempt to employ, or should employ, witchcraft, charms,
or incantations of any kind with intent to strike dumb, maim, or kill,
either men or animals; or injure anything movable; or should practice
said arts to the detriment of crops, vineyards, or trees; he shall
suffer in person and property the same damage he endeavored to inflict
upon others.[34]
TITLE III. CONCERNING ABORTION.
=I.= _Concerning Those who Administer Drugs for the Production
of Abortion._
=II.= _Where a Freeborn Man Causes a Freeborn Woman to Abort._
=III.= _Where a Freeborn Woman Causes another Freeborn Woman to
Abort._
=IV.= _Where a Freeborn Man Produces Abortion upon a Slave._
=V.= _Where a Slave Produces Abortion upon a Freeborn Woman._
=VI.= _Where a Slave Produces Abortion upon a Female Slave._
=VII.= _Concerning Those who Kill their Children before, or
after, they are Born._
=ANCIENT LAW.=
=I. Concerning Those who Administer Drugs for the Production of Abortion.=
If anyone should administer a potion to a pregnant woman to produce
abortion, and the child should die in consequence, the woman who took
such a potion, if she is a slave, shall receive two hundred lashes, and
if she is freeborn, she shall lose her rank, and shall be given as a
slave to whomever we may select.
=ANCIENT LAW.=
=II. Where a Freeborn Man Causes a Freeborn Woman to Abort.=
If anyone should cause a freeborn woman to abort by a blow, or by
any other means, and she should die from the injury, he shall be
punished for homicide. But if only an abortion should be produced
in consequence, and the woman should be in no wise injured; where
a freeman is known to have committed this act upon a freewoman,
and the child should be fully formed, he shall pay two hundred
_solidi_; otherwise, he shall pay a hundred _solidi_, by way
of satisfaction.
=ANCIENT LAW.=
=III. Where a Freeborn Woman Causes another Freeborn Woman to Abort.=
Where a freeborn woman, either by violence or by any other means,
causes another freeborn woman to abort, whether, or not, she should be
seriously injured as a result of said act, she shall undergo the same
penalty provided in the cases of freeborn men.
=ANCIENT LAW.=
=IV. Where a Freeborn Man Produces Abortion upon a Slave.=
Where a freeborn man produces abortion upon a female slave, he shall be
compelled to pay twenty _solidi_ to the master of the slave.
=ANCIENT LAW.=
=V. Where a Slave Produces Abortion upon a Freeborn Woman.=
Where a slave produces abortion upon a freeborn woman, he shall receive
two hundred lashes in public, and shall be delivered up as a slave to
said woman.
=ANCIENT LAW.=
=VI. Where a Slave Produces Abortion upon a Female Slave.=
Where a male slave produces abortion upon a female slave, he shall be
compelled to pay ten _solidi_ to her master, and, in addition,
shall receive two hundred lashes.
=FLAVIUS CHINTASVINTUS, KING.=
=VII. Concerning Those who Kill their Children before, or after, they
are Born.=
No depravity is greater than that which characterizes those who,
unmindful of their parental duties, wilfully deprive their children
of life; and, as this crime is said to be increasing throughout the
provinces of our kingdom and as men as well as women are said to be
guilty of it; therefore, by way of correcting such license, we hereby
decree that if either a freewoman or a slave should kill her child
before, or after its birth; or should take any potion for the purpose
of producing abortion; or should use any other means of putting an
end to the life of her child; the judge of the province or district,
as soon as he is advised of the fact, shall at once condemn the
author of the crime to execution in public; or, should he desire to
spare her life, he shall at once cause her eyesight to be completely
destroyed; and if it should be proved that her husband either ordered,
or permitted the commission of this crime, he shall suffer the same
penalty.[35]
TITLE IV. CONCERNING INJURIES, WOUNDS, AND MUTILATIONS
INFLICTED UPON MEN.
=I.= _Concerning the Injury of Freemen and Slaves._
=II.= _Concerning Insolent Persons and their Acts._
=III.= _Concerning the Law of Retaliation, and the Amount to be
Paid in Lieu of the Enforcement of said Law._
=IV.= _Where a Person Deprives a Traveller of his Liberty,
against the Will of the Latter, and with Intent to do
him Injury._
=V.= _He who Violates the Law by Inflicting Injury upon
Another, shall undergo the same Punishment which he
Himself Inflicted._
=VI.= _He shall not be Considered Guilty who Struck Another,
when the Latter was about to Strike Him._
=VII.= _Where a Slave Insults a Freeborn Person._
=VIII.= _Where one Freeborn Person Strikes Another._
=IX.= _Where the Slave of Another is Mutilated by a Freeborn
Person._
=X.= _Where a Slave Strikes a Freeborn Person._
=XI.= _Where One Slave Mutilates Another Slave._
=I. Concerning the Injury of Freemen and Slaves.=
Where one freeborn person strikes another any kind of a blow upon the
head, he shall pay five _solidi_ for a bruise, ten _solidi_
if the skin be broken, twenty _solidi_ for a wound extending to
the bone, and a hundred _solidi_ where a bone is broken. If a
freeborn man should commit any of the above named acts upon the slave
of another, he shall pay half of the above named penalties, according
to the degree of his offence. If one slave should strike another,
as above stated, he shall pay a third part of the above penalties,
proportionate to his offence, and shall receive fifty lashes. If a
slave, however, should wound a freeborn person, he shall pay the
largest sum hereinbefore mentioned, which is exacted from freeborn
persons for assaults upon slaves, and shall receive seventy lashes. If
the master should not be willing to give satisfaction for the acts of
his slave, he must surrender him on account of his crime.
=II. Concerning Insolent Persons and their Acts.=
If anyone with a drawn sword, or armed with any kind of weapon, should
insolently enter the house of another, with the design of killing the
master of the same, and should be himself killed, no one shall be held
responsible for his death; but if he who entered said house should
kill anyone, he shall be put to death at once. But if he should not
commit any crime, he must at once give satisfaction, according to
law, for any injury resulting from his act. And if he who entered the
house of another by violence, should steal anything there, he shall be
compelled to pay elevenfold the value of what he carried away. And if
he should not have the means to pay the amount due, he shall be given
up to serve as a slave; and if no damage should result from his violent
entrance into the house, and he should not steal anything therefrom;
for the mere fact of his forcible entry, he shall be compelled to pay
ten _solidi_ and shall receive a hundred lashes in public; and if
he should not be possessed of said sum, he shall receive two hundred
lashes. If any other freeborn persons, who were not under his orders or
subject to him, or under his protection, should enter with him into the
house; all of them, as giving consent to a high-handed and illegal act,
shall undergo similar condemnation and penalties. If they should not
have the property wherewith to render satisfaction, each one of them
shall receive a hundred and fifty lashes; but they shall not lose the
right to testify in court. But if they were under the protection, or
in the service of the aggressor, and it is proved that he ordered them
to commit the act of violence, or that they participated in it with
him, the patron alone shall be held liable for all damage committed,
as well as for the penalty; for they were not guilty who only carried
out the orders of their superior. If a slave should commit such an act
of violence without the knowledge of his master, he shall receive two
hundred lashes, and shall be compelled to restore whatever he carried
away. If, however, the slave acted with the knowledge of his master,
the latter must give satisfaction for his act, as has been hereinbefore
provided in the cases of freeborn persons.
=FLAVIUS CHINTASVINTUS, KING.=
=III. Concerning the Law of Retaliation, and the Amount to be Paid in
Lieu of the Enforcement of said Law.=
The bloody rashness of some persons must be legally revenged by even
the most severe penalties; for when anyone fears that he will suffer
for what he has done, he is liable to abstain from the commission of
crime. Therefore, if any freeborn person should dare to shave the
head of another; or should mark, or scar him by violence inflicted
either upon his face, or upon any other part of his body, by the use
of a scourge, a whip, or any weapon; or, by maliciously dragging him
upon the ground, should soil or defile him; or should maim him in any
part of his limbs; or should restrain him of his liberty, by placing
him in jail, or in any other place of confinement; or should order
him to be imprisoned by others; or to be kept in custody and sold as
a slave; having been apprehended by the judge, the same person shall
receive by way of retaliation, whatever he inflicted, or attempted to
inflict, upon another. And if he who suffered from his violence, or
endured insult through his agency, should desire to receive pecuniary
compensation from the culprit, he shall be entitled to recover such
a sum as he may estimate will compensate him for the injuries he has
sustained. We forbid, however, retaliation to be made for a blow with
the fist or with the foot, or for any stroke upon the head; lest, when
the retaliation is inflicted, a greater or more dangerous injury may
result.
Where an aggressor commits such acts without causing any injury to
the limbs, for a slap, he shall receive ten lashes; for a blow with
the fist, or a kick, he shall receive twenty lashes; for a stroke on
the head, if the blood should not flow, thirty lashes. And if he by
whom the injury was produced, or who is said to have instigated it,
where the act was not deliberately committed, but was the result of
a sudden quarrel, should prove that it was caused by the fault of
another, and against his own will, and, in the affray, an eye should
have been lost, he shall pay a hundred _solidi_ as a penalty.
But if it should appear that the party injured can still see with the
damaged eye, he may accept a pound of gold from the aggressor, by way
of compensation. Where anyone is struck on the nose, and it should be
entirely destroyed, the culprit shall pay a hundred _solidi_.
If the blow upon the nose should be of such a character as to lay
open the nostrils, the judge shall impose a penalty according to the
deformity produced; and we decree that the same rule shall apply to
injuries done to the lips and to the ears. A hundred _solidi_
shall be paid for any injury to the loins. Whoever cuts off the hand of
another entirely, or injures it with a blow so that the party cannot
make use of it, shall pay a hundred _solidi_ by way of reparation
for such injury. Fifty _solidi_ shall be paid for the loss of the
thumb; for that of the forefinger, forty _solidi_; for that of
the middle finger, thirty; for that of the fourth, twenty; for that
of the fifth finger, ten _solidi_. Similar sums also shall be
exacted for injuries inflicted upon the feet. For every tooth lost by
violence, twelve _solidi_ shall be paid. Whoever breaks the leg
of another, and the latter thereby is rendered lame, shall pay him a
pound of gold; and all the provisions above stated in regard to such
injuries, shall apply where the rights of freemen are involved. But if
a slave should commit any of the unlawful acts hereinbefore specified,
or should he only shave the head of a freeman, he shall be delivered
up into the power of the latter to be dealt with according to his
pleasure. If, on the other hand, a freeborn person should shave the
head of a slave belonging to another, or should give orders to shave
the head of a peasant, he shall pay his master ten _solidi_. Where
the slave is of superior rank, the offender shall not only be forced
to pay the aforesaid sum of ten _solidi_ to his master, but shall
also receive a hundred lashes. If he has maimed the slave in any part
of his body, or has ordered another to mutilate him, he shall receive
two hundred lashes; and shall be compelled to give to the master of
said slave, another of equal value to the one he has injured, by way
of satisfaction. And if any freedman should commit any of the crimes
hereinbefore specified against any freeman; for the reason that he was
of inferior rank, not only shall the violence he committed be visited
also upon him, but he shall, in addition, receive a hundred lashes with
the scourge. And if a person born free should injure a freedman in any
of the ways hereinbefore mentioned, he shall pay the third part of
the amount for which freeborn persons are liable. If one slave should
mutilate another without the knowledge of his master, or should shave
his head, he shall undergo the same injury which he has inflicted,
and shall receive a hundred lashes in public. If a slave, without the
knowledge of his master, should seize and confine a freeborn person, he
shall receive two hundred lashes in public. But where a slave commits
any of these acts, with the consent of his master, the master only
shall undergo the penalty, and pay the damages which are prescribed
by this law in the case of freeborn persons. Where a freeborn person
imprisons the slave of another who is innocent, he shall pay three
_solidi_ to his master. If one slave should imprison another,
without the consent of the latter’s master, he shall receive a hundred
lashes. Where the slave committed the act, with the knowledge of his
master, the master of said slave shall be compelled to pay three
_solidi_. If any freeborn man shall detain the innocent slave of
another in custody, day or night, or should cause him to be detained
by another, he shall pay to the master of the said slave, for every
day that he is thus restrained of his liberty, three _solidi_,
and for every night an equal sum; and if the innocent slave is proved
to have been thus imprisoned by the said freeman for several days, the
latter shall be compelled to pay to the master the same sum of three
_solidi_ for every single day and night during which said slave
was imprisoned. Any freeman who shall strike the slave of another with
a whip, or scourge, or any kind of weapon, in such a way as to cause
the blood to flow, or a bruise to appear, shall pay to the master of
the slave one _solidus_ for every blow inflicted; or, if serious
injury should result, by which he who was struck was either killed or
maimed, the offender shall pay for such an act, whatever sum the court,
in its judgment, shall deem proper. Where one slave commits an assault
upon another slave, the judge shall determine, according to the nature
of the injury, the amount of the sum to be paid by the slave, or his
master; which sum shall be equal to half that paid by a freeman under
similar circumstances, and the slave shall receive a hundred lashes, in
addition, for his insolence. All the provisions of this law shall apply
to the cases of men as well as to those of women, in order that the
questions left to the discretion of the judge by this and other laws,
may be quickly decided.
If a judge, influenced by friendship, or corrupted by a bribe, should
not dispose of a case in an equitable manner, or should neglect to at
once impose a penalty, he shall be deprived of his judicial power for
the future, and shall be compelled by the bishop, or the governor,
to render satisfaction out of his own property, to an amount which
said bishop or governor shall determine, to him to whom he refused
to do justice; in order that he, who voluntarily refused to redress
the wrongs of another, may be forced to undergo the loss of his own
possessions.
=ANCIENT LAW.=
=IV. Where a Person Deprives a Traveller of his Liberty, against the
Will of the Latter, and with Intent to do him Injury.=
If anyone, while on a journey, should be unlawfully restrained of his
liberty by another, and no indebtedness should exist between them, he
who has been so restrained shall be entitled to five _solidi_
for the injury he has undergone; and if the offender should not have
such a sum, he shall receive fifty lashes. But if one party should be
indebted to another, and should refuse to pay the debt, the creditor
may, without inflicting any injury upon him, bring him before the judge
of the district, and the latter shall make such an order as he thinks
to be just. Where a slave commits such an act, without the order of his
master, he shall receive a hundred lashes. But if he should have done
this under the direction of his master, said master shall be liable for
the payment of the sum hereinbefore mentioned.
=FLAVIUS CHINTASVINTUS, KING.=
=V. He who Violates the Law by Inflicting Injury upon Another, shall
undergo the same Punishment which he Himself Inflicted.=
It is no less a fault to be ignorant of the laws than, knowing them,
to commit crimes. Wherefore, whoever, up to this time, or hereafter,
has perpetrated, or shall perpetrate, any act forbidden by law, and
shall either declare that he was ignorant of the law, or shall plot to
carry out any act that shall enure to the injury or danger of anyone,
alleging, at the same time, that such act is not prohibited by law,
and that for this reason he cannot be held liable for its commission,
and should such person be convicted, he shall at once undergo the same
dangers, ignominy, tortures, suffering, or pecuniary loss, which he
inflicted, or attempted to inflict, upon another; shall receive, in
addition, a hundred lashes in public, and shall be scalped, as a mark
of perpetual infamy.[36]
=FLAVIUS CHINTASVINTUS, KING.=
=VI. He shall not be Considered Guilty who Struck Another, when the
Latter was about to Strike Him.=
It is no crime to resist another, where the violence of the attacking
party is manifest. Whoever, therefore, should recklessly attempt to
strike, or should strike, another with a whip, or sword, or with any
weapon whatsoever, and the offender should then be so wounded by the
party whom he attacks that he dies, such death shall not be considered
homicide, nor shall he be liable to any reproach who struck the fatal
blow; because it is more proper for a living person to defend himself
against an angry man, than to be revenged after his own death. And
whoever, in anger, draws a sword against anyone, even though he should
not strike him, shall be forced, on account of his insolence, to give
ten _solidi_ to him whom he thus threatened.
=FLAVIUS RECESVINTUS, KING.=
=VII. Where a Slave Insults a Freeborn Person.=
No slave, however respectable he may be, shall act insolently,
arrogantly, or seditiously, towards a person of noble and illustrious
lineage; and, should one be guilty of such conduct, he shall be
sentenced by the judge to receive forty lashes with the scourge. A
slave of inferior position shall be punished with fifty lashes with the
scourge. Where a person of exalted rank first provokes the slave of
another, and is insulted in consequence, he must attribute it to his
own bad behavior; since, as he was forgetful of honor and patience, he
only received what he deserved.
=ANCIENT LAW.=
=VIII. Where One Freeborn Person Strikes Another.=
If one freeborn person should inflict a wound upon another, and
the wounded person should die at once, the attacking party shall
be punished for homicide; and if he who was wounded should not die
immediately, the aggressor must either be confined in prison, or
released on bail. Should the person who was wounded escape with his
life, he who injured him must pay him twenty _solidi_, on account
of the attack alone; and, if he should not have that sum, he shall
receive two hundred lashes in public, and, in addition to this, he
shall be compelled to pay such damages, for the wound he inflicted, as
may be assessed by the judges.
=ANCIENT LAW.=
=IX. Where the Slave of Another is Mutilated by a Freeborn Person.=
If any freeman should voluntarily mutilate the slave of another, he
shall be compelled to give at once to his master, another slave of
equal value; and he shall retain the one that was injured, to be cared
for at his expense until he is cured. And if he should afterwards
recover, the person who inflicted the wound shall pay such an amount in
damages as may seem just to the court. And should he, afterwards, be
restored to his master, safe and sound, said master shall receive him
again as his slave. The aggressor, on account of the boldness of his
act, inasmuch as he did not commit murder, but only ventured to wound
the slave of another, shall pay ten _solidi_ to his master.
=X. Where a Slave Strikes a Freeborn Person.=
If a slave, without the order of his master, should strike a freeborn
person, and the latter should die at once, from the effect of the
blow, the slave shall be punished for homicide; but if the wounded
person should not die immediately, the slave shall be imprisoned; and
if he who was wounded should recover, his assailant shall receive two
hundred lashes. The master, if he should wish to do so, may pay, in
satisfaction of the injury, whatever sum may be assessed by the court;
and, if he should refuse to do this, the slave shall be given to the
party injured, in satisfaction for his crime.
=XI. Where One Slave Mutilates Another Slave.=
Where one slave inflicts mutilation upon another, he shall receive a
hundred lashes, in addition to the pecuniary satisfaction due for the
wound; and if, as a result of said wound, the other should be partially
disabled, the judge shall estimate how much his value has been
diminished in consequence. If his master should refuse to accept the
sum thus estimated, as satisfaction, he shall be entitled to receive
the price of the slave who was injured, or one of equal value, from
him whose slave committed the attack; and said master shall retain the
mutilated slave as his own. We decree that this law shall also apply to
female slaves.
TITLE V. CONCERNING HOMICIDE.
=I.= _Where One Kills Another without Knowing it._
=II.= _Where One Kills Another without Seeing Him._
=III.= _Where One, being Pushed, Kills Another._
=IV.= _Where One, Seeking to Strike Another, Kills a Third
Person._
=V.= _Where One is Killed while Interfering in a Quarrel._
=VI.= _Where One, Intending to Inflict a Slight Injury, Kills
Another._
=VII.= _Where One, in Sport, or Recklessly, Kills Another._
=VIII.= _Where One Kills Another through Immoderate Punishment._
=IX.= _Where a Freeman Kills a Slave by Accident._
=X.= _Where a Slave Kills a Freeman by Accident._
=XI.= _Where One Man Intentionally Kills Another._
=XII.= _No Master shall Kill his Slave without Good Reason; and
Where One Freeman Kills Another._
=XIII.= _No One shall Deprive a Male or Female Slave of a Limb._
=XIV.= _Any Person may bring an Accusation of Homicide._
=XV.= _Both Relatives and Strangers have a Right to Accuse a
Person of Homicide._
=XVI.= _Where a Homicide Takes Refuge in a Church._
=XVII.= _Concerning Parricides, and the Disposition of their
Property._
=XVIII.= _Concerning Those who Kill Others Related to Them by
Blood._
=XIX.= _Where One Blood Relative is Accidentally Killed by
Another._
=XX.= _Where One Slave Kills Another by Accident._
=XXI.= _Concerning Those who Destroy their Souls by Perjury._
=FLAVIUS RECESVINTUS, KING.=
=I. Where One Kills Another without Knowing it.=
Whoever kills another ignorantly and unintentionally, if he has
cherished no animosity against him, is not guilty of murder according
to the Word of God; for it is not just that he should suffer the
penalty of homicide who committed the act against his will.
=FLAVIUS CHINTASVINTUS, KING.=
=II. Where One Kills Another without Seeing Him.=
If one man should kill another, either standing, coming, or passing by,
not being aware of his presence at the time, where no cause of enmity
had previously existed between them, and he who committed the homicide
shall declare that he did it involuntarily, and shall be able to prove
this in court, he shall depart in safety.
=FLAVIUS RECESVINTUS, KING.=
=III. Where One, being Pushed, Kills Another.=
If anyone, either by accident, or by being pushed in any way, or by
rushing headlong upon another, should kill him, he shall not be liable
to the penalties of homicide. But if one man should push another, and,
impelled by that push, the latter should kill a third party, and he who
gave the push did so without malice, he shall pay a fine of a pound of
gold, because he neglected to avoid the commission of an injury.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=IV. Where One, Seeking to Strike Another, Kills a Third Person.=
Whenever, in a quarrel, anyone, while endeavoring to strike his
adversary, unwillingly kills a third person, a legal investigation
must be made to determine who originated the quarrel; and if it should
be found that he was guilty who was first struck at, then he who
stirred up the strife, although he escaped the blow, yet, because it
is apparent that he was the cause of the homicide, shall pay a fine
of a hundred golden _solidi_. He who struck the blow shall pay
fifty _solidi_ to the nearest relatives of the person who was
killed. Thus both pay a penalty; one, because he intentionally gave
an opportunity for the commission of homicide; the other, because he
unintentionally committed said homicide.
=FLAVIUS RECESVINTUS, KING.=
=V. Where One is Killed while Interfering in a Quarrel.=
If any freeman should interfere in a quarrel for the purpose of making
peace, and should be killed in consequence, and he who struck him
shall be able to prove, either by his own oath, or by the testimony of
respectable witnesses, that the act was not committed intentionally,
because the party who struck the fatal blow did not wish to commit
assault or homicide upon the person who was killed, he shall pay a
pound of gold to the relatives of the person who lost his life; and, in
like manner, if any wound was inflicted under similar circumstances,
the person who inflicted it shall pay a third part of the aforesaid
sum; for the reason that the death of him who interfered for the
purpose of making peace should not be unavenged.
=FLAVIUS RECESVINTUS, KING.=
=VI. Where One, Intending to Inflict a Slight Injury, Kills Another.=
Where anyone, attempting to commit an injury, gives a kick, or a blow
with the fist, or commits any other violent act, and death should
result, the guilty party shall be punished for homicide.
=VII. Where One, in Sport, or Recklessly, Kills Another.=
Whoever incautiously, or recklessly, or in sport, or in a crowd,
unintentionally, by a fatal blow, strikes or kills anyone; because no
malicious intention or desire to injure existed, shall incur no infamy
for having committed an assault or homicide, even though he should
be convicted by oath, or by the testimony of witnesses; nor shall he
be liable to punishment by death, because he did not kill the person
intentionally. But, for the reason that he struck the fatal blow
without due caution, and did not attempt to avoid an accident, he
shall pay a pound of gold to the nearest relatives of the deceased, and
shall receive fifty lashes with the scourge.
=FLAVIUS RECESVINTUS, KING.=
=VIII. Where One Kills Another through Immoderate Punishment.=
If it should happen that a scholar, or any person under the patronage,
or in the service of another, while undergoing moderate corporeal
punishment, inflicted by his teacher, patron, or master, should die
as a result of the same; and that he who inflicted the punishment
entertained neither hatred or malice toward him whom he killed; he
shall neither be rendered infamous, nor punished on account of the
homicide; for the reason that it is said in the Holy Word of God that
he shall be unhappy, who does not inflict punishment.
=FLAVIUS RECESVINTUS, KING.=
=IX. Where a Freeman Kills a Slave by Accident.=
If a freeman should kill a slave not intentionally, but by accident,
he shall be compelled to pay to the master of the slave one-half of
the amount which has been provided by way of reparation in the case of
freeborn persons, under similar circumstances.
=FLAVIUS RECESVINTUS, KING.=
=X. Where a Slave Kills a Freeman by Accident.=
If a slave should kill a freeborn person not intentionally, but
accidentally, he shall pay the same sum which a former law has provided
in the case of other freeborn persons. But if the master should be
unwilling to pay said sum for his slave, the latter must, at once, be
given up to justice.
=ANCIENT LAW.=
=XI. Where One Man Intentionally Kills Another.=
Every man who kills another intentionally, and not by accident, is
liable to punishment for homicide.
=FLAVIUS CHINTASVINTUS, KING.=
=XII. No Master shall Kill his Slave without Good Reason; and Where One
Freeman Kills Another.=
If anyone who is guilty of crime, or of giving wicked counsel to
another, cannot escape punishment, how much more liable is he who
deliberately and maliciously commits homicide? For this reason, as very
frequently, through the excesses of cruel masters, slaves are deprived
of their lives, without having committed any crime; it is proper that
this license should be entirely abolished by means of the following
law, which shall be hereafter observed by all, to wit: that no master
or mistress shall deprive either their own slaves, or the slaves of
others, of life, without an order of court. But if such a slave should
acknowledge his guilt of a crime for which he is liable to punishment
by death, his master or his accuser shall straightway communicate
the fact to the judge of the district where the deed was committed;
or to the governor of the city, or the governor of the province; and
if, after an investigation, it is evident that the crime has been
committed, the culprit shall receive, either from the judge or from his
own master, the punishment of death, which he deserves.
If the judge should be unwilling to order him to be executed he shall
commit his sentence of death to writing, and the master shall then have
the power to either kill him, or to spare his life. If a slave, of
either sex, while resisting his or her master, should strike him with a
sword, stone, or with any weapon; or should attempt to strike him; and
the master, in his own defence, should immediately kill the slave, he
shall not be punished for homicide, if it is evident that he defended
himself; that is to say, if he can establish by the testimony, or the
oaths of other slaves who were present, and by his own oath, that he
was acting in his own defence. Where any person, through malice, either
acting himself or through the agency of another, kills his own slave,
he shall be deprived of the right to testify in court thereafter, as
a mark of infamy; and, in order that such rashness may be prevented,
he shall be exiled as long as he lives, and be forced to do penance,
and his property shall be given to those whom the law has designated
as his nearest heirs. Anyone who shall deliberately or intentionally
kill, or order to be killed, a slave, of either sex, belonging to
another, shall be compelled to give two slaves of equal value, to the
master of the one who was killed; and the homicide, according to the
provision hereinbefore stated, shall be sentenced to perpetual exile.
And if either a master or a mistress, influenced by a sense of injury,
or by anger, while inflicting punishment upon a slave of either sex,
whether their own, or belonging to another, should kill such slave by
a blow; and should be able to prove, either by witnesses, or by his or
her own oath, that he or she involuntarily committed said homicide;
such person shall not be amenable to punishment under this law. Where
any male or female slave admits that he or she has, at the instigation,
and with the consent of their master, killed a fellow slave or any
other person, and, having been put to the torture, should accuse their
master of having planned the crime for his own benefit; said slaves
shall be publicly scourged with a hundred lashes, and shall be scalped
as a token of infamy. If, however, the master should swear that he
has not ordered, or influenced said slave, in any way, he shall not
be considered guilty under this law; and the slave who committed the
homicide shall be delivered up into the power of the master of the
slave who was killed, to be disposed of at his pleasure; for any slave
who kills another slave must be surrendered to the master of the latter.
Where a freeborn person has been convicted of having killed anyone by
treachery, and for the purpose of robbery, while the latter was either
on a journey or at home, he shall be at once punished for homicide; and
as anyone who by counsel, or by order, instigates another to commit
murder, is to be regarded as more infamous than he who perpetrated the
deed, it is hereby especially provided that, except in the case of
slaves, as hereinbefore set forth, if either a master or a mistress
should order a freeborn person, of either sex, to be killed by a slave,
and, after a severe, public investigation by torture, confession of the
crime is made by said slaves, implicating their master or mistress,
their testimony concerning the latter shall not be received, unless
they are able to confirm it by the evidence of reputable witnesses.
The master who is thus accused, must, at once, in the presence of the
court, purge himself of all guilt by oath. Those who confess that they
committed the homicide, shall either be punished for the crime, or
shall be surrendered to the parents or the relatives of him who was
killed, that they may do with them whatever they desire. Where the
master is unable to make oath, as aforesaid, the male or female servant
who has perpetrated such an infamous act, shall receive two hundred
lashes, and shall be scalped as a mark of infamy. The master, by whose
order such wickedness has been committed, shall suffer the punishment
of death.
If several freeborn persons, by common agreement, should plan the
perpetration of a homicide, he who struck the blow, or actually
committed the deed, shall be put to death. The others, however, who
are convicted of having plotted the crime, although they did not take
an active part in its perpetration, shall nevertheless, on account of
their wicked counsel, each receive two hundred lashes in public, and
undergo the ignominy of being scalped. And, in addition, each shall be
compelled to pay fifty _solidi_ to the nearest relatives of the
deceased, and should any of them not be possessed of such a sum, he
shall be delivered over to them to be their slave forever.[37]
=FLAVIUS RECESVINTUS, KING.=
=XIII. No One shall Deprive a Male or Female Slave of a Limb.=
By a former law we have restrained masters, actuated by unbridled
rage, from putting their slaves to death. Now that they may not deform
man, who was made in God’s own image, while in the act of practising
cruelty upon those who are subject to them, we must forbid corporeal
mutilation. For which reason, we decree that if any master or mistress,
without a preliminary investigation in court, should openly and
wickedly, deprive their slave of his nose, lip, tongue, ear, or foot;
or should tear out his eye; or should mutilate any other part of his
body; or should order anyone else to perpetrate any of these acts; he
or she shall be sentenced by the bishop in whose territory they live,
or where the deed is proved to have been committed, to three years of
exile, with penance.
Where such persons have children, who are not implicated with them in
their crime, the latter shall take charge of all their property, and
care for it; and shall restore it, with an account of their management
of the same, when their parents return from exile. If, however, they
have no legitimate children, the judge shall give said property into
the keeping of other relatives; who, in like manner, upon return of the
exiles, must restore to them said property, with an account of their
management of the same. But should there be no such relative, the judge
himself shall take charge of the property and preserve it, and, in like
manner, give an account of it, when the parties return from exile.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XIV. Any Person may bring an Accusation of Homicide.=
If no one should be willing to accuse another of homicide, the judge,
as soon as he learns that the crime has been committed, shall have the
power to apprehend the guilty party, that he may receive the sentence
he deserves; for the punishment of the crime may be unduly deferred,
either on account of the absence of the accuser, or because some
collusion exists between him and the murderer. A wife shall have the
right to inquire into the death of her husband, or into any injury he
has suffered at the hands of another; and a husband has, likewise,
the same privilege in the case of a wife, and may demand that the
crime be avenged by law. If either husband or wife should die while
they had the intention of prosecuting a criminal, and, in consequence
thereof, said prosecution should be left incomplete, their children
or relatives, who stand next in the line of hereditary succession,
shall have full power to accuse the offender, or the homicide, and
to carry on the prosecution just as parents can do. The children or
aforesaid relatives, shall not be entitled to the property of the
offender or homicide, unless he should have previously undergone the
punishment prescribed by law for his crime. If the judge, after having
been notified, should refuse to avenge the crime, and, by reason of
his delay or neglect, the matter should finally be brought to the
attention of the king, the judge shall be compelled to give half of the
legal composition for the homicide; that is to say, two hundred and
fifty _solidi_, as a penalty for his disregard of his judicial
duties. No one shall have a right to claim the property of anyone who
is punished for a crime, before the sentence prescribed by law for said
crime has been pronounced by the court.
=FLAVIUS CHINTASVINTUS, KING.=
=XV. Both Relatives and Strangers have a Right to Accuse a Person of
Homicide.=
As it is proper that those who are guilty of other crimes should
receive the penalties which they deserve, it must be regarded as
infamous that homicides, whom it is but right should be treated with
greater severity, should escape without punishment. Therefore, that
no one who has committed a homicide may escape, or think that, by
making excuses, he can avoid the consequences of his crime; the right
of prosecution is hereby given, in the first place, to the relatives
of the deceased; and if said relatives should be either lukewarm, or
dilatory in inquiring into the death of their relative, then other
relatives, as well as strangers, shall have the right to prosecute the
offender. Any person who fraudulently attempts to defend or excuse a
homicide, shall be compelled to pay to the accuser, double the amount
which he has corruptly received. For no one guilty of homicide can
ever feel secure, so long as he knows that everyone has the right to
prosecute him.
=FLAVIUS CHINTASVINTUS, KING.=
=XVI. Where a Homicide Takes Refuge in a Church.=
We are not unmindful that, heretofore, many laws have been enacted,
and penalties to be inflicted upon the guilty prescribed according
to the nature of the crime, whether it be homicide or some other
offence. Yet, because the authors of these wicked deeds who are as
ready to commit them as they are cunning in seeking opportunities to
escape punishment, and, as they, for the most part, betake themselves
for protection to the churches of God, while, at the same time, they
do not fear to commit crimes in violation of the Divine precepts; for
the reason that wickedness of this kind should never go unpunished,
because it destroys life, and frequently impels the minds of men to the
commission of worse offences, we promulgate the following decree, to be
observed through all time, to wit: That, as the law directs that every
homicide or malefactor shall be punished, so, whoever, according to his
own impulse, or evil disposition, commits such a crime, shall never be
released from liability to the law, by any excuse or influence; but
in case he should take refuge at the Holy Altar, a pursuer shall not
presume to remove him from it without the consent of the priest. The
priest having been consulted, however, and oath made that the party
sought is a criminal, and liable to be publicly condemned to death; the
priest himself shall drive him from the altar, and eject him from the
choir; so that he who is pursuing him may arrest him.
He who has thus been driven from the church shall not, however, be
liable to the penalty of death; but the sight of his eyes shall be
entirely destroyed; or he may be delivered up into the power of the
parents or relatives of him whom he killed; and the latter shall have
the right to dispose of him at their pleasure, excepting they shall not
put him to death; as a warning to prevent the intentions of depraved
men from being carried into effect, when they know what punishments are
prepared for them; and that he whom a wicked impulse often drives to
the commission of an unlawful act, may, through terror, abstain from
evil.
=FLAVIUS CHINTASVINTUS, KING.=
=XVII. Concerning Parricides, and the Disposition of their Property.=
As no homicide intentionally committed is left unpunished by our laws,
and as he who kills a blood-relation is more deserving of death than
an ordinary murderer; we therefore promulgate the following edict, to
be hereafter observed through all ages: That whoever shall be guilty of
parricide; that is to say, whoever shall purposely, or actuated by the
impulses of a depraved mind, kill his father, his mother, his brother,
his sister, or anyone else nearly related to him, shall be immediately
arrested by the judge, and put to death in the same manner as that
by which he deprived his victim of life. Where the party guilty of
the crime of parricide has no children, all his or her property shall
belong to the nearest heirs of the person killed. If he or she should
have children by another marriage, half of said property shall belong
to the heirs of the person killed, and half to the children of the
parricide, provided they were not implicated in the crime of the father
or mother; but, if they were implicated in said crime, all of said
property shall belong to the children of the deceased. But if neither
the parricide nor his victim should have left any children, then the
parents of the person who was killed, or his nearest relatives, or such
persons as have taken upon themselves the duty of avenging his death,
shall have the undoubted right to claim for themselves the entire
property of said parricide.
=ANCIENT LAW.=
=XVIII. Concerning Those who Kill Others Related to Them by Blood.=
If a father should kill his son; or a son his father; or a husband his
wife; or a wife her husband; or a mother her daughter; or a daughter
her mother; or a brother his brother; or a sister her sister; or a
son-in-law his father-in-law; or a father-in-law his son-in-law;
or a daughter-in-law her mother-in-law; or a mother-in-law her
daughter-in-law; or if any of said persons should kill anyone else
related to them by blood or lineage, they shall be condemned to death.
And, if on account of his crime, the homicide should flee to a church,
or take refuge at the Holy Altar, he shall be delivered up into the
power of the parents or relatives of him whom he killed; and they shall
have full authority to dispose of him, according to their pleasure,
except to deprive him of life. And we decree that all his property
shall go to the heirs of the person killed, as hereinbefore provided;
or be forfeited to the Crown, should the person killed leave no near
heirs; for a homicide, if liberated, has no right to the enjoyment of
his property, even should he escape the penalty of death.
=XIX. Where One Blood Relative is Accidentally Killed by Another.=
If a father should kill his son; or a son his father; or a mother her
daughter; or a brother his brother; or any person one nearly related to
him; and he who commits such an act should be impelled by injury, or
should be acting in self-defence, and it can be proven in open court,
by respectable witnesses, who are worthy of credit, that the parricide
was committed in self-defence; the party accused shall be in no danger
of his life, and shall be discharged, without loss of property or
subjection to torture; such discrimination being used as is proper in
all cases of homicide.
=FLAVIUS RECESVINTUS, KING.=
=XX. Where One Slave Kills Another by Accident.=
If one slave should be convicted of having accidentally killed another,
his master shall pay to the master of the slave who was killed, by
way of compensation, one half the sum required by law, under similar
circumstances, where death ensues as the result of an accident. If
the master should refuse to give satisfaction as aforesaid, he must
surrender the slave to the master of the one who was killed.
=ANCIENT LAW.=
=XXI. Concerning Those who Destroy their Souls by Perjury.=
If anyone, on account of oppression of any kind, should knowingly
conceal the truth or should perjure himself; as soon as the fact shall
come to the knowledge of the judge, he shall be arrested; shall receive
a hundred lashes; shall be branded as an infamous witness; and shall
never again be permitted to testify in court. And, as has been provided
by a former law relating to perjury, a fourth part of his property
shall be given, by order of the judge, to him whom he attempted to
defraud.
BOOK VII.
CONCERNING THEFT AND FRAUD.
TITLE I. CONCERNING INFORMERS OF THEFT.
=I.= _Concerning Informers and Persons who give Information of
Theft._
=II.= _A Slave, Acting as Informer, must not be Believed,
unless the Testimony of his Master is also Given._
=III.= _Where the Informer Knew of the Commission of the Theft._
=IV.= _Concerning the Compensation of an Informer._
=V.= _Where an Innocent Person is Accused of Crime by an
Informer._
=I. Concerning Informers and Persons who give Information of Theft.=
A judge shall not inflict torture upon any person accused of crime,
before he who brings the accusation (if he is unwilling to produce the
informer in court), enters into an obligation in writing, confirmed by
the signatures of three witnesses, that if the accused is proved to
be innocent by competent evidence, he himself will suffer the penalty
which he attempted to inflict upon another. After the innocence of the
accused has been established, the accuser shall be placed in custody
by the judge, until he brings the informer into court, that the truth
may be ascertained; and, should he not produce said informer, he shall,
without delay, give his name, so that, when brought before the judge,
he may prove what he has alleged. If, however, the judge is unable
to elicit the truth, on account of the intervention of some powerful
person, or the patronage of a noble, or through fear of the royal
power, he must attempt to bring the matter to the attention of the
king, if he be near at hand; but, if he is at a distance, he must lay
his information before the bishop, or the governor of the province;
in order that the superior authority of these officials may cause the
matter to be properly investigated. Where the judge neglects to give
such notice, the complainant shall be indemnified, at the expense of
the said judge, for the entire property lost or stolen, by order of the
king or of the bishop. If the informer cannot prove what he alleged,
he alone shall be liable to make amends for the consequences of his
act. If the property stolen is of great value, and a freeborn person
is implicated, he shall return ninefold the value of the property, by
way of reparation, and shall be rendered infamous; and, if the culprit
is a slave, he shall pay sixfold the value of the property, and shall
receive in addition, a hundred lashes. Where said freeman has not
sufficient property to render satisfaction as aforesaid, he shall be
surrendered as a slave to him whom he attempted to render infamous
by a false accusation, and to him whom he attempted to deceive. If a
slave should not have the property wherewith to render satisfaction,
as aforesaid, or, if his master should be unwilling to pay the sum
required in his behalf, he shall at once surrender the slave in
satisfaction of his crime.
=II. A Slave, Acting as Informer, must not be Believed, unless the
Testimony of his Master is also Given.=
If a slave, without the knowledge of his master, should give
information of a theft, his statement shall not be believed, unless
his master should testify that he was trustworthy, and should thereby
establish his honor and credibility.
=ANCIENT LAW.=
=III. Where the Informer Knew of the Commission of the Theft.=
If the informer should be proved to have had knowledge of the theft, he
shall incur no penalty, and shall not be subject to payment of damages;
but he cannot demand any reward for the information he furnishes,
because it is sufficient compensation for him to be permitted to depart
in safety. Where the property stolen was divided between him and the
thief, he shall only be required to restore to the owner what he
received and kept for himself.
=ANCIENT LAW.=
=IV. Concerning the Compensation of an Informer.=
Where anyone gives information concerning a thief, even if he should
not personally have been aware that the theft was committed, he shall
not receive any more for the information he furnishes than the stolen
property was worth; and then only after full satisfaction has been made
to the owner. If the circumstances should be such, that the execution
of the thief was necessary, and no property belonging to him could be
found; or if he was a slave, and his master claimed his property as
his own, and therefore no compensation was available for him who was
robbed; in such cases the third part of the property recovered shall be
set aside as a reward for the information, and the informer shall not
be permitted to demand more than that amount.
=ANCIENT LAW.=
=V. Where an Innocent Person is Accused of Crime by an Informer.=
When anyone is accused of crime, that is to say, of poisoning,
witchcraft, theft, or any other unlawful act, his accuser must go
before the governor of the city, or the judge who has jurisdiction in
the district, in order that the case may be investigated according to
law; and as soon as the commission of the crime has been established,
the governor or the judge shall cause the culprit to be arrested;
and if he should not be convicted of a capital offence, the accuser
shall be compelled to give him pecuniary satisfaction; and where the
latter has not the means to do so, he shall be delivered up to him
as a slave. Where the accused person is proved to be innocent, he
shall be discharged; and the accuser shall pay both the penalty and
the damages for which the accused would have been liable, had he been
convicted. Neither the governor nor the judge shall presume to apply
torture, unless in public; lest there may be some collusion, so that
an innocent man may suffer unjustly. But he shall not undergo the
penalty for the crime until its commission has been proved in court by
competent testimony; or, as has been provided for by other laws, before
the accuser has bound himself to substantiate the charge; and then, and
then only, torture may be applied in the presence of the judges.
TITLE II. CONCERNING THIEVES AND STOLEN PROPERTY.
=I.= _He who is Searching for Stolen Property must Describe
it._
=II.= _Where a Slave Commits a Theft Before, or After, he has
Received his Freedom._
=III.= _Where a Slave who has Become the Property of Another
Master, Commits an Unlawful Act._
=IV.= _Where a Freeman Commits a Theft in Company with the
Slave of Another Person._
=V.= _Where a Master Commits a Theft in Company with his
Slave._
=VI.= _Where a Slave, Belonging to Another Person, is
Instigated by Anyone to the Commission of Unlawful
Acts._
=VII.= _Concerning Those who Knowingly Associate with Thieves._
=VIII.= _Where Anyone, Ignorantly, Buys Stolen Property of a
Thief._
=IX.= _Where Anyone, Knowingly, Buys Stolen Property of a
Thief._
=X.= _Concerning Money, and Other Property, Stolen from the
King._
=XI.= _Concerning the Stealing of Bells from Cattle._
=XII.= _Concerning the Theft of Mill Machinery._
=XIII.= _Concerning the Punishment of a Thief._
=XIV.= _A Thief, when Taken, shall be Brought Before the Judge;
and Where a Freeman Commits a Theft in Company with a
Slave, Both shall Undergo the Same Penalty._
=XV.= _Where a Thief, Defending Himself with a Sword, is
Killed._
=XVI.= _Where a Thief is Killed at Night, while he is Being
Taken._
=XVII.= _Concerning Property Injured or Destroyed; and the
Reparation to be Made for what has been Damaged or
Stolen._
=XVIII.= _Concerning Property Rescued from Shipwreck._
=XIX.= _Concerning the Property and the Heirs of Thieves._
=XX.= _Concerning Those who Rescue Thieves and Other
Criminals, after their Capture._
=XXI.= _Where a Slave Steals from his Master, or from a
Fellow-Slave._
=XXII.= _Within what Time, after his Arrest, a Thief must be
Brought Before the Judge._
=XXIII.= _Where Anyone Secretly Kills an Animal Belonging to
Another._
=I. He who is Searching for Stolen Property must Describe it.=
Whoever makes a demand for any stolen property, must privately describe
to the judge what he seeks, and show, by manifest proof, what he has
lost; as the truth may not be established, where sufficient evidence is
not introduced.
