The Legal Code of the Visigoth

A Report of Select Provisions

Andrew J Freyer

Santa Clara University School of Law

Legal Systems Very Different

From Ours

2 April 2012

Evolution of the Visigoth

The Visigoth were one of several Germanic tribes dislodged by the third century Roman Empire. Separating from the Ostrogoth who migrated to form an empire near the Black Sea, the Visigoth journeyed the Mediterranean coast ransacking Roman strongholds including Rome in 410 C.E., and eventually inhabited Gaul. The Visigoth and Roman conflict was settled via foederatus treaty in 418 C.E. The treaty did not grant Roman citizenship to the Visigoth, nor did it establish a Roman colony, but instead it established an alliance of mutual support. By 475 C.E. Rome granted the Visigoth full independence, making the Visigoth Empire a powerful presence in sixth century Europe.

In the early seventh century, the oral Visigothic Law Code, forum judicum, was written for the first time. S.P. Scott, famed translator of ancient legal texts, stated in preface of his translation of the Visigothic Law Code that “[t]he original Goths were … 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.”

Several hundred years of growth surprisingly led the Goths to adopt a radically different code of law. “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.”

Scott’s praise of the Visigoth is occasionally reasonable, but a deeper analysis of the Code itself reveals a culture whose lofty moral goals were barely more than thinly veiled barbarity.

The Duties of the Lawmaker

The first title of the first book of Lex Visigothorum: Forum Judicum (hereinafter L.V.F.J or forum judicum) outlines the activities, duties, and actions of the lawmaker. In this context, the lawmaker is both legislator and judge, having the same patriotic, moral, and legal responsibilities.

Gothic law sought to improve upon precedent while seeking justice. The law itself does not derive its authority from being absolute, but rather from being morally correct. The law must be logical, honorable and pure. For difficult questions, a lawmaker should vigorously investigate in order to educate himself. The forum judicum specifically states that a lawmaker is not a politician: “As we are more concerned with morals than with eloquence, it is not [the lawmaker’s] province to introduce the personality of the orator, but to define the rights of the governor.” Further, it is required of the lawmaker that it “… be evidence 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 private or personal advantage, but for the protection and profit of the whole body of citizens.” In this way, the Visigoth expressly rejected lobbying, political maneuvering, corruption, and gamesmanship.

Gothic lawmaker qualifications were well defined. He must be intelligent, well spoken, confident, merciful, respectful of others, patriotic, and devoutly religious. Perhaps above all, a gothic lawmaker had a duty to the people of clarity and reason when he explained the law, or made a legal judgment. The punishment for failing these duties was severe. “[I]f anyone holding an office … shall, through malice, criticize this law … evade it … murmur against it … or openly condemn it; he shall be deprived of his employments and privileges … stripped of half his possessions … be forcibly restrained … and excluded from the society.”[1]

The gothic law applied equally to all citizens, regardless of rank. This included the King, although there were special provisions that uniquely protected him. The justification for universal application of law was that God had ordered all men equally to obey. This is not to say that the law is divinely inspired or justified, but that “if God should be obeyed, justice should be highly esteemed, which, if it were thus esteemed, would be constantly practiced, as every one loves justice more truly and ardently when a feeling of equity unites him with his neighbor.”

The Extent of the Legal Authority

The first title of the second book concerns both civil and criminal court procedure, as well as the relationship of the King to his subjects. Eight thousand words in thirty-two sections define, among other things, a court’s subject matter[2] and personal jurisdiction[3], charges for contempt against either court or crown[4], assignment of judges[5], appeals processes[6], judicial recusal[7], bail matters[8], and the form of judicial opinions.[9]

Criminal Matters: Tyranny and Insurrection

The first section also defines that issues of the King take precedence over issues of the people.[10] As with all other Visigoth law, a logical justification for the King’s superiority is found in this section: “if the head should be health, it is reasonable to suppose that the other members can be readily cured For [sic] if disease attacks the head, health cannot be imparted by it to the members which are constantly being wasted by weakness.”[11]

Tyranny of the King was not permitted by the code. The Visigoth recognized that “in former times, the unbridled greed of princes despoiled the people of their possessions, and the wealth of the state was persistently wring from the misery of its citizens.”[12] The duty of the king was to be mindful of his popularity and the current sentiment, whether spoken or unspoken, of his subjects. Only with the full support of his subjects could the monarchy be prosperous for all.