=ANCIENT LAW.=
=II. Where a Slave Commits a Theft Before, or After, he has Received his
Freedom.=
If a slave should be guilty of theft, and should be afterwards set
free by his master, the master shall not be liable for any loss on
account of any acts previously committed by said slave; but the slave
himself shall suffer the penalties prescribed by the law against the
perpetrators of crime. Where he commits a theft after he has received
his freedom, he shall be compelled to make the same reparation as he
would have done while a slave, and shall receive a hundred lashes. If
said offence should not be of such a character as to render him liable
to be returned to slavery, he shall remain in the full enjoyment of his
freedom.
=ANCIENT LAW.=
=III. Where a Slave, who has Become the Property of Another Master,
Commits an Unlawful Act.=
If a slave who has passed under the control of another master, should
steal anything from his former owner, or should inflict any injury
upon anyone, the judge shall determine whether he committed the crime;
and if he is convicted, his last master, should he desire, may render
satisfaction for the acts committed by said slave. But if he should
refuse to do so, the slave must be surrendered to be punished according
to the nature of his offence.
=IV. Where a Freeman Commits a Theft in Company with the Slave of
Another Person.=
Where a freeman is implicated with the slave of another person in
the commission of any crime, whether they steal, or appropriate any
property, or are guilty of any other unlawful act; each shall be liable
for half the pecuniary compensation required by a former law, and both
shall be scourged together in public. And if the master should not be
willing to render full satisfaction for the act of said slave, the
latter must be surrendered in lieu thereof. But if they have committed
a capital crime, the slave and the freeman shall, at the same time, be
condemned to death.
=ANCIENT LAW.=
=V. Where a Master Commits a Theft in Company with his Slave.=
If a master should commit a theft in company with his slave, we hereby
decree that the master, and not the slave, shall make full pecuniary
reparation for the same; and the master shall receive a hundred lashes
in public, as prescribed by law. The slave, however, shall go free,
because he obeyed the commands of his master.
=ANCIENT LAW.=
=VI. Where a Slave, Belonging to Another Person, is Instigated by Anyone
to the Commission of Unlawful Acts.=
If anyone should instigate the slave of another person to commit a
theft, or any other unlawful act; or should persuade him to do anything
contrary to his own interest, which may also be the occasion of loss
to his master, in order that, by his evil and iniquitous influence,
he may fraudulently obtain possession of said slave for himself; and,
after proper investigation by the judge, the fraud is detected, the
said master shall not lose his slave, or be liable to any penalty;
but he, by whose artifice and persuasion, the slave was induced to
commit the crime, in order that he might obtain possession of him as
aforesaid, shall be forced to pay to the master of the slave sevenfold
the value of the property stolen, or the legal damages prescribed for
his act. The slave shall receive a hundred lashes in public; for the
reason that, despising his master, he plotted against him, and, after
the infliction of said punishment, he shall be restored to his master.
=ANCIENT LAW.=
=VII. Concerning those who Knowingly Associate with Thieves.=
Not only he who actually commits a theft, but also any person who was
aware of it at the time, or knowingly received the stolen goods, shall
be considered a thief, and liable to the penalty prescribed for the
crime.
=FLAVIUS RECESVINTUS, KING.=
=VIII. Where Anyone, Ignorantly, Buys Stolen Property of a Thief.=
It shall not be lawful for a freeman to buy any property from a person
unknown to him, unless he can produce a reliable person as a witness,
and thereby be able to allege the excuse of ignorance. If he should
do otherwise, he shall be compelled by the judge to produce, within a
reasonable time, the person of whom he bought said property; and if
he cannot find him, he must prove his innocence, either by oath or by
witnesses, and show that he did not know that the vendor was a thief;
and he must restore the property which he purchased to the owner, after
having received from the latter an amount equal to half the price paid
for said property; and both shall promise, under oath, that they will
make diligent search for the thief. If, however, the latter cannot be
found, the purchaser shall only be compelled to restore to the owner
the property which he bought. In case the owner of said property should
know the thief, and should be unwilling to expose him, he shall lose
the property absolutely, and the purchaser shall possess it in peace.
This law shall also apply to slaves.
=ANCIENT LAW.=
=IX. Where Anyone, Knowingly, Buys Stolen Property of a Thief.=
If anyone should, knowingly, purchase stolen property of a thief, he
must at once declare from whom he bought it, and afterwards must make
restitution, just as the thief should do. If he should not be able
to find the latter, he shall be compelled to pay double the amount
required from thieves, because it is evident that he who purchases
stolen property is on the same legal footing as a thief. Where a slave
commits such an act, he shall pay half the amount required of freeborn
persons, or his master shall surrender him in satisfaction of his crime.
=ANCIENT LAW.=
=X. Concerning Money, and Other Property, Stolen from the King.=
If anyone should steal, or appropriate to his own use, money or other
property belonging to the public treasury, he shall restore ninefold
its value.[38]
=ANCIENT LAW.=
=XI. Concerning the Stealing of Bells from Cattle.=
If anyone should steal a bell from a mare or an ox, he shall pay one
_solidus_; from a cow, two _tremisæ_; from a ram or other
cattle, one _tremisa_.
=XII. Concerning the Theft of Mill Machinery.=
If anyone should steal any of the parts of a mill, he shall return what
was stolen; shall also pay the fine provided by law as punishment for
other thefts; and shall receive, in addition, a hundred lashes.
=FLAVIUS CHINTASVINTUS, KING.=
=XIII. Concerning the Punishment of a Thief.=
A freeman who steals the property of another, shall pay to the owner
nine times the value, and a slave six times the value, of the property
stolen; and each shall receive a hundred lashes with the scourge. If
the freeman has not sufficient pecuniary resources to pay said fine; or
if the master should refuse to render satisfaction for the act of his
slave; he who was guilty of the theft shall become forever the slave of
the owner of the stolen property.
=ANCIENT LAW.=
=XIV. A Thief, when Taken, shall be Brought Before the Judge; and Where
a Freeman Commits a Theft in Company with a Slave, Both shall Undergo
the Same Penalty.=
When a thief is arrested, he shall be brought into court, and, if
freeborn, shall pay nine times the value of the stolen property,
and shall receive a hundred lashes publicly, in the presence of the
judge. If, however, he should not have the means wherewith to make
restitution, he shall forfeit his liberty, and become the slave of
him whom he robbed. A slave shall make restitution sixfold for the
property stolen; shall receive a hundred lashes in the presence of the
judge; and shall be kept in custody until his: master is notified to
immediately give satisfaction for his act; and, should he not do so,
he must, at once, surrender the criminal to the party who suffered the
loss.
It is also provided by this law, that if a slave and a freeman, or
several slaves and several freemen, should, while together, steal any
animal, or any other article of property, they shall make but one
compensation for the same; that is to say, freemen shall pay half of
its ninefold value, and slaves half of its sixfold value; but they all
shall receive the same number of lashes as hereinbefore provided. The
aforesaid provision shall also be observed in the cases of slaves and
freemen, where property of great value was stolen, and they shall be
scourged before the judge as hereinbefore stated.
=ANCIENT LAW.=
=XV. Where a Thief, Defending Himself with a Sword, is Killed.=
If a thief should be killed in the daytime, while defending himself
with a sword, no responsibility shall attach to anyone on account of
his death.
=ANCIENT LAW.=
=XVI. Where a Thief is Killed at Night, while he is Being Taken.=
If a thief should be surprised at night, and should be killed while
he is attempting to remove stolen property, his death shall under no
circumstances be punished.
=ANCIENT LAW.=
=XVII. Concerning Property Injured or Destroyed; and the Reparation to
be Made for what has been Damaged or Stolen.=
Where anyone damages property or clothing belonging to another, or
does any injury to a traveller while on a journey, or deprives him of
anything by stealth, he shall immediately give satisfaction according
to law; but shall not be compelled to pay the full value of the baggage
of the traveller, but only an amount equal to what he damaged, or stole
from him.
=ANCIENT LAW.=
=XVIII. Concerning Property Rescued from Shipwreck.=
Where property has been saved from conflagration, ruin, or shipwreck,
and any of it is abstracted or concealed by any person; he shall be
compelled to pay fourfold the value of the same.
=ANCIENT LAW.=
=XIX. Concerning the Property and the Heirs of Thieves.=
Where anyone obtains the property of a dead thief, either by will or
inheritance, he shall not be liable to any penalty, because the crime
died with the perpetrator; but he shall be liable to satisfaction in
damages, for the reason that the thief would have been so liable, had
he lived. If the damages incurred amount to more than the inheritance,
he must surrender the latter in its entirety.
=ANCIENT LAW.=
=XX. Concerning Those who Rescue Thieves and Other Criminals after their
Capture.=
If anyone should rescue a thief or any other criminal who is in
custody, or permit him to escape; if he is a person of rank, he
shall receive a hundred lashes in the presence of the judge for his
insolence, and shall be compelled to produce in court the party whom he
set free. If another person who has no claim against a thief, should
arrest him, he shall receive for his services a fourth part of the
sum due from the thief in satisfaction of his crime. Where the latter
cannot afterwards be found, he who liberated him shall be liable to the
punishment prescribed for theft; and shall be compelled to pay, out of
his own property, a sum equal to that which the thief would have been
compelled to pay, had he been convicted. If, however, he is a person of
inferior rank, and should produce the thief in court, he shall receive
for his insolence a hundred lashes. Where he is not able to find the
thief, he shall be liable to both the penalty and damages for theft,
to the same extent as the thief himself would have been liable after
conviction.
If anyone should release a person accused of another crime than theft,
he shall received a hundred lashes in like manner; and if he cannot
find or produce the party he liberated, he shall at once suffer the
same punishment to which the law declares the accused would have
been liable, had he been found guilty. If a slave should commit this
offence, without his master’s knowledge, he shall receive two hundred
lashes for his insolence, and shall be compelled to produce the person
whom he released. If he should not produce him, then his master, should
he wish to do so, may pay for him the sum demanded as compensation for
the crime; but if he should be unwilling to pay said sum as provided by
law, he must surrender the slave in satisfaction for damages, or to be
punished.
=ANCIENT LAW.=
=XXI. Where a Slave Steals from his Master, or from a Fellow-Slave.=
If a slave should steal anything from his master or from his
fellow-slave, what shall be done with him lies entirely in the
discretion of his master; and the judge has no right to interfere in
the matter, unless the master should wish him to do so.[39]
=ANCIENT LAW.=
=XXII. Within what Time, after his Arrest, a Thief must be Brought
Before the Judge.=
When anyone arrests a thief, or any other criminal, he must straightway
conduct him before the judge; and he must not keep him in his house
longer than one day, or one night. If anyone should violate this
provision, he shall be forced to pay five _solidi_ to the judge
for his insolence. If a slave should do this, without the knowledge of
his master, he shall receive a hundred lashes, but if he should do it
with the master’s consent, all liability for damages shall be incurred
by the latter. If the slave is of superior rank, his master shall be
compelled to pay a fine of ten _solidi_, half of which sum shall
belong to the judge, and the other half shall be given to him who is
known to have suffered the injury.
=FLAVIUS RECESVINTUS, KING.=
=XXIII. Where Anyone Secretly Kills an Animal Belonging to Another.=
If anyone should, secretly or at night, kill a horse, an ox, or any
other kind of animal belonging to another, he shall be compelled to
pay ninefold the value of the same. If it is not possible to convict
him, he shall purge himself of guilt publicly, by oath. Where a slave
commits such an offence, under the direction of his master, and this
is proved by competent evidence; the master of the slave shall be
compelled to make restitution ninefold, as a thief would have done. If
a slave should not be convicted by testimony, he shall be tortured;
and after it has been established that he committed the crime, he
shall either pay sixfold the value of the animal killed, or shall be
transferred to the service of him whom he injured. If, however, he
should prove to be innocent, the complainant shall render satisfaction
to the master of the slave, as provided by other laws.
TITLE III. CONCERNING APPROPRIATORS AND KIDNAPPERS OF SLAVES.
=I.= _Where Anyone Seizes the Slave of Another._
=II.= _Where a Freeman is Convicted of Having Stolen the Male or
Female Slave of Another._
=III.= _Concerning Kidnapped Children of Freeborn Persons._
=IV.= _Where one Slave Kidnaps Another Belonging to a Person not
his Master._
=V.= _Where a Slave, at the Command of his Master, Kidnaps a
Freeborn Person._
=VI.= _Where a Slave, without the Knowledge of his Master,
Kidnaps a Freeborn Person._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. Where Anyone Seizes the Slave of Another.=
If any freeborn person should seize and appropriate a slave belonging
to another, he shall be compelled to give to the master another slave,
of equal value, by way of restitution. If a slave should commit this
offence, he must return the slave whom he has seized to the master of
the same, and he shall then receive a hundred lashes. If the slave that
was seized cannot be produced in court, the master must give another
slave, of equal value, to him who sustained the loss; to be kept by him
until the slave who was carried off is restored, when the other slave,
who was surrendered in his place, shall be returned to his own master.
=FLAVIUS RECESVINTUS, KING.=
=II. Where a Freeman is Convicted of Having Stolen the Male or Female
Slave of Another.=
If a freeman should kidnap the male or female slave of another, he
shall be compelled to give, by way of reparation, four slaves of the
same sex to the master or mistress of said slave, and shall receive
a hundred lashes in public; and if he should not have the property
wherewith to make restitution, he himself shall be reduced to slavery.
=ANCIENT LAW.=
=III. Concerning Kidnapped Children of Freeborn Persons.=
If anyone should kidnap the son or daughter of a freeborn person, of
either sex; or should lure them from home, and cause them to be taken
into other provinces of our kingdom, or into any foreign country; he
who is guilty of such an atrocious crime, shall be delivered up to
the father or mother of the child; or to its brothers, if there are
any; or to its nearest relatives; to be killed or sold into slavery.
Should they wish to do so, they may exact from the kidnapper, the legal
compensation for homicide; that is to say, three hundred _solidi_:
because for a child to be sold by its parents, or to be kidnapped, is
as serious a crime as the commission of homicide. If, however, the
kidnapper should recover the child from the foreign country where
it has been sent, and bring it again to its native land, he shall
pay a hundred and fifty _solidi_: that is to say, half of the
composition for homicide; and should he not be possessed of said
amount, he shall be condemned to servitude.
=ANCIENT LAW.=
=IV. Where One Slave Kidnaps Another Belonging to a Person not his
Master.=
If one slave should steal another, who is the property of another
master, without the knowledge of his own master, he shall receive
a hundred and fifty lashes in the presence of the judge, and the
kidnapped slave shall be restored to his master. And he whose slave
was stolen shall not be entitled to demand a reward from the master
of the kidnapper for the capture of the kidnapped slave. If, however,
the slave who was kidnapped should not be found, the master of the
kidnapper shall be compelled by the judge to give another slave of
equal value, or the kidnapper himself, up to him whose slave was
stolen; to serve until such time as his own slave shall be restored to
him, when the other slave shall be returned to his master.
=ANCIENT LAW.=
=V. Where a Slave, at the Command of his Master, Kidnaps a Freeborn
Person.=
If a slave, by order of his master, should kidnap a freeborn person,
the master shall be liable for such satisfaction in damages as has been
elsewhere provided in the case of freeborn persons, and shall receive a
hundred lashes in public; but the slave himself shall incur no penalty,
having acted under the command of his master.
=VI. Where a Slave, without the Knowledge of his Master, Kidnaps a
Freeborn Person.=
If a slave, without the knowledge of his master, should kidnap a
freeborn person, he shall be delivered up, without delay, to the
parents of said person, to be disposed of absolutely at their pleasure.
If, however, the kidnapped person should be brought back, and the
master should desire to give satisfaction for the act of his slave; he
shall pay a pound of gold, as compensation for the injury inflicted
upon said freeborn person.[40]
TITLE IV. CONCERNING THE CUSTODY AND SENTENCE OF
CONDEMNED PERSONS.
=I.= _Where a Judge is Asked to Punish Crime, and is afterwards
Treated with Contempt._
=II.= _The Governor of the City shall Aid the Judge in the Arrest
of Persons Accused of Crime._
=III.= _Where a Person Breaks out of Prison, or Influences the
Jailer for that Purpose._
=IV.= _Concerning the Compensation which may be Received from
those in Custody._
=V.= _Where a Judge who is Lenient to Offenders against the
Law, Releases a Criminal._
=VI.= _Concerning the Punishment of a Judge who Improperly
Discharges a Criminal._
=VII.= _A Person Guilty of Crime shall Receive the Sentence of
the Law not Secretly, but in Public._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. Where a Judge is Asked to Punish Crime, and is afterwards Treated
with Contempt.=
If anyone should accuse another of theft, before a judge, and should
afterwards be guilty of contempt of court, by accepting anything from
the thief by way of compensation, without the judge’s knowledge, he
shall be compelled to pay five _solidi_ to the judge, on account
of his insolence. Where a slave, without the knowledge of his master,
is guilty of this offence, he shall receive a hundred lashes, and his
master shall incur no liability whatever, on account of his act. But if
he should do this with the consent of his master, the latter shall be
compelled to pay the sum hereinbefore mentioned.
=ANCIENT LAW.=
=II. The Governor of the City shall Aid the Judge in the Arrest of
Persons Accused of Crime.=
Whenever a Goth, or anyone else, is accused of crime, the judge must
use every effort to arrest him. If, however, the judge himself is not
sufficiently powerful to apprehend and imprison him, he may apply to
the governor of the city for assistance, to effect what his authority
of itself is not sufficient to accomplish. The aforesaid governor must
immediately employ all his power to that end, in order that a person
guilty of crime may not defy the law.
=ANCIENT LAW.=
=III. Where a Person Breaks out of Prison, or Influences the Jailer for
that Purpose.=
If anyone should break out of prison, or should use undue influence
upon the turnkey, or upon the jailer himself, or upon any keeper who
has charge of prisoners, by means of which any prisoner should be
unlawfully released, without the order of the judge; he shall suffer
the same punishment which the escaped or liberated prisoner himself
would have suffered.
=ANCIENT LAW.=
=IV. Concerning the Compensation which may be Received from those in
Custody.=
Where a judge has charge of persons who have been arrested, or where
officers have arrested them, or have received them for safe keeping;
none of them shall be entitled to exact anything from said prisoners,
on account of their keeping, or of their discharge, in case such
prisoners should prove to be innocent. But where they are proved to
be guilty, said officers shall not be forbidden to demand from each
prisoner, one _tremisa_. If the party arrested should be released,
upon giving the pecuniary compensation required by law, the judge
himself shall pay over said sum to those who are entitled to the same,
except the tenth part of it, which he himself shall have a right to
retain for his trouble. If anyone should accept a larger amount than we
have stated, he must restore it, twofold, to him from whom he exacted
it.
=ANCIENT LAW.=
=V. Where a Judge who is Lenient to Offenders against the Law, Releases
a Criminal.=
Where a judge, corrupted by a bribe of any description whatever, puts
an innocent man to death, he himself shall be punished in like manner.
If he should discharge a person who has committed a capital crime, he
shall pay sevenfold the amount which he received for his release, to
him who was injured by the criminal; and, stripped of judicial power,
and rendered infamous, he shall be compelled by the judge who succeeds
him, to produce in court the party whom he released; so that the
latter, when, convicted, may undergo the punishment which he deserved.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=VI. Concerning the Punishment of a Judge who Improperly Discharges a
Criminal.=
A judge shall not spare a criminal, on account of the patronage or
friendship of any person. If, in his leniency and partiality, he should
not vindicate the innocent, or should discharge the guilty, he shall
not be put to death, or undergo any mutilation of body; but shall only
pay the sum required by law in satisfaction for homicide, or of any
other crime which may be involved.
=ANCIENT LAW.=
=VII. A Person Guilty of Crime shall Receive the Sentence of the Law not
Secretly, but in Public.=
When a judge inflicts the death penalty upon a criminal, he shall
execute the sentence of the law not in secret and retired places, but
publicly, in the sight of all.
TITLE V. CONCERNING FORGERS OF DOCUMENTS.
=I.= _Concerning those who Forge Royal Orders and Mandates._
=II.= _Concerning those who Forge Documents, or Attempt to
Forge Them._
=III.= _Concerning those who Forge, or Serve, False Orders in
the Name of the King, or a Judge._
=IV.= _Concerning those who Falsify a Will against the Consent
of a Party while Living, or Disclose the Contents of
the Same._
=V.= _Concerning those who Attempt to Forge or Conceal the
Will of a Person Already Deceased._
=VI.= _Where Anyone Assumes a Fictitious Name, or Adopts a
False Lineage or Relationship._
=VII.= _Concerning Documents Fraudulently Dated, Prior to their
Execution._
=VIII.= _Concerning Later Documents Fraudulently Executed._
=IX.= _Concerning those who Falsely Write, or Publish, Decrees
and Edicts of the King._
=I. Concerning those who Forge Royal Orders and Mandates.=
Whoever shall change, impair the force of, omit something from, or
interpolate anything into, any part of our royal decrees or mandates;
or shall alter the date of the same; or shall make or attach a forged
seal to any of them; if said person is of high rank, he shall forfeit
half of all his property, and it shall be confiscated for the benefit
of the royal treasury; if, however, he is a person of inferior station,
he shall lose the hand with which he committed the crime. Where the
judges, or other authorities before whom the hearing was to be had,
or for whom the order of the king was intended, die; then either the
bishop of the diocese, or any other bishop, or the judges of the
territory adjacent to that affected by the order, shall have full
authority to act in their stead; to promulgate the decree; and to make
such disposition of the matter as, in their judgment, shall appear to
be legal and just.
=FLAVIUS CHINTASVINTUS, KING.=
=II. Concerning those who Forge Documents, or Attempt to Forge Them.=
Whoever forges a document; or publishes it; or knowingly makes an
addition to it; or produces it in court; or anyone who suppresses,
abstracts, mutilates, impairs the force of, or changes, a genuine
document; and whoever engraves, makes, or attaches a false seal, and
is found guilty of such infamous crimes, shall, with all his abettors,
lose the fourth part of their property, if they are persons of noble
rank. If any person should steal, or deface a document belonging to
another, and should afterwards confess, in the presence of the judge,
that he had stolen or defaced said document, and this confession should
be corroborated by witnesses, said testimony shall have the same force
in law as the destroyed or defaced document would have, if it still
existed in its integrity. But if the contents of the document cannot be
shown with certainty, he who drew it up shall be permitted to prove by
his own oath, or by a witness, what said document contained; and the
testimony so given shall establish the contents of said document.
When the property of those who have been condemned is not sufficient
to pay the fine prescribed by law, they, with such possessions as
they have, shall be delivered up, as slaves, to those whom they have
defrauded. He who sustained the injury or loss, shall receive, by order
of the king or the judge, three quarters of the fourth part of the
property hereinbefore mentioned; and the fourth part of the same shall
be reserved for the king, to be disposed of at his royal pleasure.
Persons of inferior rank, or of infamous character, who have been
convicted of these offences, must sign a confession as hereinbefore
provided; and shall forever be the slaves of those who suffered by
their fraudulent acts. In addition to the above penalties, culprits of
inferior, as well as of superior rank, shall receive a hundred lashes
with the scourge. If a slave commits such an offence, and it should
appear that he was influenced by other persons, all parties implicated
in the crime, and who are proved to have either stolen, concealed, or
mutilated, the document in question, shall become slaves forever to
those who were injured by their unlawful acts. But if it should appear
that said acts were committed under the orders of a master, he shall be
responsible for all damages sustained. We also decree that this same
rule shall apply to all who, for the sake of gain, either suppress or
mutilate any documents belonging to others, with the view to inflicting
upon them either loss or injury. Such persons also shall be considered
forgers, and shall suffer the penalty hereinbefore provided, according
to their rank.
Where nothing which is set forth in this chapter appears to have been
done; that is to say, if no one is convicted of having mutilated, torn,
forged, or concealed, a document belonging to another, or of having
committed any other offence described by this law, but that the person
accused has merely lost said document through negligence, accident, or
want of care; or where he declares that it has been stolen from him; if
a witness who subscribed said document be still living, his testimony,
taken in court, will be amply sufficient to establish its validity.
Where it appears that the witness who subscribed said document is dead,
and other lawful and intelligent witnesses can be found, who will
testify that they saw said document, and are thoroughly acquainted with
its contents; then he who lost the document in question, may prove by
the testimony of said witnesses, by a public investigation in court,
the former existence and the contents of said document, and thereby
establish its validity.
=ANCIENT LAW.=
=III. Concerning those who Forge, or Serve, False Orders in the Name of
the King, or a Judge.=
He who ignorantly publishes an edict issued in the name of the king or
a judge, shall not incur the guilt of forgery; but he must at once
disclose who gave him the said edict. If he should be unwilling to
name the person, or to admit that he received the edict from him, he
himself shall then be punished for forgery, according to his rank; as
is hereinbefore provided in the cases of those who make or utter forged
documents. But if both the parties should be aware that the forgery had
been committed, both shall be considered forgers.
=ANCIENT LAW.=
=IV. Concerning those who Falsify a Will against the Consent of a Party
while Living, or Disclose the Contents of the Same.=
Whoever shall forge the will, or any document containing an order,
or any instructions, of a person still living, or shall disclose the
contents of the same contrary to the wishes of said party, shall be
deemed guilty of forgery.
=ANCIENT LAW.=
=V. Concerning those who Attempt to Forge or Conceal the Will of a
Person Already Deceased.=
Whoever shall conceal the will of a deceased person, or shall insert
any forged matter therein, shall lose whatever property he would have
been entitled to, through the bequest of the testator in said will, and
said property shall belong to those whom he attempted to defraud; and
he shall, besides, bear the infamy attaching to the crime of forgery.
Even if he should have little or nothing to gain from such an act, he
shall nevertheless be condemned as a forger.
=ANCIENT LAW.=
=VI. Where Anyone Assumes a Fictitious Name, or Adopts a False Lineage,
or Relationship.=
Whoever assumes a false name; or changes his lineage; or claims a
fictitious parentage; or is guilty of any other imposture; shall be
considered a forger.
=FLAVIUS CHINTASVINTUS, KING.=
=VII. Concerning Documents Fraudulently Dated, Prior to their
Execution.=
The cunning of certain persons often requires the enactment of new
laws, as soon as the employment of new and wicked forms of fraud,
contrived for the deception of others, becomes publicly known.
Henceforth, for the reason that many persons, with the intent to
deceive their creditors, enter into false obligations in writing, which
allege their indebtedness to others; we hereby promulgate the following
law, which is to be perpetually valid, to wit: Wherever anyone who is
indebted to another, should fraudulently draw up any writing in which
he asserts that he is indebted to a third party, and, thereby anyone
should be deceived; and, by means of said fraudulent document, he
should contrive to nullify the claim of a party to whom he is justly
indebted; or if it should happen that anyone should craftily, and
fraudulently deceive another to the above mentioned end, not in writing
but verbally; the party guilty of such offences shall be publicly
branded as infamous, shall be liable in damages to him whom he has
defrauded, and shall also be punished as provided in the law concerning
forgery. He, also, shall be liable to similar damages and penalty, who
has been convicted of having stated that he was indebted to another,
by means of a fraudulent paper, executed subsequently to the one
evidencing his indebtedness to his genuine creditor. He who shall be
convicted of having made such a fraudulent document, as well as he for
whose benefit it is alleged to have been executed; where the latter is
known to be cognizant of the fraud; shall be liable to the damages and
penalty hereinbefore provided; and the fraudulent document, having been
declared void, the validity of the other, although it was apparently
subsequently executed, shall be firmly established.
=FLAVIUS RECESVINTUS, KING.=
=VIII. Concerning Later Documents Fraudulently Executed.=
It is but just that he who is recognized as the heir of a deceased
person, should discharge the debts of the latter. For the reason,
therefore, that fraud ought, under no circumstances, to be excused, we
hereby decree that the following law shall be forever observed, to wit:
That whoever gives to any person, by any instrument in writing, any
property whatever, no matter where said property may be situated, and
he who gave such property shall not be the owner thereof; or if he was
the owner, what he has given, he has already pledged to another by a
former written document, or has conveyed it to anyone else under some
contract; and he should subsequently dispose of said property, which
was either not his own, or had been previously pledged to another,
as aforesaid; as soon as the commission of said fraudulent act shall
become known; he who is guilty, should he still be living, shall be
liable for the amount mentioned in said instrument executed by him, and
shall suffer whatever penalty it prescribes. But if the fraud should
not become known until after his death, either his heirs shall be
compelled to execute, for the benefit of the complainant, whatever the
maker of said fraudulent instrument promised therein; or if the amount
promised, or the penalty set forth in said forged paper, shall be
greater in amount than the property left by said person, and his heirs
should be unwilling to make satisfactory amends for the act of their
ancestor; they shall be forced to surrender, at once, their entire
inheritance to the complainant. Where there are no heirs, the entire
property of the deceased shall, by the provisions of the present law,
be given up by those to whom it was left by the deceased, or by those
who have possession of the same.
This rule shall also apply in cases where it is found that he for
whose benefit the prior instrument was drawn up, is implicated in the
fraud; so that he who actually drew up the paper, as well as he who
knew that this was done, shall both be liable for the satisfaction of
the obligation, and to the imposition of the penalty set forth in the
instrument subsequently executed; and both shall likewise undergo, in
person and in property, the penalties provided by a former law in the
case of those who are guilty of forgery.
=ANCIENT LAW.=
=IX. Concerning those who Falsely Write, or Publish, Decrees and Edicts
of the King.=
The unlawful and wicked conduct of certain persons renders it necessary
that laws should be enacted for the restraint of future generations; so
that those over whom reproof has no influence, may be amenable to legal
censure and coercion. And, for the reason that it is well known that
many not only write out royal orders themselves, but also promulgate
them, and publish documents confirmed by the signatures of notaries,
whereby many things have been introduced into the laws of our kingdom,
and many provisions have been written, or attempted to be added, which
have not received the sanction of our authority; nor are suitable to
our people, not having been dictated by the principles of justice or
truth; and, in consequence, our subjects have been greatly vexed by
injuries, spoliation, and other annoyances; we therefore promulgate
the following edict: that, now and hereafter, no notary whosoever,
no matter to what rank or race he may belong, (with the exception of
the public notaries, or those attached to the royal service and their
sons, and such as have received special commissions from the king, or
any orders or appointments issued by the royal authority) shall write
or publish any spurious document, purporting to have been issued by
the king, or shall attempt to offer any such document to any notary,
to be confirmed by his signature; but only the public notaries, and
our own notaries, and those of our successors, and such as have been
especially appointed by us, shall have authority to write or publish
any royal order or edict. Whoever shall be found guilty of violating
this law, whether he be freeman or slave, shall receive two hundred
lashes, by order of the king or the judge; shall be scalped as a mark
of infamy; and have, in addition, the thumb of his right hand cut off;
as punishment for having attempted to commit unlawful acts which were
contrary to the dignity of the throne.[41]
TITLE VI. CONCERNING COUNTERFEITERS OF METALS.
=I.= _Concerning the Torture of Slaves, in Order to Convict
their Masters of Counterfeiting Money; and the Reward
of Witnesses who have given Information of the Same._
=II.= _Concerning those who Debase Solidi, or Other Coins._
=III.= _Concerning those who Debase Gold by a Mixture of Other
Metals._
=IV.= _Where Artificers of Metals are Found to have Abstracted
a Portion of what was Entrusted to Them._
=V.= _No One shall Refuse to Accept a Golden Solidus of Legal
Weight._
=I. Concerning the Torture of Slaves, in Order to Convict their Masters
of Counterfeiting Money; and the Reward of Witnesses who have given
Information of the Same.=
We do not forbid that slaves should be tortured, in order to convict
their master or mistress of counterfeiting; as, by this means, the
truth may be the more easily ascertained. If a slave belonging to
another person should give information of such a crime, and it should
prove to be true, he shall be given his freedom, if his master
consents, and the latter shall receive his value from the public
treasury; and if he does not consent, the slave shall receive three
ounces of gold from the public treasury. Where the informer is a
freeman, he shall be entitled to six ounces of gold, on account of the
service which he has rendered.
=FLAVIUS CHINTASVINTUS, KING=
=II. Concerning those who Debase Solidi, or Other Coins.=
Where anyone debases, pares, or files, _solidi_, he shall be
arrested, as soon as the judge is apprized of the fact; and, if he is
a slave, his right hand shall be cut off. If he should be arrested a
second time, for the same offence, he shall be brought before the king,
to be disposed of at the royal pleasure. Where the judge hesitates to
discharge his duty in a case of this kind, he shall forfeit the fourth
part of his property, which shall be confiscated for the benefit of
the treasury. If the offender is a freeman, he shall forfeit half of
his property to the treasury; if he is of inferior rank, he shall lose
his freedom, and shall be given up as a slave to whomever the king may
select. Whoever shall engrave or make counterfeit money, no matter who
he may be, shall undergo a similar sentence and penalty.
=ANCIENT LAW.=
=III. Concerning those who Debase Gold by a Mixture of Other Metals.=
Whoever receives gold to be made into ornaments and debases the same,
by the mixture of brass, silver, or any other metal of inferior value,
shall be deemed guilty of theft.
=IV. Where Artificers of Metals are found to have Abstracted a Portion
of what was Entrusted to Them.=
Goldsmiths, silversmiths, and all other workers in metals, who abstract
anything from what has been entrusted or delivered to them, shall be
deemed guilty of theft.
=V. No One shall Refuse to Accept a Golden Solidus of Legal Weight.=
No one shall dare to refuse to accept a golden _solidus_ of legal
weight, provided it is genuine; nor demand other money in exchange
for the same, unless it should be of short weight. Whoever shall act
contrary to this law, and refuse to accept a golden _solidus_ of
legal weight, or shall demand a premium, in exchange for the same, as
aforesaid; shall be compelled by the judge to pay three _solidi_
to him from whom he refused to accept the coin. This law shall also
apply to _tremisæ_.
BOOK VIII.
CONCERNING ACTS OF VIOLENCE AND INJURIES.
TITLE I. CONCERNING ATTACKS, AND PLUNDER OF PROPERTY.
=I.= _The Patron, or the Master, shall Alone be Held Guilty,
if, by his Orders, a Freeman or a Slave should Commit
any Unlawful Act._
=II.= _Where a Party in Possession is Expelled by Force._
=III.= _Where Many Persons Unite in Causing Bloodshed._
=IV.= _Where a Person is Shut up by Violence, Inside his Own
House, or Within his Gate._
=V.= _Property, while in the Possession of Another, shall not
be Seized, Except Under Legal Process._
=VI.= _Where a Person is Guilty of Asking Others to Commit
Depredations._
=VII.= _A House shall not be Entered in the Absence of the
Master, or while he is on a Public Expedition._
=VIII.= _Where the Slaves of a Person who is Absent on a Public
Expedition Commit Unlawful Acts._
=IX.= _Concerning Those who, while on a Public Expedition,
Commit Robbery or Other Depredations._
=X.= _He in whose Possession Stolen Property has been Found,
shall be Compelled to Name his Associates in the
Crime._
=XI.= _Concerning Those who are Guilty of Giving Directions to
Others for Purposes of Robbery._
=XII.= _Concerning Those who Rob, or Inflict Annoyance upon
Anyone, while he is on a Journey, or at Work in the
Country._
=XIII.= _Whether a Person Caught in the Act of Robbery may be
Killed._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. The Patron, or the Master, shall Alone be Held Guilty, if, by his
Orders, a Freeman or a Slave should Commit any Unlawful Act.=
We hereby establish as a general principle of law, that whenever a
freeborn person, a freedman, or a slave, is known to have committed
any unlawful act by the order of his patron or his master, said patron
or master shall be held liable for all satisfaction and composition
for the same; for he who obeys the orders of his superior, cannot be
considered guilty, because it is evident that he did not commit the act
by his own will, but under the command of one possessing authority over
him.
=II. Where a Party in Possession is Expelled by Force.=
Whoever forcibly deprives another of property in his possession,
before the ownership of said property shall have been determined by a
decision of the court; shall lose his case, even though he have the
better claim. He who was the victim of the violence, shall receive the
property in the same condition as it was when taken from him, and shall
be entitled to undisturbed enjoyment of the same. If, however, any
person should forcibly seize property which he could not obtain by a
decree of court, he shall not only lose his case, but shall give to the
injured party property of equal value to that of which he deprived him.
=ANCIENT LAW.=
=III. Where Many Persons Unite in Causing Bloodshed.=
Whoever collects a mob for the purpose of committing bloodshed, and
makes an attack upon another, whereby he sustains bodily injury; or
incites or orders others to commit such acts; as soon as the judge
shall be informed of the same, he shall, at once, cause the guilty
party to be arrested. And in order that he may be rendered publicly
infamous, he shall receive fifty lashes in the presence of the judge,
and shall be compelled to name all who were with him, or participated
in his offence; and if his said associates should not be under his
patronage, every freeman among them shall receive fifty lashes. If,
however, slaves are participants in the crime, and belong to another
master, they shall each receive two hundred lashes publicly, and in the
presence of the judge, as a warning to others.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. Where a Person is Shut up by Violence, Inside his own House, or
within his Gate.=
Whoever forcibly confines the owner of a house inside his dwelling,
or within the courtyard of the same, and prevents him from having
free egress, or orders others to do so, shall, as a penalty for his
insolence, pay to the owner of said house thirty _solidi_,
and, in addition to this, shall receive a hundred lashes. All other
persons who aided and abetted him in his unlawful act, and are not
under his protection, where they are freeborn, shall each pay fifteen
_solidi_ to those who suffered the injury; and shall, for the
insolence of which they are guilty, each receive a hundred lashes. Any
slaves who are guilty of this offence, and did not act under the order
of their master or mistress, shall each receive two hundred lashes. If,
however, the owner of a house should be boldly and violently prevented
from entering the same, in such a manner that he is, for the time,
entirely deprived of control over his house, his family, and his other
property, which is a far more serious offence, the author of such an
infamous crime shall be liable for all damages incurred, and shall also
receive a hundred lashes. Any freemen who are participants in a deed of
this kind, if they are not under the patronage of the principal actor
in it, shall each receive a hundred lashes, and be compelled to pay
three hundred _solidi_ to those who have suffered the injury. If,
however, any slaves, without the knowledge of their masters, should
have voluntarily committed such a crime, they shall undergo the penalty
prescribed for slaves under such circumstances, as hereinbefore
stated; and no responsibility for their acts shall attach to their
masters. They also shall be liable to the same penalty, who, on their
own responsibility, and without an order of the king or a judge,
forcibly seize a house belonging to another; or presume to represent
said property as their own; or affix their seals to the same.
=FLAVIUS CHINTASVINTUS, KING.=
=V. Property, while in the Possession of Another, shall not be Seized,
Except Under Legal Process.=
No governor, deputy, steward, superintendent, agent, or attorney, or
any freeborn person or slave, shall daringly presume to seize any
property in the possession of another; or claim it, in the name of the
king, or of his superior or master, before a judicial decree has been
rendered establishing the ownership of said property. And if, without
waiting for a trial, such a person should seize said property while
in the possession of another, or which is known to belong to some one
else; everything that he seized or removed, whether it consists of real
estate or personal property, he shall restore twofold to him whose
rights have been invaded; and he shall be compelled to give to the
complainant, the profits accruing each year, while said property was in
his possession; and which he shall solemnly declare under oath that he
has collected. If a slave should commit such an act without the consent
of his master, he shall, in addition to the above-mentioned penalty,
receive two hundred lashes in public. Where the owner is not satisfied
with double the amount of the value involved, as reparation, he must
restore the property which was taken, as well as the profits of the
same, to him who seized or removed it; and the latter, under direction
of the judge, must surrender the slave by way of compensation for the
illegal act. Under all circumstances, however, a careful investigation
must be made, lest the slave may have committed the act through some
artifice or fraud of him who owned the stolen property; and if this is
found to be the case, the master who thus instigated, or permitted
wrong to be done, shall restore to the owner sevenfold the value of
the property which the slave abstracted; and the master shall retain
undisturbed possession of his slave.
=ANCIENT LAW.=
=VI. Where a Person is Guilty of Asking Others to Commit Depredations.=
If any person should instigate others to plunder, and, in consequence,
they should destroy anything, or steal any property, or animals; they
shall be compelled to restore elevenfold the value of the property
so stolen or destroyed, to him who was robbed. Any freemen who were
present at the time of the commission of the crime, shall each be
compelled to pay five _solidi_; and, if they should not have
that sum, they shall each receive fifty lashes. Any slaves who commit
such an act, without the consent of their masters, shall each receive
a hundred and fifty lashes, and be compelled to restore the stolen
property intact.
=VII. A House shall not be Entered in the Absence of the Master, or
while he is on a Public Expedition.=
No one shall molest the house of a person who is absent, or while he is
on a public expedition. Moreover, if anyone should seize property which
he could have obtained by a decree of court, while the other party
to the suit was absent, he shall restore said property twofold. If,
however, he should seize anything which he could not legally obtain, he
shall restore threefold the value of the same. Where anyone, before he
departs on a public service, is summoned by the judge to the hearing of
a case, he must answer in his own proper person; or he may authorize an
agent in writing, and in the presence of the judge, to act for him in
the matter. But if he should neither give such authority, nor answer in
court, and, having absented himself, should thus abandon his case; the
judge, after a proper investigation, shall order the property claimed
by his adversary to be delivered to him. The absent party, however,
shall have the right to reopen the case on his return.
=FLAVIUS RECESVINTUS, KING.=
=VIII. Where the Slaves of a Person who is Absent on a Public Expedition
Commit Unlawful Acts.=
If the slave of any person who is absent upon the public service
should be implicated, or detected in the commission of any crime, or
other unlawful act, he shall be apprehended by order of the judge,
and be punished by law, according to the nature of his offence; but
if said offence should be of such a character, that the absent master
would be liable therefor, or that the slave should be surrendered to
another, the culprit shall be kept in custody by the judge until the
return of his master, so that the latter may render satisfaction for
his acts, should he wish to do so, or, should he be unwilling, that
he may surrender the slave. Where a slave is unjustly put to death or
subjected to torture, the said master, upon his return, shall have a
good cause of action against the judge.
=ANCIENT LAW.=
=IX. Concerning Those who, while on a Public Expedition, Commit Robbery
or Other Depredations.=
Those who commit robbery while in the army, shall make fourfold
restitution. If they should not have the property wherewith to do so,
they shall restore the article stolen, and receive fifty lashes. Should
a slave, however, commit this offence, against the will of his master,
he shall restore the stolen property, and receive two hundred lashes.
All governors of provinces, judges and stewards, shall, without delay,
require the enforcement of this law, as we are unwilling that our
kingdom should be ravaged by depredators.
=ANCIENT LAW.=
=X. He in whose Possession Stolen Property has been Found, shall be
Compelled to Name his Associates in the Crime.=
Whenever any evidence of crime, or any stolen property shall be found
in the possession of any one, the latter shall, at once, be compelled
to name his accomplices; and if he should refuse to do so, he shall be
held liable for all damages incurred. If he is a person of superior
rank, he shall either give a valid explanation of his illegal act,
or shall restore, elevenfold, the value of the property stolen or
destroyed; and shall receive a hundred lashes in public. If any part of
the proceeds of a robbery should be found in the hands of a slave he
shall receive two hundred lashes in public and shall be compelled to
give up his accomplices.
=XI. Concerning Those who are Guilty of Giving Directions to Others for
Purposes of Robbery.=
Any freeman, or slave, who shall give information concerning anything,
in order that it may be stolen, or that the property of any person
should be destroyed, or that he may be robbed of his flocks, or beasts
of burden; as soon as the guilty party shall have been convicted by
competent evidence, he shall receive a hundred lashes, because he gave
information by means of which a crime was committed.
=ANCIENT LAW.=
=XII. Concerning Those who Rob, or Inflict Annoyance upon Anyone, while
he is on a Journey, or at Work in the Country.=
Anyone who removes any property by violence, or robs another, while
the latter is upon a journey, or occupied in farm labor, shall, after
a judicial investigation, restore fourfold the value of the property
stolen, or appropriated; and if he should cause any bloodshed, or
personal injury, he shall render complete legal satisfaction for the
same. If a slave should commit such an offence, without the knowledge
of his master, he shall receive a hundred lashes; and his master shall
be liable for the compensation due for his act. If his master should
be unwilling to pay the sum required, he shall at once surrender the
slave.[42]
=ANCIENT LAW.=
=XIII. Whether a Person Caught in the Act of Robbery may be Killed.=
Where anyone takes the property of another by force, and is wounded,
or killed in the act, he who inflicted the injury shall incur no legal
responsibility for the same.
TITLE II. CONCERNING ARSON AND INCENDIARIES.
=I.= _Concerning Those who set Fire to Houses, either Within
or Without a City._
=II.= _Where Forests are set on Fire._
=III.= _Where a Conflagration Results from the Smouldering Camp
fire of a Traveller._
=I. Concerning those who set Fire to Houses, either Within or Without a
City.=
Whoever sets fire to the house of another in a city, shall be arrested
by order of the judge, and condemned to be burned alive; and shall
pay out of his own property the loss incurred by the owner of the
house, as well as the price of the house itself, should the latter
be consumed. He whose house was burned shall swear to the amount of
property therein, in the presence of as many witnesses as the court may
direct, and shall not demand the value of more than he was possessed
of, nor shall he put an excessive estimate upon the value of his house;
and if, after he has made oath, he should be convicted of any fraud,
he shall be compelled to pay twice the amount of the sum exacted as
legal compensation, to whomever the same is due. But if the fire
kindled in the house aforesaid should spread through the neighborhood,
the property of the incendiary shall be equitably distributed in
proportion to the damage incurred by those who lost their house, or
their chattels. If, after satisfaction has been made to him whose house
was set on fire, it should be found that he still had some property
remaining, he must then swear, in the presence of witnesses, that he
did not demand a greater sum than he had lost. And if, after having
made such an oath, it should be found that he has perjured himself,
he shall be compelled to pay double the amount prescribed by law, to
him whom he attempted to defraud. Whoever sets fire to a house outside
a city, shall pay for all property burned in said house, and shall
also, at once, pay the value of the house to the owner; but he whose
house has been burned must declare, under oath and in the presence of
witnesses, that he does not demand a greater sum than he has lost.
And if, after having been sworn, it should appear that he did exact a
greater sum, he shall be compelled to pay double the amount to him who
sustained the injury.
If any houses adjoining the one which was set on fire should be
consumed, and any property of the incendiary should remain, out of
which the owners of said houses can be partially or wholly indemnified,
they shall be entitled to their share. They, also, must make oath, in
the presence of witnesses, that they do not claim an amount: in excess
of their losses; and if it is found that they have perjured themselves,
or have demanded an excessive sum, they shall pay double the amount
thus exacted, to him who was the victim of the fraud, and the
incendiary shall receive a hundred lashes. Anyone having been convicted
of such an offence, who does not possess the property wherewith to make
restitution, shall be reduced to slavery.
Where a slave is convicted of incendiarism inside or outside a city,
and his master should wish to liberate him from the punishment of
so heinous a crime, he shall, without delay, render full pecuniary
satisfaction for the same, and the slave shall receive two hundred
lashes in public. He whose house was burned, shall be compelled to
swear that he does not claim a larger sum than the property was worth.
If the master should be unwilling to render satisfaction for the act of
his slave as aforesaid, the slave shall be surrendered to be punished,
and shall be beheaded.
=II. Where Forests are set on Fire.=
Anyone who burns a grove belonging to another, or any pine or fig tree,
or any other tree, of any description whatever, shall be arrested by
order of the judge; shall receive a hundred lashes; and shall render
pecuniary satisfaction for the injury done; the amount of which shall
be determined by the estimate of competent appraisers. If a slave
should commit this offence, without the knowledge of his master, he
shall receive a hundred and fifty lashes. Where the master is unwilling
to render satisfaction for the act of his slave, he shall surrender
him, in full amends for the same, even if the loss occasioned by said
slave should amount to double or triple his value.
=ANCIENT LAW.=
=III. Where a Conflagration Results from the Smouldering Campfire of a
Traveller.=
Whoever, while encamped during a journey, kindles a fire, either on
account of the cold, or for the purpose of cooking food, must use care
lest the fire spread, and that it may not break out in thorns, or dry
forage, by which it is easily fed; and if it should be rekindled,
he must extinguish it. If, however, the fire should extend, and any
crop, threshing floor, vineyard, house, or orchard, should be consumed
thereby, he who neglected to extinguish the fire which he kindled shall
be compelled to pay the full value of all the property consumed.
TITLE III. CONCERNING INJURIES TO TREES, GARDENS,
OR GROWING CROPS OF ANY DESCRIPTION.
=I.= _Concerning the Compensation for Cutting Down Trees._
=II.= _Where Anyone Destroys the Garden of Another._
=III.= _Where Injury, or Homicide, Results from the Cutting
Down of a Tree._
=IV.= _Where a Tree is Partially Cut Down, or is Injured by
Fire._
=V.= _Concerning the Cutting Down, Tearing Up, or Burning of
Vines; and the Seizure of Growing Crops._
=VI.= _Where Fences are Cut Down, or Burned._
=VII.= _Where Fence Posts are Cut._
=VIII.= _Where Anyone is Caught with a Vehicle, in a Wood
Belonging to Another._
=IX.= _Concerning the Unreasonable Enclosure of Orchards,
Vineyards, and Pastures._
=X.= _Where Animals are Voluntarily Loosed in Fields where
there are Crops, or in Vineyards._
=XI.= _Where Animals Damage Growing Crops._
=XII.= _Where an Enclosed Field is Ruined by Flocks._
=XIII.= _Where Fruits of any Kind are Destroyed by Animals._
=XIV.= _Where, while Anyone is Driving Cattle out of Cultivated
Fields, Another Person Rescues them, or Takes
Possession of them afterwards Secretly or by Force._
=XV.= _Concerning Animals Found in Vineyards, Fields of Grain,
or Meadows._
=XVI.= _Where Animals Depart from Fields of Growing Grain
Before they are Driven Out._
=XVII.= _Where Anyone Mutilates an Animal found in a Field of
Grain._
=ANCIENT LAW.=
=I. Concerning the Compensation for Cutting Down Trees.=
Where anyone, without the knowledge of the owner, cuts down a tree
belonging to another; if it is a fruit tree, he shall pay three
_solidi_; if it is an olive, five _solidi_; if it is an oak
of large size, two _solidi_; if it is an oak of small size, one
_solidus_; and for a tree of any other species of considerable
size, he shall pay two _solidi_. For such trees, although they do
not bear fruit, are useful for many purposes. And this compensation
shall be made if the trees should be only cut down; for if they should
be cut down and carried away, either similar trees must be given in
their stead, or double the above named sums must be paid.
=ANCIENT LAW.=
=II. Where Anyone Destroys the Garden of Another.=
Where anyone destroys the garden of another, he shall, at once, be
compelled by the judge to pay to the owner a sum equal to the amount
of damage which he has caused. If a slave should be guilty of this
offence, he shall, in addition to the payment of said damages, receive
a hundred lashes.
=ANCIENT LAW.=
=III. Where Injury, or Homicide, Results from the Cutting Down of a
Tree.=
If anyone should cut down a tree, and any injury should result; or if
the tree, in falling, should kill anyone; he who cut it down shall be
responsible for the same. If, however, a number of men should be in
the neighborhood of said tree, and the party should previously notify
them that the tree was about to fall; and if, after he gave such
notice, anyone should be injured or killed by the falling branches, he,
who cut down the tree shall incur no liability whatever. But if the
fall of the tree should cripple or injure any person who is old, or
weak, or asleep, or unable to take care of himself; or any cattle of
any description; the guilty party shall give to the master for every
quadruped, one of equal value; and where a man is killed, he shall
be deemed guilty of homicide. In case any person should be mutilated
or crippled, he who caused the damage, shall be compelled to render
satisfaction as prescribed by law; and if anyone should forcibly
cut down a tree belonging to another, he shall at once render full
compensation therefor. If the owner of a tree should have refused to
permit it to be cut down, and any person should be killed while he was
cutting it, no responsibility shall attach to anyone on account of his
death.
=ANCIENT LAW.=
=IV. Where a Tree is Partially Cut Down, or is Injured by Fire.=
Where a tree has been partly cut down, or has been burned anywhere by
fire, and, in the absence of him who, without malicious intent, cut it,
or began to burn it, the tree should fall, said party shall in no way
be responsible for any damage caused by said tree in its fall.
=ANCIENT LAW.=
=V. Concerning the Cutting Down, Tearing Up, or Burning of Vines; and
the Seizure of Growing Crops.=
Whoever burns, cuts down, or tears up by the roots a vineyard belonging
to another, or lays waste the same, shall be compelled to give two
vineyards of equal value to the master thereof, and the owner of
the vineyard which was destroyed shall still retain possession of
it. If anyone forcibly seizes the fruit of a vineyard, he shall
restore twofold the value of said fruit, and shall also make twofold
restitution of whatever he has destroyed; and the value of the same
shall be ascertained by the oath of those who were collected there at
the time of the vintage. A slave who commits such an offence without
the order of his master, shall receive ten lashes for every vine torn
up or destroyed, and shall make restitution of all the fruit he has
taken; or, if his master should wish to render satisfaction for his
act, he shall pay a _solidus_ for every six vines destroyed.
But if great injury should have been done, and his master should be
unwilling to render satisfaction for it, he shall surrender said slave
without delay.
=ANCIENT LAW.=
=VI. Where Fences are Cut Down, or Burned.=
If anyone should cut down a fence anywhere, or should burn the fence of
another; if he is a person of rank, he shall both repair said fence,
and make reparation in damages. Where, however, any loss of crops has
resulted to the owner from the destruction of said fence, said person
shall not only pay the damages, as estimated by appraisers, but shall
pay ten _solidi_ in addition. Where said enclosure was an orchard
with or without fruit, or a meadow, he shall be compelled to pay five
_solidi_. Where the enclosure was a field where there were no
fruit trees, the offender shall only be required to repair the fence.
If a person of inferior rank should commit such an act, he shall pay
the appraised value of the fruit or grain destroyed; shall repair the
fence; and shall receive fifty lashes in public. Where the guilty party
is a slave and acts without the knowledge of his master, he shall pay
all damages incurred, repair the fence, and receive a hundred lashes.
If the destruction of the fence was caused by accident, he shall only
repair the same; for the reason that an act involuntarily committed is
no crime.
=ANCIENT LAW.=
=VII. Where Fence Posts are Cut.=
Whoever cuts down the posts of a fence, or the tree trunks of a hedge
belonging to another, or burns the same (even though the land enclosed
by said fence or hedge contains no fruit or crops of any kind) shall be
compelled to pay fourfold the value of the property destroyed. Where,
however, there are fruits or crops of any kind within said enclosures,
the guilty party shall be forced to pay one _tremisa_ for every
post or tree trunk cut down, or burned; and if any damage should result
to said fruit or crops, he shall be liable for the same. We hereby
decree that this rule shall also apply to the case of gardens.
=ANCIENT LAW.=
=VIII. Where Anyone is Caught with a Vehicle, in a Wood Belonging to
Another.=
If any person should find another in his forest with a vehicle for the
purpose of carrying away material for barrel-hoops, or any other kind
of wood, without permission, the trespasser shall lose both oxen and
vehicle, and the owner shall also be entitled to whatever the thief or
trespasser has with him.
=ANCIENT LAW.=
=IX. Concerning the Unreasonable Enclosure of Orchards, Vineyards, and
Pastures.=
If the owner of a vineyard, meadow, or pasture-field, should surround
it with ditches, for the purpose of causing annoyance, and in such a
manner that it cannot be crossed, unless through a vineyard or growing
crop; anyone who passes through the latter shall not be responsible for
any damages resulting therefrom. Where anyone surrounds open fields
with ditches, travellers may disregard them, nor shall anyone presume
to drive them out of said fields.
=ANCIENT LAW.=
=X. Where Animals are Voluntarily Loosed in Fields where there are
Crops, or in Vineyards.=
Anyone who shall, intentionally, drive beasts of burden, oxen, or any
kind of cattle into a vineyard, or field of growing grain, belonging to
another, shall be compelled to pay all damages, after they have been
appraised. If he is a person of high rank he shall pay a _solidus_
for every horse, or ox, and for every head of other cattle, a
_tremisa_, to him who has sustained the injury. If he is a person
of inferior rank, he shall pay for the property destroyed and one half
its value, in addition; and shall receive forty lashes in public. If a
slave should commit such an act, without the authority of his master,
either he, or his master, must pay all damages incurred, and the slave
shall receive sixty lashes.
=ANCIENT LAW.=
=XI. Where Animals Damage Growing Crops.=
Where animals belonging to any person injure the vineyard or growing
grain of another, the owner of said animals shall give to the person
whose property was damaged, as much of another vineyard or field,
with its fruit or crop, as is equal in value to that destroyed by
said animals. If the owner of said animals should not have a field or
vineyard with which to make restitution, he shall give as much fruit
or grain as shall be estimated to be equal in value to the land in
question.
=ANCIENT LAW.=
=XII. Where an Enclosed Field is Ruined by Flocks.=
If anyone turns cattle into an enclosed meadow, at such a time that
the grass will not grow afterwards, so that it can be cut, and he who
committed this act should be a slave, he shall receive forty lashes
with the scourge, and shall give to the owner of said meadow, hay equal
in amount to that which was destroyed. If he is a person of inferior
rank, he shall pay one _tremisa_ for every two head of cattle, and
make restitution for the hay; if he is a person of superior rank, he
shall pay one _solidus_ for every two head of cattle, and shall
make restitution for the hay, according to its value, as aforesaid.
=ANCIENT LAW.=
=XIII. Where Fruits of any Kind are Destroyed by Animals.=
If anyone should find a horse, or any cattle belonging to another in
his vineyard, field of grain, meadow, or garden, he must not drive them
out in anger, lest they be injured thereby; but, having driven them
home, he must shut them up, and notify the owner; that the amount
of damage caused by said cattle may be appraised by themselves, or
by their neighbors. Both parties must visit the field in question;
and, after they have examined it, that part of the pasture, vineyard,
meadow, or crop, which was injured shall be measured, and they must
then wait until the fruit is gathered, or the crop harvested, in order
that the damage may be estimated by its comparison with that portion
of the field which was uninjured; and the fruit shall be gathered,
or the grain harvested, in the presence of witnesses, both from that
portion which was damaged, and that which was intact; and whatever
deficiency shall appear in the portion invaded by the cattle, must be
made up by the owner of said cattle. The cattle, after the field shall
have been measured, as aforesaid, shall be returned to their owner, as
is provided by law. If any of them should be injured, on account of
the unbridled anger of him who drives them out, the latter shall only
pay their full value to their owner, and shall be entitled to retain
all that he has mutilated or killed; provided, however, that he has
previously paid for them. Where any cattle, while being driven out, are
injured by accident, and not by design; or should be killed, or should
fall upon posts, or stakes; the party driving them shall only be liable
for one half the damages sustained, as has been provided by other laws.
=ANCIENT LAW.=
=XIV. Where, while Anyone is Driving Cattle out of Cultivated Fields,
Another Person Rescues them, or Takes Possession of them afterwards,
Secretly or by Force.=
Where anyone rescues cattle by force from any person driving them
out of his own vineyard or field of grain; if he is a person of high
rank, he shall pay five _solidi_, and be responsible for double
the damage sustained, after appraisement of the same; if, however, he
should be a person of inferior station, and should not have the means
wherewith to make restitution, he shall receive fifty lashes, and shall
be compelled to pay double the amount of damages. If a slave should
be guilty of this offence, he shall receive a hundred lashes in the
presence of the judge; and no reproach or responsibility whatever shall
attach to his master. Where any person removes cattle from a house,
or out of an enclosure, or seizes them by force, he shall pay eight
_solidi_ to the party injured, and shall also be liable to double
damages. If a slave should do this he shall receive a hundred lashes,
and his master shall be in no way responsible.
=XV. Concerning Animals Found in Vineyards, Fields of Grain, or
Meadows.=
Anyone who finds, and takes up beasts of burden, or cattle of any kind,
in his vineyard, field of grain, meadow, or garden, shall, on that day
or the following, give notice thereof to the owner of said cattle. If
the owner should refuse to come, or send for them, the amount of damage
shall be appraised by the neighbors, and full satisfaction of the same
shall be required by the judge from said owner. If he who took up the
cattle should prove or swear that the damage was committed by said
animals, and the owner of the cattle should not come to receive them,
or should not be present at the appraisement of the damage; he who took
them up shall only give them water and keep them shut up for three
days; and the owner, who neglected to be present at the appraisement,
shall have no claim against the party retaining said cattle for the
space of three days. When the three days are elapsed, he may let the
animals go, and turn them loose, if their owner should still refuse
to come for them; and, on account of the evident contempt of the
latter, he shall be compelled to pay double the amount of the damages
appraised. But if the owner of said cattle should come to him whose
property was injured, and ask him to have the amount of the damages
appraised, and to deliver up the cattle to him, and the former desiring
to kill said cattle, should not acquiesce; if it should be proved that
he has done this, he shall pay for every head of large cattle one
_solidus_, and for every head of small ones, one _tremisa_.
This law shall also apply to those who, before three days have elapsed,
did not give notice that the cattle were shut up. If a slave should
commit this offence, without the consent of his master, he shall
receive a hundred lashes, and his master shall incur no responsibility
whatever on account of his act.
=ANCIENT LAW.=
=XVI. Where Animals Depart from Fields of Growing Grain Before they are
Driven Out.=
If any beasts of burden, or cattle, should depart from orchards or
fields of grain, before they are driven from the same, it shall not be
lawful to take them up, because it is not known whether they caused the
damage or not. But if the owner, or any neighbor, should drive them
out, said owner shall be liable for any injury they may have caused.
=ANCIENT LAW.=
=XVII. Where Anyone Mutilates an Animal found in a Field of Grain.=
If anyone should cut off the lips, tail, ears, or any other member
of any cattle, or other animals, which he has found in his orchard,
vineyard, or field of growing grain, or should kill them, or should
inflict upon them any other injury, they shall become the property of
the party who thus kills or mutilates them, and he shall at once give
to the owner others of equal value.
TITLE IV. CONCERNING INJURIES TO ANIMALS, AND OTHER PROPERTY.
=I.= _Where a Horse, or any other Animal, which has been
Tied Up, is Removed, or Injured, in any Way, Without
the Consent of the Owner._
=II.= _Where any Animal which has been Loaned, is Used
against the Direction or Will of the Owner, or is
Abused._
=III.= _Where the Mane or Tail of a Horse, or any Other
Animal, is cut off by Anyone._
=IV.= _Where Anyone Castrates an Animal Belonging to
Another._
=V.= _Where Anyone Produces an Abortion upon a Beast of
Burden Belonging to Another._
=VI.= _Where Anyone Produces an Abortion upon any kind of
Animal Belonging to Another._
=VII.= _Where Animals of any kind Injure One Another._
=VIII.= _Where a Person Kills an Animal Belonging to Another,
whether he has been Injured by said Animal, or Not._
=IX.= _Where an Ox, Belonging to Another, is Used for Labor,
without the Consent of its Owner._
=X.= _Where Animals, of any kind, Belonging to Another, are
Overworked in the Threshing of Grain._
=XI.= _Where Cattle, which have done no Injury, are Shut Up._
=XII.= _Where an Animal Causes Injury to Anyone._
=XIII.= _Where an Animal is Injured, or Killed, by a Blow._
=XIV.= _Where Cattle, Belonging to Another, with or without
the Knowledge of the Owner, are Mingled with the Herd
or Flock of the Latter._
=XV.= _Where Anything Intended to Frighten an Animal is
Fastened to it, and it should be either Injured, or
Killed, in Consequence._
=XVI.= _Where a Vicious Animal, while on the Premises of its
Owner, Kills Anyone._
=XVII.= _Where Anyone Rids himself of a Vicious Animal, or
Still Retains it in his Possession._
=XVIII.= _Where Anyone Teases an Animal and is Injured by it,
he Alone shall be Responsible for the Injury._
=XIX.= _Where a Dog that has been Irritated, whether the
Provocation was Wanton or not, is Proved to have
Injured, or Killed Anyone._
=XX.= _Concerning a Vicious Dog._
=XXI.= _Concerning Injuries to Clothing._
=XXII.= _Where a Trespasser Falls into a Trap set for Wild
Animals._
=XXIII.= _He who sets Snares or Traps for Wild Beasts, must
Inform his Neighbors of the Places where said Snares
are Set._
=XXIV.= _Concerning Injuries Resulting from the Obstruction of
Highways._
=XXV.= _Of the Space that is to be Preserved along Public
Highways._
=XXVI.= _Where the Animals of Persons Traversing Fields that
are not Enclosed, are Driven Away._
=XXVII.= _Animals Driven along the Highway Cannot be Excluded
from Open Pastures._
=XXVIII.= _He who has Land under Cultivation along the Bank of
a River, has a Right to Enclose the Same._
=XXIX.= _Concerning the Right to Enclose Streams._
=XXX.= _Concerning Those who Damage Mills, and Ponds._
=XXXI.= _Concerning Those who Steal Water from Streams
Belonging to Others._
=ANCIENT LAW.=
=I. Where a Horse, or any other Animal, which has been Tied Up, is
Removed, or Injured, in any way, Without the Consent of the Owner.=
If any person should free a horse, or any other animal belonging to
another, from its halter, or from its hobbles, without the knowledge of
the owner, he shall pay him a _solidus_. If said horse, or other
animal, should die, in consequence, said person shall give its owner
another of equal value. If he should use said animal to travel, or to
work with elsewhere, without the knowledge of the owner, he shall be
compelled to give him another of equal value; provided the owner should
find him on that day, or on the following one. If said animal should
not be found by the third day, the person who took it shall be deemed
guilty of theft.
=FLAVIUS RECESVINTUS, KING.=
=II. Where any Animal which has been Loaned, is Used against the
Direction or Will of the Owner, or is Abused.=
Anyone who, contrary to the wishes or understanding of the owner,
abuses an animal which he has borrowed, by driving it too fast or too
far, or by overloading it, shall pay a _solidus_ for every ten
miles traversed by said animal. If they should have gone less than
ten miles, the distance, as well as the work, shall be estimated,
and compensation shall be made accordingly. If said animal should be
crippled, or killed, it shall belong to him who committed the injury,
and he shall give one of equal value to the owner.
=ANCIENT LAW.=
=III. Where the Mane or Tail of a Horse, or of any Other Animal, is cut
off by Anyone.=
Anyone who disfigures the mane of a horse belonging to another, or cuts
off its tail, must at once give to the owner of the same another animal
of equal value. Should any other animal be mutilated in this manner,
the third part of a solidus must be paid for every one so mutilated.
=ANCIENT LAW.=
=IV. Where Anyone Castrates an Animal Belonging to Another.=
Whoever castrates any quadruped used for racing purposes, without the
knowledge or consent of the owner; or castrates any animal which ought
not to be castrated; shall be compelled to pay double the value of
said animal to the owner of the same, who has been damaged on account
of his malice.
=ANCIENT LAW.=
=V. Where Anyone Produces an Abortion upon a Beast of Burden Belonging
to Another.=
Whoever produces an abortion upon a mare, shall give to the owner of
the same a foal, one year old, by way of compensation.
=ANCIENT LAW.=
=VI. Where Anyone Produces an Abortion upon any kind of Animal Belonging
to Another.=
If anyone should produce an abortion upon a cow, he shall be compelled
to give another, along with her calf, to the owner; and he himself
shall be entitled to the animal injured. This law shall also apply to
the cases of all other quadrupeds.
=ANCIENT LAW.=
=VII. Where Animals of any kind Injure One Another.=
Where beasts of burden, or any kind of cattle, injure others belonging
to another person, the owner of those that caused the damage shall give
to the owner of the former, others of equal value, and the injured ones
shall become his own property.
=ANCIENT LAW.=
=VIII. Where a Person Kills an Animal Belonging to Another, whether he
has been Injured by said Animal, or Not.=
Where any person, without provocation, is convicted of having killed or
wounded an animal belonging to another; he shall be compelled to give
one of the same value to the owner thereof, by way of reparation; if
he is a slave, he shall receive fifty lashes in public; but if he is a
freeman, he shall pay a fine of five _solidi_. Where, however,
said animal was killed or mutilated, on account of some damage it had
committed, said person shall be liable for the value of said animal,
and for nothing more.
=ANCIENT LAW.=
=IX. Where an Ox, Belonging to Another, is Used for Labor, without the
Consent of its Owner.=
Where anyone, without the knowledge of its owner, attaches his ox to a
vehicle, for the purpose of hauling anything, or uses said ox for any
other purpose, he shall give another, of the same value, to the owner
thereof.
=ANCIENT LAW.=
=X. Where Animals, of any kind, Belonging to Another, are Overworked in
the Threshing of Grain.=
Whoever works a horse, or any other animal, belonging to another,
upon a threshing floor, shall pay a _solidus_ for each animal so
used. If said animal should die in consequence, he shall both pay the
_solidus_ aforesaid, and give another animal, of the same value,
to the owner.
=ANCIENT LAW.=
=XI. Where Cattle, which have done no Injury, are Shut Up.=
Whoever confines any cattle in an enclosure, when no damage has been
previously caused by them, if he is a slave, and has done this without
his master’s knowledge, he shall receive forty lashes; and if he is a
freeman, he shall be compelled to pay one _tremisa_, for every
two cattle, to the owner thereof. In case any of said cattle should
be mutilated or killed, compensation for the same shall be made, as
provided by a former law.
=ANCIENT LAW.=
=XII. Where an Animal Causes Injury to Anyone.=
Where any quadruped, while under the control of its owner, causes any
damage, the owner shall either surrender said animal to the party who
sustained the injury, or shall make such other amends as shall be
ordered by the judge.
=ANCIENT LAW.=
=XIII. Where an Animal is Injured, or Killed, by a Blow.=
Where anyone strikes a beast of burden belonging to another, so that,
by reason of the blow, said animal is either crippled or killed, he who
struck the blow shall be compelled to give to the owner of said animal
another of equal value, and shall be entitled to the animal that was
injured. If said person should not have a beast of burden wherewith to
make restitution, as aforesaid, he shall pay the appraised value of the
animal to the owner thereof. A similar rule shall apply to horses and
to all other animals.
=ANCIENT LAW.=
=XIV. Where Cattle Belonging to Another, with or without the Knowledge
of the Owner, are Mingled with the Herd or Flock of the Latter.=
If any cattle belonging to one person should be mingled with those of
another, and the owner of the latter should be aware of the fact; and
said cattle should leave, of their own accord, without his knowledge;
the owner of the strayed cattle shall take the oath of the other party,
that they were not removed through any guilty design, or fraud on
his part; and that he has not appropriated them for his own use, or
transferred them to anyone; and, under such circumstances, he shall
incur no liability. If, however, he should drive said cattle to his
house, and should not inform the judge, or give public notice of the
fact, within eight days, he shall pay double the value of said cattle,
by way of satisfaction.
=XV. Where Anything Intended to Frighten an Animal is Fastened to it,
and it should be either Injured, or Killed, in Consequence.=
Any person who should be known to have attached to a horse’s tail, the
head or bones of a dead animal, or anything else by which it might be
frightened, and, in consequence, the horse, while running, should be
injured, or killed; said person shall be compelled to immediately give
to the owner a sound animal, on account of his transgression of the
law. Where, however, the horse sustains no injury, the offender shall
receive fifty lashes, and, if he be a slave, he shall receive a hundred
lashes with the scourge.
=ANCIENT LAW.=
=XVI. Where a Vicious Animal, while on the Premises of its Owner, Kills
Anyone.=
Where any person has in his possession an ox, a bull, or any other
animal which is known to be vicious, said animal must at once be
killed, lest it injure someone. If, after the owner has been informed
by the neighbors of the vicious disposition of said animal, he should
still retain possession of it, and defer killing it through fear,
or for some other reason; and said animal should subsequently kill,
cripple, or wound anyone, said owner shall give the satisfaction
required by law in case of homicide; that is to say, the regular
compensation provided in the cases of men and women, children and
slaves, of both sexes. Thus, if said animal should kill a person of
eminent rank, five hundred _solidi_ shall be paid. In the case of
freedmen, half of the above sum, that is to say, two hundred and fifty
_solidi_, shall be given by way of satisfaction. If said animal
should kill a slave belonging to another, the master of said slave
shall receive, by way of reparation, from the owner of said animal,
two slaves of equal value to the one that was killed. For a freeman of
inferior rank twenty years of age, who has been killed, three hundred
_solidi_ shall be paid; and the same sum shall be required for the
deaths of all persons up to the age of fifty; for all persons killed,
who are from fifty to seventy-five years old, two hundred _solidi_
shall be paid. A hundred _solidi_ shall be sufficient for all who
are over seventy-five years of age. For those who are aged fifteen,
a hundred and fifty _solidi_ shall be exacted, and for those
of fourteen years, a hundred and forty _solidi_; for those of
thirteen, a hundred and thirty _solidi_; for those of twelve,
a hundred and twenty; for those of eleven, a hundred and ten; for
those of ten, a hundred; for those of nine, eight, or seven years,
ninety _solidi_ shall be paid. For children of six, five, or four
years, eighty _solidi_; for those of three or two years, seventy
_solidi_; and for those of one year, sixty _solidi_ shall
be required. If said animal should kill the daughter or wife of any
person, who is between the age of fifteen and forty years, two hundred
and fifty _solidi_ shall be paid; for those between the ages of
forty and sixty, two hundred _solidi_; and for all beyond that
age, a hundred _solidi_ shall be paid. For any female of fifteen
years or under, the owner of said animal shall be required to pay half
the amount of compensation, according to the age of the victim, as has
been provided in the case of boys.
=ANCIENT LAW.=
=XVII. Where Anyone Rids himself of a Vicious Animal, or Still Retains
it in his Possession.=
Whoever has in his possession a vicious ox, or any other dangerous
animal, must either kill or dispose of it, and notify his neighbors
that he has done so. If he should not kill or dispose of it as
aforesaid, but should keep it, he shall be liable for any damage caused
by said animal while under his control.
=ANCIENT LAW.=
=XVIII. Where Anyone Teases an Animal and is Injured by it, he Alone
shall be Responsible for the Injury.=
Whoever shall provoke a vicious ox, dog, or any other animal, to attack
him, shall alone be responsible for any damage resulting to himself
from the attack of said animal.
=ANCIENT LAW.=
=XIX. Where a Dog that has been Irritated, whether the Provocation was
Wanton or not, is Proved to have Injured, or Killed Anyone.=
Where a dog bites another person not his owner, and said person is
known to have been crippled or killed, in consequence thereof, no
responsibility shall attach to the owner of the dog, unless it shall
be proved that he caused said dog to make the attack. If, however, he
should encourage his dog to seize a thief, or any other criminal, and
the latter should be bitten while in flight, and should be crippled,
or die from the effects of the bite, the owner of said dog shall incur
no liability therefor. But if he should cause said dog to injure an
innocent person, he must render satisfaction according to law, in the
same manner as if he himself had inflicted the wound.
=ANCIENT LAW.=
=XX. Concerning a Vicious Dog.=
Where a vicious dog, belonging to anyone, kills sheep, or destroys
other animals, and is caught, the owner of said dog must, as soon as
he is notified, surrender it to him whose sheep were first injured, in
order that he may kill it. If, however, he should be unwilling to kill
the dog himself, or surrender him, as aforesaid, the owner of the dog
shall be liable to double the value of any animals thereafter destroyed
by him.
=FLAVIUS CHINTASVINTUS, KING.=
=XXI. Concerning Injuries to Clothing.=
Whoever, at any time, cuts the clothing of another, or tears it, or
so soils it that the spots cannot be removed without injury to the
garment, shall be responsible for said act, and shall give the owner
a new garment of equal value. Should he, however, not own such a
garment, he shall be compelled to give to the owner the value of a new
one, similar to that which he spoiled; and he shall be entitled to the
one that was damaged. If the guilty person should be a slave, and his
master should refuse to grant satisfaction for his act, he must at once
surrender said slave to be punished according to the degree of the
crime.
=ANCIENT LAW.=
=XXII. Where a Trespasser Falls into a Trap set for Wild Animals.=
Where a person sets traps for wild animals in his vineyard or field,
and anyone, while attempting to commit a theft, should be caught in
any of said traps, the party injured shall alone be to blame, for the
reason that he was trespassing on the premises of another.
=ANCIENT LAW.=
=XXIII. He who sets Snares or Traps for Wild Beasts, must Inform his
Neighbors of the Places where said Snares are Set.=
Where anyone, in order to catch wild beasts, digs pits in his fields or
vineyards, or sets snares, or fixes bows and ballistas in retired or
deserted places, remote from any highway, which are not often visited
by man, and where cattle have not easy access, and an animal belonging
to any person should be injured or killed by the contrivances placed
for wild beasts, as aforesaid, the negligent hunter, through whose
act the animal was killed, shall pay the value of the same to the
owner, because he did not use a proper degree of care. Said hunter
should previously give notice to all the neighbors; and if, after
such notification, anyone is injured by the traps aforesaid, he who
set them shall not be liable, because the party injured subjected
himself to danger, in disregard of the warning he had received. If,
however, anyone coming from a distance, and who had not been previously
notified, should ignorantly fall into any of said snares, and should
be injured or killed thereby, he who set said snares or traps for
wild beasts shall pay the third part of the compensation prescribed
by law, for persons injured or killed; for the reason that men, while
on a journey, should not, without their knowledge, be exposed to such
dangers.
=ANCIENT LAW.=
=XXIV. Concerning Injuries Resulting from the Obstruction of Highways.=
Where a public highway is obstructed, no one shall be legally liable
who breaks down a fence, or a wall, crossing or enclosing it. And he
who encloses or obstructs a public highway, shall be conducted by order
of the judge to the fence or wall traversing it, shall there receive
a hundred lashes, and be compelled to remove said obstruction, and
restore the highway to its former condition, even though there should
be a growing crop upon the same. If, however, the act should have been
committed by a person of great power and exalted rank, he shall be
required to pay twenty _solidi_. Other persons guilty of such an
offence shall each be compelled to pay ten _solidi_, and all sums,
obtained in this manner, shall go to the benefit of the public treasury.
=ANCIENT LAW.=
=XXV. Of the Space that is to be Preserved along Public Highways.=
No one shall rashly violate our laws by enclosing a highway leading to
any of our cities or provinces, but a full half _arepennis_ shall
be left on each side of the same; in order that sufficient space may
be available for all travellers.[43] Any person of rank who violates
this law, shall be fined fifteen _solidi_. Persons of inferior
station shall be fined eight _solidi_ for the benefit of the
public treasury. Whoever has a field of grain, a vineyard, or a meadow,
along a highway of this description, may enclose the same with a fence
or hedge; and, should he be too poor to do so, he shall have the right
to protect his field by a ditch.
=ANCIENT LAW.=
=XXVI. Where the Animals of Persons, Traversing Fields that are not
Enclosed, are Driven Away.=
Whoever drives to his house, and shuts up, any horses, cattle, or
other animals that are crossing open and vacant fields, which anyone
had a right to enclose by ditches, shall be compelled to pay one
_tremisa_ for every two head of cattle so taken up by him.
If, however, he should merely drive them out, so that they cannot
be pastured, the damaged party shall be entitled to receive one
_tremisa_ for every four head of cattle excluded from said fields.
If the act aforesaid should be committed by a slave, without the
knowledge of his master, he shall receive a hundred lashes by order of
the governor of the city, or of the judge; and his master shall incur
no legal liability by reason of his act.
=ANCIENT LAW.=
=XXVII. Animals Driven along the Highway Cannot be Excluded from Open
Pastures.=
All persons travelling through pasture lands which are not enclosed,
have the right to deposit their baggage, and to pasture their beasts of
burden, and their oxen therein. Such persons, however, shall not remain
longer in one locality than the space of two days, unless they obtain
the consent of the owner of the land to do so; nor shall they cut down
valuable trees or oaks, to the roots, without permission of the owner
of the same. They shall not be forbidden, however, to cut off such
branches as may be necessary to feed their animals.
=ANCIENT LAW.=
=XXVIII. He who has Land under Cultivation along the Bank of a River,
has a Right to Enclose the Same.=
Whoever cultivates land in a place traversed by a stream, where there
is a ford through which cattle can pass, must enclose his crops with a
fence. Should he fail to do this, and any damage should result through
his neglect, he shall not be entitled to damages from any person,
because it is not just that his own negligence should be the occasion
of loss to another.
=ANCIENT LAW.=
=XXIX. Concerning the Right to Enclose Streams.=
No one shall, for his own private benefit, and against the interests
of the community, obstruct any stream of importance; that is to say,
one in which salmon and other sea-fish enter, or into which nets may
be cast, or vessels may come for the purpose of commerce. He shall,
however, not be forbidden to build a fence as far as the middle of the
channel, where the water is deepest, provided he leaves half of the
body of the stream free for the use of others.
Should anyone violate this law, the obstruction may be removed either
by the governor of the city, or by a judge, without any further
proceeding. If the party concerned is a person of high rank, he shall
pay ten _solidi_ to those whose rights were invaded, and if he is
a person of inferior station, he shall pay them five _solidi_, and
receive fifty lashes.
Where one person owns land on one side of a river, and another on the
other side, they shall not be permitted to entirely obstruct the same,
through each claiming that he has right to obstruct his half; but they
shall not be prohibited from placing their fences as far as the middle
of said stream, provided one fence be placed some distance above the
other. If, however, there should be only one part of said stream where
fences can be built, this shall be done in such a manner that nets may
be cast there, and vessels may freely pass. If the governor of a city,
or any other person, whosoever, should destroy the fence of anyone,
contrary to this decree, he shall pay ten _solidi_ to the owner
of said fence. If the culprit should be a person of inferior rank, he
shall be compelled to pay five _solidi_ to the owner of the fence,
and shall receive fifty lashes by order of the judge of the district,
and if he should be a slave, he shall receive a hundred lashes.
=XXX. Concerning Those who Damage Mills and Ponds.=
If anyone should injure a mill by violence, he shall be compelled
to repair the damage within twenty days; and, in addition, shall
pay twenty _solidi_. If he should not make such repairs within
the time aforesaid, he shall be compelled to pay twenty additional
_solidi_, and shall receive a hundred lashes. The same law shall
apply to injuries to mill ponds, and to all other artificial bodies of
water. Where a slave commits this offence, he shall repair the damage,
and receive a hundred lashes.
=FLAVIUS RECESVINTUS, KING.=
=XXXI. Concerning Those who Steal Water from Streams Belonging to Others.=
There are many districts where little or no rain falls, and where
water is supplied by streams; and it has been found that wherever
such streams fail, no crops can be raised. Henceforth, wherever there
are any important streams, and anyone secretly, or maliciously takes
water from the channels of others, he shall pay a _solidus_ for
every four hours that said water runs. Where said streams are of
smaller size, he shall pay one _tremisa_ for every four hours, as
aforesaid. And for as many hours as the water is proved to have flowed
upon the lands of others, for an equal number of hours the supply of
water shall be restored to the owner. If a slave should commit such an
act of his own accord, where water is taken from large streams he shall
receive a hundred lashes, and where it is taken from small streams,
fifty lashes.
TITLE V. CONCERNING THE PASTURAGE OF HOGS,
AND CONCERNING STRAYS.
=I.= _Where Hogs are Pastured on Acorns, Either without
Authority, or under Contract._
=II.= _Where Hogs are Fed on Acorns on Land Belonging to
Several Persons._
=III.= _Where Hogs Turned on Land to be Fed on Acorns, under
Contract, are Taken away by Stealth, Before the Tenth
Part of Said Hogs are Delivered._
=IV.= _Where Hogs are Found Wandering in Woodland._
=V.= _Where a Drove of Animals, of any Kind, Enter upon the
Pasture-land of Another Person._
=VI.= _Public Notice shall be given of Strays by him who Finds
them._
=VII.= _Whoever Finds any Strays shall take Proper Care of the
Same._
=VIII.= _No Stray Animal shall be Either Sheared, Branded or
Appropriated by Anyone._
=I. Where Hogs are Pastured on Acorns, Either without Authority, or
under Contract.=
Whoever finds any hogs in his woodland, at the time acorns are ripe,
must take something by way of pledge from the swineherd; and give
notice to the master, or parents of the owner, that should they so
desire, he will permit said hogs to run in his woodland, until the
customary time to pay one tenth of said hogs, as compensation, has
elapsed; and when said tenth has been delivered, he shall restore the
pledge which he took from the swineherd. If, however, the owner should
be unwilling to allow said hogs to run in his woodland, and he should
find them there a second time, he shall have a right to kill one of
them as a protection to his property, even when they are but few in
number. Where there are many of said hogs, he shall have the right to
kill two of them, and he shall incur no liability for said act; and if
he should find said hogs there for the third time, he must notify the
owner thereof, that he can still leave his hogs upon his premises, if
he will agree to give the tenth of said hogs by way of compensation,
according to custom. If, however, the owner of the hogs should be
unwilling to make such a contract, and the owner of the woodland
should find them upon his premises for the third time, as aforesaid,
he shall be entitled to retain one tenth of their entire number. If
anyone, under such a contract, should leave his hogs in the woodland
of another, and said hogs should feed until winter upon the lands of
a third party, he who entered into the contract shall nevertheless
be required to surrender his tenth of the same. If, after winter has
set in, he who brought the hogs to the woodland, should be unwilling
to keep them there, he shall be compelled to give to the owner of the
woodland one twentieth of the number according to custom.
=II. Where Hogs are Fed on Acorns on Land Belonging to Several
Persons.=
Where a dispute arises between persons holding oak forests in common,
for the reason that one has more hogs there than the other, he who has
the smaller number shall have a right to have the land so divided that
each one may keep his hogs upon his own portion, in such a way that
an equal number may be placed upon the same sized tract of land; and,
afterwards, the tenths due for pasture shall be set apart in the same
proportion as the divisions of the land.
=ANCIENT LAW.=
=III. Where Hogs Turned on Land to be Fed on Acorns, under Contract,
are Taken away by Stealth, Before the Tenth Part of said Hogs are
Delivered.=
Where anyone puts his hogs under contract, in the woodland of another,
and secretly removes them, before the customary tenth has been paid, he
shall be considered a thief, and shall not only pay the tenth which is
due from him, but shall also be liable for the compensation provided
by law for the crime of theft. If the offender should be a slave, and
should have acted without the knowledge of his master, he shall receive
a hundred lashes; and his master shall be liable for no damages, but
must deliver the tenth which is due. If, however, the slave should
have done this under the orders of his master, the latter must give
pecuniary satisfaction, as in the case of theft.
=ANCIENT LAW.=
=IV. Where Hogs are Found Wandering in Woodland.=
Where anyone finds hogs straying in his woods, he must either notify
his neighbors, or shut up said hogs. If the owner of the hogs should
not make his appearance, he who took them up shall be entitled to keep
one, and shall notify the nearest judge that he has stray hogs in his
possession. Then, if the owner of the same should not be found, he may
keep them as his own, and exact the tenth part of their number, in
compensation for pasturage, as is customary; and when the master does
come, he shall be entitled to a reasonable compensation for keeping
said hogs, which compensation shall be fixed by the judge, and shall
depend upon the time they were under the care of the person who took
them up.
=V. Where a Drove of Animals, of any Kind, Enter upon the Pasture-land
of Another Person.=
Where a flock of sheep, or a drove of cattle enter upon the
pasture-lands of another, the same rule shall be observed as has been
determined in the case of hogs. But travellers or strangers shall incur
no responsibility, for the reason that it is well determined that they
have the right to use pastures which are not enclosed. He who encloses
his own part of a pasture, and uses that of another, in the absence of
the master thereof, must not do so without the consent of the owner of
the same.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=VI. Public Notice shall be given of Strays by him who Finds them.=
It shall be lawful to take up horses, or any other animals, that have
strayed; but he who does so, must immediately give notice of the fact
to the bishop, the governor, the judge, the other authorities of the
district, or to a public assembly of the neighbors. If said party
should not give such notice, he shall incur the penalty of theft. A
similar rule shall apply to other property taken up under the same
circumstances.