All real property in the kingdom “shall best absolutely in the [King], and be his own forever”[13] but he was also free to give the property away deed. Benevolent kings might freely give property to loyal subjects. On the other hand the Visigoth recognized that certain Kings might attempt to exert force or coercion to reclaim property from individual citizens. So to prevent tyranny by coercion, for any transfer that benefitted the King, it “shall be carefully examined, and if no indication of corrupt or forcible influence by the [King] is apparent, or should any fraud in the execution of the document be detected” then the transfer was legal. This assumes that a transfer to the King is the product of undue influence, placing a burden on the King to prove otherwise.

Insurrection was absolutely impermissible. Any person who sought power, and any person who supported that person, would be immediately excommunicated. Persons who interacted with an excommunicated person were themselves excommunicated.[14] It was also unlawful for any person to speak against the King, whether by insult or accusation or crime.[15] If a nobleman were convicted of such speech, he would forfeit half of his possessions to the King.[16] If a lower class person were convicted, all of his possessions and his person would be subject to the King’s “disposal.” It is unclear if lower class persons were more often executed, imprisoned, or excused by Kings under this provision. The same punishments were given to persons who spoke against the memory of dead kings. However, if the person speaking against the King was insane and he spoke the words to persons who could not comprehend him, he would not forfeit his property but instead would be lashed fifty times.[17]

Contempt of court was considered a similar to political insurrection, but was a lesser offense. If any nobleman missed a royal summons for reasons within his control,[18] he was statutorily subjected to a fine of three pounds of gold. If unable to pay this fine, he would be lashed one hundred times.[19]

In both civil and criminal cases, all witnesses speaking against a nobleman were subject to the ordeal of hot water or general torture, ordered at the judge’s discretion.[20]

Civil Matters: Organizing the Civil System

The second title of the second book is somewhat shorter than the first; merely ten sections in three thousand words. This title dealt primarily with parties involved in civil cases. This title addressed among other things, personal jurisdiction of individual courts,[21] courtroom demeanor,[22] multi-party suits,[23] court summons,[24] rights of parties to settle their cases,[25] evidence requirements of both defendant and plaintiff,[26] and punishments for charging an innocent person.[27]

A Visigoth court was quiet and orderly; cases would be dismissed if the parties disturbed the seriousness of the proceeding.[28] A court was permitted to have observers at the judge’s discretion. Interestingly, over-objecting to the annoyance of the opposing party was considered contempt of court. Fines for contempt were set at ten golden coins, paid not to the court or court, but to the judge himself.[29]

Judges of different districts were responsible for transferring important causes of action arising in their districts to the district where the defendant lived. If a plaintiff who lived in one district had a cause of action against a defendant in another district, the plaintiff’s district judge would hear the plaintiff’s evidence. The plaintiff’s district judge would send a letter directing the defendant’s district judge to hear the case. If the defendant’s district judge ignored or denied the order, the defendant’s district judge himself would be required to post a bond in the amount the plaintiff was claiming until he agrees to hear the case.[30]

Each party to a case was required to present evidence. The plaintiff would present his evidence first. The defendant was not entitled to defend the plaintiff’s case by pointing out flaws; the defendant was required to present rebuttal evidence. If, however, the defendant swore that “the property in question … 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” then the judge, at his discretion, might not require the defendant to present further evidence.[31]

A Visigoth case may only have two parties, in order to avoid “noise and confusion” in the courtroom.[32] In this way, multi-party suits were forbidden from proceeding until both sides had selected a single party to represent all interests. There is no guidance in the code for how parties should select this representative, although it is clear that the representative must be a party to the case. No non-party advocates were permitted to “interfere” in a case, under penalty of two pounds of gold. The fined advocate then “shall be violently thrown out of court.” Continuing refusal to “desist from interference with the business of the court … shall receive fifty lashes… in public.”[33]

There was an express prohibition of settlement or the dropping of a case by a plaintiff once the case had begun. The code equivocally states that compromising or dropping claims that were adverse enough to be brought to court is a fraud upon justice. The fraud occurs either by the defendant purchasing a lower punishment for his wrongdoing or by the plaintiff purchasing a lower punishment for a false filing. The punishment for settling or dropping claims is that each party “shall pay … the sum which he … could have obtained” had he won the suit.[34] This penalty applies to the defendant through the damage claim he would have against the plaintiff if proven innocent.[35] The innocent defendant’s claim was five gold coins plus one gold coin for every ten miles traveled over fifty miles. The defendant and plaintiff fines are collected and divided between the Judge and Bailiff. If either party could not afford the penalty, the case would be terminated and the non-paying party would be lashed one hundred times.[36]

According to S.P. Scott another discretionary punishment available to judges was shaving of the head. This, evidently, was an extremely embarrassing and degrading punishment for the Visigoth, who considered long hair to be a sign of status, age, and luxury. On occasion, the hair was shaved in the shape of a cross. In extreme cases, the punished person was fully scalped.[37]