=ANCIENT LAW.=
=VII. Whoever Finds any Strays shall take Proper Care of the Same.=
Whoever finds animals wandering without a keeper, must take them up,
so that they will not sustain any injury; and, while they are in his
charge, must care for them, as though they were his own. Where the
owner of a horse, or any other animal, finds him safe and sound, he
shall pay for each of said animals, four _siliquæ_, to him who has
cared for it, and, in addition, as much as the latter has expended for
the sustenance of the same. If, however, the person who took up said
animal should injure it, he shall be compelled to give two others, of
the same kind, to the owner thereof.
=VIII. No Stray Animal shall be Either Sheared, Branded or Appropriated
by Anyone.=
No one shall clip or sell a stray horse which he has taken up, nor
shall he place any mark or brand upon any oxen, or cattle, of any
description whatever. If anyone should sell, or give away, a stray
animal, he shall be held as a thief under the law. Whoever shears a
stray animal, shall be compelled to pay three _solidi_, and he
shall be liable to the same penalty, who places a mark, or brand of any
kind, upon such an animal.[44]
TITLE VI. CONCERNING BEES, AND THE DAMAGE THEY CAUSE.
=I.= _Where a Person Finds Bees on his Property._
=II.= _Where Bees Cause any Damage._
=III.= _Concerning the Theft of Bees._
=I. Where a Person Finds Bees on his Property.=
Where anyone finds bees on his premises, whether in his grove, or in
the rocks, or in the trees, or in any place whatsoever, he must make
three marks, or characters, in testimony of possession, for the reason
that where only one mark is made, it often gives occasion for fraud.
If another person should make a mark of his own in the same place, or
should erase any which have already been made, he shall pay double the
value of the bees to him whom he defrauded, and shall also receive
twenty lashes.
=II. Where Bees Cause any Damage.=
Should anyone build an apiary in a town or village, and any damage
should result to others thereby, he must straightway be notified to
move it elsewhere, that the bees may not inflict further injury upon
men or animals in that locality; and if, after such notice, the owner
should neglect to move said apiary, and any quadruped should be injured
by the bees, the owner of the latter shall give two animals for every
one that is killed, and one for each that is crippled, to the owner
thereof; and shall be entitled to keep said injured animals; and shall
be compelled to pay five _solidi_ for neglecting to heed the
warning of the judge.
=FLAVIUS RECESVINTUS, KING.=
=III. Concerning the Theft of Bees.=
Any freeman who enters an apiary for the purpose of theft, and is
caught there, even though he should take nothing, for the mere
fact that he has been arrested in such a place, shall pay three
_solidi_, and receive fifty lashes. If, however, he should have
taken anything, he shall be compelled to pay ninefold its value, and
shall receive the number of lashes aforesaid. If a slave should enter
an apiary, without stealing anything, he shall receive a hundred
lashes; and if he should steal anything, he shall be compelled to
restore sixfold the value of the same; and if his master is unwilling
to render satisfaction for his act, he must deliver said slave to him
who suffered the loss.
BOOK IX.
CONCERNING FUGITIVES AND REFUGEES.
TITLE I. CONCERNING FUGITIVES, AND THOSE WHO CONCEAL,
AND ASSIST THEM IN THEIR FLIGHT.
=I.= _Where a Freeman or a Slave is Found to have Concealed a
Fugitive._
=II.= _Where a Fugitive is Released from his Chains by any
Person._
=III.= _Within what Time a Fugitive Slave that has been Found,
shall be Produced Before the Judge._
=IV.= _Where Anyone, Ignorantly, Receives a Fugitive Slave,
and Cares for Him._
=V.= _Where Anyone Persuades the Slave of Another to Flee, or
Shows him Hospitality._
=VI.= _Where a Man, Unknown to be a Slave, is Received by
Another, and Remains with him Several Days._
=VII.= _Where a Slave, Knowingly, Directs a Fugitive Slave in
his Flight._
=VIII.= _Concerning the Reception of Fugitive Slaves; and
Whether a Master or a Slave may Receive a Fugitive Slave
Belonging to Another._
=IX.= _Where a Fugitive Slave Comes to the House of any
Person, Notice of the Fact must be Given to the
Neighbors and Authorities of the District._
=X.= _Where a Slave that has been Sold into a Foreign Country,
Returns as a Fugitive, and is Sold a Second Time, he
shall be Entitled to his Freedom._
=XI.= _Where a Fugitive Slave Takes Refuge with Another Person,
an Investigation must be Made, to Ascertain whether he
was not Sent by his Master, in Order that the Latter
might Receive Compensation from the Person who Received
said Slave._
=XII.= _Where a Slave, Falsely Declaring that he is Free,
Serves Another for Hire._
=XIII.= _Where a Fugitive Slave is Found in the House of any
Person._
=XIV.= _Concerning the Reward for Arresting a Fugitive Slave._
=XV.= _Where a Fugitive Slave Falsely Declares that he is
Freeborn._
=XVI.= _Where a Fugitive Slave, Declaring that he is Freeborn,
Marries a Freeborn Woman._
=XVII.= _Concerning Property Acquired by Fugitive Slaves._
=XVIII.= _Concerning Those who Refuse to Restore Fugitive
Slaves to their Masters._
=XIX.= _Where a Freeman, or a Slave, Undertakes the Concealment
of Robbers._
=XX.= _A Judge must Surrender a Fugitive Slave, with all the
Property Found in his Possession, to his Master._
=XXI.= _Concerning Fugitive Slaves, and those who Shelter Them._
=I. Where a Freeman or a Slave is Found to have Concealed a Fugitive.=
Where a freeman conceals a fugitive slave, he shall be compelled to
give up said slave to his master, along with another slave of equal
value. If a slave, without his master’s knowledge, should conceal
another slave who is a fugitive, both shall receive a hundred lashes;
and the master shall be in no respect responsible for damages.
=II. Where a Fugitive is Released from his Chains, by any Person.=
If anyone should set free the slave of another, while the latter is
fettered with irons, or bound in any way, he shall give to the master
of the slave ten _solidi_, on account of his interference. In case
he should not have the property wherewith to pay said amount, he shall
receive a hundred lashes by order of the judge, and shall, at once,
restore the slave to his master. Where said slave cannot be found,
he shall be compelled to give another of equal value to the master;
or, if he should not have the means to render satisfaction, he shall
himself be delivered up as a slave to him whose own slave he released.
Where a slave committed this offence without the knowledge of his
master, he shall receive a hundred lashes in the presence of the judge;
and if the slave who was set free cannot be found, he who liberated him
shall be delivered up to the master of the one who was released. But
whenever the fugitive slave shall be found, he shall be restored to his
master, and the one who was surrendered in his place shall be returned
to his master. If, however, one slave should release another with the
knowledge of his master, said master must make such compensation as has
been hereinbefore provided in the case of freeborn persons.
=III. Within what Time a Fugitive Slave that has been Found, shall be
Produced Before the Judge.=
Where a fugitive slave takes refuge with any person, the latter must
straightway bring him before a judge. Should he not produce him as
aforesaid, and the slave should remain with him until the eighth night,
and then go elsewhere, the person who sheltered him shall be compelled
to give two slaves of equal value to his master. If, however, he should
be found to have concealed the slave who took refuge with him, he
must restore him and give another slave to the master, without delay;
because he neglected to give notice to the latter within the legally
appointed time.
=IV. Where Anyone, Ignorantly, Receives a Fugitive Slave, and Cares for
Him.=
Where any person ignorantly receives a fugitive slave, and treats him
with hospitality, and he should not remain in his house longer than one
day or one night, he shall make oath before the master who is searching
for said fugitive, that he did not know that he was a fugitive slave;
and, if he can prove, without doubt, that he did not conceal him, he
shall incur no liability whatever. If, however, said slave should
remain in his house for the space of two, three, or four days, for any
reason whatever, the said person must show where he was, or by whom he
was sheltered, afterwards; and he must either find the fugitive within
six months, or prove with whom the slave took refuge after he left
his house. If he should not be able to find said slave, he must purge
himself by oath of all complicity in his flight, as well as of all
knowledge with whom the slave took refuge subsequently; and he shall
either restore the fugitive, or give another slave of the same value to
his master. If the fugitive should be afterwards found, the slave given
in his place shall be returned to his former master, and the latter
shall incur no liability whatever.
=V. Where Anyone Persuades the Slave of Another to Flee, or Shows him
Hospitality.=
If anyone, knowing him to be a fugitive, should persuade the slave of
another to escape, or anyone should entertain or disguise said slave,
and the latter is found, the party aforesaid shall be compelled to give
two others of equal value to his master. Should said fugitive not be
found, said party must give three slaves of equal value to his master.
The same rule shall also apply to the case of female fugitives.
=VI. Where a Man, Unknown to be a Slave, is Received by Another, and
Remains with him Several Days.=
If a stranger, who is a fugitive, should remain, for the space of five
or seven days, upon the premises of any person, he who received or
entertained him, must give notice of the fact, before the eighth day,
to the judge, or governor of the nearest town or province, as has been
provided by the law recently promulgated, concerning fugitive slaves;
in order that said fugitive may be examined by the authorities, and it
be ascertained who he is, and why he has come to that locality. In this
way, every provision of the law relating to the treatment of fugitive
slaves which we have recently published, shall be complied with in
every respect. The greatest diligence must be employed throughout
all the provinces of our kingdom, to the end that the appearance of
a fugitive, as aforesaid, may become publicly known upon the day of
his arrival, or the day afterwards. Where, however, the person who
entertains a fugitive slave does not give notice within eight days,
and permits him to remain in his house, he shall restore the fugitive
to his master, and give the latter another slave, as a penalty for not
having given the notice required by law. If, however, the fugitive
should escape, he who entertained him must find him; and, if he cannot
do so, he shall be compelled to give two slaves of the same value to
his master.
=VII. Where a Slave, Knowingly, Directs a Fugitive Slave in his Flight.=
Where one slave knowingly assists another in his flight, he shall
receive a hundred lashes, whether the fugitive is found, or not; and
the master of the delinquent shall be in no way responsible for his act.
=VIII. Concerning the Reception of Fugitive Slaves; and Whether a Master
or a Slave may Receive a Fugitive Slave Belonging to Another.=
If a fugitive slave should take refuge at the house of any person, and,
being unknown to said person, should receive assistance from him, and
then straightway continue his journey, no liability of any kind shall
attach to him who entertained, as it were, a passing traveller, after
said person has sworn that he whom he assisted was unknown to him. But
where a fugitive remains, for two or three days, in the house of said
person, the latter must cause him to be produced, as was provided by
a former law, before the eighth day, before the authorities of the
district; that is to say, before the judge, deputy, or governor, along
with a competent witness. A thorough investigation shall then be made
by the judge, or other magistrate, to ascertain whether said fugitive
is a slave; and, should he be such, when he escaped from his master, as
well as when and where he took refuge with the party who produced him.
Said examination shall be committed to writing and signed by the judge,
or other official, who conducted the investigation.
If the fugitive should declare that he is a slave, he shall be
delivered up to the party who produced him, and the latter, within
eight days, must return him to his master. Where the latter lives at
a distance from the place the slave was taken, the number of days
during which the fugitive remained under the control of him who
received him, shall be computed, and twenty miles shall be set down
for each day; and when said person shall restore the fugitive to his
master, either in his own person, or by an agent, he shall be entitled
to receive the compensation allowed by law in such cases; that is
to say, one _tremisa_ for every thirty miles traversed by said
fugitive slave. If, however, on account of the great distance, it
should be a hardship for the party who received the slave to restore
him to his master, he must deliver him, in the presence of witnesses,
either to the steward in control of any property of the master in the
neighborhood, or to a magistrate of the district; and, having received
from him the compensation hereinbefore specified, he shall be free
from all liability whatever. If, however, the fugitive, when brought
before the judge, and interrogated by him, should refuse to disclose
whose slave he is, he who produced him must leave him in the custody of
the judge. The judge shall keep said fugitive in strict confinement,
and shall bring him before the king, in council, within the time, and
according to the manner, hereinbefore prescribed, in order that further
inquiry may be had, in a place where general publicity may secure the
identification of the fugitive. The preceding law having thus been
established, whoever, hereafter, does not obey the same, and produce
a fugitive before the judge, whether he is known to be a slave, or
not, and where he is a slave, does not restore him to his master,
shall be compelled to restore him, and give another slave, by way of
satisfaction. If the fugitive should die, the master shall be entitled
to receive two slaves, of equal value, from him who sheltered him. The
judge shall also be liable to a similar penalty, should he neglect
to execute the law as hereinbefore provided. If a slave, without the
consent of his master, should shelter another who is a fugitive, he
shall receive a hundred lashes in the presence of the judge; and the
fugitive shall be returned to his master, upon the demand of the
latter. If, however, the fugitive, who was sheltered by a slave, should
not be found, the master of him who sheltered the fugitive shall be
compelled to give in his stead another slave, of the same value, to
the owner of the same. If the master should be unwilling to render
satisfaction for the act of his slave, he must deliver up the offender
by way of amends.
=IX. Where a Fugitive Slave Comes to the House of any Person, Notice of
the Fact must be Given to the Neighbors and Authorities of the
District.=
Where a fugitive slave takes refuge in the house of any person, the
latter must give notice to the authorities of the district; and should
he desire to keep said fugitive in custody, in his house, it shall be
lawful for him to do so. When the master of said slave comes after him,
he shall be restored to him, and he who sheltered said slave shall
incur no liability. But if, in the meantime, the said fugitive slave
should betake himself elsewhere, he who gave notice to the authorities
shall make oath, in their presence, that he did not persuade said
fugitive to escape, or assist him in his flight, and that he is
ignorant of his present whereabouts; and, after having done this, he
shall be in no way responsible.
=X. Where a Slave that has been sold into a Foreign Country, Returns
as a Fugitive, and is Sold a Second Time, he shall be Entitled to his
Freedom.=
Where a master sells his slave, and he is taken into a foreign country,
and afterwards returns, and his master sells him a second time, the
master shall be forced by the judge to redeem said slave from the
purchaser; and the latter shall then be liberated, and subjected to no
further annoyance. He who, actuated by avarice, thus placed a slave,
returning from a foreign country, in bondage a second time, shall be
compelled to give to the purchaser another slave of the same value, in
addition to the price which was paid. The former master of the returned
slave shall not sell him, or have any right to his services; but said
slave shall be forever entitled to the full enjoyment of his freedom.
=ANCIENT LAW.=
=XI. Where a Fugitive Slave Takes Refuge with Another Person, an
Investigation must be Made, to Ascertain whether he was not Sent by his
Master, in Order that the Latter might Receive Compensation from the
Person who Received said Slave.=
A fugitive slave shall be compelled to disclose the name of his master,
and shall be thoroughly examined by the judge, in order to ascertain
whether his master did not cause him to take refuge with another person
for the sake of illegal gain. And if it should be established that his
master was guilty of fraud, whereby he desired to implicate another in
the crime of having knowingly concealed his slave, he shall be liable
for such damages as are imposed upon those who wilfully conceal slaves.
For it is but just that he who is guilty of such malignant treachery
should pay the penalty which he attempted to impose upon another.
=ANCIENT LAW.=
=XII. Where a Slave, Falsely Declaring that he is Free, Serves Another
for Hire.=
Where a fugitive slave asserts that he is freeborn, and remains with
anyone, for hire, in a place where he is unknown, he shall be produced
and examined before the judge, as has been provided by a former law.
And if the investigation should disclose that he is merely a laborer,
and not a fugitive slave; and if, afterwards, this should be found to
be false, and his master should appear; he who ignorantly employed
him, not knowing that he was a fugitive, shall in no wise be held
responsible. The master, however, shall receive the compensation due to
the slave, according to the contract made by the latter. If the slave
should escape from his master a second time, and should take refuge
with him who formerly employed him, he must at once deliver him up
to the judge, or restore him to his master; and if he should not do
so, he shall be liable to the penalty imposed upon those who shelter
fugitive slaves.
=XIII. Where a Fugitive Slave is Found in the House of any Person.=
Where a fugitive is found in the house of a person of rank, or of
anyone else, whether he declares that he is free or not, he shall,
without delay, be delivered up to whoever claims him. He in whose house
said slave was found shall require security that he shall be brought
into court, and that he shall not be tortured, in any way, before his
case is decided, until he himself establishes the fact of his freedom,
or he who claims him proves that he is a fugitive slave. Where the
claimant is unwilling to do this, the fugitive shall remain in charge
of him who found him, until it is ascertained what disposition the
judge shall make of him.
=FLAVIUS RECESVINTUS, KING.=
=XIV. Concerning the Reward for Arresting a Fugitive Slave.=
Whoever arrests a fugitive slave, shall be entitled to one
_tremisa_ for every thirty miles, or less, which said slave has
traversed in his flight, and a _solidus_ for every hundred miles,
as a reward for the capture; and the number of _solidi_ paid shall
increase with the number of miles traversed. He who finds a fugitive
slave, must deliver him, at once, with all the property which is in
his possession, to his master. If, however, a fugitive slave should
escape from his captor, the latter must swear before the master that
the fugitive did not gain his liberty through any design or fraud on
his part, and he shall then incur no liability therefor. But if, after
having made oath as aforesaid, he should be proved to have accepted
anything from said fugitive, or to have committed any fraud, whereby
the latter might take refuge elsewhere, and said fugitive should be
afterwards found, said party shall be required to give another slave,
of the same value, to his master; but if the fugitive should not be
found, he shall be compelled to give him two slaves in his stead.
=XV. Where a Fugitive Slave Falsely Declares that he is Freeborn.=
Where a fugitive slave comes among persons to whom he is unknown, and
asserting that he is freeborn, afterwards marries a freeborn woman, and
said woman, or her parents, or relatives, should be convinced of the
fact that he is a slave, and the judge should have investigated the
matter, in behalf of the woman, and the master of said slave should add
his testimony; no reproach shall attach to said woman, nor shall she
be liable for any damages, but she shall continue to be free, and any
children she may have had by said slave, shall follow the condition of
their mother. She shall not be separated from said slave should she
desire to remain with him, provided his master gives his consent.
=FLAVIUS CHINTASVINTUS, KING.=
=XVI. Where a Fugitive Slave, Declaring that he is Freeborn, Marries a
Freeborn Woman.=
For the reason that fugitive slaves falsely declaring themselves to
be freemen, frequently contract marriages with freeborn women, we now
decree by the following law, that where a slave, having escaped from
his master, by any means whatever, takes refuge with anyone, whether
he declares that he is free or not, and, under such circumstances,
marries a freeborn woman, the issue of said fraudulent union shall
invariably follow the condition of the father; and when the master of
the slave appears, he shall have a right to claim as his own, not only
said fugitive, but also his children, and such property as they may be
possessed of. A similar rule shall apply to female slaves who, escaping
from their masters, presume to contract marriages with freeborn
men.[45]
=FLAVIUS CHINTASVINTUS, KING.=
=XVII. Concerning Property Acquired by Fugitive Slaves.=
If a fugitive slave should acquire any property through his labor and
skill, when his master appears, the latter shall have the right to the
whole of it. But where his master finds him in possession of property
stolen from another, he can advance no claim to it, but must restore
said property to him who lost it. If, however, said fugitive slave
should have caused any damage, or committed any crime, he who concealed
him must render satisfaction for the same.
=FLAVIUS CHINTASVINTUS, KING.=
=XVIII. Concerning Those who Refuse to Restore Fugitive Slaves to their
Masters.=
For the reason that many persons are prone to controversy, and
frequently pervert the meaning of the laws; and because it was declared
by an ancient law that whenever a master comes upon his slave he may
take him; and for the reason that said persons frequently refuse to
surrender a fugitive slave, and, under such circumstances, cause delay,
that they may have the benefit of the services of said slave for a
time; and also, as said delay is entirely useless, and it is unjust
that a master, for the sake of a vile slave, should be compelled to
remain, for an indefinite period, two or three hundred miles from
home; and because such proceedings are rather the result of artifice
than of truth; we hereby decree that henceforth, whenever anyone
refuses to surrender a fugitive slave to his master, or to the agent
of the latter, or rescues him after he has been arrested, he shall be
compelled to restore said fugitive to his master, along with four other
slaves of equal value; or, if said fugitive should die, he shall be
compelled to give his master five slaves of equal value; and if the
fugitive should afterwards be found by said person, or by his former
master, he shall belong to the latter, and one of those who was given
in his stead shall be returned to the donor of the same. And if a
slave, without the knowledge of his master, should commit any of the
offences hereinbefore described, and his master is willing, he must
give two slaves, of equal value, by way of compensation, to the owner
of the fugitive; but should he be unwilling to do so, the slave shall
be delivered to the owner of the fugitive to be his property forever.
The same rule shall apply in the case of female slaves.
=ANCIENT LAW.=
=XIX. Where a Freeman, or a Slave, Undertakes the Concealment of
Robbers.=
Any freeman or slave who knowingly conceals robbers, shall be compelled
to produce them, and shall receive two hundred lashes with the scourge;
and should he not produce them, he shall be liable for the penalty for
their crime.
=XX. A Judge must Surrender a Fugitive Slave, with all the Property
Found in his Possession, to his Master.=
Whatever property a judge finds in the possession of a criminal or a
fugitive slave, in the absence of him who has a right to claim said
criminal or slave, must be delivered to the governor of the city, and
kept by him, to be restored to the owner when he arrives.
=EGICA, KING.=
=XXI. Concerning Fugitive Slaves, and those who Shelter Them.=
It has been plainly set forth in former laws, by what means and
investigations the secret escape of fugitive slaves may be repressed.
But as, under various legal pretexts of judges, or through the fraud of
those who shelter them, their flight is concealed, and the enforcement
of the laws becomes difficult, and with the increasing number of
fugitives, the facilities for their concealment become greater, to such
an extent has this evil grown that there is scarcely a town, castle,
village, or hamlet, where a number of fugitive slaves are not known to
be in hiding.
Leaving the provisions of a former law relating to fugitive slaves in
full force, we now decree that hereafter, whoever shelters a fugitive
slave belonging to another, shall immediately subject him to a judicial
examination, even though he should assert that he is freeborn, in order
that it may be ascertained whether he is a freeman or a slave, and
should he prove to be a slave, that he may be returned to his master.
If, however, said person should not produce said fugitive in court, or
restore him to his master, whether he proves to be either a slave or a
freeman, said person shall receive a hundred and fifty lashes by order
of the judge. In case he should be freeborn, he shall receive a hundred
and fifty lashes, and shall pay in addition a pound of gold to the
master of the fugitive slave, and should he not have the means to pay
said sum, he shall receive two hundred lashes. All other residents of
that neighborhood, whether they be natives, or foreigners, freemen or
slaves, whether they belong to the clergy or are in the service of the
Crown, shall be liable to similar penalties, if they do not give notice
of said fugitive, or drive him from the possession of him who concealed
him, when they are aware of the presence of said slave.
And we also provide that the following shall be strictly observed, to
wit: that whenever any fugitive slaves come into any locality, all
the inhabitants shall assemble, and shall make a thorough examination
of said fugitive slaves, either by the application of torture, or
by any other severe method; in order to ascertain whose slaves they
are, when they escaped from their masters, and when they arrived in
that vicinity; and to this end they must use every means possible, in
order that said slaves may be delivered up, or sent to their masters,
as provided by a former law. If, however, said persons should not
comply with this provision, and should neither make inquiry concerning
said fugitive slaves, nor endeavor to restore them to their masters,
nor subject them to judicial examination, as aforesaid, but said
slaves should subsequently be found in the place where they had first
taken refuge, all the inhabitants of that neighborhood, both men and
women, of whatever race, family, rank, or dignity to which they may
belong, shall each receive two hundred lashes in public, by order of
the judges. And if the _tiuphadi_ or deputies, or all invested
with judicial power, or officials of the treasury, or attorneys, or
priests, or any employees of the royal service, should, in any way,
connive at the concealment of said fugitive slaves, or should neglect
to execute the sentence of this law upon all persons subject to their
jurisdiction, they shall be arrested by the bishop, or the governor
of the province, and shall publicly receive two hundred lashes. If
any bishop having jurisdiction of such a cause either influenced by
friendship, or corrupted by a bribe, or through lukewarmness, should
not carry out the sentence of the law upon those who are guilty, he
shall bind himself before God, and in the presence of the governor, or
his deputy, that, by way of penance, for thirty days he will not touch
wine or food, excepting each day at vespers, and then only a morsel of
barley bread and a cup of water, for the sustenance of his body; and
this bitter penalty he must endure for the reason that he refused to
carry out the provisions of the law. We hereby admonish all judges and
governors to execute the sentence aforesaid; and, should they neglect
to perform their executive and judicial duties, they shall each forfeit
three pounds of gold to the royal treasury.
Any person who, within the limits of Spain, desires to purchase any
slave from a party unknown to him, must not conclude said purchase
until inquiries have been made to determine whether said stranger is
selling a slave of his own, or one belonging to some other person.
Said inquiries shall take place in the presence of the judge, or of
persons of respectability who are present where said slave is offered
for sale; and the vendor of the slave shall make his statements under
oath. The slave who is offered for sale shall himself be subjected to
a severe examination; and, should it be ascertained that he is not the
property of the person who offered him for sale, but that he belongs to
another, then the judge shall order him to be restored to his master.
The judge shall retain in custody the party who attempted to sell the
slave of another, as well as the slave in question, until the arrival
of the master, when the judicial examination shall be completed, and
the satisfaction required by law shall be made. Given and confirmed at
Cordova, in the sixteenth year of our happy reign.[46]
TITLE II. CONCERNING THOSE WHO REFUSE TO GO TO WAR,
AND DESERTERS.
=I.= _Where an Officer of the Army, Corrupted by a Bribe,
Permits a Soldier to Depart, or does not Compel him to
Leave his Home._
=II.= _Where Conscription Officers Appropriate the Property of
Those they Call to Arms._
=III.= _Where an Officer of the Army Abandons the War, and
Returns Home, or Permits Others to do so._
=IV.= _Where an Officer of the Army, Deserting the Service,
Returns Home, or Compels Others to do so._
=V.= _Where a Conscription Officer Receives a Bribe to Permit
Soldiers who are not Ill, to Remain at Home._
=VI.= _Concerning those who Appropriate Army Rations, or are
Guilty of Fraud in the Distribution of the Same._
=VII.= _What Reward he who Rescues Slaves, or Property, from
the Possession of the Enemy, shall be Entitled to._
=VIII.= _What Conduct shall be Pursued when Public Scandal
Arises within the Bounds of Spain._
=IX.= _Concerning Those who Fail to Enlist at the Appointed
Time or Place, or Desert; and What Proportion of the
Slaves Belonging to any Person shall Join the Army._
=I. Where an Officer of the Army, Corrupted by a Bribe, Permits a
Soldier to Depart, or does not Compel him to Leave his Home.=
Where the commander of a force of a thousand men, corrupted by a
bribe, permits a soldier to return to his home, he shall pay ninefold
the amount which he received, to the governor of the city in whose
territory he was at the time. If, however, without receiving any bribe,
he should permit a soldier, who is well, to depart as aforesaid, or
should not compel him to leave his home and join the army, he shall pay
thirty _solidi_; a commander of five hundred men shall pay fifteen
_solidi_; a centurion, ten _solidi_; and a decurion, five
_solidi_; and the said sums shall be divided among the soldiers,
by hundreds, where said sums were paid.[47]
=II. Where Conscription Officers Appropriate the Property of those they
call to Arms.=
If the conscription officers of the army, when they summon the Goths to
arms, should take anything from any person, or should presume to seize,
against his will, any of his property, in his presence, or while he
is absent, and this fact should be established in court, the offender
shall be forced to restore said property elevenfold, and shall receive
a hundred lashes in the presence of his assembled command.
=ANCIENT LAW.=
=III. Where an Officer of the Army Abandons the War, and Returns Home,
or Permits Others to do so.=
Where a centurion deserts, in the face of the enemy, and returns home,
he shall be beheaded. If, however, he should seek sanctuary at the
altar, or with the bishop, he shall pay three hundred _solidi_
to the governor of the city, and shall not be liable to the penalty
of death. The governor of the city shall then notify the king of the
occurrence, and the above mentioned _solidi_ shall be divided
among the soldiers under the command of said centurion. The latter
shall not thereafter be entitled to the command of a hundred men, under
any circumstances; but he may be appointed to the command of ten. Where
a centurion, without the consent of the general, or of any of his
superior officers, and induced by a bribe, or persuaded by the entreaty
of any of his soldiers, permits said soldiers to return home, or
releases them from service in the army, he shall be compelled to pay to
the governor of the city where he was at the time, ninefold the amount
he corruptly received; and, as has been hereinbefore stated, said
governor shall, at once, give notice to the king; in order that the
fine paid to said officer may, under our direction, be divided among
the soldiers of his command. But if a centurion, without receiving any
bribe, should permit a soldier to return home, he shall pay to the
governor of the city ten _solidi_, as above mentioned.
=ANCIENT LAW.=
=IV. Where an Officer of the Army, Deserting the Service, Returns Home,
or Compels Others to do so.=
If a decurion should leave his command and return to his home, or
should refuse to leave his home and join the army, while he is in good
health, he shall pay ten _solidi_ to the governor of the city.
And if he should permit anyone else to leave the army, he shall pay
five _solidi_ to the governor of the city; and said governor
shall inform us of the fact, that, under our direction, said sum
may be divided among the members of the command of said decurion.
If a soldier, without the permission of any of his officers, should
desert the army, and return home, or should refuse to leave his home
in order to be enrolled in the forces of the king, he shall pay ten
_solidi_, and shall be publicly scourged in the market-place.
=ANCIENT LAW.=
=V. Where a Conscription Officer Receives a Bribe to Permit Soldiers
who are not Ill, to Remain at Home.=
Where any conscription officer accepts anything from any person, to
release him from military service, he shall be compelled to pay to
the governor of the city, ninefold the amount which he accepted; and
where he neglects to enroll a person in the army, who was in good
health at the time, even though he accepted no bribe from him, he shall
be compelled to pay five _solidi_ to the governor of the city.
The commander of a thousand men shall make diligent inquiry by his
centurions, and the centurions by their decurions, and if it should be
ascertained that anyone was released from the service, either through
bribery, or entreaty, or, remaining at home, refused to join the army,
the _tiuphadus_ shall then notify the lieutenant-general who, in
his turn, must write to the governor in whose jurisdiction the offence
was committed, in order that the latter may enforce the law provided
in such cases; and said governor, as soon as they are collected, shall
deliver all sums received as penalties to the officers entitled to
receive the same. And if said governor should receive said penalties
and appropriate them, or not surrender the same, he shall restore
ninefold the amount which he received; and if, through the bribery or
entreaty of anyone, he should delay to pay over any of said sums, he
shall be compelled, out of his own property, to pay double the amount,
to those among whom they should have been divided. If, after the
collection of said penalties, he should not notify the king, in order
that the latter may provide for their proper distribution, and should
not surrender them, he shall be compelled to pay elevenfold the amount,
by way of reparation.
=ANCIENT LAW.=
=VI. Concerning those who Appropriate Army Rations, or are Guilty of
Fraud in the Distribution of the Same.=
We deem it advisable that, in every province and castle, some one shall
be appointed as a collector of provisions, for the use of the army;
and said collector, whether he be the governor of a city, or not,
shall at once deliver all provisions collected by him in his district,
to those who are entitled to receive the same. If it should happen,
however, that the governor of the city, or the collector, should delay
to deliver them, either because through his negligence, he has not
taken possession of them, or because of his unwillingness to do so,
the officers of the army may lodge a complaint against him on account
of his refusal to deliver said provisions to those charged with their
distribution. The general of the army shall then give notice to the
king, and the days which have elapsed since said provisions should
have been delivered shall be computed. Said governor of the city, or
collector of provisions, shall then be compelled to pay from his own
property, four times the value of said provisions, for each day lost by
his neglect. We hereby decree that a similar rule shall apply to all
officers of the army who are charged with such duties.
=ANCIENT LAW.=
=VII. What Reward he who Rescues Slaves, or Property, from the
Possession of the Enemy, shall be Entitled to.=
Where any person makes a desperate attack upon the enemy, in order to
rescue slaves, or money, or any other kind of property, and the owner
of said property subsequently appears, and establishes his ownership of
the same, two thirds of said property shall be restored to the owner,
and he who recovered it shall be entitled to the other third for his
services. In like manner, if any person should induce a slave to desert
from the enemy, and should assist said slave, or offer him protection,
and should afterwards restore him to his master, said person shall be
entitled to receive a tenth part of the value of the slave, as a reward.
=THE GLORIOUS FLAVIUS WAMBA, KING.=
=VIII. What Conduct shall be Pursued, when Public Scandal Arises within
the Bounds of Spain.=
Our solicitude for our subjects induces us, as we have already made
laws to suppress litigation, to promulgate other regulations for
the maintenance of protection and safety in the presence of war.
For peace is the more easily preserved, and the common benefit more
readily secured, where every one is compelled to perform his duty;
and this may be best accomplished when omissions in former laws are
remedied by the enactment of others hereafter. For this reason we
desire to abolish such evil customs as are injurious to the interests
of our country, through the neglect or ill conduct of our subjects.
For, whenever an enemy invades the provinces of our kingdom, the
urgent necessity of defence imposes itself upon those who inhabit
the border, and, at such times, many of them, induced by hatred,
or through treachery, disappear; so that, by this means, there is
no mutual support in battle; and, under such circumstances, he who
ought to give his service in the defence of his country, deserts his
brethren; or, on the other hand, should he attack the enemy with too
great audacity, while not properly supported, he runs imminent risk of
being destroyed. We therefore decree that from this time henceforth, if
any enemy should attack our country, all of our subjects, whether they
be bishops or other members of the clergy, generals, or governors, as
well as other officials of every rank who are in the public service,
and whether, at the time, they are near the frontier invaded by the
enemy, or within a hundred miles of the same, as soon as the necessity
shall arise, and they shall be notified by their generals, governors,
or any other officers; or whether information of said invasion shall
come to their notice from any other quarter whatsoever; if they do
not hasten to the defence of their country and of our people, and do
not assist in such defence with all their valor and ability; or, upon
any fraudulent pretext, or with any false excuse, attempt to escape
their responsibility, so that their assistance may be lacking to their
brethren in the protection of their country, and the enemy, by reason
of their want of co-operation, should commit any injury in any province
of our kingdom, or reduce any of its inhabitants to captivity; anyone
who thus, through delay, fear, malice, or lukewarmness, fails to exert
himself, with all his power, against our enemies for national defence,
if he be a priest, or belong to any sacerdotal order, and does not
have the means to satisfy the damages incurred by the invasion of said
enemy, he shall be exiled to such place as the king may select. This
sentence shall be imposed only upon bishops, priests, and deacons.
All other members of the clergy shall undergo the sentence elsewhere
prescribed for the laity.
And we hereby decree if the offender should be of noble rank, or of
inferior station, that he shall forfeit his dignity and freedom, be
reduced to slavery, and become the absolute property of whomever the
king may select. For it is but just that he who neglects to defend
the nobility of his race and maintain the integrity of his country,
from whence he derives the dignity of his family, should receive this
sentence; since he is both degenerate and useless, who openly refuses
to defend the honor and possessions he derived from his ancestors.
And, concerning the property of such transgressors, laity, and clergy,
alike, who are inferior in rank, we decree as follows: that whoever,
hereafter, commits such offences, shall render satisfaction for all
damages done to our country, or to its people; and that, as a just
punishment, those shall lose their dignity and honor, who, induced
by malice or timidity, did not repel the attacking enemy, nor boldly
showed themselves in the ranks of the national defenders.
Where any scandal arises within the limits of Spain, Gaul, Galicia,
or in any other province of our kingdom, and said scandal affects, in
any way, any of our subjects, or our government, or that of any of
our successors, as soon as said scandal shall become public in the
neighborhood, and anyone shall be especially notified of the same by
any priest, clerk, general, governor, _tiuphadus_, deputy, or any
other person, as elsewhere specified; and he does not straightway come
to the defence of his king, his people, and his country, against whom
said scandal has been circulated, and should not use all his efforts
for the suppression of the same; if the party who is implicated in this
infamous offence should be a bishop or any member of a clerical order,
or a palatine or a noble of whatever rank, or a person of inferior
station, he shall not only be sent into exile, but whatever property
he is deprived of by judicial sentence, shall be given to the king.[48]
All persons, however, shall be exempt from the operations of this law,
who are incapacitated by disease, or infirmity, from lending their
aid to our faithful subjects as hereinbefore stated. Such persons
as are prevented from actively exerting themselves as aforesaid,
must, to the best of their ability, employ their power in aid of the
bishops, clergy, and their brethren, and use their influence to the
utmost in behalf of the royal dignity, and in the interest of their
fellow citizens, and of their country; and, should they not do this,
they shall be liable to the same penalties as actual transgressors.
No person shall be liable to punishment, however, who can prove by a
competent witness that he was prevented by illness, and was not able to
afford assistance. We promulgate this law to abolish a vicious custom
which has come down from former times, and deserves to be visited
with severe legal censure, and to the end that unanimous concord may
establish the peace of our people, and the defence of our country.
Given and confirmed on the Kalends of November, in the second year of
our happy reign.
=THE GLORIOUS FLAVIUS WAMBA, KING.=
=IX. Concerning Those who Fail to Enlist at the Appointed Time or Place,
or Desert; and What Proportion of the Slaves Belonging to any Person
shall Join the Army.=
If those are designated lovers of their country who boldly throw
themselves in the face of danger for its protection, should not such
as refuse to defend it be classed as deserters? For as we believe that
the former voluntarily desire to save their country, others who, when
notified, do not exert themselves in its defence, and either delay to
join the army, or, what is worse, after having been notified, choose to
remain at home, or enter the ranks without arms or equipments; while
some desirous of carrying on their work, conceal the great number of
slaves they possess, and, for their own profit and safety, do not
bring the twentieth part of the latter with them, desiring rather to
preserve their crops than the bodies of their slaves, and, while they
protect their property, leave themselves unprotected; thus showing
greater diligence in the care of their possessions, than experience in
arms, in order that, if they should prove victorious, they may have the
more wealth to enjoy. Punishment must, therefore, be provided for such
persons, since they disregard their duties to the state. Therefore,
we order all subjects under our government to observe the following
decree, to wit: that whenever the king shall issue an order for anyone
to join the army, upon a certain day or date, or when he shall direct
any of his generals or commanders to carry out any object for the
public benefit, whoever receives such an order, or where he does not
receive it in person, should be aware that it had been issued, or
learns from any source, in what place the army is to assemble, shall
make no delay, nor proffer any excuse whatever; but every such person
shall present himself at the appointed place and time, as ordered by
the king, general, commander, deputy, or any other official, invested
with authority. Where anyone having thus been notified, or even if he
has not been notified, but has received information, in any way, of
the situation of the army, should be unwilling to march; or should
neglect to present himself at the appointed time; if he is a person of
high rank, that is to say, a general, governor, or any other officer
of importance, he shall be deprived of all his property, and be driven
into exile, by order of the king, and his confiscated possessions shall
be at the absolute disposal of the latter. Where persons of inferior
rank, as, for instance, commanders of a thousand men, recruiting
officers, and all conscripts, delay to join the army, or neglect to
report at the appointed time and place; or fail to march; or withdraw,
under any fraudulent pretext, from military service; they shall not
only each receive two hundred lashes, but shall also be scalped, and
shall each forfeit a pound of gold to the king. And, should any of them
not be possessed of the necessary amount, the king may then reduce
said offender to perpetual slavery, and dispose of his property at his
pleasure.
We decree, however, that those shall not be subject to punishment under
this law, who have been freed from its operation by the royal order, or
are exempt by being minors, or are incapacitated by age or sickness.
If a person who is disabled by illness, should be able to prove, by a
competent witness that, for this reason, he was unable to march with
the army, he must devote such of his property as he can spare to the
public benefit.
As we have already made provision concerning the general co-operation
of all persons, we must now provide for money and supplies. Therefore,
we hereby decree, that whenever anyone, whether he be general, count,
or _gardingus_,[49] Goth, or Roman, freeman or manumitted slave,
or any serf attached to the service of the Crown, joins the army,
he shall bring the tenth of his slaves with him; and in order that
said slaves may not come unarmed, but may be provided with the proper
weapons, whoever brings them must furnish a part of them with suitable
armor, and the greater portion must be provided with shields, two-edged
swords, lances, bows and arrows, slings, and other arms, and he who
brings them must parade them, armed in this manner, before the king,
general, or commander-in-chief. Where anyone brings with him to the
army less than the tenth part of his slaves, an estimate shall be
made of the entire number of the latter, and whatever portion of the
tenth part aforesaid is found lacking, shall be delivered to the
king, to become his property, and be disposed of at his pleasure. And
wherever anyone, who holds an office in the palace, shall so conduct
himself in the army, as not to use every effort in the service of his
prince, or properly perform his military duties, along with his fellow
soldiers; he shall be liable to the penalty of this law, except where
his manifest weakness shall disclose the fact that he is incapacitated
by illness. And if anyone, who has already joined the army, and ought
to have followed a duke, or count, or patron, should delay, for any
reason, and not appear on duty under his commander, or should not
exhibit proper zeal for the public service, his rank shall not be taken
into consideration, but he shall be liable to the penalty hereinbefore
provided, concerning persons of inferior station.
The matters aforesaid having been settled and determined, it now
remains to place restraints upon the avarice of those who are summoned
to military service. Therefore, no governor of a province, governor of
a city, commander of a thousand men, or anyone charged with the duty of
governing the people, shall excuse any of our subjects from military
duty, for the sake of a bribe, or for any other inducement whatever;
or shall suffer orders, made on the march, to be contested, or the
regulation concerning the providing of arms to be disregarded. Whoever
is guilty of any of the offences aforesaid, and, for any cause, accepts
a gift from any person, or exacts a contribution of any kind from a
soldier or anyone else; if he is of high rank among the officers of the
palace, shall pay fourfold the amount received, to him from whom he
accepted it, and shall give a pound of gold to the king, on account of
his presumption. Persons of inferior rank shall be deprived of their
honor and dignity, shall be delivered up to the king, and be placed
absolutely in his power, to be disposed of as he may direct.
TITLE III. CONCERNING THOSE WHO SEEK SANCTUARY IN A CHURCH.
=I.= _No One, Claiming the Privilege of Sanctuary in a Church,
shall be Taken from Thence by Force, Unless he Defends
himself with Arms._
=II.= _Where a Person Seeks Sanctuary in a Church, and is Killed,
while Defending himself with Arms._
=III.= _Concerning the Penalty for Removing a Man from a Church
by Force._
=IV.= _A Debtor, or a Criminal, Cannot be Forcibly Removed from
a Church, and must Pay such Debts, or Penalties, as are
Due._
=I. No One, Claiming the Privilege of Sanctuary in a Church, shall be
Taken from Thence by Force, Unless he Defends himself with Arms.=
No one shall dare to remove, by force, any person who has sought
sanctuary in a church unless said person should attempt to defend
himself with arms.
=II. Where a Person Seeks Sanctuary in a Church, and is Killed, while
Defending himself with Arms.=
Where anyone takes refuge at the door of a church, and does not lay
down his arms, and is killed; the person who struck him shall be liable
to no penalty or reproach therefor.
=III. Concerning the Penalty for Removing a Man from a Church by Force.=
Where anyone removes his slave or a debtor from a church, or the altar
where he sought sanctuary, without the consent of a priest, or of some
other ecclesiastic who has charge of said church; as soon as the fact
has been brought to the notice of the judge, if he is a person of high
rank, said offender shall be compelled to pay a hundred _solidi_
to the church which sustained the injury. A person of inferior station
shall pay thirty _solidi_, and if he should not have the means to
do so, he shall be arrested by the judge, and receive a hundred lashes
in public. The master shall then regain possession of his slave, and
the debtor shall be surrendered to his creditor.
=IV. A Debtor, or a Criminal, Cannot be Forcibly Removed from a Church,
and must Pay such Debts, or Penalties, as are Due.=
No one shall presume to seize a person who seeks sanctuary in a church,
or at its doors; but he may petition a priest or a deacon to restore
said person to him; and if a debtor or a criminal takes refuge there,
and he should not be liable to the penalty of death, the ecclesiastic
in charge of the church may interpose his good offices, and request
that said party be pardoned or discharged. If a debtor should take
refuge in a church, the church shall have no right to protect him,
but the priest or deacon must surrender him, without delay, with the
admonition that his creditor shall neither injure nor bind him who
claimed the right of asylum; and the creditor must state, in the
presence of said priest or deacon, within what time he shall expect
the payment of the debt. Because the intervention of the church may
be invoked for purposes of mercy, is no reason why persons should be
deprived of their property. The laws relating to homicides and other
malefactors are set forth under their respective titles.
BOOK X.
CONCERNING PARTITION, LIMITATION, AND BOUNDARIES.
TITLE I. CONCERNING PARTITION, AND LANDS CONVEYED BY CONTRACT.
=I.= _A Partition Once Made, shall Remain Forever in Force._
=II.= _No Partition Made Between Brothers shall be Revoked,
Even if it was not Made in Writing, but Only in the
Presence of a Competent Witness._
=III.= _Where a Partition is Made Among Many Persons by the
Majority, and those Entitled to the Larger Share, it
shall not be Changed by any Act of the Minority._
=IV.= _One Heir shall have the Right to Act for all the Others,
either as Plaintiff or Defendant._
=V.= _Where Anyone Violates a Contract Establishing a
Partition, and Seizes a Portion of the Property._
=VI.= _Where an Heir Plants a Vineyard, or Erects a House, on
Land Belonging to his Co-Heirs._
=VII.= _Where one Person Plants a Vineyard on the Land of
Another, to which he has no Title._
=VIII.= _Concerning the Division of Lands Made Between Goths
and Romans._
=IX.= _Concerning Forests Still Undivided Among Goths and
Romans._
=X.= _Whatever Acts a Slave may Perform, without the Order of
his Master, shall be Void, except when Otherwise
Provided by Law._
=XI.= _Whoever Enters upon Land, under a Lease, must Comply
with his Contract._
=XII.= _Where Lands are Leased, by a Written Contract, for a
Term of Years._
=XIII.= _Where he who Rents Land under Contract, Cultivates a
Greater Area than he has a Right to do, under the
Conditions of the Same._
=XIV.= _Where a Dispute Arises Between Landlord and Tenant,
Concerning Arable Lands, or Forests, which are Leased._
=XV.= _Both Tenants must Pay the Rent for Land which has been
Sublet._
=XVI.= _Where Goths have Appropriated any of the Third Part of
Land Belonging to Romans, they shall Restore the
Entire Amount to the Romans, under Order of Court._
=XVII.= _Concerning the Partition of Property Among the
Blood-Relatives of Slaves, and the Distribution of
their Personal Estates._
=XVIII.= _All Personal Property shall be Classed under One
Title._
=XIX.= _Where a Contract is not Complied with, according to
its Terms._
=I. A Partition Once Made, shall Remain Forever in Force.=
A just partition once made, shall always remain in force, and, for no
reason, shall it ever be altered thereafter.
=II. No Partition made Between Brothers shall be Revoked, Even if it was
not Made in Writing, but Only in the Presence of a Competent Witness.=
We hereby decree that a partition made between brothers, even though
it be not evidenced by an agreement in writing, shall remain in force,
provided it can be proved by competent testimony; and, when this has
been done, said partition shall have full validity in law.
=III. Where a Partition is Made Among Many Persons by the Majority, and
those Entitled to the Larger Share, it shall not be Changed by any Act
of the Minority.=
Where several heirs are interested in a partition of property, whatever
is determined upon, as equitable, by a majority of the same, shall
prevail, and shall not be interfered with thereafter by the minority.
=FLAVIUS CHINTASVINTUS, KING.=
=IV. One Heir shall have the Right to Act for all the Others, either as
Plaintiff or Defendant.=
It was established by a former law that, where a cause is heard in
court, one person shall not have the right to answer for another,
unless the latter, who is equally interested, should be present, and
should consent; and, for this reason, we consider it superfluous to
make further provision in such matters, in cases where litigation
arises, and each person must plead his own cause. However, lest through
the artifice of an adversary, where a party interposes delay on behalf
of one joined with him in the case, the term of thirty years may run
against the complainant; after due deliberation, we hereby decree, that
no excuse for delay shall be allowed in behalf of any party; and that
any party to a suit may appear for all others joined with him, in the
same manner as if he alone were interested. If, however, an heir should
lose the suit either through corruption, or by his own negligence, the
rights of none of his co-heirs shall be prejudiced thereby; and should
any of them desire to reopen the case, they shall be permitted to do
so. The law hereinbefore mentioned, which relates to this subject,
is hereby abrogated; and we enjoin the observance of the present one
upon all the people of our realm. And we hereby decree, that the same
rule shall be observed where one of several parties interested in
the prosecution of a claim thinks that a suit ought to be brought to
collect it.
=V. Where Anyone Violates a Contract Establishing a Partition, and
Seizes a Portion of the Property.=
Whoever violates the provisions of a partition made between heirs, and
seizes any property belonging to a co-heir, shall forfeit as much of
his own share as he attempted to take from the other.
=VI. Where an Heir Plants a Vineyard, or Erects a House, on Land
Belonging to his Co-Heirs.=
Where anyone plants a vineyard, or builds a house, upon the land of
any of his co-heirs, whether the owner of the same is ignorant of the
fact, or consents to it, (even if he who planted said vineyard, or
built said house, was ignorant of what part of said land belonged to
his co-heirs), when he shall establish this, either by his own oath, or
by the testimony of witnesses, he shall give to the owner upon whose
premises he planted the vineyard, an equal quantity of land of the
same value, and shall remain secure in the possession of the vineyard
which he planted. If, however, he should plant said vineyard against
the consent of the owner, he shall forfeit all right to the same. The
same rule shall apply to buildings of every description. We also decree
that if anyone should sell, give away, or exchange, land belonging to
another; as soon as it shall be discovered that he had no title to the
same, and if he who received said land should have built a house upon
it, or should have planted a vineyard, olive-grove, garden, or orchard
therein; or should have added anything to the value of said land by his
labor; and the party to whom said land belongs should delay to claim
it; or should be ignorant that it had been so disposed of; or should be
unwilling to assert his rights to the same, in order to thereafter reap
the benefit of the additional value it has acquired from the labor of
another; when the said owner shall establish his title to said land in
court, he shall receive another similar tract, double in value, from
the party who made the illegal sale or transfer, and he who improved
said land shall under no circumstances lose the fruits of his toil.
=VII. Where one Person Plants a Vineyard on the Land of Another, to
which he has no Title.=
Whoever plants a vineyard upon the land of another, who is not his
co-heir, without the permission of said owner, either by force, or when
said owner was ignorant of the fact, or absent (even if he should not
have been forbidden to do so), shall lose the vineyard that he planted;
for the reason that he ought to know that whoever appropriates the
property of another should not profit twofold by his illegal act.
=VIII. Concerning the Division of Lands Made Between Goths and Romans.=
A division of arable lands or forests made between Goths and Romans,
shall under no circumstances be interfered with, provided said division
shall be proved to have been publicly made, and no Roman shall take,
or claim for himself, any part of the two thirds of said land allotted
to a Goth in said division; nor shall any Goth dare to seize, or claim
for himself, any of the third part of said land allotted to a Roman,
unless it should have been bestowed upon him by our generosity; and any
division made between parents or neighbors shall not be disturbed by
their posterity.
=IX. Concerning Forests Still Undivided Among Goths and Romans.=
In the case of forests which are still undivided, where any Goth or
Roman has appropriated a portion of the same, and placed it under
cultivation, we hereby decree that if any woodland of equal value
belongs to the party bound under the law to make compensation, the
person entitled to receive said compensation shall not refuse to accept
the woodland aforesaid. If, however, the former should have no woodland
of equal value, the tract which is under cultivation shall be divided
between the two parties.
=X. Whatever Acts a Slave may Perform, without the Order of his Master,
shall be Void, except when Otherwise Provided by Law.=
Wherever a slave makes a division of any property, or does any other
act without the order of his master, except where authorized by law, we
declare said act to be invalid, unless the master of said slave should
be willing to sanction the same.
=XI. Whoever Enters upon Land, under a Lease, must Comply with his
Contract.=
Whoever rents land under the terms of a legal contract, for a fixed
annual rental, shall have possession of said premises, and must pay
the rent at the end of each year, according to the terms of the lease;
because no contract should be violated. Where the tenant neglects to
pay the rent at the end of each year, the owner shall be entitled to
the possession of his land; and he who did not comply with his contract
shall, through his own fault, lose all the profit which might accrue to
him under said contract.
=XII. Where Lands are Leased, by a Written Contract, for a Term of Years.=
Where the use of land is granted by an instrument in writing, for a
certain term of years, he who received said land shall restore the same
to the owner, at the expiration of said term, and shall do so without
unnecessary delay, according to the conditions of the contract.
=XIII. Where he who Rents Land under Contract, Cultivates a Greater Area
than he has a Right to do, under the Conditions of the Same.=
Whoever rents land under a lease, shall occupy as much of said land
as the owner permits him to use, and no more. If, however, he should
cultivate more land than he is entitled to under his contract, or
should bring in others for that purpose, or his sons and grandsons,
inmates of his house, should cultivate lands not included in his lease;
or he should occupy any fields without the permission of the owner;
or should, without authority, cut down any grove, for the purpose of
having tillable land, or meadows, or to build fences out of the timber;
he shall lose everything which he has appropriated without permission;
and it shall rest in the discretion of the owner whether he shall
increase the rent, or shall at once take possession of the land not
included in the lease. And where only arable land is rented to any
person and no woodland or pasture is included, no lessee shall have the
right to use said woodland or pasture without the consent of the owner
thereof.
=XIV. Where a Dispute Arises Between Landlord and Tenant, Concerning
Arable Lands, or Forests, which are Leased.=
Where any dispute arises between the parties to a lease, concerning the
quantity of land granted under said lease the lessor, if he is living,
and if he is dead, his heirs, shall make oath that said lessor did not
lease a larger tract of land than is designated by them. And after they
have made oath as aforesaid, they shall attach their seals to the same
in the presence of witnesses, to the end that no cause for dispute may
arise thereafter. If, however, said parties should not be worthy of
credit, or should be unwilling to make oath as aforesaid, or should
have any doubt concerning the amount of land so leased, they shall not
make oath and imperil their souls, but they shall divide each of the
whole number of _aratra_ received by themselves, as heirs of their
parents, into fifty _arepennes_: so that every portion occupied or
cultivated shall include said fifty _arepennes_; nor shall they
presume to occupy any more than said portion measured and allotted to
them, unless with the consent of the owner or owners of said land. Any
tenant who occupies more than said quantity of land, shall pay double
the amount of rent of the tract he illegally entered upon.
=XV. Both Tenants must Pay the Rent for Land which has been Sublet.=
Where a landlord receives a tenant on his land, and it afterward
happens that the latter sublets a third of the same to another party,
both shall be considered tenants of the landlord, and shall pay rent to
him in proportion to the amount of land they occupy.
=XVI. Where Goths have Appropriated any of the Third Part of Land
Belonging to Romans, they shall Restore the Entire Amount to the
Romans, under Order of Court.=
Judges, governors, and other authorities, in all cases where Romans
have been deprived of their lands, shall take them from those who
occupy them, and restore them to the Romans, in order that the royal
treasury may sustain no loss; provided, however, that the period of
fifty years shall not have elapsed, so that, by limitation of time, the
rights of the Romans to said lands may not have been lost.
=FLAVIUS CHINTASVINTUS, KING.=
=XVII. Concerning the Partition of Property Among the Blood-Relatives of
Slaves, and the Distribution of their Personal Estates.=
It is the just province of the law to amend or repeal by new decrees,
any former statutes which may be devoid of reason or equity; and the
cause of abuses must first be determined, before laws can be enacted
for their correction. As a son is born of both parents, why should he
follow the condition of his mother, while he owes his being equally
to his father. It is, therefore, but reasonable that we decree that
where one slave has married a slave owned by another person, any issue
of said marriage shall belong equally to the masters of both slaves.
Where, however, there is but one son born to said parents, since he
cannot serve both masters at once, he shall remain with his mother
until his twelfth year, at which age he will be able to work. The
master of the female slave shall then pay to the master of her husband
one half of the value of the child, after said value shall have been
appraised by men of respectability. A similar rule shall be observed
in the cases of other children of slaves, where said children are not
of even number. All personal property which said male and female slave
has accumulated, while living under one roof, shall belong to both
masters. And if said slaves should have accumulated any property on
land belonging to a third person, or any building, or any real estate
of any description, or any personal property that is not portable,
the masters of said slaves shall have a right to the division of
said property among themselves, in the same manner as if it had been
acquired through relationship by blood. If one of the said masters
should be opposed to the marriage of the slaves aforesaid, he may
straightway separate them, under this condition: that, after said
marriage shall have come to the knowledge of said masters, and they
should not desire its continuance, they must dissolve it within a year.
If, through their negligence, this reasonable time prescribed by law
should have elapsed, whatever issue said slaves may have after that
time, shall be equally divided between their masters; the sex, number,
and ages of said children being taken into consideration. If more than
a year should elapse without one or both of their masters being aware
of said marriage, all issue of the same shall be divided between them,
as aforesaid.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XVIII. All Personal Property shall be Classed under One Title.=
We often see wicked persons, for the purpose of contention, pervert
the meaning of the law; and, in order to prevent such conduct, as
far as possible, we desire to simplify matters whenever this can be
done. Therefore, we decree that no difference shall exist in the
classification of all kinds of personal property, whether said property
be tangible, or merely held in trust by one for another; in order that
the subtle distinctions which have arisen in the classification of said
property may be abolished.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=XIX. Where a Contract is not Complied With, according to its Terms.=
Whenever any person obtains possession of land, vineyards, or any other
real estate, under a lease for the tenth part of its annual yield,
or for any other payment, or consideration, whether said lease is
in writing, or verbal, provided he who leases it does so under some
contract for rent, the lessee shall, without demand or solicitation
from the lessor, pay his rent regularly; nor shall the right of the
landlord to said rent be affected, in any way, should he not do so. For
wherever the provisions or covenants of a lease are not fulfilled, the
right of the owner shall not be affected; because the controversy has
not arisen through the act of the landlord, but through the fraud of
the tenant. If the tenant should refuse to fulfil his contract, or to
comply with any of its provisions, he shall pay double the amount to
the landlord which he agreed to pay him under the terms of the lease.
And if the tenant, alleging various pretexts, should not comply with
his contract for such a time that the rights of the owner are lost by
the limitation of the law, that is, for fifty years, he shall forfeit
said property, with all the increase in value of the same resulting
from his labors thereon.
TITLE II. CONCERNING THE LIMITATIONS OF FIFTY
AND THIRTY YEARS.
=I.= _After the Lapse of Fifty Years, Neither Goths nor Romans
can Assert a Claim to Property._
=II.= _No Fugitive Slave shall Again be Reduced to Servitude,
after the Lapse of Fifty Years._
=III.= _No Suit at Law shall be Brought Thirty Years After the
Cause of Action has Arisen._
=IV.= _The Limitation of Thirty Years shall Run in all Cases
Excepting those where Slaves of the Crown are Concerned._
=V.= _Concerning Claims made within Thirty Years._
=VI.= _The Limitation of Thirty Years shall not Run while
Persons are Exiled._
=VII.= _Within what Time Slaves Belonging to the Crown can
Again be Reduced to Slavery._
=I. After the Lapse of Fifty Years, Neither Goths nor Romans can Assert
a Claim to Property.=
Lands apportioned between Goths and Romans, which have not been claimed
within fifty years, can under no circumstances be claimed afterwards.
=II. No Fugitive Slave shall Again be Reduced to Servitude, after the
Lapse of Fifty Years.=
Fugitive slaves who have not been found within fifty years, shall not,
after that time, be returned to servitude.
=III. No Suit at Law shall be Brought Thirty Years After the Cause of
Action has Arisen.=
All suits at law, whether well founded or not, and also all criminal
cases, which shall not have been brought or determined in thirty
years; or any disputes relating to the ownership or possession of
slaves, which have not been settled within that time, shall under no
circumstances be prosecuted afterwards. Where any person attempts to
bring a suit thirty years after the cause of action has arisen, he
shall be barred by the limitation aforesaid, and shall be compelled to
give a pound of gold to whomever the king may direct.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=IV. The Limitation of Thirty Years shall Run in all Cases, Excepting
those where the Slaves of the Crown are Concerned.=
Want of care and resolution in an owner often disturbs the rightful
possession of property, and what vigilance was not exerted to preserve,
illegal license appropriates. The passage of the aforesaid period of
thirty years is seen to occur so constantly in human affairs, that
now it does not seem to have originated in the institutions of man,
but rather to have arisen, in the course of nature, from the affairs
themselves; and for this reason, therefore, we hereby decree, for all
time hereafter, that if any beneficiary of the king, or any employee of
the Crown, except royal slaves, should have held any property belonging
to anyone for the space of thirty years, he shall have the right to
claim and retain said property for himself, forever; and the demand of
no one shall avail against said limitation, after it shall have been
legally established.
Royal slaves whose servile origin is publicly known, who are at large,
and wandering from place to place, even though they should pay no
taxes, and should lie concealed in hiding places, or remain under the
protection of any person for the space of thirty years, as aforesaid,
shall not thereby escape the restraints of slavery, but shall be
restored to their original condition without regard to lapse of time.
Those only shall be excepted from the operation of this law who have
received their freedom from the king.
=FLAVIUS CHINTASVINTUS, KING.=
=V. Concerning Claims made within Thirty Years.=
Long continued possession frequently transfers the ownership of
property from one person to another; for whatever anyone has held
for thirty years without molestation, can never be lost through the
claims of another. To the end, however, that the rights of claimant
as well as those of possessor may be properly protected, we hereby
decree that the following law shall be observed by all, to wit: that
wherever any property has been held by any person for from twenty-five
to thirty years, and another person should claim said property; and
the possessor should be notified of said claim either by the judge
or the claimant, and should fail to make restitution, or to answer
within a reasonable time; or should interpose delay under any pretext;
or should assert his claim while the possessor of said property is
absent, that is to say, while he is in another province, or in the
army; under such circumstances, the judge shall deliver said property
into the possession of the claimant in the presence of three witnesses,
in order that the limitation of time may not run against said claim.
And if the judge should order the property in dispute to be delivered
into the possession of the claimant by a bailiff, he shall issue a writ
directed to said bailiff, signed by his own hand, and according to the
form hereinafter specified; and if there should be other property than
that claimed in the place where the latter is situated, in order that
no dispute may arise, the doors or gates of the enclosure where said
property is situated shall be sealed with the signet of the judge or of
the bailiff, and shall remain sealed for eight days; and the claimant
shall retain possession of it for only eight days; but he must not
waste, spoil, or dispose of said property, in any way, but must care
for the same to the best of his ability. After the expiration of that
time he must leave the property intact, in the possession of him who
originally held it, and no responsibility whatever shall attach to him
who had possession of it for the eight days aforesaid. And he himself,
or any of his family or descendants, shall have the right to assert
their claim to said property, at any time within thirty years from the
day when the claimant made the demand as aforesaid. And if said person
should not be able to establish the justice of his claim, he shall
render satisfaction to the owner of the property, as a person making an
unjust demand for something to which he was not entitled. If he should
damage said property, or dispose of it, in any way, while in his
possession, he shall be compelled to restore fourfold its value; and
neither he, nor any of his family or posterity, shall have a right to
make any claim for said property at any time thereafter.
We also hereby decree that if the property in dispute should consist
of different articles, and should be situated in different places, an
order issued by the judge relating to any one of said articles shall
have the same force as if it related to all. The form of the order
issued by the judge shall be as follows:--
ITEM.
WRIT OF INFORMATION. THE JUDGE TO THE BAILIFF.
We inform you that such-and-such a person claims property in the
possession of so-and-so, and we hereby order you to place said property
in the possession of said claimant, in the presence of two or three
witnesses; to be left in his possession for the space of eight days
only, according to the provisions of the law; and if you should find
any property to which the seal of the owner thereof is not attached,
you will attach your own seal thereto, to remain unbroken for the
aforesaid term of eight days, in order to remove all cause of dispute
or opportunity for fraud; and none of said property shall be removed by
you.
=FLAVIUS RECESVINTUS, KING.=
=VI. The Limitation of Thirty Years shall not Run while Persons are
Exiled.=
The more humanity is oppressed by misfortune, the more we should
provide by our clemency for the evils with which it is afflicted.
Wherefore, whenever any person of noble rank, or any freeman, or even
a slave, is confined in prison, or sent into exile, by order of the
king; and should afterwards be liberated, or pardoned, and return to
his country, and anyone should have claimed any of his property during
his absence; the time which he passed in confinement or exile shall not
be counted as a part of the thirty or fifty year limitation barring a
claim, or action at law; but the time during which he was imprisoned,
or absent from the country, and unable to assert his rights, shall be
excepted from the period of limitation aforesaid. In all other cases
the laws which have already established periods of limitation relating
to claims and actions at law, shall remain in force hereafter.
=FLAVIUS EGICA, KING.=
=VII. Within what Time Slaves Belonging to the Crown can Again be
Reduced to Slavery.=
We hereby repeal the former law by which slaves belonging to the Crown
could be reduced to their former condition of servitude, without
consideration of the lapse of time, and, in the place thereof, issue
the following decree, to wit: that whoever has had in his possession
any slaves of the Crown for the space of thirty years, and said slaves
have not been transferred to the possession of any other person during
that time; or if any such slaves should wander from place to place,
without paying any tax for the space of fifty years; said slaves shall
under no circumstances be reclaimed by the Crown. But those persons
under whose control such slaves were, for either the thirty or the
fifty year period aforesaid, must make suitable compensation for their
services to the royal treasury; to the end that one and the same law
may prevail concerning the slaves of both prince and people.
TITLE III. CONCERNING BOUNDARIES AND LANDMARKS.
=I.= _How Boundaries and Landmarks shall be Preserved._
=II.= _Concerning the Destruction and Removal of Landmarks._
=III.= _What is to be Done when a Dispute Arises Concerning
Boundaries._
=IV.= _Where One Person makes a Claim to Land Included within
the Boundaries of Another._
=V.= _Where any Change was made in the Boundaries of Land
During the Time of the Romans, no Claim Based upon Other
Boundaries shall Prevail._
=I. How Boundaries and Landmarks shall be Preserved.=
We hereby decree that all ancient landmarks and boundaries shall stand
as established in former times, and that they shall not be disturbed or
removed.
=II. Concerning the Destruction and Removal of Landmarks.=
Whoever levels any landmarks for the purpose of travel, or dares to
remove any established landmarks, for every landmark so fraudulently
disturbed, if he is a freeman, he shall pay twenty _solidi_; and
if he is a slave he shall receive fifty lashes, and shall restore said
landmark. If any person while plowing land, or planting a vineyard,
should involuntarily disturb a landmark, he shall restore the same in
the presence of the neighbors, and shall not, thereafter, be liable to
any damage or penalty for removing the same.
=III. What is to be Done when a Dispute Arises Concerning Boundaries.=
Whenever a dispute arises concerning the boundaries of land, search
shall be made for the old landmarks; that is to say, the mounds of
earth, or squared stones, which, in ancient times, were made or placed
in order to define the boundaries of lands; or for any stones which
have been buried, and are carved to show that they were intended as
landmarks. Should any of said landmarks be wanting, search must then
be made for such trees as might have been marked in former times, to
define the boundaries between different tracts of land.
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=IV. Where One Person makes a Claim to Land Included within the
Boundaries of Another.=
Where anyone inherits or acquires land within the boundaries of another
person, or, during the absence, or without the knowledge of the owner
of the same, obtains possession of such land for a long period of time,
or for more than the term of fifty years, even though his occupation
of said property was public and notorious, he shall have no permanent
title thereto; and as soon as the boundaries of said land shall have
been established by the discovery of the ancient landmarks, by persons
appointed to find the same, he shall restore said land so appropriated
to the owner thereof. Nor shall any obligation of the owner, nor
undisputed possession for a long period of time, avail against the
ancient landmarks, when they are discovered. But it must be proved,
if it can be ascertained, whether said land was acquired by one of
the contesting parties or by the ancestors of either of them; for if
such time should have elapsed that neither of said parties, nor any of
their ancestors, knew who first obtained the title to or possession
of said property, and the party in possession is unable to show by
an instrument in writing, or by witnesses, whence the title to said
premises was derived, because the fact of original possession is in
doubt; whoever of said claimants is in possession of said land at the
time shall have an irrevocable right to retain it. Where, however, one
person seems to have been in possession of said land without the other
claimant asserting any right to the same, and such possession shall
be public, and apparently established by existing landmarks, and no
evidence of fraud be disclosed; it is not reasonable that the title of
the owner should be lost by reason of its occupation for a protracted
period by another.
Where one person has obtained possession of land by force or fraud,
this shall in no wise affect the rights of another claimant. If,
however, one person should attempt to gain possession of property
occupied by another, not through fraud or insolence, but by a judicial
proceeding, if his claim is just, he shall be entitled to possession
of said property. But if, unknown to the owner, he should unexpectedly
attempt to gain possession of the land of the latter, the owner of the
same shall have the right to accuse him of being a trespasser with
violence, and, by legal proceedings, compel him to surrender said
property.
=V. Where any Change was made in the Boundaries of Land During the Time
of the Romans, no Claim Based upon Other Boundaries shall Prevail.=
Where real property, in which any person claims an interest, was
disposed of before the coming of the Goths, and was transferred to the
possession of another party either by sale, donation, partition, or
any other transaction, whatever title or right to said property shall
be proved to have been formerly conveyed by the Romans shall remain
inviolable. But where a title to real property cannot be established
by any certain landmarks or boundaries, the following proceeding must
be observed, to wit: an examination of the premises must be made by
persons selected by the consent of all parties; and the judge, for his
own information, shall cause the oldest residents of the neighborhood
to be sworn, that they will, without fraud, show where the boundaries
of the land in question are situated; and no one shall establish a new
boundary without the presence of the other party, or in the absence of
one of the inspectors appointed by common consent, as aforesaid. If
a freeman should violate this provision, he shall be liable for the
penalty of forcible entry, as prescribed by law. Where a slave commits
this offence, without the knowledge of his master, he shall receive
two hundred lashes in public, but his master shall incur no liability
for his act.[50]
BOOK XI.
CONCERNING THE SICK AND THE DEAD, AND MERCHANTS WHO
COME FROM BEYOND SEAS.
TITLE I. CONCERNING PHYSICIANS AND SICK PERSONS.
=I.= _No Physician shall Presume to Bleed a Woman, in the
Absence of her Relatives._
=II.= _No Physician shall Visit Persons Confined in Prison._
=III.= _Where a Physician Treats Disease under a Contract._
=IV.= _Where a Sick Person Dies, while a Physician is Treating
him under a Contract._
=V.= _Where a Physician Removes a Cataract from the Eye._
=VI.= _Where a Freeman or a Slave Dies from Being Bled._
=VII.= _Concerning the Compensation to be Received for the
Instruction of a Student in Medicine._
=VIII.= _No Physician shall be Imprisoned without a Hearing._
=I. No Physician shall Presume to Bleed a Woman, in the Absence of her
Relatives.=
No physician shall presume to bleed a freeborn woman without the
presence of her father, mother, brother, son, uncle, or some other
relative, except urgent necessity should demand it; and where it
happens that none of the above-named persons can be present, the woman
must be bled in the presence of respectable neighbors or slaves, of
either sex, according to the nature of her illness. If a physician
should do this without the presence of any of the aforesaid persons,
he shall be compelled to pay ten _solidi_ to the husband or
the relatives of said woman; for the reason that it is not at all
improbable that, on such an occasion, wantonness may sometimes
occur.[51]
=II. No Physician shall Visit Persons Confined in Prison.=
No physician shall presume to enter a prison when governors, tribunes,
or deputies, are excluded therefrom, without being accompanied by the
jailer, lest the prisoners, influenced by fear, may obtain from said
physician the means wherewith to commit suicide; for should any poison
be furnished or administered by physicians, under such circumstances,
the course of justice would be greatly obstructed. Should any physician
be guilty of this offence, he shall be liable to punishment for the
same.
=III. Where a Physician Treats Disease under a Contract.=
Where any person demands that a physician treat him for disease, or
cure his wound under a contract; after the physician has seen the
wound, or diagnosed the disease, he may undertake the treatment of said
sick person under such conditions as may be agreed upon, and set forth
in an instrument in writing.
=IV. Where a Sick Person Dies, while a Physician is Treating him under a
Contract.=
Where a physician undertakes the treatment of a sick person under
a contract reduced to writing, he must restore said sick person to
health; and, if the latter should die, the physician shall not be
entitled to the compensation stipulated in said contract, and no
liability shall attach to either of the parties to the same.
=V. Where a Physician Removes a Cataract from the Eye.=
Where a physician removes a cataract from the eye of any person, and
restores the invalid to his former health, he shall be entitled to five
_solidi_ for his services.
=VI. Where a Freeman or a Slave Dies from Being Bled.=
Where a physician bleeds a patient, and the latter is greatly weakened
in consequence, said physician shall be compelled to pay him forty
_solidi_. If the patient should die as the result of being bled,
the physician shall be delivered up to the relatives of said patient,
to be disposed of at their pleasure. Where the patient is a slave, and
is seriously weakened, or dies, the physician must give his master
another slave of equal value, in his stead.
=VII. Concerning the Compensation to be Received for the Instruction of
a Student in Medicine.=
Where a physician receives a slave for the purpose of instruction
in medicine, he shall be entitled to twelve _solidi_ by way of
compensation.
=VIII. No Physician shall be Imprisoned without a Hearing.=
No physician shall be imprisoned without a hearing, except in case of
homicide. Where he is charged with debt, he must provide a surety.
TITLE II. CONCERNING THOSE WHO DISTURB SEPULCHRES.
=I.= _Concerning Persons who Deface or Injure Tombs._
=II.= _Where a Coffin is Removed from a Grave._
=I. Concerning Persons who Deface or Injure Tombs.=
Where any person injures a tomb; or robs a corpse; or strips it of any
ornaments or clothing; if he should be freeborn, he shall be compelled
to pay a pound of gold to the heirs of the deceased, and to restore the
stolen property. Where there are no heirs, he shall pay the above-named
sum to the royal treasury, and shall receive in addition a hundred
lashes. If a slave should commit this crime, he shall receive two
hundred lashes; shall be put to death by fire; and whatever he stole
shall be returned.
=II. Where a Coffin is Removed from a Grave.=
If anyone should steal the coffin of a dead person, for any purpose
of his own, he shall be forced, by order of the judge, to pay twelve
_solidi_ to the heirs of the deceased. If, however, a slave should
commit this offence under the direction of his master, his master shall
at once render satisfaction for his act. Should a slave do this of his
own accord, he shall receive a hundred lashes, and shall restore to the
place, and to the body of the deceased, whatever he took therefrom.
TITLE III. CONCERNING MERCHANTS WHO COME FROM BEYOND SEAS.
=I.= _Where Foreign Merchants are Detected Selling Stolen
Property._
=II.= _Foreign Merchants shall be Judged by their own
Magistrates, and According to their own Laws._
=III.= _Where a Foreign Merchant Carries Away with him, from
our Kingdom, a Person whom he has Hired._
=IV.= _Where a Foreign Merchant takes Away a Slave for Purposes
of Commerce._
=I. Where Foreign Merchants are Detected Selling Stolen Property.=
Where any foreign merchant sells gold, silver, clothing, or ornaments
of any description, for a fair price, to any of our subjects, and said
property should afterwards prove to have been stolen, the purchaser
shall incur no liability therefor.
=II. Foreign Merchants shall be Judged by their own Magistrates, and
According to their own Laws.=
When any legal cause of action arises between foreign merchants, it
shall not be heard by any of our judges, but by their own, and it shall
be decided according to their own laws.[52]
=III. Where a Foreign Merchant Carries Away with him, from our Kingdom,
a Person whom he has Hired.=
No foreign merchant shall dare to remove, to his own country, a person
hired by him, and who belongs to our kingdom. Whoever attempts to do
so, shall pay a pound of gold to the royal treasury, and shall receive
a hundred lashes in addition.
=IV. Where a Foreign Merchant takes Away a Slave for Purposes of
Commerce.=
If any foreign merchant should take away with him, a slave belonging to
our kingdom, for the purpose of conveying his merchandise, he shall pay
three _solidi_ a year for his services; and, at the termination of
his contract, shall restore said slave to his master.
BOOK XII.
CONCERNING THE PREVENTION OF OFFICIAL OPPRESSION,
AND THE THOROUGH EXTINCTION OF HERETICAL SECTS.
TITLE I. CONCERNING THE EXERCISE OF MODERATION IN
JUDICIAL DECISIONS, AND THE AVOIDING OF OPPRESSION
BY THOSE INVESTED WITH AUTHORITY.
=I.= _Concerning the Admonition of the King, by which Judges are
Ordered to Display Moderation in the Administration of
Justice._
=II.= _No Official, Invested with Power Over the People and
Supervision Over their Acts, shall Subject them to
Unnecessary Expense, or Other Impositions._
=I. Concerning the Admonition of the King, by which Judges are Ordered
to Display Moderation in the Administration of Justice.=
It is but proper that we, who impose necessary penalties for the
misconduct of men, should render aid to the unfortunate, by means
agreeable to God. We, therefore, order all judges and other officials
to whom has been delegated the power of dispensing justice, and we
also admonish them in the name of the omnipotent God, the exemplar of
all virtues, that they diligently use their skill in the discovery
of truth, in every case which is brought before them; and that they
examine, with the utmost care, the claims of the parties to each
action, without regard to the rank or condition of said parties; and
that they moderate, in some degree, the severity of the law, where
parties have lost their cases, especially where said parties are
oppressed by poverty; for if the authority of the law were enforced
to the utmost in every instance, there would be no opportunity for the
exercise of mercy.
=II. No Official, Invested with Power Over the People and Supervision
Over their Acts, shall Subject them to Unnecessary Expense, or Other
Impositions.=
We provide laws for all the subjects of our kingdom who are under
our sovereignty, for no other reason than the protection of their
interests, and to the end that they may not be subjected to unnecessary
expense or injury. For who is more concerned in the administration of
justice, or who should be more familiar with it than ourselves, who,
in the various affairs of life, extend the hand of assistance to our
faithful subjects, and aid those whom we rule with equity? We therefore
decree, by the following law, that no governor of a city, deputy,
or other official, shall presume to oppress the people, for his own
benefit, by means of any taxes, exactions, labors, or journeys; or
shall accept unnecessary donations of grain from a city or a province;
for we are well aware that when we appoint judges, we, at the same
time, provide them with the means of subsistence. In like manner, we
admonish governors of provinces, those in charge of the royal demesnes,
and the officials of our treasury, that they have no power over private
persons, and shall not in any way molest them. But where a private
person has a lawsuit against any of the slaves of the Crown, the public
agent, or attorney of the province, having been notified of the fact,
shall cause the matter to be brought before the governor, or the judge
of the district, and shall present his case, in order that the action
may be legally determined, and such amends made as are equitable.
In order that proper supervision may be exercised over the royal
officials in charge of our domains, we have agreed that the tax
collectors and _defensores_ shall be changed every year; and, as
we are well aware that in consequence of this, much injury results to
our people, we hereby decree that any tax collector or _defensor_,
who has been elected by the bishops or the people, shall serve the
full term for which he was chosen. Where any tax collector or
_defensor_ has been appointed, he shall not give any present to
a judge, nor shall a judge presume to accept or exact anything from
him. If any judge should violate this law, he shall be deprived of his
office, and shall be compelled to pay ten pounds of gold to the royal
treasury. Should the priests, whom we address with God as our witness,
learn of any misconduct of judges, or of other officials, and not bring
the same to our notice, they shall be liable to the sentence imposed by
the council, and shall be compelled to make reparation from their own
property for such losses as the poor may have suffered through their
silence.
TITLE II. CONCERNING THE ERADICATION OF THE ERRORS
OF ALL HERETICS AND JEWS.
=I.= _Laws Having Been Given to True Believers, it is Now
Necessary to Place Restraints upon Infidels._
=II.= _Concerning the Renunciation of the Errors of all
Heresies._
=III.= _Concerning the Laws Promulgated on Account of the
Wickedness of the Jews._
=IV.= _Concerning the Extirpation of the Errors of the Jews in
General._
=V.= _Jews shall not Celebrate the Passover According to their
Custom._
=VI.= _Jews shall not Contract Marriage According to their
Custom._
=VII.= _Jews shall not Perform the Rite of Circumcision._
=VIII.= _Jews shall not Divide their Food into Clean and
Unclean, According to their Custom._
=IX.= _No Jew shall Subject a Christian to Torture._
=X.= _No Jew shall Testify Against a Christian; and Under
what Circumstances the Descendants of Jews may
Testify._
=XI.= _No Jew shall Circumcise a Christian Slave._
=XII.= _Concerning the Penalties to be Inflicted for Offences
Committed by Jews._
=XIII.= _Concerning Christian Slaves who are Known to have been
Sold or Liberated by Jews._
=XIV.= _Under no Circumstances shall Christian Slaves Attach
themselves to Jews, or be Admitted into their Sect._
=XV.= _All Christians are Forbidden to Defend or Protect a Jew,
by Either Force or Favor._
=XVI.= _Memorial of the Jews Presented to the King._
=XVII.= _Concerning Judaizing Christians._
=XVIII.= _Concerning the Perfidy of the Jews._
=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=
=I. Laws Having Been Given to True Believers, it is Now Necessary to
Place Restraints upon Infidels.=
Hitherto, we have directed our steps cautiously through the arduous
paths which traverse the iniquities of the Jews; and have used
moderation in the restraint of human crimes and infirmities. For it
has been our manifest purpose and task, both to remove ill-founded
opinions, and to prohibit what is evil, as well as to abolish what has
been wrongfully done, and is abhorrent to decency and honor. As the
law penetrates the secret recesses of minds conscious of guilt, so its
censure corrects the depravity of morals, and prevents the perpetration
of crime. And, indeed, we do not attempt to bring about this purity
of soul for any other purpose than for the sake of the Church of the
living God, which has invested so many different nations and peoples
with the robe of immortality, and has united them to herself with the
bonds of one holy religion. For the excellence of our strength and
earthly glory are derived from the virtues of God, and his influence,
sometimes acting through compassion, sometimes through fear of the
sword of justice, prevents the commission of sin; and on one occasion
diminishes crime by the practice of moderation, on another, extirpates
it by an exhibition of severity. Following, not only the example of
noble and illustrious races who restrained the illegal excesses of
the people by leniency and rational laws, but also copying the rules
and imitating the example of the Holy Fathers throughout the entire
globe of the earth, we shall endeavor, as far as lies in our power, to
reduce to action the precepts which we have received from them. For
this reason, our relatives and subjects will know that our decrees are
suitable, and dictated by honesty of purpose, in that they forbid the
commission of crime, and are not opposed to the opinions of the Holy
Fathers heretofore promulgated. And we are confident that we shall
receive two rewards from the generosity of God: one, that we will be
permitted to remain in the enjoyment of peace with our neighbors, as
we are now; and the other, that, when our rule is ended, we shall
receive a due acknowledgment from heaven. Thus, when, by means of the
laws directed to our faithful people, this salutary remedy shall have
been administered to the adherents of the Holy Faith, (as medicine
is absorbed by the members of the body), and peace and charity shall
everywhere prevail; confiding in the virtue of God, we shall attack his
enemies, pursue his rivals, and conquer his adversaries; contending
manfully, and constantly persevering; dispersing and overcoming those
enemies, as dust is driven by the wind, or as mud is dried up in the
fields, we shall acquire the reward of Faith; and when we shall include
all people as true believers in our holy religion, and shall bring all
infidels to belief in its truths, our glory shall increase, and our
kingdom shall be exalted.[53]
=FLAVIUS RECESVINTUS, KING.=
=II. Concerning the Renunciation of the Errors of all Heresies.=
The eternal counsel of Almighty wisdom and Divine piety, as we
understand it, and revealed to us in former ages, for the benefit of
our own times, dissipated the errors of perfidious heretics, as well
as abolished the false maxims of impious doctrines. Nevertheless,
that such a time may not come during our lives, as that of which the
representative of Divine Grace formerly said: “A time will come when
persons will not desire sound doctrine, but with eager ears, and
according to their desires, will seek masters for themselves; and
who will not listen to the truth, but will turn to false doctrines;
and, as it is proper that whatever remains in the light of the Faith
should be defended, by legal edicts, from the efforts of all who
seek to contradict it; and that whatever ideas have arisen through
the influence of error, be removed by legal proceedings; therefore,
we decree that no man of whatever race or lineage, either native or
foreigner, proselyte or old in faith, visitor or resident, shall
openly or silently, impugn the unity of the Catholic faith; or take
part in any injurious disputes affecting the truth of said faith; or
countenance the same by remaining silent.” No one shall attack the
decrees of the Gospel, or criticise the institutions of the Church, or
call in question the sacred institutions established by the ancient
Fathers; no one shall treat with contempt discussions concerning points
of doctrine which arise in modern assemblies; no one shall entertain
any thoughts against the holy edicts or the true religion, or shall
utter any words in depreciation of the same; or perfidiously cause
a controversy to arise with an obstinate unbeliever; or engage in a
quarrel on account of the contempt of honor exhibited by a listener.
Any person who violates any of the provisions aforesaid shall be
arrested; and should he be an ecclesiastic, or belong to any religious
order, he shall lose his rank and dignity; shall be regarded forever
as a criminal; and shall be punished by the loss of all his property.
If he should belong to the laity, he shall be deprived of honor and
position, and stripped of all his possessions. Every violator of
this law shall be condemned to perpetual exile, unless he should be
converted from his errors by the interposition of Divine mercy, when he
may be suffered to remain and live in accordance with the commands of
God.
=FLAVIUS RECESVINTUS, KING.=
=III. Concerning the Laws Promulgated on Account of the Wickedness of
the Jews.=
The execrable errors of heretics in general, having been already
prohibited and disposed of, it now becomes our duty to make special
provision for some that exist in our days, and of which we are, at
present, well aware. For while the virtue of God, by the sword of
his Word, extirpated all other heresies, root and branch, we have to
lament that the soil of our kingdom is still only defiled by the infamy
of the Jews. Therefore, to the end that we may establish peace in our
realm, by the spirit of God (which, indeed, seems folly to pagans, and
scandal to the Jews themselves), we, who believe in the virtues of
Christ, and the wisdom of God, for the sake of whose commiseration we
attempt, with pious intentions, to put an end to ancient errors, that
others may not arise in future ages; decree by this law, which shall be
forever observed, and by the mandate of the Holy Scriptures, that our
edicts, as well as those promulgated by our royal predecessors against
the perfidy and persons of the Jews, shall be forever inviolate,
and shall be obeyed for all time. And if anyone should violate said
laws, he shall be liable for the damages provided by them, and to the
punishments especially prescribed for their infraction.
=FLAVIUS RECESVINTUS, KING.=
=IV. Concerning the Extirpation of the Errors of the Jews in General.=
No Jew who has received the sacred rite of baptism shall renounce the
faith of the holy Christian religion, or blaspheme said faith, in
any way. No Jew shall impugn its precepts by deed or word; or speak
insultingly of it either secretly or openly. No Jew shall flee to
avoid being received into the Church, or conceal himself for such a
purpose, after having taken to flight. No Jew shall entertain the hope
of resuming his errors, or of performing the ceremonies of his infamous
belief. No Jew shall entertain in his heart any perfidy against the
Christian religion, and in favor of his own sect, or exhibit such
perfidy by word or deed. No Jew shall attempt to infringe, or oppose,
any regulations or laws of the Christians which have been published.
No one shall venture to conceal a Jew who is aware of the existence of
these offences which have been prohibited, or who has committed them.
No one shall delay to denounce a fugitive Jew when he is found, or to
reveal his hiding place. Any person who violates the provisions of the
aforesaid law, shall be subjected to the punishment prescribed for the
same.
=V. Jews shall not Celebrate the Passover According to their Custom.=
No Jew shall celebrate the Passover upon the fourteenth day of the
month, nor shall perform any of the ceremonies customary at such times.
Nor shall any Jew, in honor of his ancient, erroneous belief, observe
any festival days, great or small; or attempt their observance; or
desist from labor upon any holidays; or hereafter keep the Sabbath, or
any other sacred days prescribed by his rites, or attempt to do so.
Anyone detected violating this law shall be liable to the condemnation
and penalty prescribed for the same.
=VI. Jews shall not Contract Marriage According to their Custom.=
No Jew shall marry, or defile with adultery or incest, anyone nearly
related to him by blood. No Jew shall marry another within the seventh
degree of relationship; nor shall he desire or practice any other
nuptial ceremony than that customary among Christians. Whenever
detected, he shall be punished according to law.
=VII. Jews shall not Perform the Rite of Circumcision.=
No Jew shall circumcise another; nor shall a person who has permitted
himself to be circumcised be exempt from the operation of the law.