Gothic Marriage

The third book of the Forum Judicum outlines the rules of marriage. It is a substantial volume of six titles divided in fifty-nine sections. The sections, in order, discuss the marriage contract,[38] unlawful marriages,[39] extra-marital relation,[40] adultery,[41] deviant behavior,[42] and divorce.[43]

Marriage Title 1: The Marriage Contract for Visigothic Couples

The Visigoth view of marriage was not substantially different than that outlined by Christian Rome. A marriage could not be legal without a dowry,[44] and a woman is absolutely prohibited from marrying against the wishes of her father.[45] If a woman is helped to marry someone her father does not approve of, those who assisted her owe a pound of gold to a person determined by the King.[46] Further, the marriage contract “shall, under no circumstances, be broken”[47] even if nothing was promised in writing meaning that discretionary divorce was absolutely prohibited.

Marriage was “framed in the direct hope of progeny.”[48] To further this aim, the code expressly prohibited marriages between old women and young men, and other such marriages that were “violations of the laws of nature.”[49] It was also generally discouraged (and in some circumstances prohibited) that betrothals last longer than two years before the marriage ceremony.[50] Both men and women are permitted to remarry after the death of a spouse.[51]

A legal dowry was no more than one tenth of the promising person’s property, and it would be unlawful for the parents of the woman to ask for more.[52] In fact, one tenth is the amount that a dowry should be.[53]

Marriage Title 2: Marriages Voided by Law

There are several circumstances in the code that statutorily void a marriage, even though a dowry was paid and a ceremony was held and both spouses have kept their nuptial promises. A widow must wait more than a year after the death of her husband before she can remarry. To do otherwise is adulterous, and the woman will forfeit half of her property. The specific reasoning of this statute was to prevent abortion: “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.”[54]

If a free woman adulterously marries a freeman or her own slave, she is put to death. If that same woman marries either the freeman or slave after committing adultery, she will still be put to death. Both the woman and the adulterer are to be publicly scourged and burned.[55] All owned property is forfeit after execution and will belong to the proper heirs (through valid marriage), or otherwise to the King.[56] The only way the free woman may prevent her execution is by “taking refuge at the altar,” after which she will be enslaved to anyone the King decrees.[57]

If a free woman marries the slave of another man, she will be warned three times of what she has done. If she does not leave, then she will become the slave of her husband’s owner.[58]

If a free man commits adultery with a woman, he and her will be subject to one hundred lashes and will be ordered separated. If the relations persist, another hundred lashes will be given. If again a third time the adultery is discovered, another hundred lashes are due and the woman will be ordered to the controlled custody of her nearest relatives.[59] Any children produced as a result of such a relationship will have their status affected for thirty years.[60]

Marriage Title 3: Extramarital Relations

A freeman who rapes a virgin will forfeit half his property to the woman.[61] If the woman was betrothed to another, then the other half of the rapist will be forfeit to the man to whom the woman was betrothed.[62] Even if no rape occurs, any freeman who kidnaps a virgin will under no circumstances be permitted to marry her. In either case, after his property becomes hers, he will be subject to two hundred public lashes. After the lashing, he will be forever enslaved to the parents of the girl whom he attempted or succeeded in violating.[63] This section also applies to sexual assault of unmarried widows, whether or not the event took place within a year after the death of the widow’s husband.[64] If the two ever did marry, each would be put to death unless they claimed sanctuary in the church.[65]

Unsurprisingly, a slave who rapes a freewoman will, in most cases, be put to death. An interesting caveat, however, is that “the master shall be required by the judge to give the satisfaction required by law.”[66] A salve who rapes a slave will receive two hundred lashes and will have his head shaved.[67]

Rape had a thirty-year statute of limitations.[68] The killing of a rapist is not criminal, “because the act was committed in the defense of chastity.”[69]

Marriage Title 4: Adultery

Adultery has a very broad definition to the Visigoth. There is very little distinction between fornication, adultery, rape, assault, and kidnapping. It is evident from the text of the code that these were considered torts, and not crimes. The settlement of these claims was private, and nearly unrestricted. For instance, a married father who commits adultery “shall be delivered to the husband of the woman” leaving his property to his heirs, else a married man without children will be “delivered” to the husband of the woman and will forfeit all his property to that man.[70] Generally if a betrothed woman committed adultery she would be enslaved.[71] If a married woman committed adultery, her partner and her would be “delivered” to the husband for his discretionary disposal in “any way he may select.” [72] Similarly, if a woman commits adultery with a married man, she will be “delivered” to the wife of that man.[73]