No slave, freeborn person, or freedman, native or foreigner, shall
practise or submit to this detestable operation. Whoever is proved to
have voluntarily performed, or submitted to it, shall be punished with
the utmost severity of the law.
=VIII. Jews shall not Divide their Food into Clean and Unclean,
According to their Custom.=
The blessed apostle Paul said, “To the pure all things are pure,” but
nothing is pure to those who are defiled, because they are unbelievers;
and, for this reason, the execrable life of the Jews and the vileness
of their horrible belief, which is more foul than any other detestable
error, must be destroyed and cast out. Therefore, no Jew shall make a
distinction between food which is clean and unclean, as established
by the customs and traditions of his ancient rites. No one shall
perversely refuse to eat food of any kind, whose condition is proved to
be good. No one shall reject one article of food, and accept another,
unless the distinction be such as is considered salutary and proper by
all Christians. Anyone detected in the violation of this law shall be
subjected to the punishment instituted for the same.
=IX. No Jew shall Subject a Christian to Torture.=
We especially decree, by the following law, that it shall not be lawful
for any Jew to testify against a Christian in any legal proceeding,
or business transaction, even though said Christian should be of the
lowest rank or a slave; nor shall a Jew prosecute a Christian, in any
action at law; or sue him upon any written contract; or subject him to
torture for any reason whatever. For it seems sacrilegious to prefer
an infidel to him who is a believer, and to subject the members of
the followers of Christ to torture inflicted by his adversaries. If,
however, Jews should have causes of action among themselves, they shall
have the right, under the law, to testify against each other; and to
put their slaves to the torture in the presence of Christian judges.
=X. No Jew shall Testify Against a Christian; and Under what
Circumstances the Descendants of Jews may Testify.=
If he who is convicted of having uttered a falsehood becomes infamous
in the sight of all men, with how much more reason should he be
excluded from giving testimony who denies the truth of the Divine
Faith? Jews, whether baptized or unbaptized, are therefore forbidden to
testify against Christians. The descendants of Jews, however, if they
are of good morals, and adherents of the Faith, shall be permitted to
give evidence among Christians; but not unless their morals and their
belief shall be vouched for by either the king, a priest or a judge.
=XI. No Jew shall Circumcise a Christian Slave.=
It shall not be lawful for a Jew to purchase a Christian slave, or to
accept of one as a gift. Should a Jew purchase such a slave or accept
of him as a gift and then circumcise him, he shall lose the price of
said slave, and the latter shall be free. The Jew who circumcises a
Christian slave shall forfeit all his property to the king. Any slave
of either sex who is unwilling to become a Jew, shall receive his or
her freedom.
=XII. Concerning the Penalties to be Inflicted for Offences Committed
by Jews.=
The following law is derived from others of great severity, which
have been enacted to punish the perfidy of the Jews; and it is hereby
decreed that whoever attempts to commit any of the crimes prohibited by
former laws, or contained in any amendments to the same, or presumes
to act in defiance of said laws, shall be either stoned to death,
or burned by such of his own countrymen as may have entered into an
agreement to do so. However, if the king, in his mercy, should decide
to spare the life of such a criminal, he shall be delivered up as a
slave to whomever the king may select, and all his property shall be
given to others; and this shall be done in such a way that the culprit
can never come into possession of his property again, or recover his
liberty in the future.
=XIII. Concerning Christian Slaves who are Known to have been Sold or
Liberated by Jews.=
To the most holy and blessed Agapius and Cecilius, bishops, and to
the judges of their districts, as well as to other ecclesiastics and
magistrates, of the provinces of Barbia, Ausgia, Sturgia, Viatula,
Tutigia, Gabrus, and Epagrus, greeting: The authority of the law
promulgated by our lord and predecessor, Recaredus, declaring that
Christian slaves shall under no circumstances remain in the power
of Jews, would be sufficient, if the depravity of the Jews had not
afterwards corrupted the minds of princes, and they had not demanded
and obtained benefits for themselves contrary to the principles of
justice. And that we may, with the assistance of God, promulgate a law
by which these frauds may hereafter be abolished, and for the reason
that, in past times, the edict of said king has been nullified, we
hereby decree: that if any Christian slave should be in the possession
of a Jew after this law is published, whether said slave should
have been set free or not, he shall have the same right as a Roman
citizen. And if said slave, through any unlawful act, should have been
transferred to the possession of any other person by an instrument in
writing, when he should have been liberated according to law, he shall
be given his liberty; the contract shall be cancelled; the price paid
for him shall be returned to the vendor; and said slave shall have a
right to pass his life in freedom, supported by his own labor, have his
name inscribed upon the public records, and be taxed according to an
equitable estimate of his property.
If any slaves should have been acquired by any just title, after the
time in which the law of said king was promulgated, their masters shall
have the right, until the Kalends of July, to sell, or liberate said
slaves, as they choose. Any Christian slaves who have been circumcised
by the Jews, at any time, or have joined their sect, shall be punished
as prescribed by law. Where such slaves as we have declared to be free,
are again reduced to slavery by the Jews, or are retained by them,
without being emancipated; the Jews, guilty of such offences, shall be
punished as in the case of freemen, where the latter are restrained
of their liberty. All Jews who have been converted to the Holy Faith,
shall be entitled to their share in the inheritance of their fathers.
Where sales have been made of slaves at a certain time, in the division
of the same there shall be no separation of parents and children, but
all shall be transferred together to the purchaser. Where a Jew has
been proved to have obtained property by fraud, from the ancestors of
any person, he shall be deprived of it, and it shall be forfeited to
the royal treasury. Any slaves belonging to the Jews, who have been
baptized, shall, with their children, be returned to their masters, and
be liberated by them; and any property they may have acquired shall be
given them along with their freedom. Those who have no property shall
be aided by the person who sets them free, as far as he is able to do
so; and said emancipated slaves shall be classed as other freedmen, and
shall be taxed in proportion to the property they own.
=XIV. Under no Circumstances shall Christian Slaves Attach themselves
to Jews, or be Admitted into their Sect.=
We provide for the health and safety of our subjects, and of all
other persons within the provinces of our kingdom, when we rescue the
adherents of our religion from the hands of infidels. For, by this
means, the orthodox faith will be greatly exalted, when the execrable
perfidy of the Jews shall no longer have power over Christians. The
fatal control of Jews over Christians should therefore be abominated,
and the people consecrated by the favor of God brought under the
influence of Divine Love. Therefore, we promulgate the following
law, to be forever obeyed, and admonish every royal officer, in all
future times: that, from the first year of our reign no Jew shall be
permitted to have a freeborn Christian, or a Christian slave, under
his patronage, or in his service. Nor shall a Jew be allowed to employ
any such person for hire, or avail himself of his services, under any
pretext whatsoever. A Jew shall, however, be permitted to sell his
slave, for a just price, to a Christian, under proper circumstances,
anywhere he resides within the limits of our kingdom. It shall not be
lawful to sell such slaves in foreign countries, unless it should be
proved that said slaves reside there. Where slaves sold by Jews into
foreign countries, as aforesaid, have no property of their own, the
vendor shall give to said slaves such sums as, in the opinion of the
purchaser, will be sufficient for supporting and clothing them; and
this is provided in order that a transaction concluded under the name
of purchase, may not appear to be exile.
Where a Jew wishes to free a Christian slave, he must do so in such a
way that the latter may attain the rank of a Roman citizen, to wit:
that, by the act of emancipation, no services shall be reserved for
the benefit of any Hebrew, or of anyone else; and that said liberated
slave may have the power to pass his life wherever he chooses, free
from all obligation to, or association with, the Jews. If, however, any
Hebrew should fraudulently sell or liberate a slave, and evidence of
said illegal act should be proved at any future time, and any damage
to the slave should result; where a freeborn person exposes such a
fraudulent transaction, he shall be entitled to all the property of the
parties, both vendor and purchaser, who perpetrated the fraud. Should
a Christian be concerned in such a proceeding, he shall be given as a
slave to whomever the king may direct; and where he has property, half
of it shall be confiscated for the benefit of the public treasury,
and the offender shall be branded with eternal infamy. Should a slave
detect a fraud of this kind, he shall be given his freedom, and shall
remain under the patronage of him in whose service he was until that
time; and in order that exact justice may be done, the master of said
slave shall receive another from the Crown in his stead, and, in
addition, shall be entitled to a pound of gold from him whose deceit
was exposed by the slave.
Where a Hebrew circumcises a Christian, or induces one to join his
sect, or perform any of his rites, he shall be beheaded; the informer
shall receive a proper reward; and the property of said Jew shall be
forfeited to the royal treasury. All slaves who are known to be the
issue of marriages between Christians and Jews, we hereby declare shall
be made Christians. And if such slaves as have been converted to the
Jewish religion should desire to remain in that perfidious belief, and
and should refuse to return to the true faith, they shall be scourged,
and scalped, in the presence of the assembled people, and delivered
up to whomever we may select, to remain in perpetual servitude. Where
the unlawful marital unions hereinbefore mentioned have already taken
place, we hereby decree that the infidel party to the same shall have
a right to embrace the true faith, should he or she desire to do so.
Should, however, said party refuse, the marriage shall be dissolved,
and the recalcitrant person shall be driven into perpetual exile. To
the other provisions of this law we add the following: that whenever
any Jew desires sincerely to embrace the Catholic faith, and has been
purified by the holy water of baptism, he shall be entitled to retain,
without molestation, all the property which he possessed at that time.
This edict we declare shall be in force, and shall be observed by all
our subjects throughout our dominions, after the Kalends of July of the
present year. If, after said date, a Christian slave should be found
in the possession of a Jew, half the property of said Jew shall be
forfeited for the benefit of the royal treasury, and said slave shall
be set at liberty; nor shall any Jew have any claim to the person or
property of said slave thereafter.
The aforesaid law which we, induced by piety and religion, have framed
for the benefit of our people and ourselves, we hereby decree, with
the aid of God, shall be forever valid. And may Christ, the Conqueror,
make all our successors, guardians of this law, victorious, and confirm
in the enjoyment of His kingdom those who He knows will faithfully
enforce it. While we are not of the opinion that its provisions will
be violated by anyone; nevertheless, should such a person exist, may
he who audaciously disobeys it, or does not reverently observe it, be
regarded by all men as the most infamous person of the century; may he
lose his life at the moment when he forms the detestable resolution to
break said law; and may he be oppressed by the accumulated mass of his
sins through all eternity, inasmuch as, by his transgression, he has
infringed this salutary decree. And, in the terrible time of the Day
of Judgment, reserved for the coming of the Lord, may the said culprit
be separated from the flock of Christ; and, placed at the left hand
with the Jews, be burned with eternal fire, with the devil for his
companion; in order that avenging punishment may be inflicted upon all
transgressors, and that true Christians may receive a rich and eternal
reward.
=XV. All Christians are Forbidden to Defend or Protect a Jew, by Either
Force or Favor.=
To the former laws, which we, and our predecessors, have promulgated
for the purpose of annihilating the perfidy of the Jews, it becomes
necessary to add the following one to sanction and strengthen those
which have been heretofore published. Now, after we have repudiated the
profane enemies of the Holy Faith, and put an end to the wicked schemes
of these perfidious wretches, it becomes necessary for us to confirm
those things which have already been done, and arrange them suitably
and in order; for, in the exact proportion as the skilful artificer
gives form to the invention of his genius, so, in just such proportion
does his work disclose the strength and beauty of his mind.
Therefore, lest the Jews should, by means of any artifice, and through
their unremitting perseverance, obtain the legal sanction for their
profane rites so much desired by them, we hereby decree that no
person belonging to any religious order or rank whatsoever, or any
of the royal officials, of high or low degree, or any individual of
any station or family, or any prince, or person in authority, shall
encourage any Jew, whether baptized or not baptized, to remain in the
practice of his detestable faith and customs; or shall conceal the fact
that he is doing so; or shall induce those who have been baptized to
return to the observance of their perfidious ceremonies. No one shall
attempt, under any pretext, to defend such persons in the continuance
of their depravity, even should they be under his patronage. No one,
for any reason, or in any manner, shall attempt by word or deed, to aid
or protect such persons, either openly or secretly, in their opposition
to the Holy Faith and the Christian religion.
If any bishop or other ecclesiastic should be guilty of such an
offence, or if any member of the laity should be convicted of the same,
he shall be excluded from the society of Christians, be excommunicated,
and forfeit the fourth of all his property, which shall be confiscated
for the benefit of the royal treasury. For it is eminently proper that
those should be separated from the communion of the faithful, and be
punished by the loss of their possessions, who reject the love of
Christ, and, in the aid of His enemies, infamously attack the truth.
The penalties for such offences shall remain the same as were provided
in a former law by King Sisibutus, of holy memory.
=XVI. Memorial of the Jews Presented to the King.=
To our most pious and noble lord and master, King Recesvintus: We,
Jews of the city of Toledo, who have hereto attached our signatures,
or seals, call your attention to the fact that formerly we were
compelled to present a memorial to King Chintilanus, of holy memory,
by which we bound ourselves to uphold the Catholic faith, as, in like
manner, we do now. But, whereas the perfidy born of our obstinacy, and
the antipathy resulting from our ancestral errors, influenced us to
such an extent that we did not then truly believe in our Lord Jesus
Christ, and did not sincerely embrace the Catholic faith, therefore,
now, freely and voluntarily, we promise Your Majesty for ourselves,
our wives, and our children, by this our memorial, that henceforth
we will observe no Jewish customs or rites whatever, and will not
associate, or have any intercourse with, any unbaptized Jews. Nor will
we marry any person related to us by blood, within the sixth degree,
which union has been declared to be incestuous and wicked. Nor will
we, or our children, or any of our posterity, at any time hereafter,
contract marriage outside our sect; and both sexes shall hereafter be
united in marriage according to Christian rites. We will not practise
the operation of circumcision. We will not celebrate the Passover,
Sabbath, and other festival days, as enjoined by the Jewish ritual.
We will not make any distinction in food, according to our ancient
usages. We will not observe, in any way, ceremonies prescribed by the
abominable practices and habits of the Hebrews. But, with sincere
faith, grateful hearts, and perfect devotion, we believe that Christ
is the son of the living God, as declared by ecclesiastical and
evangelical tradition; and we hereby acknowledge Him to be such, and
venerate Him accordingly. Moreover, all the ceremonies enjoined by the
Christian religion--whether said ceremonies relate to festivals, or
to marriage and food--we will truly and exactly observe; and we will
maintain the same with sincerity, without any objection or opposition
thereto; and without any subterfuge on our part, by means of which we
might hereafter deny our acts, return to what has been prohibited, or
not completely fulfil all that we have promised. With regard to the
flesh of animals which we consider unclean, if we should be unable to
eat the same on account of our ancient prejudices, nevertheless, when
it is cooked along with other food, we hereby promise to partake of
the latter with no manifestation of disgust or horror. And if, at any
time, we should be found to have transgressed, and to have violated
any of the promises hereinbefore specified; or should presume to act
contrary to the doctrines of the Christian faith; or if we should, in
word or deed, neglect to fulfil the obligations to which we have bound
ourselves, as being acceptable to the Catholic religion; we hereby
swear by the Father, Son and Holy Spirit, who form one God in the
Trinity, that, in case a single transgressor should be found among our
people, he shall be burned, or stoned to death, either by ourselves, or
by our sons. And should Your Majesty graciously grant such culprit his
life, he shall at once be deprived of his freedom, so that Your Majesty
may deliver him to be forever a slave to anyone whom Your Majesty may
select; and Your Majesty shall have full authority to make whatever
disposition of him and his property as may seem expedient; not only on
account of the power attached to your royal office, but also by the
authority granted by this our memorial. Made, in the name of God, at
Toledo, on the Kalends of March, in the sixth year of Your Majesty’s
happy reign.
=XVII. Concerning Judaizing Christians.=
As the crime of hypocrisy should be deplored by all Christians;
for the same reason it should be evident, that no person, under
any circumstances, is deserving of pardon, who is proved to have
renounced a good religion for a bad one. Therefore, because a cruel
and astounding act of presumption should be expiated by a still more
cruel punishment, we declare, by the following edict: that, whenever
it has been proved that a Christian, of either sex, and especially one
born of Christian parents, has practised circumcision, or any other
Jewish rite, or anything else forbidden by God, he shall be put to an
ignominious death by the zeal and co-operation of Catholics, under the
most ingenious and excruciating tortures that can be inflicted; that
he may learn how horrible and detestable that offence is, which he has
so infamously perpetrated. All the property of such a person shall
be confiscated for the benefit of the royal treasury, in order that
his heirs and relatives may not, through consenting to his errors, be
contaminated by them.
=XVIII. Concerning the Perfidy of the Jews.=
We learn from the Holy Scriptures, that Christ is called the Son of
God, and it is but just, and consistent with Christian doctrine, that,
as we present the favor of liberty to all true believers, we should
suppress infidels, even to the loss of their lives; and, in order that
the faith of Christ may increase in us to the utmost, the perfidious
doctrines of the Jews must be destroyed to the very foundation.
Therefore, in all devotion, we decree that henceforth, whenever a Jew,
of either sex, renounces the perfidy of his religion, and is converted
to the profession of the true Catholic faith and, repudiating the
errors of his rites and ceremonies, lives his life according to the
customs of the Christians, he shall be free from every burden and
disability, which formerly, when attached to the Jewish faith, he would
have been subject to for the public benefit; so that his privileges
will increase with his freedom from those exactions which are imposed
upon such as are blinded by the wickedness of their infidelity, and
controlled by the inherited errors of their ancestors. For it is
unjust that such persons as are known to have assumed the gentle yoke
of Christ, and the light burden of his religion, through sincere
conviction, should be oppressed with heavy taxation, or subjected
to the pecuniary burdens imposed upon other Jews. It shall be, in
every respect, lawful for all such persons who are true believers, to
engage in trade, and to carry on business transactions with Christian
customers; and if any Christian, not informed of the conversion of
said Jews, should desire to purchase anything of them, it shall not
be lawful for him to do so, until said converted Jews declare that
they are Christians, and recite for him the dominical prayer or the
Apostles’ Creed in the presence of witnesses; and, as true followers of
Christ accept or signify their willingness to partake of food used by
Christians.
If any hypocrite should be found among those converted to the Holy
Faith, he shall be condemned to slavery, and all his property shall be
confiscated for the benefit of the royal treasury. Such Jews, however,
as remain obstinate, and, in the perfidy of their hearts, refuse to
embrace the Catholic religion, we decree shall undergo the following
penalty, to wit: they shall not dare to go into foreign countries for
the purpose of commerce; nor shall openly or secretly engage in trade
with Christians, but shall only have the privilege of transacting
business with one another; and they shall pay the taxes imposed upon
them, as in such case provided; and shall pay to the public treasury,
out of their own property, the taxes due from those Jews who have been
converted. All slaves, buildings, lands, olive-orchards and whatever
other real property they are found to have acquired from sales by
Christians, or in any other manner whatsoever, although it may have
been in their possession for many years, shall be confiscated for the
benefit of the royal treasury, and the king shall have the absolute
disposal of the same. Should any Jew, who remains in infidelity,
dare to act contrary to this law, or to transact business with any
Christian, having been reprimanded, he shall be given to the Crown,
along with all his possessions, to be a slave forever.
We admonish all Christians, calling to witness the Divine Personage by
whose blood we have been redeemed, that none of them presume, in any
way, to transact business with such Jews as continue in the obstinacy
of their perfidious belief. Where a Christian commits such an offence,
if he is a person of superior rank or power, he shall pay three pounds
of gold to the royal treasury. And if anyone should buy from such
Jews anything that is worth more than twice what he paid for it, he
shall pay out of his own property, three times the value of the same,
along with the original price, to the royal treasury. If, however, a
person of inferior station should be guilty, he shall receive a hundred
lashes, and all the property which he is possessed of shall be given to
the king, who shall have the right to dispose of any, or all of it, at
his pleasure.[54]
TITLE III. CONCERNING NEW LAWS AGAINST THE JEWS,
IN WHICH OLD ONES ARE CONFIRMED, AND NEW
ONES ARE ADDED.
=I.= _Concerning Old Laws Enacted Against the Transgressions
of the Jews, and the Confirmation of the Same._
=II.= _Concerning Blasphemers Against the Holy Trinity._
=III.= _Jews shall not Absent themselves, or Remove their
Children or Slaves, to Avoid the Blessing of Baptism._
=IV.= _Jews shall not Celebrate the Passover According to
their Customs, or Practise Circumcision, or Induce
any Christian to Renounce the Church of Christ._
=V.= _Jews shall not Presume to Keep the Sabbath, or
Celebrate Festival Days, According to their Ritual._
=VI.= _Every Jew shall Cease from Labor on Sunday, and on all
Appointed Holidays._
=VII.= _Jews shall not make any Distinction in their Food,
According to their Custom._
=VIII.= _A Jew shall not Marry a Person Nearly Related to him
by Blood, or Contract Marriage without the Benediction
of a Priest._
=IX.= _Jews who Insult our Religion, while Attempting to
Defend their own Sect, shall not Betake themselves
Elsewhere; nor shall Anyone Shelter them while
Fugitives._
=X.= _No Christian shall Accept a Gift from a Jew, to the
Detriment of the Christian Faith._
=XI.= _Jews shall not Dare to Read Such Books as the Christian
Faith Rejects._
=XII.= _Christian Slaves shall not Serve, or Associate with,
Jews._
=XIII.= _Where a Jew Declares that he is a Christian, and, for
this Reason, does not wish to Dispose of a Christian
Slave._
=XIV.= _The Confession of Jews; and In What Way Each One of
Them, who is Converted, must Write Down the Proof of
his Conversion._
=XV.= _Conditions under which Jews must Make Oath, when,
having been Converted, they give in their Confession
of Faith._
=XVI.= _Concerning the Christian Slaves of Jews, who have not
Proclaimed Themselves Christians, and those who
Expose Them._
=XVII.= _No Jew, under any Authority whatever, shall Dare to
Oppress, Punish, or Imprison a Christian, Except by
Order of the King._
=XVIII.= _If Slaves of Jews, not yet Converted, should Claim
the Grace of Christ, they shall be Liberated._
=XIX.= _Jews shall not Rule Christians under the Authority
of Mayors of Towns, or of Superintendents of Estates;
and Concerning the Penalties to be Imposed upon Such
as Appoint them to Office._
=XX.= _Where a Jew comes from Another Country into any of the
Provinces of Our Kingdom, he Must, at once, Present
himself before a Bishop, a Priest, or a Judge; and
What shall be Done under the Circumstances._
=XXI.= _How Assemblies of Jews shall Visit the Bishop on
Appointed Days._
=XXII.= _Where Anyone has a Jew in his Service, and a Priest
Demands him, the Master shall not have a Right to
Retain said Jew._
=XXIII.= _All Restraint of and Control over the Jews shall be
Vested in the Priesthood._
=XXIV.= _Concerning the Penalties to be Imposed upon Priests
and Judges who Neglect to Enforce the Laws against
the Jews._
=XXV.= _No Judge shall Presume to Investigate the Offences of
the Jews without the Knowledge of an Ecclesiastic._
=XXVI.= _Bishops shall be Immune from Punishment, when their
Priests do not Inform them of Such Things as Should
be Corrected._
=XXVII.= _Concerning the Mercy to be Shown by Princes towards
Those who have been Truly Converted to the Christian
Faith._
=XXVIII.= _Bishops shall Give to all Jews a Copy of this Book,
which has been Published for the Purpose of
Correcting their Errors; and their Confessions and a
Record of their Conversion, shall be Deposited among
the Archives of the Church._
=I. Concerning Old Laws Enacted Against the Transgressions of the Jews,
and the Confirmation of the Same.=
The perfidy and cunning of the Jewish heresy increases in criminality,
in the same proportion as attempts are made to abolish it by law.
And, as we are about to promulgate new edicts for the suppression of
these errors, it is now proper to first confirm those which have been
enacted by our predecessors; and in order the better to adapt the same
to the offences of the Jews, it is necessary for us to revise all
preceding edicts; so that, in this way, the new laws being collated
with the old ones, those which should be approved may be confirmed,
as is fitting; and, at the same time, the new statutes may be drawn
up so that they shall not conflict with those already in force, but
that all may be united, and the entire body of laws made clear for
the administration of justice. Thus, whenever edicts already in force
may be judged worthy of confirmation, and whatever new edicts we may
think it advisable to promulgate, may both become more manifest, and,
in this manner, by the application of both classes of laws, the truth
may be the more readily established. For example, we have found a law
among those formerly promulgated, which declares that all heresy must
be eradicated. It is reasonable and evident, however, that this must
be added to and amended, in such a way that if anyone induced by the
insanity of unbelief should treat with contempt any of its provisions,
no matter to what rank or station he may belong, and should attempt to
defend any perverse dogma in public, he shall be subjected to severe
penance, exiled, and his property confiscated for the benefit of the
king; and even if he should, at any time, renounce the errors of
his perverse sect, he shall under no circumstances be permitted to
return from exile; and his property shall be irrevocably held by those
upon whom the king has bestowed it. Where any Jew, deluded by blind
ignorance, retains the errors of his sect in his heart, and evinces a
disposition to defend the same, either by word or deed, he must go to
the bishop, or some priest of the district, for instruction; and the
latter must explain to him the precepts of religion, and, with the
consent of the metropolitan, also give him the formulas of doctrine
and the rules of faith. If any heretic, after having been instructed
as aforesaid, should still persist in his error, he shall be liable to
the penalty imposed by a preceding law; that is to say, the one which
is provided for those who publicly defend their own sect, in opposition
to our religion. And we hereby especially confirm such laws as are
directed against the offences of the Jews, to wit: such as have been
enacted concerning the wickedness of the Jews, or for the purpose of
eradicating their errors. Thus, Jews shall no longer celebrate the
Passover, according to their customs; or presume to marry, as formerly;
or practise circumcision; or distinguish food as clean and unclean;
or presume to torture Christians, or to testify against them, and no
Jew shall circumcise a Christian slave. All Christian slaves who have
been either sold or set at liberty by Jews, shall at once receive their
freedom unconditionally, and under no circumstances shall a Christian
slave remain in the service of a Jew. Concerning the law by which all
Christians are forbidden to protect a Jew, we decree that no Christian,
under any circumstances, by any act or favor, shall attempt to shelter
or defend a Jew; or shall presume to conceal a judaizing Christian. We,
therefore, decree that the severe laws formerly promulgated to suppress
the perfidy of the aforesaid Jews shall remain in force, for all time;
with the exception of such as are referred to in the two following
chapters, which have been found to be contradictory to the others, as
well as opposed to the principles of justice, and to our ordinances;
and we hereby declare, in the plenitude of our wisdom, that said laws
shall remain irrevocable and forever in force, provided they in no wise
conflict with such others as we may hereafter promulgate. In respect
to such edicts as seem to us improper and conflicting, the following
two are repugnant to reason and to our institutions; wherefore they
shall, henceforth, not be observed and shall have no force or effect
in law. The first of these is that whereby the detestable power of
liberating Christian slaves is bestowed upon the Jews. The second we
condemn, because it subjects to the same penalty those who are guilty
of different offences. While there are different degrees of guilt
according to the laws, the latter do not always impose different
penalties, but many crimes are treated alike, and each offence is not
punished according to the measure of its guilt; for it is evident that
crimes of greater and less gravity should not be punished in the same
manner; especially as our Lord has said in the Divine Law that the
penalty shall be in proportion to the offence; and, therefore, this law
which prescribes the penalty to be inflicted for the transgressions
of the Jews shall be hereafter considered of no validity and effect;
for the reason that God does not desire the death of His creatures
or rejoice in their perdition, but wishes that they may live in Him
through their redemption. Henceforth we shall devote ourselves to the
restraining of all malice; to the suppression of infidelity; and to the
eradication of all profane doctrines; and we shall boldly resist the
attacks of our enemies, and overwhelm them with the weapons of Divine
power.
=II. Concerning Blasphemers Against the Holy Trinity.=
If God in the Holy Scriptures, declares that whoever insults his
brother is worthy of punishment, and as the sentence of Divine justice
condemns him as a still greater transgressor who sins against the Holy
Spirit, how much more unpardonable shall he be who, in the future,
shall denounce the Saviour Himself! Therefore, if anyone should
blaspheme the name of Christ, the Son of God, and speak with contempt
of His holy body and blood as a sacrament, and should refuse to partake
of the same, or, having partaken of it, should cast it away; or should
utter any blasphemy against the Holy Trinity, that is to say, against
the Father, Son, and Holy Ghost; the blasphemer shall have his head
shaved, and receive a hundred lashes, by order of the priest or judge
in whose diocese or district said crime was committed, and the culprit
shall also be placed in chains, and be condemned to endure the misery
of exile. The property of said offender shall be given to the king, and
shall remain irrevocably in the possession of those upon whom he may
choose to bestow it.
=ERVIGIUS, KING.=
=III. Jews shall not Absent themselves, or Remove their Children or
Slaves, to Avoid the Blessing of Baptism.=
While Divine truth teaches us to seek, to investigate, and to knock at
the door, that it may be opened unto us, admonishing us, at the same
time, that violent men shall not inherit the kingdom of Heaven, it
is evident that those will not merit Divine favor, who do not exert
themselves to that end, with their entire hearts. Henceforth, where any
Jew of those who have not yet been baptized, or have themselves delayed
their own baptism; or have, under any pretext, neglected to send their
children or slaves to the priest, in order to be baptized; or have
removed their slaves in order to avoid their baptism; and the said Jew,
after the lapse of one year from the promulgation of this law, shall
not have been baptized; said transgressor, whoever he may be, shall
receive a hundred lashes, and, having had his head shaved, shall be
driven into exile. His property shall be forfeited to the king, and
shall be bestowed upon whomever he may direct, as the life of said Jew
has shown him to be obstinate and incorrigible.
=ERVIGIUS, KING.=
=IV. Jews shall not Celebrate the Passover According to their Customs,
or Practice Circumcision, or Induce any Christian to Renounce the
Church of Christ.=
If the obstinate perfidy of the Jews had observed the law, and the
substance rather than the shadow of the truth, the crucifixion of
the Lord of Glory would never have occurred. For our Passover is
designated by the sacrifice of Christ; and if He rejoices in the
circumcision of our hearts, that symbolic operation ought in no way
to be performed in the flesh; for the prophet has said, “Circumcise
the Lord, and remove the prepuce from your hearts.” Therefore we, not
regarding the shadow of truth aforesaid, but relying upon the promises
of truth itself, decree that the following shall be observed: that
when any Jew celebrates the Passover according to the rites of his
religion, he shall receive a hundred lashes, be scalped, and be driven
into perpetual exile, and his property shall be confiscated for the
benefit of the royal treasury. Whoever shall circumcise either a Jew
or a Christian, shall be mutilated;[55] and his property shall be
confiscated for the use of the royal treasury. Should any woman presume
to practise the operation of circumcision, or should present anyone to
another person to be circumcised, she shall have her nose cut off, and
all her property shall be given to the king. They, also, shall undergo
a similar penalty who cause a Christian man or woman to renounce the
faith of Christ, or induce anyone to return to the practice of the
false doctrines of the Jews.
=V. Jews shall not Presume to Keep the Sabbath, or Celebrate Festival
Days, According to their Ritual.=
The delusive phantoms of error having disappeared, it is now incumbent
upon us to labor unceasingly; for what other course is open to the
lovers of truth? The Lord, speaking by the mouth of His prophet, has
denounced this heresy in the following terms: “My soul abhors your
Passover, your Sabbath, and all your ceremonies.” Wherefore, as we have
been admonished by the apostle, that we should rather act according to
the new spirit, than follow the ancient letter of the law, we hereby,
in all faith and earnestness, give notice to the infidels, that if any
Jew should presume to celebrate the appearance of the new moon, or the
Festival of Tabernacles, or the Sabbath, or any holidays, or should
observe any other rites or ceremonies of his worship, he shall receive
a hundred lashes, shall have his head shaved, and shall be subjected
to the misery of exile, and all his property shall be forfeited to the
king; with the condition, however, that should he be converted at any
time, it may be restored to him; but if not, it shall remain in the
possession of those upon whom it has been bestowed.
=VI. Every Jew shall Cease from Labor on Sunday, and on all Appointed
Holidays.=
There is no doubt that he is plainly an enemy of the Catholic religion
who does not treat Sunday with due reverence. Hence, while we are
pursuing those who deny or disobey our faith, we hereby decree with
Divine sanction, that if any Jew, of either sex, should do any work
on Christmas, or on any other sacred holiday, or on Sunday, or should
spin, or weave, or perform any labor beyond that which the honorable
custom of good Christians permits; such a transgressor shall have his
head shaved, and shall receive a hundred lashes for his insolence;
and where slaves, of either sex, are found occupied in such labors,
they, also, shall be liable to the punishment aforesaid. The masters
of said slaves, where they permit them to labor in this manner, shall
be compelled to pay a hundred _solidi_ to the royal treasury.
Those days which shall be devoutly observed by the Jews, are the
following, to wit: the Festival of the Holy Virgin Mary, during which
the glorious Conception is celebrated; the Festivals of the Nativity
and Circumcision; Holy Week and Easter; the day of the Discovery of
the Cross; the Day of the Ascension; Pentecost; Sundays throughout the
entire year; and all the days that are venerated by true believers in
the doctrines of Christ.
=VII. Jews shall not make any Distinction in their Food, According to
their Custom.=
The detestible Jewish custom, viler than any other superstition,
dividing food into clean and unclean, accepts the former, while it
rejects the latter. Whoever is convicted of the commission of the
error of this practice, that is to say, who acts differently from the
custom observed, under similar circumstances, by all true Christians,
shall receive a hundred lashes and be scalped, by order of the judge in
whose district the offence was committed. The provisions of this law
shall be observed in every respect concerning drink, as well as food;
and the punishment hereinbefore specified shall be inflicted upon all
who abstain from the wines or other beverages of Christians. In regard
to the flesh of swine, we hereby decree that no distinction shall be
made on account of religious prejudice; but if any Jew should avoid
such food through natural abhorrence, and not from a regard to the
usages of their perverse sect, especially if their behavior, in other
respects, is similar to that of Christians, and if they have embraced
Christianity, and observe its rules, and are known to be sincere
believers, they shall not be liable to punishment under the aforesaid
law, merely because they have rejected the flesh of swine; for the
reason that it appears contrary to justice, that those whom the faith
of Christ has openly ennobled, should be rendered liable to punishment
on account of their rejection of a single article of food.
=VIII. A Jew shall not Marry a Person Nearly Related to him by Blood, or
Contract Marriage without the Benediction of a Priest.=
No Jew, of either sex, shall be permitted to marry a relative, either
on the side of the wife or the husband, within the sixth degree,
except according to the law imposed upon Christians; nor shall any
Jew commit the crime of incest by marriage with a near relation.
Those who violate the law by such an illicit union, shall undergo the
following punishment, to wit: having been separated from one another
each party shall receive a hundred lashes; they shall have their
heads shaved, be subjected to severe penance, and then be driven into
exile; their property shall be given to such children as they may have
had by a preceding marriage--provided the latter have been in no way
contaminated with the Jewish superstition, or polluted with the infamy
of incestuous marriage. If, however, they should have no children,
or, having them, the latter should be tainted with the Jewish error,
or with the crime of incest, as aforesaid, then the property of said
offender shall be forfeited to the king. The following, moreover, we
direct shall be carefully observed in every respect, namely: that if
any Jew, of either sex, after being converted, should desire to marry,
he or she shall not be allowed to do so, unless a dowry is given, and
a marriage contract entered into, as has been prescribed in the case
of Christians; nor shall such ceremony be permitted, where it is not
accompanied with the sacerdotal benediction within the bosom of the
Church. If any Jew should marry without the benediction of the Church,
as aforesaid, or should transgress, in any way, the provision of the
law relating to marriage contracts, said Jew, after purification by
baptism, shall be compelled to pay a hundred _solidi_ to the king,
or shall receive fifty lashes in public. Each of the persons aforesaid,
that is to say, the husband as well as the wife, shall be liable to
said penalty or fine; and the parents of said parties shall also be
liable to the same punishment for their infraction of the law.
=IX. Jews who Insult our Religion, while Attempting to Defend their own
Sect, shall not Betake themselves Elsewhere; nor shall Anyone Shelter
them while Fugitives.=
If any Jew should presume to offer an insult to the Christian religion;
or, by arguments, should induce anyone to abandon the Christian faith;
or should defend the weakness of his own sect; or, while fleeing from
the doctrines of the Christian religion, should conceal himself in any
part of our kingdom; or should escape to foreign countries, for the
purpose of concealment; or if anyone should offer a hiding-place to a
transgressor of this law, knowing he is a fugitive; any of said parties
guilty of any of the above-named offences, shall be punished with a
hundred lashes, have his head shaved, and, after his property has been
confiscated for the benefit of the king, shall be subjected to the
miseries of slavery.
=X. No Christian shall Accept a Gift from a Jew, to the Detriment of the
Christian Faith.=
Let him be considered as violating the rules of the Christian faith
who pretends to be a defender of that faith, and, at the same time,
defiles the truth by the acceptance of improper gifts; and let him
hear what the Lord has said against him by the mouth of his prophet:
“For the reason that you have sold the just man for silver, and the
poor man for the price of your sandals, behold I will thunder over you
as thunders a wagon loaded with hay; and he who is swift will lose
his power of flight; and the strong man will lose his strength; and
he who is brave, his courage; and he who wields the bow, shall not
stand; and he who runs shall not be saved by his swiftness; and the
rider shall not escape; and he who is strong of heart shall flee naked
among the brave.” Who, then, is meant by the just man who was sold for
silver, and the poor man for the price of your sandals, unless the
only begotten Son of God the Father, whose innocent blood was formerly
sold by the Jews for thirty pieces of silver, and is even now daily
sold by those who pervert and deny the truth? And, indeed, there are
certain of the people who, influenced by zeal for the faith, and by the
most righteous intentions, promise to detect and punish the offences
of the Jews, who are, nevertheless, corrupted by the common vice of
avarice. For when, perchance, they have received gifts of some kind
from these perfidious infidels, they unlawfully hold their peace, and
those whom they formerly promised to expose and bring to justice,
after the acceptance of a paltry bribe, they permit to go unpunished.
Wherefore, we hereby decree that it shall be lawful for no Christian
of whatever lineage, rank, or degree, whether he belong to the clergy,
or to the laity, to receive a gift from a Jew, of either sex, or from
any intermediary of the same, as a reward for acting against the
faith of Christ; or to implicate himself in any other act against the
interests of the Christian religion by the defence of such persons, for
the sake of a reward. And if any person should be corrupted by the
acceptance of any such gift, or should conceal the notorious errors of
the Jews, and should interpose any obstacle whatever, in order that
such wickedness may go unpunished, he shall be liable to the penalties
laid down by the ancient Fathers, and shall pay double as much to the
treasury as he shall have been proved to have received from the Jew.
=ERVIGIUS, KING.=
=XI. Jews shall not Dare to Read Such Books as the Christian Faith
Rejects.=
To show favor to those readers whom it is not right to assist, is
rather a mark of wickedness than of piety. For this reason, where any
Jew reads books, or studies doctrines, in which the Christian faith is
denied, or keeps or conceals such books in his house, he shall either
receive a hundred lashes in public, or shall have his head shaved.
Let all persons be cautious and beware of having books containing
such doctrines in their possession, or of studying the same, or of
even meditating upon them. And if, henceforth, anyone should attempt
to repeat such an offence, he shall receive a hundred lashes, shall
have his head shaved, and shall be condemned to perpetual exile; and
because he has committed the offence a second time, he shall also
lose his property, which shall be bestowed upon whomever the king may
direct. Those shall be liable to a similar penalty, who presume to
instruct children in the false doctrines contained in such books; and
the teacher himself, when detected in the first transgression, shall
receive a hundred lashes, and have his head shaved, and shall bind
himself by a written agreement never to teach such doctrines again.
If, after this, he should violate his agreement, and attempt to repeat
what he had formerly renounced, all his property shall be forfeited to
the king, and he himself shall receive a hundred lashes, shall have his
head shaved, and be condemned to perpetual exile. All children under
ten years of age, who are proved to have studied said false doctrines,
shall be exempt from the penalties aforesaid. But any child over the
age of ten years, who studies or meditates upon such doctrines, shall
be liable to the fines and punishments hereinbefore mentioned.
=XII. Christian Slaves shall not Serve, or Associate with, Jews.=
It truly seems a crime of no small importance to the society of
Christians, that the impious Jewish race, always rebellious against the
rule of God, should have Christian slaves in their service, and, on
the other hand, that an honorable adherent of the Christian religion
should be humiliated in the presence of the children of infidels; that
thus the body of Christ should appear to do homage to the ministers
of Antichrist; and that, through a monstrous regulation, those very
persons who are contending, by means of their customs, against our
religion, should have the services of slaves attached to our Holy Faith
subject to their impiety and errors. For which reason, we decree that
henceforth the law promulgated by our glorious predecessor, Sisebutus,
of holy memory, shall, in cases of this kind, remain in full force, and
we hereby confirm the same except the clause by which the penalty of
death is imposed; the said law being the one whereby our predecessors
have placed all transgressors of the same under a perpetual curse.
No Jew shall presume to have in his possession a Christian slave; nor
shall he dare to commit any breach of the provisions of this law, with
this sole exception, which is sanctioned by the same, to wit: that a
Jew shall have the power to liberate a Christian slave; because it
is highly unworthy that those who are the adherents of a perfidious
sect should be able to confer freedom upon Christians. For it is not
consistent that the darkness should obscure the light, or that he who
is himself a slave, should bestow the blessing of liberty; especially
as this law was promulgated at the time the Jews were first summoned to
conversion, and this privilege was then conceded to them. Now, however,
we declare that no Jew shall set a Christian slave at liberty, because
it is contrary to this edict, and all such as are proved to have in
their possession Christian slaves, are transgressors of the law; and
sufficient indulgence is shown them if they are not condemned for their
transgression. Therefore this privilege is entirely denied them, for
the reason that they presume to act against the rules and canons of the
Church. We, however, for the sake of mercy, concede to them that from
the first year of our reign, that is to say, for the space of sixty
days from the Kalends of February, every Jew shall have the right to
sell his Christian slaves, but not without the approval of the priests
or judges having jurisdiction over the diocese, or the district to
which said slaves belong, in order that the slaves who are sold may not
undergo the penalty of death, and that the vendors may not, in some
way, seek an opportunity for the commission of fraud, or the infliction
of revenge. Therefore, when the sixtieth day from the aforesaid
Kalends shall have elapsed, it shall not be lawful for a Jew to have
a Christian slave, or any other Christian, in his service. After that
time, that is to say, the period of sixty days, if any Christian
slaves should be found in the possession of a Jew, they shall be free,
and shall have a right to all property which has been bestowed upon
them by their master, as provided by this law; and said slaves shall
be entitled to their freedom, even if it should be proved that they
have been forcibly concealed by their master. All Jews who, after the
expiration of the aforesaid time, presume to keep in their possession,
or conceal, any Christian slaves, or, in any way whatever, attempt to
evade the provisions of this law, shall forfeit half of their property
to the royal treasury; or, if they are persons of inferior rank, and
have not the means wherewith to make reparation, they shall each
receive a hundred lashes, and have their heads shaved.
=ERVIGIUS, KING.=
=XIII. Where a Jew Declares that he is a Christian, and, for this
Reason, does not Wish to Dispose of a Christian Slave.=
Where a Jew, fearing that he will lose his property, fraudulently
asserts that he has been converted to Christianity, and protests that
he ought not to lose his Christian slaves, for the reason that he
has been leading a Christian life, it devolves upon us to provide,
by these laws, that the astuteness of fraud does not prevail, on
the one hand, or sincere conversion suffer injury on the other. We,
therefore, decree that all Jews throughout our kingdom shall have the
right conceded by a former edict, to sell their Christian slaves, from
the Kalends of February, in the first year of our reign, until the
approaching Kalends of April; and, should they wish to retain said
slaves, they must prove themselves to be Christians, as prescribed
by law. We grant to all Jews, against whom there exists no evident
suspicion of perjury, the space of sixty days from the Kalends of
April during the present year, during which time such as desire to be
saved, and wish to unite with the Christian communion, may do so; and
we direct such persons to visit the bishop of the diocese, and publish
their confession of faith, to which their signatures or seals shall be
attached, in which confession each Jew shall declare that he abjures
all the errors of his sect, and that he will in no way again observe
or embrace any of its false doctrines. Every Jew who renounces his
former errors, and is converted to the holy faith of Christ, shall
inscribe in his confession the Christian symbol; shall promise that
he will under no circumstances return to his errors, as he would to
his vomit; and shall profess that henceforth he will, in compliance
with the terms of his written confession, in no way change anything
which we have included in this law. And the aforesaid confession he
shall make, not merely with bare words and promises, declaring one
thing openly, while he secretly retains another in his heart, while
his artifice, cloaked by his promises, has more control over him than
the truth. Bishops and judges shall use every effort to ascertain
whether said confession is genuine or not, and that those who swear to
it, according to the law, do so with sincere, and not with deceitful,
hearts. All who act honestly, and whose profession, together with their
works, prove them to be worthy of the Holy Faith, and whose promise
under oath establishes that they are devout Christians, can have the
use of Christian slaves. Christian slaves shall not be subjected
to the control of Jews unless the latter are openly proved to be
Christians, use Christian food, and contract marriage according to
Christian customs. Any of said persons, however, who, after having
made confession and been sworn, thereby dedicating themselves to
Christianity, as aforesaid, are found to have broken their promises by
the practice of any rite of the Jewish sect; for the reason that they
dared to profane the name of God, and pollute themselves with the filth
of Jewish error, shall forfeit all their property to the king, shall
each receive a hundred lashes, and, having had their heads shaved,
shall be subjected to the miseries of exile which they have so justly
deserved. All those who, obdurate of heart, and blinded by malice,
neglect to make public confession of faith within the period aforesaid,
or presume to have in their possession a Christian slave after the time
prescribed by law has elapsed, shall be liable to the condemnation of
the former law, relating to Christian slaves remaining in the service
of Jews, to wit: half of their property shall be confiscated for the
benefit of the royal treasury, or, should they be persons of inferior
station, and not have the means to make reparation, as aforesaid, they
shall each receive a hundred lashes, and have their heads shaved. All
Jews who retain possession of Christian slaves, and do not deliver up
said slaves within the prescribed time, shall be reduced to perpetual
slavery, and belong to those upon whom the king shall see fit to bestow
them.
=XIV. The Confession of Jews; and In What Way Each One of Them, who is
Converted, must Write Down the Proof of his Conversion.=
I hereby renounce all the rites and observances of the Jewish sect,
and, without reserve, express my utter abhorrence of all their
ceremonies and solemnities which I have practised and kept in former
times, until now; and I pledge myself that I will, hereafter, observe
none of said rites or ceremonies, nor will adhere to any of my former
errors; that is to say, I will not retain them in my mind, or, in any
way, carry them into effect. Henceforth, renouncing all things which
are condemned and prohibited by the doctrines of Christianity:--
I believe in one God, the Omnipotent Father, Maker of Heaven and earth,
the Creator of all things visible and invisible, and in our Lord
Jesus Christ, the only son of God, begotten by the Father before all
the centuries; God of God, light of light, the true God of the true
God, born not made, equal to the Father, that is to say, of the same
substance as the Father, by whom all things were created both in Heaven
and earth. And I believe in Him who for the sake of man, and for our
salvation, descended from heaven, and, born of the Holy Spirit and the
Virgin Mary, became a man in the flesh; suffered under Pontius Pilate;
was crucified, dead, and buried; who arose on the third day, ascended
into heaven, and sitteth at the right hand of God the Father; who
shall come again in his glory to judge the living and the dead, and to
whose reign there shall be no end. I believe in the Holy Spirit, the
regenerator, proceeding from the Father and the Son, who spoke by the
mouth of the prophets. I believe in the Holy Catholic Apostolic Church,
I confess that there is but one baptism for the remission of sins, and
I believe in the resurrection of the dead, and in life through all
coming ages. Amen.
I sincerely believe in all the things hereinbefore written, and I
promise that I will keep them faithfully, and that I will embrace them
with all the affection of my soul, and, subscribing my name thereto,
I promise that I will never again return to the vomit of the Jewish
superstition; and that I will never practise, or retain in my heart,
any of the rites or ceremonies which the Jews are accustomed to
observe; wholly renouncing the Jewish sect, rejecting in its entirety
the perfidy of the Jews, and abjuring whatever is contrary to the
Christian faith. And, hereafter, I will always profess belief in the
Holy Trinity, so that I may live as I ought, according to Christian
customs, and that, avoiding in every way the company of Jews, I may
always associate with honest Christians. Likewise, I promise that I
will always partake of food with Christians, or accept it from them;
and that I will, as a faithful and devoted Christian, frequently go
to the house of God; and I also promise that I will devoutly take
part in the services of Sunday, and in the festivals of martyrs, as
enjoined by the Christian religion; and that I will be present with
true Christians on all festival days which the Church has ordered shall
be observed with love and devotion, and will participate in all the
ceremonies prescribed by the Christian faith. This, the profession of
my faith and belief, is made upon such and such a day.
=XV. Conditions under which Jews must Make Oath, when, having been
Converted, they give in their Confession of Faith.=
I swear first by God the Father Omnipotent, who said, “By me shalt
thou swear, and shalt not take the name of the Lord thy God in vain”;
who made Heaven and earth, the sea and all that in them is; who placed
a boundary to the ocean, saying, “thus far shall thou come, and here
shall thy swelling waves be broken.” Who also said, “Heaven is my
throne, and the earth my footstool.” Who cast down the first and
proudest angel from Heaven; before whose eyes the entire celestial host
stood trembling; whose glance dried up the waters of the abysses, and
whose wrath caused the mountains to melt away. Who placed Adam, the
first man, in Paradise, and ordered him not to eat of the forbidden
fruit, and who, having eaten it, He cast out of Paradise, and bound
him, as well as all the human race, with the fetters of disobedience;
who freely accepted the sacrifice of Abel, and worthily rejected that
of Cain; who received in Paradise Enoch, together with Elias, in the
flesh, before their time was accomplished upon earth; who, at the
time of the flood, deigned to save Noah and his wife, and their three
children and their wives, with the animals, and the birds of the air,
and the reptiles, whereby the race of each was preserved; who caused
Shem to be born of Noah, and from him Abraham, and from Abraham the
Israelites to be derived; who chose the Patriarchs and Prophets, and
blessed the Patriarchs, Abraham, Isaac and Jacob. I swear by Him who
made the promise to the holy Abraham, saying, “in thy seed all nations
shall be blest,” and gave him the symbol of circumcision, as an eternal
covenant. I swear by the God who overthrew Sodom and Gomorrah, and
turned the wife of Lot, who looked backward, into a pillar of salt. I
swear by Him who strove with Jacob, and, touching his thigh, caused him
to become lame, saying, “thou shalt henceforth not be called Jacob,
but Israel.” I swear by the God who liberated Joseph from the hands
of his brethren, and caused him to find favor in the eyes of Pharaoh,
and by whom all Israel was saved from famine. I swear by the God who
rescued Moses from the waters, and appeared to him in the burning bush,
and who, by his hands, brought the ten plagues upon the Egyptians;
and who liberated his Jewish people from Egyptian slavery, and caused
them to traverse the Red Sea with dry feet, when the waves, contrary
to their nature, stood, as a solid wall, upon either side. I swear by
the God who drowned Pharaoh and his army in the Red Sea; and who, as a
pillar of cloud by day, and of fire by night, guided the Hebrews in the
wilderness. I swear by the God who, upon Mount Sinai, gave the law to
Moses written in His own hand, upon tables of stone. I swear by the God
who made the mountain of Sinai to smoke in the sight of the Children
of Israel. I swear by the God who chose Aaron for His first priest,
and consumed the sons of the latter with fire, in the tabernacle,
because they offered strange sacrifices before the Lord. I swear by the
God who, by His just judgment, caused the earth to gape and swallow
up alive Dathan and Abiran. I swear by the God who caused the bitter
waters to become sweet by casting twigs into the same. I swear by
Him who, through Moses striking the rock with his rod, caused great
torrents to gush forth, to refresh the thirsty Jewish people. I swear
by Him who, for forty years, fed the Israelites in the wilderness,
and preserved their clothing entire, so that it did not wear with the
using. I swear by Him who declared by His irrevocable mandate, that
none of the Children of Israel should enter the promised land, except
Joshua-Ben-Nun, and Caleb, whom he promised and predicted should enter
there; for the Israelites did not believe the word of God. I swear by
Him who declared to Moses that he would raise his hand, and the Jewish
people would be victorious over the Malekites. I swear by Him who
ordered our fathers to cross the River Jordan, and to take ten stones
from that river as a testimony. I swear by Him who ordered all Israel,
when they passed over the River Jordan, to be circumcised with knives
of stone. I swear by Him who overthrew the walls of Jericho. I swear
by Him who decorated David with the splendor of royalty, and rescued
him from the hands of Saul, and of his son Absalom. I swear by Him who
filled the temple with a cloud, and poured out His blessings therein.
I swear by Him who carried up the prophet Elias in a whirlwind and
a fiery chariot, from earth to the throne of glory; and by Him who,
at the prayer of Elisha, and with a stroke of the garment of Elijah,
divided the waters of the Jordan in twain. I swear by Him who preserved
the three young men in the furnace of burning fire, before the eyes
of a hostile king, He who holds the key of David, and who closes what
no one shall open, and opens what no one shall close. I swear by Him
who performed all miracles, and displayed all virtues and all signs,
among the Hebrews, or among other nations. I swear by Him, and by the
ten sacred commandments of the law. I swear by Jesus Christ, the Son
of the Omnipotent Father, and by the Holy Spirit, the Paraclete, which
is one of the Trinity and the true God; and by the holy resurrection
of our Lord Jesus Christ, and by His ascension into Heaven, and by
His glorious and terrible coming, when He shall judge the quick and
the dead, showing Himself merciful to the just, and terrible to the
wicked; and by the holy body and precious blood of Him who opened the
eyes of the blind, and made the deaf to hear; restored paralytics to
health; loosened the tongues of the dumb; healed those possessed of
the devil; made the lame to run, and raised the dead; who walked upon
the waters; who resurrected Lazarus, whose flesh was already decayed,
restored him to life and strength, and changed sorrow into joy; who is
the Creator of the world, the origin of light, the source of vigor; who
illuminated the world by His birth, and redeemed it by His passion; who
alone was free among the dead, and whom death could not hold; who broke
into pieces the infernal gates, and, by the majesty of His presence,
rescued souls from the power of hell; who, having conquered death,
raised to Heaven, after His conquest of the world, that body which
He had assumed upon earth; and who now sits at the right hand of the
Omnipotent God, the Father, from whom He has received the eternal power
of the celestial kingdom. And I swear by all the heavenly virtues, and
by all the relics of the Saints and Apostles, and by the four Holy
Gospels which have been placed under this my written oath upon the holy
altar of Him of the sacred name, and which I touch and hold with my
hands.
And all these things which I have taken care to renew in my confession,
or have added thereto, which confession I have given, signed with my
hand, to thee, the bishop governing this diocese, I have declared in
all sincerity to have been offered, not with artifice or fraud, but
in good faith, as stated in said confession. And I hereby renounce
all the ceremonies of the Jewish ritual, and declare my belief in the
Holy Trinity with all my heart, and promise that I will forever remain
in the Faith, and will never again associate with the impious Jews;
but that I will hereafter live, in all respects, according to the
Christian customs, and take part in all their observances; and that I
will keep, with all purity of heart, whatever concerns the practice of
the Holy Faith, which has been set forth in my confession; and that I
will always live according to the apostolic traditions and the canons
of the Holy Church. And if I should violate the same in any respect,
or dishonor the Holy Faith, or attempt to practice any Jewish rite,
or deceive you, by this my confession, made under oath; or, under any
pretext whatever, I should not, even unintentionally, perform the
things which I have promised, as you believed, or understood that I
did promise; then may there be visited upon me all the curses of the
law which have been uttered by the mouth of God against those who
disobey His commandments. And may there come upon me, and upon my
house, and upon my children, all the plagues and afflictions of Egypt,
as an example and a terror to others; and may I suffer the judgment
of Dathan and Abiran, and the earth swallow me up alive. And after I
have departed this life, may eternal fire receive me, delivered up to
the devil and his angels; and may I, sharing the punishments of the
inhabitants of Sodom and Gomorrah, be given up to be burned; and when,
at last, I shall come before the tribunal of the dreaded Judge and
sublime King, our Lord Jesus Christ, may I be numbered among those to
whom the terrible and glorious Judge shall say, “Depart from me, ye
accursed, into everlasting fire prepared for the devil and his angels.”
This oath was signed upon such and such a day and date.
=XVI. Concerning the Christian Slaves of Jews, who have not Proclaimed
Themselves Christians, and those who Expose Them.=
All slaves, belonging to Hebrews, and who are members of the holy
Christian communion, and who, henceforth, influenced, by their masters,
do not declare themselves Christians, and remain under the yoke of
their masters, for the reason that they have rejected the favor of
liberty which was offered them, shall be doomed to perpetual slavery,
and shall be given to whomever the king may select. Any person, by
whose means this was exposed, if he should be the slave of a Jew, after
having embraced the Christian faith, shall receive his freedom. If,
however, the discovery was made by a Christian, he shall receive five
_solidi_ for every Christian slave, from him who is convicted of
having violated this decree after its promulgation.
=XVII. No Jew, under any Authority whatever, shall Dare to Oppress,
Punish, or Imprison a Christian, Except by Order of the King.=
No Jew shall have the power to rule, command, or restrain any
Christian, except in cases where the king orders it to be done for
the public benefit. If a Jew, acting under authority from any person,
should presume to imprison, punish, coerce, or illtreat any Christian
whomsoever, or should attempt to inflict upon him anything forbidden
by law, or even what is not provided for by the laws, he shall either
forfeit half of his property to the royal treasury, or, if he should
not possess any property, he shall receive a hundred lashes, and have
his head shaved. And where any person who is of noble rank, attempts
to exercise this power over Christians, he shall be compelled to pay
ten pounds of gold to the king; and where he is a person of inferior
rank, he shall pay five pounds of gold. Those who have not the means
wherewith to make reparation as aforesaid, shall receive a hundred
lashes, and have their heads shaved.
=ERVIGIUS, KING.=
=XVIII. If Slaves of Jews, not yet Converted, should Claim the Grace of
Christ, they shall be Liberated.=
The chosen apostle Paul, referring to something which happened at the
time, or merely for the sake of truth, declared that Christ announced
that, as we bestow liberty upon the faithful, so, also, we ought to
afford infidels the opportunity to embrace eternal life. Therefore, if
any slave belonging to a Jew should desire to be free from servitude,
and seek the favor of Christ, no one shall retain him in bondage; no
one shall oppose him in any way, or place any obstacle in his path;
but, as soon as he shows himself to be a Christian, by his profession
and his oath, and shall openly abandon, or reject the false doctrines
of his master, he shall be at once released from slavery; and, removed,
with all his property, from the control of his master, he shall fully
enjoy the blessings of freedom; and the same rule which has been
provided where Christian slaves have been emancipated, shall apply, in
every respect, to his case.
=XIX. Jews shall not Rule Christians under the Authority of Mayors of
Towns, or of Superintendents of Estates; and Concerning the Penalties
to be Imposed upon Such as Appoint them to Office.=
Where a Jew is invested with authority or power by any member of the
laity, and by its means he obtains control over a Christian family,
his authority shall be at once transferred to the king, and he who
accepted it shall receive a hundred lashes, have his head shaved,
and forfeit half his property to the public treasury. If any bishop,
priest, minister, clerk, or member of a monastic order, should invest
a Jew with authority over church affairs, he shall forfeit to the
public treasury as much of his own property as is equal in value to
that over which he gave said Jew authority. If, however, he should have
no property, he shall be sent into exile, that he may learn under the
restrictions of penance, how impious it is to confer upon infidels,
authority over true Christians.
=XX. Where a Jew comes from Another Country into any of the Provinces
of Our Kingdom, he Must, at once, Present himself before a Bishop, a
Priest, or a Judge; and What shall be Done under the Circumstances.=
Where a Jew, residing in a city or province of our kingdom, makes
application to a bishop, priest, or judge of that diocese or district,
and it appears from the testimony of ecclesiastical witnesses, that he
has abandoned the observance of the Sabbath, and the practice of the
rites and ceremonies usually observed by members of his sect; and that
he did not make use of any of the same, while wandering hither and
thither, or did not seek a hiding-place anywhere, in which to observe
said rites; and that, while at home, he is known to have conferred
with Christians of approved faith, partaken of food with them, and
participated in the Christian communion; and that, upon such days as
his ceremonies were accustomed to be practised, he resorted to the
church to receive the salutary instructions of the bishops and the
priests; and if said Jew asserts that he cannot remain for any length
of time, on account of inevitable necessity, or press of business;
then a confession of faith, to be signed by him, shall be drawn up
by the priest of the parish, and the said Jew shall promise therein
that, whenever, upon his journey, he finds any of his sect observing
their rites or festivities, he will avoid them. And the said priest
shall draw up a letter, written with his own hand, directed to those
ecclesiastics, in whose jurisdiction said Jew represents that he is
about to travel, in order that, all suspicion of fraud being removed,
said Jew whether traveling, or remaining in one locality, may not be
subjected to religious restraint and discipline. If any Jew should
violate this law, authority is given to any bishop or priest of the
diocese, as well as to any judge, to punish him with a hundred lashes;
nor shall he be permitted to return to his home, unless he is furnished
with letters from the bishop or priest of the diocese in which he
was unlawfully found. In said letters the number of days shall be
especially noted; that is, dating from the time when said Jew made
application to the bishop aforesaid, as well as those included in his
absence until the day of his return.
=XXI. How Assemblies of Jews shall Visit the Bishop on Appointed Days.=
Every colony of Jews, in whatever city or province they may be
situated, shall visit the bishop or priest of the diocese upon the
Sabbath, and upon all other festival days, when they are accustomed to
celebrate their rites; they shall not be permitted to wander about on
said days; and during all such festivals, when they are suspected of
performing their rites, they shall under no circumstances leave their
homes without the permission of the priest. Each of said Jews on every
Sabbath, after having bathed, shall visit a bishop, or a priest, and
receive his blessing. And in localities where there is no priest, each
of them shall visit the judges, or other approved Christians, and shall
associate with them openly, in such a manner that, if inquiry be made,
said persons may give favorable testimony concerning their Christian
behavior. Jewish women, that is to say, the wives and daughters of
Jews, to the end that they may have no opportunity to commit any error
or transgression upon the festival days aforesaid, when they are
accustomed to practise their rites, shall act, in every respect, as
may be prescribed by the bishops or the priests to their husbands when
present; that, like their husbands, they may not absent themselves from
ecclesiastical control, and on all the festival days observed by their
sect, may associate with such respectable and devout Christian women
as the priests or bishops may select. If anyone shall be proved to
have violated this edict, he shall be punished with a hundred lashes,
and have his head shaved. And, as priests are sometimes influenced
by the execrable temptations of the flesh, it is hereby especially
enjoined, that they shall not take advantage of opportunities of this
kind, for the indulgence of the same. Wherefore, we decree, with all
severity, that every priest shall strictly observe this law concerning
Hebrew women, and shall not take advantage of any occasion by which
he may be polluted with their company. And if, at any time, a priest
should pervert the zeal which he should employ for the benefit of
Christianity, for the purpose of indulging his licentious passions, he
shall be deprived of his holy office, and be sentenced to perpetual
exile.
=FLAVIUS ERVIGIUS, KING.=
=XXII. Where Anyone has a Jew in his Service, and a Priest Demands him,
the Master shall not have a Right to Retain said Jew.=
Where anyone of the laity has a Hebrew man or woman in his service, or
under his protection, and by the exertion of his authority deprives
them of the privilege of resorting at any time, to the bishop or the
priest, or prevents them from going, for the sake of instruction, to
ecclesiastics, on the days appointed for that purpose, he shall be
excommunicated by the bishop, and be deprived of said slave which he
attempted to restrain illegally, and for every slave so restrained he
shall pay three pounds of gold to the king.
=XXIII. All Restraint of and Control over the Jews shall be Vested in
the Priesthood.=
Those who are charged with the enforcement of our laws, and the
infliction of punishment upon infidels, are earnestly exhorted to
fulfil the duty imposed upon them by Divine authority; for the Holy
Spirit, whose truth is coextensive with the world, has said “Priests
shall sit in My judgment seat, and shall judge according to My laws
and precepts.” We decree that, hereafter, priests shall observe
whatever is included in our laws and that they shall not suffer a Jew
to be protected by anyone in the practice of his rites, but that all
such Jews shall be exempt from the favor of those by whom they are
shielded; and that said priests shall diligently take measures to
bring all Jews under the control of the Church, for the sake of their
salvation, which is the duty of all Catholic ecclesiastics; and that it
will be their earnest care not to grow lukewarm in the enforcement of
any of our laws aforesaid.
=XXIV. Concerning the Penalties to be Imposed upon Priests and Judges
who Neglect to Enforce the Laws against the Jews.=
The priests of our Holy Church must exercise due and pious care lest
they be held responsible for the transgressions of the people. For
what profit is there, where one is not punished for his own sin, but
still can be punished for the sin of another? Therefore, to correct
the negligence of such persons, we hereby decree that if any bishop,
influenced by avarice or malice, should be lukewarm in the enforcement
of the laws enacted against the Jews, to wit: that where any errors
of that perfidious sect have been detected by him, or where he has
received information of them, and it appears that he neglected to
correct said errors, he shall be excommunicated for the space of three
months, and shall forfeit a pound of gold to the royal treasury; and,
if he should not have the means to make such pecuniary reparation,
he shall be excommunicated for the space of six months; and, for the
purpose of making amends for the negligence of said bishop, any other
bishop who is zealous in the cause of God, shall have authority to
correct the errors of said perfidious Jews, which the former bishop
neglected to correct, as aforesaid. And if, through deceit, negligence,
or lukewarmness, the other bishop should hesitate, or procrastinate,
in discharging the duty imposed upon him, his inactivity shall be
punished, and the errors of the perfidious Jews be corrected by order
of the king. This rule shall also, in every respect, apply to, and
be observed by, all other ecclesiastics, as well as bishops; that is
to say, priests, deacons and clerks, upon any of whom the duty of
restraining infidels has been imposed by the bishop. And all judges who
are informed of such crimes, or who shall, themselves, discover them,
and do not at once punish them, as prescribed by law, shall each pay
a pound of gold to the public treasury, as has been provided in the
case of bishops. Nevertheless, priests, judges or other officials who
have been invested with authority, shall not be liable to the aforesaid
penalties, if they can prove that they were prevented, by command of
the king, from proceeding against the Jews.
=ERVIGIUS, KING.=
=XXV. No Judge shall Presume to Investigate the Offences of the Jews
without the Knowledge of an Ecclesiastic.=
No judge shall decide a cause involving the transgressions of the
perfidious Jews, unless an ecclesiastic be present, lest, by the
acceptance of a bribe, the Holy Faith of the Church be stained by
avarice; but, as is frequently the case, where no ecclesiastic is
present, the judge is authorized to proceed without him. If, however,
the bishop should be absent, whether near at hand, or at a distance,
he may leave a priest to act in his stead, who will co-operate with
the judge in the enforcement of these laws, without any remuneration
whatever.
=XXVI. Bishops shall be Immune from Punishment, when their Priests do
not Inform them of Such Things as Should be Corrected.=
As soon as the priests, deacons, or other members of the clerical
order, and all judges, vested with authority, throughout the different
provinces of the kingdom, ascertain that a body of Jews is within their
jurisdiction, they must not delay to place said Jews under coercion
and restraint, as required by our laws; and all errors which said
Jews are unwilling to renounce, shall be brought to the knowledge of
the king and the bishop, in order that they may be corrected; and if
a Jew should give information of the same to the bishop, he shall
not be subject to punishment for any similar offence of which he may
be guilty. No bishop shall be liable to discipline for neglect, when
notice of the offence was not given him by his subordinates.
=ERVIGIUS, KING.=
=XXVII. Concerning the Mercy to be Shown by Princes towards Those who
have been Truly Converted to the Christian Faith.=
The foregoing laws having been framed by us with care and diligence,
and having attempted in them to adapt the punishment to the guilt of
the offender, as, for instance, where we have sentenced certain of
them to lose their property, and be driven into exile, we now hereby
reserve the following privileges of mercy for ourselves, and our
successors, to wit: that if any Jew, after having been ensnared by
the devil, should come to his senses, and profess belief in the Holy
Trinity; and the priests or judges of the diocese or district in which
he lives, should establish the fact by their testimony; and the works
of said Jew should correspond with his professions; in such cases the
prerogative of mercy may be exercised by ourselves, and our successors;
that is to say, after the confession and oath of said Jew has been
made, and the evidence has been submitted to the king, the latter shall
have authority to return his property to said Jew, and to recall him
from exile. If, however, any such Jew, after having professed himself
to be a Christian, should return to the vomit of his error, he shall
be condemned to punishment, without any hope of pardon; and said
punishment shall be proportionate to the proof of his hypocrisy, and
the degree of his guilt, and whether he undergoes a capital penalty, or
one of less severity, no mercy shall, under any circumstances, be shown
him.
=XXVIII. Bishops shall Give to all Jews a Copy of this Book, which has
been Published for the Purpose of Correcting their Errors; and their
Confessions and a Record of their Conversion, shall be Deposited among
the Archives of the Church.=
The perversity of a deceitful mind is accustomed to make use of the
pretence of ignorance, when it asserts that it has no knowledge of
the law, and declares that it is exempt from punishment because it is
ignorant of the New Testament. Now, for the purpose of removing this
false and malicious excuse, we hereby order all bishops and priests to
explain to the Jews within their jurisdiction, the decrees which we
have heretofore promulgated concerning their perfidy; and also, to give
them a copy of this book, which is ordinarily read to them publicly,
in the congregations of the Church, and which they must always carry
with them as evidence of their instruction. And if, after this book
shall have been read to them publicly as aforesaid, or given into
their hands, any of them should claim that he was not present when it
was read, or should assert that he is ignorant of the laws contained
therein, no excuse of his shall be thereafter received; but if, ever
subsequently, he should be detected in the breach of any of said laws,
under no circumstances shall he escape punishment for the same. And
we add to this law, as being a necessary part of it that all written
confessions and agreements which any Jew, at any time, has delivered
to his priest, shall be carefully preserved by the latter, among the
archives of his church, in order that it may be evidence against any
Jew who may thereafter venture to resume the practice of his impious
rites.
INDEX.
A.
Abortion, by drugs, 206;
on a freeborn woman, 206;
on a slave, 207;
penalty for, 208;
on a beast of burden, 286.
Accessories, to rape, punishment of, 93;
to homicide, 223;
to theft, 240.
Accusation of crime, penalty for false, 200.
Adulterer, if killed, not criminal homicide, 96.
Adultery, of freeborn woman with slave, 83;
committed with connivance of husband, 95;
of a betrothed, 95;
of a wife, 96;
where a girl guilty of, is killed, 96;
parties guilty of, cannot be legally killed by slaves, 97;
when a freeborn woman commits, 97;
property of persons who have committed, how disposed of, 99;
who may bring accusation of, 100;
proof of, 101;
sons may prosecute, 100;
where one is convicted of, with virgin or widow, 101;
with female slave, 102.
Advocate, must have written authority from client, 48.
Animals, hired to another, 171;
loaned, 172;
when secretly killed, 246;
where loosed in crops, 279;
when loaned, and abused, 285;
where injure another, owner liable, 286;
where used for the threshing of grain, 287;
where a vicious, kills anyone, 289;
where one retains a vicious, 290;
cannot be excluded from open pastures, 295.
Answer, a defendant cannot refuse to, because plaintiff had not
presented claim, 38.
Arrest, governor of city must aid judge in, 250.
Arson, in and out of city, 271–272;
of forests, 272.
Assault and battery, 215;
by a slave, 217;
where bloodshed results, 264.
Attorney, must conduct case rapidly, 50;
who may be appointed, by powerful persons, and the poor, 52;
employment of, by the royal treasury, 52.
B.
Bailiffs, compensation of, 32;
entitled to horse for journey, 33.
Bailments, 171–172–173–174.
Bees, where cause damage, 303;
where a person finds, 303;
theft of, 303.
Bells, when stolen from cattle, 241.
Betrothal, girl cannot marry another, 76.
Bishops, power of, to restrain judges, 35;
cannot conduct cases in court, 47;
right to one third of revenues for repairs, 146;
arbitrary conduct of, 147;
abuses of, which guilty, 148;
punishment of, 155;
must give subordinates information, 149.
Bond, exacted by judge after unjust decree, void, 34.
Boundaries, disputes concerning, 348;
where change made in time of Romans, 350.
Brothers, have right to dispose of sisters in marriage, when, 76.
C.
Castration, when performed on animal, 285.
Cause of action, when arising in another district, 42.
Causes, not authorized by law, not to be heard, 22;
where determined, cannot be revived, 23;
cannot be heard by anyone not invested with judicial authority, 23.
Cattle, where shut up when have not done injury, 287.
Child, shall remain under control of father, 123;
shall receive inheritance at twenty years of age, 124;
how it may inherit, 127;
must be baptized before ten days old, 128;
posthumous, 127;
who acquires property during life of parents, 142.
Christian, a, shall not protect a Jew, 374;
judaizing, 376.
Christian slaves, sold or liberated by Jews, 369;
shall not attach themselves to Jews, 371;
shall not serve Jews, 392.
Church, donations to, 143;
preservation of property of, 144;
sales of property of, 144;
property in charge of those devoted to the service of, 145;
repairs of, 145.
Clothing, injuries to, 291.
Compromise, cannot be made without consent of court, 40.
Conflagration, when result of campfire, 273.
Consanguinity, degrees of, 117–118–119.
Constituent, responsible for attorney, must pay his fees, 51.
Contracts, how drawn up to be valid, 65;
penalties for repudiating, 65;
invalid if made by slaves, 65;
if dishonorable, void, 66;
party not liable when fraudulent, 66;
void where made under duress, 66.
Corpse, when removed from a grave, penalty for, 356.
Counterfeiting, slaves may be tortured to convict masters of, 261;
of _solidi_, 261.
Court must not be disturbed by tumult, 38;
contempt of, 250.
Criminal, when released by a judge, 252.
D.
Debt of deceased person, how collected, 180.
Debtor, a, cannot be removed from a church, 332.
Decalvatio, penalty of, 44.
Decree, if unjust, or promoted by fear, is invalid, 34.
Deputies, their power, 23.
Deserters, punishment of, 327.
Disinheritance, of children, 137;
not permitted except for grave causes, 138.
Divorce, cause and conditions of, 113;
only valid in case of fornication, 114;
disposal of property after, 114;
cannot exist between betrothed persons, 116.
Documents, fraudulently dated, 257;
penalty for, 258.
Documents, validity of, 64;
witness must know contents of, 64;
proof of and penalties prescribed by, 70.
Dog, when irritated and kills anyone, 291;
vicious, must be killed, 291.
Donations, extorted by force, void, 152.
Dowry, what it shall consist of, 79;
father shall exact and keep it, 79;
more cannot be required than the legal amount, 80;
when reduced to writing, items of, shall not be contested, 82;
what part a woman may bequeath, 139.
E.
Evidence, must be oral when possible, 57.
Exchange, has same validity as purchase, 160.
F.
False imprisonment, penalty for, 265.
Fences, when cut down or burned, penalty for, 277.
Festivals, to be observed like Sunday, 21.
Fictitious name, penalty for adopting, 256.
Fields, uninclosed, where traversed by animals, 294.
Flocks, where meadow injured by, 279.
Forcible entry, 210;
where death results, 210;
penalty, 210.
Forests, undivided between Goths and Romans, 337.
Forging, of royal orders, 253;
of documents, 216;
penalty for, 261–262.
Fornication, punishment of, 103.
Foundlings, rights of, 135;
compensation for support of, and penalty for casting away of,
135–136.
Fraud, where committed in a sale, 161.
Freedman, where claimed as a slave, 184;
where a, injures his former master, 185;
cannot testify, 186;
disposition of property of, 186;
cannot marry in family of patron, 189;
how a royal, shall defend king, 190;
if injures former master, 191.
Freedom, how revoked, 185.
Freeman, a, shall not refuse to answer a slave in court, 45;
where a, marries a slave, 84;
where a, allows himself to be sold, 162.
Freewoman, where a, marries without the consent of her parents, 87.
Fruits, where destroyed by animals, 279.
Fugitive, when released by anyone, 306;
slave must be produced before the judge, 307;
where are ignorantly received, 307;
where a slave directs, 309;
investigation of, 312;
where found in a house, 313;
reward for arrest of, 313;
where marries freeborn woman, 314.
G.
Garden, when destroyed, penalty, 275.
Gifts, bestowed upon one another by husband and wife, 155.
Goths and Romans, may intermarry, 76.
Guardian, who may be, 132;
duties of, 132–133;
no right to exact instruments in writing from wards, 133;
must render an account, 134.
H.
Handwriting, comparison of, when necessary, 69.
Heirs of attorney, entitled to his fees, 51;
shall not contest wills of ancestors, 65;
collateral, how inherit, 121;
where they have different parents, 141;
one may act for all in suit, 335.
Heresies, renunciation of, 364.
Heretics, eradication of errors of, 362.
Highways, obstruction of, 293;
space preserved along, 293.
Hogs, when pastured, 298;
fed on acorns under contract, 299;
when wandering in woodland, 300.
Homicide, where committed ignorantly, 218;
where committed on a third party, 219;
where happens in sport, 220;
while inflicting punishment, 221;
by a slave, 221;
by a master, 222;
who may accuse of, 226;
of those related by blood, 229.
Horse, where loosed and injured, 284;
where mane or tail cut off, 285.
House, a, cannot be entered in absence of master, 267.
Husband, adulteress given up to, 114;
ownership of property accumulated by, with wife, 126.
I.
Incest, what constitutes, 106;
with mother and sister-in-law, 111;
with concubine, 114.
Informers, how may accuse, 233;
penalty for false accusation, 234;
guilty knowledge of, 234;
compensation of, 235.
Inheritance, equal rights of brothers and sisters in, 121;
of intestate, 121;
of children not of same parents, 122;
of grandparents, 122;
of husband and wife, 123;
from clerks and monks, 123.
Interest, what may be legally asked, 175.
Intestate, where parents die, 129.
J.
Jailer, corruption of, 251;
compensation of, 251.
Jews, extirpation of errors of, 366;
shall not celebrate Passover, 367;
shall not contract marriage, 367;
shall not practise circumcision, 367;
shall not distinguish food, 367;
shall not torture a Christian, 368;
penalties for offences of, 369;
memorial of, 375;
perfidy of, 377;
shall not avoid baptism, 385;
shall not keep the Sabbath, 386;
confession of, 395;
oath of, 397;
shall not oppress Christians, 401;
assemblies of, shall visit bishop, 404;
penalties for not enforcing laws against, 406;
must have copy of this book, 408.
Journey, when an innocent party is compelled to make a, 42.
Judges, shall have civil and criminal jurisdiction, 24;
penalty for refusing to hear a litigant, 27;
time they shall hold court, 28;
penalty for unjust decision, 28;
where needless costs are imposed, 29;
what they should be familiar with, 29;
where integrity is suspected, 30;
how judgment should be rendered by, 31;
emoluments of, 32;
all invested with judicial authority shall bear title, 33;
must give reason for decision if required, 35;
punishment of, when guilty of misconduct, 36;
improper conduct of, how punished, 214;
must display moderation, 359.
Justifiable homicide, when robber killed, 270.
K.
Kidnapping, of slaves, 247;
of children, 248;
of freeborn persons, 249.
King, his business first considered in the courts, 13;
how documents in name of, should be drawn up, 14;
can only dispose of his private property, 16;
should practise mercy, 201.
L.
Land, division of, between Goths and Romans, 337.
Landlord, dispute with, concerning lease, 339.
Landmarks, how preserved, 348;
penalty for destruction of, 348.
Law, what it is, 5;
its action, 5;
why made, 6;
when amended, at what time in force, 11;
all persons subject to, 12;
no one can allege ignorance of, 13;
penalty for criticizing, 16;
of foreign nations forbidden, 20.
Lawmaker, his method, 1;
duties, 2–3–4.
Leases, lands held under, must be restored, 338;
where a greater area of land cultivated than granted under, 338.
Lèse majesté, 19.
Lex Talionis, its provisions, 215.
Limitation, Statute of, 91–344;
claim for property cannot be asserted after fifty years, 343;
fugitive slave free after fifty years, 343;
suit cannot be brought after thirty years, 343;
runs in all cases except where slaves of the Crown are concerned,
344;
does not run while party is absent, 346.
Litigant, may be chosen to act for others, 39;
must declare for whom he acts, 48.
M.
Marriage, must be accompanied by a dowry, 75;
father has right to dispose of children in, and mother, if he is
dead, 81;
when unlawful, 83;
penalty for, 83;
with holy virgins or widows, incestuous, 107.
Master, where one marries a slave to a freewoman, 86;
may claim property of slave who is sold, 165;
responsible for illegal acts, 264.
Mayhem, what constitutes, penalty for, 225.
Merchant, foreign, where a, sells stolen property, 357;
shall be judged by his own magistrates, 357;
where a, carries away a hired person, 358;
where a, takes away a slave for trade, 358.
Mills and ponds, damage to, 296.
Minors, at what age can testify, 62;
cannot make contracts, 66;
definition of, 131;
suit against, 131.
Money, stolen from the king, 241.
Mother, entitled to share estate with children, 125.
Murder, of freeman, 222.
N.
Nuptial contract, cannot be rescinded when a gift is made, 77.
O.
Officer, where corrupted, permits soldiers to depart, 320;
where an, deserts, 321;
where an, returns home, 322;
where an, receives a bribe, 323.
Officials must not subject persons to unnecessary expense, 360.
Oppression in litigation, by parties in power, 52.
Orchards, enclosure of, 278.
Ordeal of hot water, how applied, 37.
Ox, where used without consent of owner, 287.
P.
Pardon, persons who have received, exempt from punishment, 18.
Parents, where rescue daughter from ravisher, 89;
where consent to rape, 90;
how inherit from children, 128;
what property, may bestow upon children at marriage, 140;
cannot sell or give away children, 163;
right to dispose of property where no children, 130.
Parricides, punishment of, 228;
distribution of property of, 228.
Parties, where they cause unnecessary delay, 33;
both may be compelled to be present in court, 41.
Partition, when made, remains in force forever, 334;
if made between brothers, may be revoked, 334;
wishes of majority rule in, 334;
among relatives of slaves, 340.
Patrons, gifts of, 158;
property acquired through, 158.
Perjury, effects of, 58;
penalty for, 58–59–60;
crime of and penalty, 230.
Personal property must all be classed under one title, 341.
Physician, cannot bleed a woman except her relatives are present, 353;
shall not visit prisoners, 354;
where treats disease under contracts, 354;
compensation from student due to, 355;
cannot be imprisoned without a hearing, 355.
Pledges, when stolen, 177;
given as security for debt, 177;
where not restored, 178.
Poison, penalty for administering, 204.
Princes, cannot conduct their own cases in court, 47.
Property, illegally taken for a debt, 43;
of persons convicted of incest, 109;
given to husband or wife by king, 152;
given to wife in addition to dowry, 153;
given verbally, or in writing, 154;
cannot be seized, except under legal process, 266;
which may not be alienated, 167;
where transferred while in litigation, 169;
loaned and destroyed by fire, 172;
where lost at sea, 173;
entrusted to a slave, 174;
reparation for, when injured or destroyed, 243.
Q.
Question, how may be inflicted, 194.
R.
Rape, 91;
of a freewoman, 88;
where brothers consent to, 90;
of betrothed woman, 90;
must be prosecuted within thirty years, 91;
by a slave, 92.
Ravisher, where killed, not criminal homicide, 91.
Relatives, cannot testify against a stranger, 62.
Rent, where tenant does not pay, 341.
Rescue of criminals, 244;
of cattle seized in crops, 280.
Retaliation, law of, 211;
amount due in lieu thereof, 212–213.
River, right to enclose, where bank cultivated, 295.
Robbers, where concealed by freeman or slaves, 316.
Robbery, accessories before the fact, 267;
committed while on an expedition, 267.
Royal order, penalty for contempt of, 36.
S.
Sale, void if made under compulsion, 160;
where price not paid after earnest money given, 160;
where part of price paid, 161.
Sanctuary,
where a homicide takes, 227;
one claiming, cannot be rescued by force, 331;
may be killed if resists with arms, 331.
Scandal, public, what course to be pursued in, 324.
Seduction, penalty for, 93.
Self defence, where assault committed, 215.
Sentence of court must be public, 252.
Shipwreck, property rescued from, 243.
Slave, not worthy of credit, 61;
when allowed to testify, 61;
when given in marriage to another, 85;
may be tortured to reveal adultery, 98;
may not be liberated to conceal adultery, 98;
of Church, if emancipated cannot marry a freeborn person, 150;
penalty for, 151;
free after thirty years, 347;
sales by, void, 164;
where accuses former master of crime, 165;
may not be redeemed with his own property, 166;
where transferred for crime, 167;
where captured and sold by an enemy, 169;
how liberated, 181;
where has several masters, consent of all must be had, 182;
how may be returned to slavery, 183;
liberation of royal, 188;
if a criminal, may be demanded, 193;
where a, insults a freeborn person, 216.
Sodomy, penalty for, 111.
Soil, fruits of, what may be demanded, 175.
Solidus, no one may refuse to accept a, of legal weight, 262.
Soothsayers, penalty for consulting, 203.
Stolen property, when bought ignorantly, 240;
knowingly, 241;
he in possession of, must name thief, 269.
Strays, when found, must be taken up and appraised, 281;
where leave before driven out, 282;
if mutilated, penalty for, 282;
notice must be given, how, 301;
care of, 301;
must not be sheared or branded, 301.
Streams, right to enclose, 295.
Subornation of perjury, penalty for, 62.
Summons,
penalty for refusal to obey, 25;
time within which must be obeyed, 26.
Sunday, no litigation lawful on, 21.
T.
Tenant, must pay rent for land sublet, 339.
Testator, cannot dispose of same property in two different ways, 72.
Testimony, must be furnished by both parties, 41.
Theft, when committed by a slave, 238;
by a freeman and slave, 239;
by a master with his slave, 239;
of mill machinery, 242.
Thief,
how punished, 242;
where killed, not homicide, 243;
where killed at night, 243;
heirs of, 244;
when to be brought before the judge, 245.
Tombs, penalty for injury of, 356.
Tonsure, punishment of those who illegally assume, 108.
Torture, shall not be inflicted upon persons of noble birth, 49;
for what, and how inflicted, 194;
penalty for, if accused innocent, 194;
how slaves tortured, 196.
Traps for wild beasts, neighbors must be informed of, 292.
Traveler, where deprived of liberty, penalty for, 214.
Treason, penalty for, 17.
Trees, compensation for cutting down, 274;
where injury results from cutting, 275.
Trespass, _vi et armis_, penalty for, 264.
Trespasser, where one falls into a trap set for wild animals, 292.
V.
Vendor, if not of good character, must give security, 160.
Vineyards, where injured, penalty for, 276;
where planted on land of co-heirs, 336;
on land where no title, 336.
W.
Wards, when of legal age, 134.
Water, theft of, 296.
Widows, guilty of fraud, 109.
Wife, no right to earnings of slave under husband, 126.
Wills, how drawn up and executed, 67;
must be published within six months, 68;
how proved when made on a journey, 68;
must be published in the presence of a priest or a witness, 69;
how genuineness established, 71;
invalid if executed under duress, 72;
who are entitled to custody of, 176;
alteration of, 256;
forging of, 256;
nuncupative, 67;
holographic, 70.
Witchcraft, how punished, 204;
where employed against property, 205.
Witness, who may not be, 54;
must be sworn, 54;
where contradicted by documentary evidence, 54;
impeachment of, 59;
must sign or seal will, 67;
penalty for neglect, 68;
cannot testify to what is not in a will, 72.
Women, may conduct their own cases in court, 50;
cannot appoint an attorney, 50;
advanced in years cannot marry young men, 77–78;
where they marry slaves, 83–84–85;
must not marry within year of husband’s death, 83;
where, marry again in absence of husband, 86;
of bad character, 102;
entitled to share of entire estate, 123.
THE END.
FOOTNOTES:
[1] It must be remembered that under the Gothic polity, the legislator,
invariably a member of the ecclesiastical order, was frequently called
upon to exercise the exalted functions of the judge. In some instances,
the two officials had concurrent jurisdiction; in others, the bishop
was authorized to decide questions of law and fact in the absence of
the magistrate. Especially was this the case where the interests of the
Church were, in any way, concerned. Hence arises the apparent confusion
of the duties of legislator and judge, in this and other chapters of
the Visigothic Code.--[ED.]
[2] Preambles, such as the above, which are of frequent occurrence in
this body of laws, show unmistakably its ecclesiastical origin, and
the theocratic principles, which, at all times, dominated those who
framed it. The Mosaic Code alone, among those of great antiquity, is
constantly pervaded by similar religious sentiments; which, emanating
from the high authorities of the Church, undoubtedly exerted great and
beneficial influence over an ignorant and superstitious people. Such
additions to legal enactments would seem strangely out of place at the
present day.--[ED.]
[3] The first sentence of this chapter is directly at variance with
the maxim subsequently inculcated with such diligence by the Church
of Rome; through the rigid enforcement of which it long maintained
its despotic empire, and which it still regards as one of the most
important sources of its power: “Ignorance is the mother of Devotion.”
It may be conjectured from the above, that the familiar legal axiom,
“_Ignorantia legis neminem excusat_,” already ancient, and well
established in the seventh century, is probably as old as the law
itself.--[ED.]
[4] The Visigothic Councils, whose authority was presumed to emanate
from Heaven, and whose alleged sacred character invested also, to a
certain extent, the monarchs elected by them, presumed to legislate for
all coming time. Instances often occur where future kings are declared
to be bound irrevocably by the acts of their predecessors, and by the
decrees of the collected wisdom and piety of the nation, represented by
the ecclesiastical assemblies of Toledo. Despite the solemn adjurations
of prince and prelate, however, few kings hesitated to repeal or
abolish the laws of their ancestors, when those laws either offended
their prejudices, or interfered with their ambition.
The manifest injustice and iniquity now recognized by nearly all
civilized nations as attaching to _ex post facto_ laws, were not
appreciated by the Visigothic legislator, or sovereign. Laws were
frequently made retroactive, and were enforced with great severity in
cases affecting questions of religious belief, as well as in those
relating to the rights and privileges of the Crown.--[ED.]
[5] Considering that the crown was elective; that the monarch was only
“_Primus inter pares_,” and that the subject had apparently the
right to sometimes admonish his sovereign of his errors, a relic of
the sturdy independence which characterized all northern barbarians;
the doctrine of _lesé-majesté_ seems to have early acquired great
importance among the Visigoths, judging from the severe penalties
visited upon those guilty of the offence.--[ED.]
[6] The coins principally in use among the Visigoths were those of the
Byzantine Empire at that epoch, as follows:--Gold, The _Libra_, or
pound, twelve ounces in weight, and divided into seventy-two _Tremisæ_,
or twenty-four _Siliqæ_; and Silver, The _Libra_, containing twenty
_Solidi_, and the _Solidus_, containing twenty _Denarii_ of copper. The
smaller coins, of which there were many, were those of ancient Rome,
and of the Eastern Empire.
The _Libra_ of gold was worth $368, and the one of silver worth
$88, or, at the present value of money, $4,048, and $968, respectively.
The _Solidus_ ($56 gold, and $44 silver,) was the standard coin in
circulation.
The gold _Tremisa_ was the only coin struck by the royal mints
during the Visigothic domination. Heavily alloyed, rude in design,
and coarse in execution, these clumsy medals disclose the primitive
conditions of the numismatic art of the period, being notably inferior
to the contemporary examples of Byzantine coinage, themselves far below
the artistic models of ancient Rome.
The severe fines imposed under the Visigothic Code, and whose
non-payment generally involved the alternative of perpetual servitude,
often caused the financial ruin of the offender.
[7] Nothing in the whole system of the Visigoths is more remarkable
than the care with which they attempt to preserve the integrity of the
judiciary. It is not impossible that the notorious corruption attending
the dispensation of justice by the Roman tribunals, in the days of the
decadent Empire, may have prompted the drastic legislation against
judicial misconduct which is so prominent a feature of the Code. The
penalties in extreme cases are but little inferior in severity to that
said to have been imposed by Cambyses; who flayed a corrupt judge,
and placed his skin in the judgment seat, as a suggestive warning to
his successors. It may well be presumed that, in the face of such
punishment, the acceptance of bribes was not a common vice among the
Visigothic magistrates. The latter did not receive regular salaries,
but were paid according to the work they performed; a regulation which
would appear, in some instances, rather calculated to encourage, than
to suppress litigation.--[ED.]
[8] This chapter does not appear in the Castilian translation. It
is the only instance in the Visigothic Code where any ordeal is
permitted as a means of obtaining evidence of crime. The other ordeals,
subsequently so popular during the Middle Ages, and employed not only
in proceedings before judicial tribunals, but also by the clergy to
establish the existence of demoniacal possession, do not seem to
have been practised by, or even known to, the Visigoths. Nor did
they ever appeal to the wager of battle, so congenial to the spirit
of the pugnacious barbarian, and which afterwards became one of the
institutions of the age of chivalry and feudalism.--[ED.]
[9] “_Decalvatio_” was one of the most dreaded punishments
sanctioned by the Visigothic laws. The tonsure was itself considered
degrading, among a people who attached the highest importance to
a luxuriant growth of hair, even when, as a distinctive mark of
their calling, it was undergone by ecclesiastics; and shaving the
head, in the execution of a judicial sentence, was often regarded
as an indelible mark of infamy. There were several degrees of this
punishment, all of which did not entail the same suffering and
disgrace. In some cases, the hair was cut in the form of a cross;
in others, the head was entirely shaved. He who was “_turpiter
decalvatus_,” was scalped, and had the skin entirely stripped from
his head above the ears; a practice surpassing in barbarity that
peculiar to the American Indian. It was not unusual, in the infliction
of this cruel penalty, to include a portion, or even all, of the
skin of the forehead; thereby horribly disfiguring the victim for
life.--[ED.]
[10] The mutual relations and liabilities of principal and agent,
and constituent and attorney, seem to have been well defined among
the Visigoths. The attorneys, “_assertori_,” referred to in the
Code, were, in reality, attorneys-in-fact. Strictly speaking, lawyers
(although the _assertor_ appeared in court, and, to some extent,
exercised the functions of an attorney-at-law) did not exist among the
barbarians who had migrated from the Euxine and the Danube, and by whom
members of the legal profession were looked upon with both suspicion
and hatred. It is said that Alaric, by way of mockery, cut out the
tongue of a distinguished Roman advocate who fell into his hands. In
the Visigothic tribunals each party stated and argued his own case;
and, where an attorney was appointed, every precaution was taken to
prevent the exertion of that insensible, but none the less weighty,
influence which everywhere attaches to the possession of superior
wealth, rank and power. The effect of written instruments delegating
authority to agents of various kinds, was also well understood,
and their validity was insured by the attestation of reputable
witnesses.--[ED.]
[11] Branding was a penalty rarely imposed under the Visigothic system,
and was deemed especially infamous on account of it being reserved for
crimes involving unusual turpitude. He who was “_notatus infamia_”
was deeply burned upon the forehead with a red-hot iron, which left an
ineffaceable scar. Few offences were more detested by the Visigoths
than perjury.--[ED.]
[12] There were various degrees of slavery recognized by the Visigoths.
Slaves in the service of the Crown were often highly educated and
accomplished for that age; exercised important and responsible
employments at court; enjoyed many privileges, and were exempt from
many restrictions ordinarily attaching to the servile condition. They
were rather serfs than bondsmen; and could themselves own, and, under
certain conditions, dispose of, slaves: a singular anomaly which could
hardly exist, for any length of time, in a thoroughly civilized state.
While the Roman master, under the law, was invested with absolute
control over his slave, even to the extent of putting him to death,
the Visigoth could exert no such irresponsible power. The worst
features of the Roman System, rendered necessary where slaves existed
in immense numbers, were rejected by the Visigoths, who displayed,
in this instance, far more humanity than their polished and corrupt
predecessors. Among them the Roman legal axiom, “_Partus sequitur
ventrem_,” did not exclusively prevail; as the children followed
the condition of the father as well as that of the mother. In both the
Roman and the Visigothic codes the slave was considered as devoid of
all personality; and was merely a chattel, with which debts and other
obligations could be discharged, as with any other article of portable
property. The _servus idoneus_, or slave of superior rank, was
distinguished for his ability and integrity, or for the confidence
reposed in him by his master; the _servus vilis_ was ignorant,
debased, and frequently criminal. In the infliction of penalties, a
distinction was made between the individuals belonging to these two
classes, and always in favor of the former. Freeborn persons who, by
the sentence of the law, were reduced to slavery, a common occurrence
under the Visigothic system, and a penalty from which tyrannical and
corrupt judges were not exempt, were designated _mancipia_.
Slaves belonging to the Church were generally of a high order of
ability and trustworthiness, like those who were the property of the
Crown. The owner was made liable in damages for any injury committed
by his slave; as the latter not being a person, and still less a free
agent, was legally presumed to be under the control of his master,
who, consequently, was responsible for his acts. The Visigothic Code
in comparison with others, protects the rights of slaves with great
impartiality, and often treats their minor offences with marked
indulgence.--[ED.]
[13] This is probably the first instance on record, of a law
authorizing the taking of depositions. It will be observed that no
provision is made for the service of notice on the other party to the
suit. The art of cross-examination does not seem to have been either
recognized, or practised, by the Visigothic tribunals. The rigid
investigation by the judge, who examined all witnesses, was presumed to
be amply sufficient to elicit the truth--[ED.]
[14] In the words of the text, “_pari simul sententia falsarii
teneantur_.” Subornation of perjury was, as will be seen from the
above, placed in the same category with perjury. The penalty for
the latter crime varied with the social status of the culprit, from
the loss of the fourth of his property, to scourging, and perpetual
servitude. See Book VII, Title V, Chapter II.--[ED.]
[15] A large part of the preceding Book has been borrowed from the
Roman jurisprudence, and some of it is older than the Twelve Tables. It
is hardly necessary to remark that the intelligence and experience of
semi-barbarians are unequal to the task of the framing, construction,
and execution of enactments relating to the enforcement of civil
obligations, and the testamentary disposition of property, as set forth
in these chapters. The power to distrain, referred to in Chapter VIII
as effecting the property of a surety for a debt, is a remedy whose
origin antedates all history. It was the _pignoris captio_ of the
Romans, among whom it was a summary proceeding, undertaken without
previous application to a judicial tribunal. It was supplemented by
the _manus injectio_, or seizure of the person of a debtor or
wrongdoer; followed by his subjection to hard labor, and often to cruel
treatment, until the unpaid claim was satisfied, or the tort he had
committed, had, in the opinion of the injured party, been sufficiently
punished. This form of execution was much used by the Visigoths, and
its severity was somewhat modified by their laws; but while its most
oppressive features were eliminated, enough remained to render the
proceeding liable to great abuse.
The rules relating to the execution, attestation and proof of wills and
other legal documents, contained in the _Forum Judicum_ were, for
the most part, derived from the Codes of Theodosius and Justinian. The
provisions governing nuncupative and holographic testaments are very
similar in all these collections. The will made by a traveller or a
soldier, while on a journey or absent in the service of the government,
is merely the _peculium castrense_, or military will of the Roman
legionary. Codicils, introduced by the laws of Justinian, were unknown
to the Visigoths.--[ED.]
[16] The crime of rape was considered by the Visigothic legislator in
the original and broader acceptation of the term, and not according
to the more limited significance attaching to it at the present day.
It included, therefore, the offences of abduction and kidnapping; all
survivals of practices observed by mankind in their natural condition;
one of whose customs, marriage by capture, still prevails among certain
barbarous nations. By the Visigoths, as by the Romans, rape, theft,
and some other crimes, were classed as private wrongs, to be expiated
by the infliction of personal vengeance. For this reason, the ravisher
was delivered up to the tender mercies of the relatives of the victim;
or, reduced to servitude, he was compelled to serve the latter for
life.--[ED.]
[17] The Statute of Limitations could be pleaded in few crimes, under
the Visigothic Code, and especially was this true where the defendant
had been guilty of what we would call a felony. The reason for its
adoption in this instance is obscure, and this law may have been
enacted for some special purpose, or to fit some particular case;
retroactive legislation being common under the Visigothic Monarchy. In
all other laws published under this Title, marriage between the parties
is not only absolutely prohibited, but every precaution is taken to
make it impossible. As the former decrees and enactments are not stated
to have been abrogated by the promulgation of the above-mentioned law,
its application and enforcement would seem to have been difficult, to
say the least. Such conflicting legislation was, however, not unusual
under the polity of the Visigoths.--[ED.]
[18] No one can doubt that, under such conditions, it was “fully
satisfied.” This is another instance where the punishment of a personal
injury was regarded, not as an offence against the community, and a
breach of good morals, but as a case demanding private retribution, as
is specifically stated in the law itself.
The distinctions between the crimes of rape, adultery and fornication,
as now established, are not clearly set forth in the Visigothic Code.
Intercourse with a widow is designated adultery. The rape of a woman
of any condition, is frequently called adultery with violence. The
excessively harsh penalties prescribed for such offences, and which,
as a rule, were only limited by the caprice or compassion of the
party injured, are a relic of the customs of the Northern barbarians,
with whom female chastity was as much the rule as, on the other hand,
it was the exception among the warmer-blooded nations of Southern
Europe. Most of the laws relating to crimes against women are termed
“ancient,” showing their derivation from a remote antiquity, or Roman
origin.--[ED.]
[19] The extraordinary leniency shown by this law to ecclesiastical
culprits, as compared with laymen guilty of the same offence, openly
displays the bias of the legislative power. There was one rule for the
priest, and another, and a very different one, for his parishioners.
It will be noted, also, that no provision is made for the punishment
of the higher clergy; while it was notorious that the bishops and
metropolitans were the greatest of all offenders, where women were
concerned. As they framed the laws which governed the people, and were
presumed to receive their inspiration from heaven, they naturally
came to regard themselves as above their own decrees, and not liable
to their penalties and restrictions. The dissolute character of the
priesthood in those times, and long subsequently, is well known to
every student of history. The indulgence with which the bishop was
accustomed to regard the failings of his subordinates is disclosed
by the fine imposed upon him for neglect to discipline the former.
No mercy is shown to the women involved, and, what is unusual, no
distinction is made where the latter belong to different castes, or
stations in society. It is probable that this law, so far as the
punishment of the clergy was concerned, “was more honor’d in the breach
than the observance.”--[ED.]
[20] The right of dower, established by the Visigothic Code, is Roman
in origin. It was derived from the bestowal of the dowry, “_res
uxorica_,” which was an almost indispensable part of every marriage
contract, and with which it is sometimes now confounded. While,
under the Roman law, the dowry was given by the intended wife or her
relations to the intended bridegroom, or to some member of his family,
with the Visigoths it came from the bridegroom, and represented, in
fact, the purchase money paid for the bride; a survival of the ancient
barbarian custom of marriage by purchase, just as the wedding-ring is
symbolical of the presumed subordination of the wife to her husband, a
ceremony whose purpose, as well as significance, have both long since
been forgotten.
Both the rights of dower and curtesy, as defined by the legal polity
of the Visigoths, it will be seen, are practically the same as they
now exist under the laws of England, and of those of many of the
States of the Union. Considering the lapse of time, the differences of
race and religion, the wide divergence of political systems, and the
antagonistic character of many of the social usages observed during
epochs separated by thirteen centuries, this fact is very remarkable.
While the wife had a right to the use of half of the deceased husband’s
property during her lifetime, he had a right to the use of only one
third of hers, as he has to-day. The favor generally shown to the wife
in the stipulations of the marriage contract, are largely the result
of the independence enjoyed by the sex under Teutonic and Scandinavian
customs.--[ED.]
[21] There is some ambiguity in this and in the preceding chapter,
growing out of the use of the term _pupillus_ in the text;
it denoting indiscriminately, minor, ward, and orphan. The
provisions would apply with equal propriety to any or all of these,
but it is most probable that minors alone were intended to be
designated.--[ED.]
[22] As the law of primogeniture, so popular with mediæval and modern
nations, was not recognized by the Roman jurisprudence, so it was also
rejected by the Visigothic legislator. The testamentary distribution of
estates under the Code was governed by far more equitable principles
than obtain, even in our time, among many peoples who have enjoyed,
for centuries, the experience and advantages of a highly developed
civilization. While the testator was, for the most part, unhampered
in the final disposition of his property, he could not disinherit any
of his children without just cause, and that cause was required to be
specifically stated in his will. Where children or grandchildren shared
equally in the estate of their parents or grandparents, all cause
for family dissensions on account of favoritism or undue influence,
was absolutely removed. As it was provided by law that the estate
of the decedent must descend in the direct line, to the exclusion
of stepchildren, another source of dissatisfaction and temptation
to fraudulent interference with the rights of the next of kin was
permanently disposed of.
The interests of all heirs were jealously guarded. Even the dowry of
the wife, peculiarly her own property, as it represented the purchase
price paid for her by her husband, could not be alienated, to the
prejudice of her children. The dutiful conduct of the latter was
insured by the law which declared all their rights in the estates of
their parents to be forfeited, in case they were guilty of gross insult
or violence toward the former. In the case of wards and minors, there
is probably no body of laws which protects with more solicitude the
interests and property of such helpless beings, than do the provisions
of the Visigothic Code.--[ED.]
[23] This decree, promulgated about 660, is one of the first of the
statutory declarations recognizing the principle of mortmain. The
Codes of both Theodosius and Justinian contained similar, but far
less sweeping provisions relating to the acquisition of property
by the Church; but these were concerned, for the most part, with
bequests. From the nature of the case, however, in the organization
and perpetuation of ecclesiastical societies, custom and necessity
must early have rendered real property inalienable by bodies which
never die; and which are encouraged to add to their wealth by every
expedient, honorable and dishonorable, but are prohibited by tradition,
policy, and legal enactment from conveying their possessions to the
laity.--[ED.]
[24] Priests and deacons, under the Visigothic ecclesiastical system,
which, it must not be forgotten, was at all times practically
independent of papal authority, were permitted to marry; as were their
Arian predecessors. Such a union, however, was subject to certain
restrictions. It could only be entered into once; the bride had to be
a virgin; and where the husband was raised to a higher dignity in the
Church he was compelled to, at once, repudiate his wife. The marriage
itself was an impediment to promotion, as priests without families
were much more sure to rise in their profession than those who had
contracted marital obligations.--[ED.]
[25] The holding of a plurality of livings by a single ecclesiastic,
an abuse which, in after times, assumed such gigantic proportions
under papal rule, especially in England, where, by reason of the
hardships it produced, it promoted in no small degree the progress of
the Reformation, was scarcely known to the Arian, or Catholic clergy
of Spain. The enjoyment of the revenues of one, or a greater number of
benefices by a layman, no matter how wealthy or powerful the latter
might be--a custom elsewhere so prevalent--was not provided for by the
sacerdotal legislature of the Visigoths in their Code of laws; for
the reason, no doubt, that such a thing was deemed too improbable for
serious consideration.--[ED.]
[26] The institution of patron and _libertus_, or client, adopted
by the Visigoths almost without alteration, dates back to the primitive
ages of Rome. The regulation was recognized by the Law of the Twelve
Tables, and was modified by various enactments during the eras of the
Republic and the Empire. Its survival, during all the vicissitudes
attending the Roman domination, attests its peculiar adaptability to
the national character, and to the political and social organization
of the people who established it. It presents a greater analogy to the
Highland clan than to any other modern institution, although marked and
radical differences exist between the two; the strongest resemblance
being in the devoted allegiance due to both the _patronus_ and
the chieftain. By the ordinary act of manumission the slave became a
_libertus_ or freedman; a term of much more limited significance
than it has at present. The former master then became the protector
and guardian of his freedman; and, in return for this protection, the
latter was bound to perform certain duties, which he could not evade
without the reproach of ingratitude, and the certainty of punishment.
One of these obligations was that of military service, which differed
from those subsequently required by the law of the Feudal System,
only in that it was not especially rendered as a condition for the
tenure of a fee. The relation of patron and client, which, under the
Romans, could only be dissolved between individuals by death, or by
the loss of his freedom by the client for misconduct or insolence, was
not so strictly observed among the Visigoths. Under their system, the
freedman had a right to transfer his allegiance to another patron; an
act which caused the forfeiture to his former master, of at least half
his property. Not only individuals, but churches, and municipal bodies,
could exercise patronal rights. While the term client was generally
applied by both nations to a manumitted slave, it had in fact, a much
broader meaning; and denoted any person who voluntarily placed himself
under the care or supervision of another of superior rank or power.
This institution had more influence in preserving and perpetuating the
distinctions of caste--that most pernicious and fatal of evils which
cause the disintegration of nations and overthrow of governments--than
any other arbitrary and oppressive regulation of ancient times.
[27] Among the clients owing services to a patron, were the
_buccelarii_, who derived their appellation from the _buccela_, or
ration, furnished them. They may be designated “bailiffs,” as their
duties resembled, in many respects, those of the Spanish _alguazil_.
They formed part of the armed retinue of the patron, accompanied
him to war, and guarded his property in times of revolution and
disorder.--[ED.]
[28] The irresponsible, and more than despotic authority vested by
the Roman laws in the father over the son, was thoroughly repugnant
to the Visigothic conception of justice and freedom, which had been
transmitted through many generations of barbarian ancestors. The
Roman father not only possessed the power of life and death over his
children, but had the undisputed right to sell them into slavery. The
parental and filial relation was hedged about with such restrictions
that it was almost impossible to sever it during life. By the law of
the Twelve Tables a son could not be free, unless he had been sold as
a slave and manumitted, three times. His reduction to a condition of
servitude carried with it many civil disabilities which could never be
removed. The independence of a son of his father’s control rendered
his inheritance of the parental estate impossible. These oppressive
regulations were either greatly modified, or entirely abrogated, by the
more equitable policy of Visigothic legislation. In the case of female
children also, under the latter system, principles more consonant with
ideas of justice prevailed. The emancipation of the sex from arbitrary
restraint also made great progress, when it is remembered that a woman,
no matter what her age or position, was always considered by the Romans
to be in a condition of tutelage.--[ED.]
[29] This affords curious and instructive information as to the cost
of books in the seventh century. The silver _solidus_ is meant,
as, where any coin referred to is of gold, the fact is always stated
in the _Forum Judicum_. As the _solidus_ was nominally worth
$4.00 of our money, but in reality $44.00, taking into consideration
the difference of values at that and the present time, it will be seen
that the price fixed by law, of a copy of the Visigothic Code, was
$17,600.00. This appears incredible, but it must be borne in mind that
all books were in manuscript; that few persons were qualified to write
them; and, as ignorance was almost universal, the demand for literature
was extremely limited. The preparation of a literary work was then a
formidable and expensive undertaking. Most of the books of that age,
and, indeed, for centuries subsequently, were of a religious character,
such as missals, fabulous chronicles of the Church, and spurious and
imaginary biographies of saints. Making the sale of a collection
of laws at a price above a certain sum a penal offence, punishable
with the scourge, is an example of crime unique among the _mala
prohibita_.--[ED.]
[30] Twelve and a half per cent was the ordinary rate; but, in some
instances, it was much higher. The law against usury was habitually
violated by the Jews, who extorted enormous rates of interest both from
individuals and from the Crown.--[ED.]
[31] All the laws relating to bailments, included under this and the
preceding Title, are of ancient origin; that is, borrowed, almost
without change, from the Roman jurisprudence. The responsibility of
the bailee for property entrusted to him, is determined by the same
principles which experience and a sense of equity, in all ages, have
demonstrated to be just and expedient, and which form the basis of
similar contracts at the present day. The requirement of ordinary or
extraordinary diligence and care was then, as now, dependent upon the
question whether one or both parties derived benefit from the bailment.
In case of gross negligence or fraud, the bailor was entitled to an
animal or article of equal value to the one lost or destroyed; just as
he can now, under similar circumstances, recover damages in a suit at
law. The forfeiture of half the value of the property loaned, when it
was stolen, and negligence was not established, or even alleged, is a
novel regulation, and one especially calculated to render the bailee
more careful and alert. The custom of pawning property as security for
money loaned is, no doubt, as ancient as any business transaction, and
is the _pignori acceptum_ of the Roman, and Civil and Common Law
authorities. The question of negligence does not seem to have been
considered where a pledge was stolen; for, in this case, the entire
loss was sustained by the bailor, and not half of it, as when the
article was merely loaned by way of accommodation, and no remuneration
for its use was expected.--ED.
[32] The savage _Lex Talionis_ of the Mosaic Code, which
demanded “an eye for an eye and a tooth for a tooth,” was permitted
by the Visigothic jurisprudence, as is disclosed by this and other
chapters. In most instances it was authorized where, on account of the
poverty of the culprit, a pecuniary compensation was not forthcoming.
Notwithstanding the abuse to which it was inevitably liable, there is
certainly a measure of stern and retributive justice in the provision
consigning a false accuser to the vengeance of the family of his
deceased victim; as well as in the case of a wicked and corrupt
judge, who maliciously permitted an innocent man to be tortured to
death. The _Lex Talionis_ was not unknown to the Romans, and is
referred to in the Twelve Tables; but, in after times, their ideas
of the proper functions of judicial tribunals, in the infliction of
penalties, were too correct to countenance either its acceptance or
enforcement.--[ED.]
[33] Ignorance, inhumanity, and contemptuous disregard of the
principles underlying the law of evidence, have, in all ages, impelled
semi-barbarians and churchmen to the employment of torture. The
absolute unreliability of such a means of eliciting truth, one would
naturally suppose would cause it to be rejected by nations in the
enjoyment of advanced educational facilities and occupying a high rank
in the scale of civilization. Such, however, was far from being the
case. An inheritance of the atrocities of the Inquisition, it was still
used in France and Spain during the eighteenth century. In Scotland,
which was subject to the Civil Law, it was not forbidden until the time
of Queen Anne. Although prohibited by Magna Charta, and absolutely
unknown to the Common Law of England, torture was, nevertheless,
frequently employed as late as the reign of Charles I. A form of it,
the _peine forte et dure_, applied where a prisoner accused of
felony stood mute, was authorized by the Statute I, 3, Edward I. During
the reign of the tyrannical Henry VIII, the question was in high favor
with that monarch and his legal advisers, and the public tormentor,
while his profession carried with it the highest possible degree of
execration and infamy, was the object of both fear and adulation among
the rabble. Such famous lawyers as Sir Edward Coke and Sir Francis
Bacon, were earnest advocates of the efficacy of the rack in extorting
evidence from recalcitrant witnesses and suspected traitors. In none
of the above mentioned instances, were any restraints imposed upon
the zeal or malevolence of those entrusted with the application of
this relic of barbarian procedure. Under the judicial system of the
Visigoths, however, the abuse of torture, or even negligence in its
employment, was severely punished; and sometimes, as may be seen from
the above, retribution was exacted by the no less iniquitous _Lex
Talionis_. Pecuniary compensation for damages sustained through
malice, or neglect of proper care, or where an innocent person was put
to the torture, while an inadequate return for the wrong inflicted,
was not, under similar circumstances, sanctioned by the customs and
practice of more cultured nations, nine centuries subsequently. As a
slave was a chattel, he possessed no civil rights, and his master,
for this reason, had the privilege to compound his offence, if it
were not of too serious a character. The fixing of a prescribed
limit, in the value of the property involved, for less than which the
question could not be employed, is derived from the arbitrary tariff
of fines imposed for the loss of limbs, and other personal injuries,
which has always been in use among semi-civilized races. Distinction
in point of rank and social position was sedulously observed by the
Visigoths in the case of the infliction of torture, as well as in the
imposition of penalties for violating the laws and in all subjection
to civil disabilities. The worse than useless character of this mode
of examination was never considered by mediæval authorities, although
it was ably set forth many centuries previously by Cicero, in the
following terse and vigorous language: “_Regit quæsitor, flectit
libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil
veritati loci relinquatur_.”--[ED.]
[34] This would have been readily accepted as law under James I, a
thousand years subsequently; and, no doubt, would have been indorsed
as sound by Cotton Mather, whose sanguinary executions for witchcraft
took place nearly eleven centuries after the death of the Visigothic
king, Chintasvintus. The penalties for sorcery set forth in the
_Forum Judicum_, were far less harsh than those prescribed by the
Anglo-Saxon jurisprudence. The punishment of death was not permitted
by the former, except where life had been lost through the effect of
incantations or charms; a rare occurrence, as may well be surmised; and
torture by fire is not even referred to, still less tolerated. In this
instance, as in many others, the more lenient policy of the barbarian
appears in striking contrast to the fierce and blind intolerance
and cruelty of nations in the possession of superior culture and
intelligence, and living in a far more progressive age.--[ED.]
[35] While abortion, as is well known, was not a crime at Common Law,
and, under statutory regulations, was for a long time not considered
punishable until the period of quickening; it was, however, recognized
as a serious offence by the Romans, whose legislation on the subject
was copied by the Visigoths. The wide variation of the penalties
prescribed was, as is usual, largely dependent upon the social standing
of the culprit; excepting in the provisions of the seventh chapter,
where the innate cruelty of barbarian retribution is disclosed by one
of the most frightful of punishments.--[ED.]
[36] It is probable, from the extreme cruelty of the penalty imposed
for professing ignorance of the laws of the land, that this defence
had been frequently set up by criminals, and that it had, in not a few
instances, been pleaded with success. There is not, in the entire Code,
a sentence exceeding this in severity, as the crime itself is supposed
to have been sufficiently expiated by the infliction of the _Lex
Talionis_.--[ED.]
[37] The various degrees of homicide, as set forth in the preceding
chapters, were clearly understood if not specifically designated,
by the Visigothic legislator. Chapter XI, which describes the crime
corresponding to murder in the first degree, is the only one of
undoubted Roman origin; all the others being the acts of Councils,
or the edicts of kings. In the first and second chapters, the
circumstances which characterize excusable homicide are stated; and in
the third, fourth, fifth, sixth, and seventh, the conditions attending
the crime of manslaughter are explicitly defined. The vital question
of intent, or the existence or non-existence of malice prepense,
is referred to repeatedly, both in a positive and negative manner,
whenever homicide is described. The humane protection afforded the
slave from the cruelty of his master, as provided for by Chapter XII,
suggests what frightful abuses must have previously resulted from
the unrestrained exercise of magisterial tyranny. The guilt of the
accessory-before-the-fact was not considered as great as that of the
principal; as the penalty to which the former was liable, while being
severe, as well as in the highest degree ignominious, fell short of
the infliction of death. The horror with which a parricide has always
been regarded, was likewise felt by the Visigoths, as is disclosed by
his summary execution by the same means that he employed to take the
life of his victim; a form of the _Lex Talionis_ which was only
made use of in the case of crimes of peculiar atrocity. The blinding to
which a murderer was subjected, who had claimed the right of asylum,
was far from being an exhibition of clemency, and certainly entailed
greater suffering than the extreme penalty otherwise prescribed by the
law. Homicide was justifiable, as has been seen, when committed in
self-defence against an attacking party; in certain cases of trespass
_vi et armis_, and where a father killed his adulterous daughter
in his own home, or a husband caught an adulterer with his wife,
_in flagrante delicto_. In the latter instances the offender was
especially exonerated from all blame, on account of the provocation;
and, therefore, could not be held for manslaughter, as he now can be,
under the statutes of the majority of our States. Justification could
also be pleaded where a criminal was killed while committing highway
robbery, larceny, or burglary; the latter (_furtum nocturnum_)
being a much more comprehensive term than ours, and including all kinds
of nocturnal depredations. The employment of that popular American
fiction, the “unwritten law,” by means of which so many homicides have
been acquitted, and which appeals so strongly to the primitive sense
of retributive justice which still dominates humanity, was thus openly
endorsed by the Visigothic Code. Insanity, as a defence for homicide,
was utterly unknown to the legal systems of antiquity; and it is only
under the highly artificial conditions of modern civilization that
this theory has attained such an extraordinary, and often pernicious,
development.--[ED.]
[38] It is rather remarkable that the theft of royal property should
only have been punished by the imposition of a fine equal to that
prescribed where a private individual was robbed. It is evident that,
under a strict construction of this law, no other penalty could be
inflicted.--[ED.]
[39] This chapter, a survival of the irresponsible authority exercised
by the Roman _dominus_, is the only one in the Code where the
fate of a slave, guilty of crime, is specifically and absolutely
left to the will of his master. It is possible that, on account
of the facility afforded for the commission of such offences, the
possession of extraordinary power was supposed to be required, as a
safeguard.--[ED.]
[40] The enforcement of the _Lex Talionis_ in case of the
kidnapping of a freeborn person indicates the abhorrence with which the
crime, ever regarded by all nations as one of the most atrocious in the
calendar, was viewed by the Visigoths. As slaves were valuable articles
of property, the legislation of the Code was principally directed
against those who stole them. The kidnapping of women, having been
already provided for under the title of Rape, is, for that reason, not
referred to here.--[ED.]
[41] The mildness of the sentence imposed for the crime described in
this chapter, which seems to include the capital offences of treason
and _lèse-majesté_, as well as the lesser one of forgery, is most
extraordinary and inexplicable. Although “the divinity that doth hedge
a king” was not fully recognized or appreciated by the Visigoths of the
seventh century, whose monarch was the creature of an ecclesiastical
council, and not infrequently deduced his origin from any but a
princely house, it is still inconceivable that these offences being
particularly directed against the regal dignity, should have been
regarded as personal and of trifling moment, for it can be readily
conjectured what serious trouble and embarrassment a spurious edict,
purporting to emanate from the throne, might cause.
The “notaries” herein referred to were secretaries, shorthand writers
or amanuenses.
This law is of Roman origin, and the amputation of a finger or a hand,
while not unusual under that system, was a more prominent feature
of Greek penal legislation, from which the Romans, at the time of
the adoption of the Law of the Twelve Tables, borrowed many of their
punishments.--[ED.]
[42] The penalty above described for an offence of such gravity as
highway robbery, seems to be grossly inadequate. It is, however, a
peculiarity of the Visigothic Code that, for many breaches of the law
which we class as misdemeanors, it authorizes punishments generally
inflicted for the commission of felony, and _vice versa_. Perhaps
the courts construed the expression “complete legal satisfaction,” to
mean the sentence usually imposed for theft. There can be little doubt
that the obscurity of the language which often characterizes the edicts
of the _Forum Judicum_, would, under a less strict and impartial
judicial system, have offered many opportunities for the escape of an
offender from the legal consequences of his crime.--[ED.]
[43] Between one twelfth and one fourteenth of an acre. The great Roman
highways, portions of which are still in good preservation in some of
the provinces of the Spanish Peninsula, and especially in Estremadura,
were usually from eleven to fifteen feet wide; and, with the space
required by the Visigothic laws to be left unenclosed for the passage
of cattle, were sometimes sixty to a hundred feet in their entire width.
The Visigothic surface measures were partly Roman, partly Gallic,
and partly Gothic. The standard, the _Jugerum_ .622 acre, was
older than the Roman Republic; the _Arepennis_, equal to half
a _Jugerum_, was used by the Gauls; and the _Aratrum_, or
“ploughland,” corresponded to an area of a hundred and twenty acres,
approximately, and is of Northern derivation. The _Aratrum_ was
divided into “oxgates,” or “oxlands,” being as much arable soil as
could be tilled by an ox, usually fifteen acres, but varying according
to country and custom. For purposes of description, the latter term,
evidently an importation of the Danes or Saxons, is frequently employed
in the ancient English works on tenures; particularly where the latter
were of the classes designated as “base,” and “in gross”; as well as
in conveyances and leases, where absolute accuracy of boundaries was
either unnecessary or unattainable. The divisions of “ploughland”
and “oxgate” were used much more recently in Scotland than in
England.--[ED.]
[44] The reader cannot have failed to remark the striking analogy
existing between the laws of the _Forum Judicum_ relating
to strays, and our own statutory enactments on the same subject.
Indeed, aside from some of the penalties imposed, and the amount
of compensation allowed, the regulations are, in many instances,
almost identical. Unlike a great part of the Visigothic legislation,
where trespass, and other violations of the law of real property
are involved, few of the provisions concerning strays are derived
from Roman sources. Most of them are unquestionably survivals of the
ancient legal traditions of the wandering Gothic tribes, the great
bulk of whose wealth consisted of flocks and herds of sheep and
cattle.--[ED.]
[45] This law was evidently intended to repeal the preceding one,
although this is not specifically stated. Its enactment, as is set
forth in the preamble, was demanded by the constantly increasing
number of marriages between freeborn persons and slaves. The
degradation attending such unions does not seem to have been regarded
by the masses with the same prejudice that actuated the law-making
power, whose interest it was to rigidly maintain the barriers of
caste.--[ED.]
[46] The great value of slaves, as articles of personal property, and
the manifest sympathy of the people with them, seem to have prompted
the enactment of this law, by which the inhabitants of an entire
district were to be turned into a corps of detectives for the capture
of fugitives; and the severest penalties were denounced against all,
irrespective of age, sex, social standing, or rank, for non-compliance
with its provisions. The statement that no community, large or small,
was without a number of fugitive slaves, who, sure of the assistance
of their neighbors, scarcely took the trouble to conceal themselves,
indicates that human servitude was not popular with the majority of
the people of the Iberian Peninsula. It would appear, also, that the
magistrates, whose executive delinquencies rendered them liable to
the same punishment as the offenders themselves, were frequently loth
to execute the law. The marked consideration always shown the clergy
by their legislative brethren, is again disclosed by the amusing
inequality of penalties prescribed for the neglect of official duties.
There is a great and painful difference between the limitation to
one meal a day, for a month (a privation, it is hardly necessary to
add, which might be readily evaded) and two hundred lashes, laid on
vigorously with a scourge. This law gives us a curious insight into
life in those times, and one that could have been derived from no other
source; and it is especially instructive in the information it affords
concerning the feelings entertained by all, except the comparatively
few members of the privileged classes, towards those in the servile
condition.--[ED.]
[47] The military organization of the Visigoths bore a striking
resemblance to those of modern armies, and coincided, in only a few
unimportant particulars, with that of the Roman legion. Division by
means of the decimal system, popular among all semi-barbarian races
on account of its simplicity, and the facility of arrangement it
affords, was universally employed. The commander-in-chief, styled
in the Code, _præpositus hostis_, was usually a _dux_, or
duke; the lieutenant-general a _comes_, or count. The commander
of a thousand men, corresponding to our colonel, was denominated
_tiuphadus_; next in rank came the _quingentarius_, who
had charge of a battalion of five hundred; then the centurion, and
the decurion, in command of a company of a hundred, and a squad
of ten men, respectively. The conscription officers were called
_compulsores exercitus_, and the quarter-masters or commissaries,
_annonarii_.
This military gradation was also maintained in civil life, in time
of peace. The _dux_ was the governor of the province in which
he lived; the _comes_, the governor of the chief city of his
district; the _tiuphadus_ was responsible for the behavior of
the thousand men, and their families, over whom he exercised control.
All these, with several other civil functionaries, had the privilege
of holding court, and were invested by the law with the title of
judge: “_judicis nomine censeantur ex lege_.” See Code II,
1–25.--[ED.]
[48] While this is an early instance of the recognition of the offence
of _scandalum magnatum_, subsequently regarded as a heinous crime
against the Lord’s anointed, and still, under the name of _lèse
majesté_, punished with exemplary severity by many of the monarchs
of Europe, it here assumes a broader significance than it did in later
times, as it applies also to the people, and thus includes the torts of
slander and libel.--[ED.]
[49] The _gardingus_ was the third in rank of the Visigothic
nobility, coming after the _dux_ and _comes_. Unlike either
of them, however, he, as a rule, exercised no public employment; and
being ordinarily a person of great wealth, and descended from a long
line of ancestors, materially contributed, by the richness of his
appointments, and the number of his retinue, to the pomp and splendor
of the royal court.--[ED.]
[50] The intricate questions relating to the leasing, conveyance,
descent, and forfeiture of real property are, as has been seen,
elaborated and set forth with great skill and learning in the
Visigothic Code. Not a single chapter treating of this subject is
designated _Antiqua_, to indicate that it is derived from the
Civil Law. And this is the more remarkable when the nomadic origin and
barbarous customs of the not remote ancestors of those who enacted
these important regulations, are considered. A nation of shepherds
and marauders could not be supposed to be familiar with the tenures,
contracts, transfers, boundaries, and torts, by which the title to
landed estates is either acquired or lost; yet the Visigoths framed
their laws with due consideration for the principles of equity, and the
general welfare of all classes of freeborn citizens. In many respects
their laws were superior to those of the Romans. Only two years by the
Twelve Tables, and twenty under the Code of Justinian, were necessary
to create a prescriptive right to the ownership of land. Under the
Roman jurisprudence, until the population became debased by servile
and barbarian marriages, no foreigner could legally hold or convey
real-property. The Visigothic Code, on the other hand, carefully
guarded the rights of the subject race, and prevented them from being
prejudiced by the fraud or oppression of their rulers. The inferior
classes under the Republic and the Empire, were practically serfs,
living in a condition of abject villenage; those of corresponding
station subject to the domination of the Visigoths, were often thrifty
tenants of indulgent landlords, or, at the worst, were bound by
exacting contracts which they had entered into of their own free will.
The extreme solicitude manifested for the protection of the rights
of all parties, where the title to real-property is concerned, is
disclosed by the manifold precautions enjoined, and the stringent rules
to be observed, in determining the existence of adverse possession. A
contract for the rental of land, which would be valid in any of our
courts, could easily be drawn from the laws of the Code relating to
leaseholds.--[ED.]
[51] “_Ludibrium interdum adcrescat._” It would appear from this
precautionary measure, that the members of the medical profession,
in that age, did not differ greatly from some of their brethren of
to-day. The practice of medicine was not highly regarded by the
Visigoths, a nation of warriors, and it was often exercised by slaves,
as formerly at Rome, and subsequently by barbers and charlatans during
the Middle Ages. Malpractice was a term of the broadest significance;
the risks assumed by the practitioner, even in ordinary cases, were
not compensated for by the fees he was entitled to receive, when
successful; and the danger of damages and penalties he incurred where
he lost a patient, made the profession anything but an alluring one.
After rendering conscientious and assiduous services, to be considered
guilty of homicide, and be surrendered to the exasperated relatives
of the deceased patient, as a subject for the savage excesses of the
_Lex Talionis_, was not a prospect calculated to advance the
interests of medical science.
Not until three centuries later, under the Moorish domination, did the
physician and the surgeon acquire the extensive knowledge, and attain
the professional eminence, which made the medical colleges of the
Spanish Peninsula the centre of that branch of learning, not only of
Europe, but of the then known world.--[ED.]
[52] This law, which grants to every foreign trader the privilege
of being judged by his own magistrates, is the precursor of modern
legislation establishing consular and other tribunals instituted to
protect the commercial interests, and define the judicial rights, of
persons transacting business in another country, and is of unknown
antiquity. It is, however, at least thirteen hundred years old. A
people capable of appreciating and adopting such a measure, must
have had intelligent conceptions of the maxims and requirements of
international law and have made no inconsiderable progress in the arts
of civilization.--[ED.]
[53] This pleasing homily, which precedes a collection of the most
atrocious laws ever devised for the suppression of human thought and
the persecution of heretics--with the sole exception of the rules of
the Inquisition, of which it is the prototype--is extremely edifying.
The confidence and assurance of a heavenly recompense, expressed by
the pious king in whose name this edict was promulgated, reveals the
degrading superstition of the time, and the absolute domination of the
monarch by his spiritual advisers.--[ED.]
[54] The translator has interpolated between this and the succeeding
title, in the Castilian version, another, of nine chapters, under
the head of “Concerning insults and opprobrious language.” Part of
it relates to false accusations of physical deformity and disease,
or slander; part to assault, or attempted assault, where no apparent
injury resulted; and the remainder is devoted to laws punishing
those who call Christians Saracens, or assert that they have been
circumcised. The moderate penalty of a hundred and fifty lashes was
prescribed for the last two offences.--[ED.]
[55] In the words of the text, “_veretri ex toto amputatione
plectetur_.” The sentence will not bear translation, and, in the
words of a famous writer referring to a similar case, “must be veiled
in the obscurity of a learned language.” While certainly to be classed
under “cruel and unusual punishments,” it reveals a fiendish ingenuity
in adapting the penalty to the so-called offence.--[ED.]
Transcriber’s Notes:
1. Obvious printers’, punctuation and spelling errors have been
corrected silently.
2. Where hyphenation is in doubt, it has been retained as in the
original.
3. Some hyphenated and non-hyphenated versions of the same words have
been retained as in the original.
4. Italics are shown as _xxx_.
5. Bold print is shown as =xxx=.
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