The killing of an adulterer or the adulteress is not criminal.[74] Neither is the killing of a daughter by a father in the act of illegal sexual relations.[75] In fact, “parents have the undoubted right to kill adulterers caught in their houses.”[76] Slaves do not have such a right. If a slave kills an adulterer, he or she will be subject to punishment for homicide.[77]

Slaves, regardless of sex, may be tortured in order to reveal the adultery of their masters.[78] Further, a master in this circumstance is prohibited from liberating his slave in order to prevent the damning testimony of that slave.[79]

Interestingly clerics and those associated with the church were not punished severely for sexual crimes. If a priest or other “minster of religion” was proved with “undoubted evidence” to have committed a sexual crime, he “will put an end to such a connection at once.”[80] After the relationship has ended, he would be confined by his religious superiors and compelled to give penance to the Christian god after paying two pounds of gold to the King. However, the woman involved in such a relationship would receive one hundred lashes.[81]

It was not adultery for a man to have a relationship with his own concubine.[82]

Marriage Title 5: Deviant Behavior

There are many deviant relationships that are prohibited by the code. Although these are found and codified in the book regarding marriage, not all are sexual or nuptial. Unsurprisingly, incest is outlawed by the code. Incest is defined as “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.”[83] The punishment for violation of these rules is permanent penance; a man would be compelled to live in a monastery, a woman would be compelled to live at a convent. As with other sections of the code, the property of incestuous persons is forfeit.[84]

Pederasty was of the most detestable crimes outlined in this section. Punishment was emasculation and permanent solitary confinement for both.[85] Sodomy was also subject to immediate emasculation.[86]

Apostasy was also considered deviant behavior under the code. Apostasy does not embrace its modern definition of complete renunciation of a faith. To the Visigoth, it was enough for a priest to leave the priesthood to become a layperson. The punishment, ironically, for apostasy was compulsive confinement to a monastery for permanent penance.[87] The law applied equally to women. Additionally, “[p]ersons 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.”[88]

Marriage Title 6: Divorce

The basic rule on divorce is simple: there is no divorce recognized by the Visigoth. There appears to be only one exception, although in operation it likely was never applied: a man whose wife fornicated with others may be permitted to divorce her.[89] However, because the crime of adultery and fornication usually resulted in the death of the woman, a husband could remarry after accusing his wife of adultery. She would then be executed, and he would be free to marry again.[90]

Visigoth Property & Wills

The fourth book of the code is regards all laws of inheritance, property ownership, and property abandonment. It is important to recognize that duties to wives, children, wards and slaves are mentioned in this section. This is a reflection of how patriarchal the Visigoth society truly was.

Inheritance

Visigoth laws of inheritance were concrete and relatively simple, compared to modern counterparts. Any person who owns property but does not have children is entitled to make a will. If a person does have children, he is not permitted to will his property to anyone but them.[91] The rule was clear: “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.”[92] This was not an absolute bar from disinheritance; a parent or grandparent may disinherit their children or grandchildren in a “just: will.

For fathers, the code provides a default intestate succession plan.[93] If a father should die without a will, then the children regardless of sex would share equally in the estate.[94] If the man should die without living children, then his grandchildren should share equally.[95] If the man dies without issue, his parents would take his property only if he had no brothers and sisters.[96] Without living parents, paternal aunts and uncles would take,[97] else living paternal or maternal grandparents.[98] Without grandparents, parents or issue, distant relatives may inherit the man’s property[99] in the order of succession defined in the first title of the book.[100] Unsurprisingly, a son or daughter who commits patricide will not inherit the father’s property.[101]

A wife may inherit from her husband and husband from his wife only when there are no living relatives within the seventh degree of consanguinity or affinity,[102] however, if the widow does not remarry, she can enjoy the estate equally with her children although she does not have ownership of it.[103] A wife may also dispose of her dowry in any way she saw fit, because it was, after all, her absolutely separate property. There was one exception that was somewhat limiting. “Three fourths of it shall be left, without question, to her children or grandchildren, whether there be one, or many of them.”[104] The reasoning behind this restriction was 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.”[105]

The Visigoth had an interesting concept of community property. According to the code, a husband and wife’s accumulated wealth and possessions during the marriage were jointly owned in the proportion wealth each brought to the marriage. Thus if at the time of the wedding ceremony, the wife brought forty percent of what was soon to become the couple’s whole estate, she would have a forty percent community property share upon the death of her husband regardless of subsequent contributions of separate property to the community.[106]

Family Obligations

There were several well-defined family obligations outlined in the code, mostly having to do with the protection of minors. A minor, under the code, was a person who is less than fifteen years old.[107] A minor could never be compelled by anyone (including his family) to enter into a contract, and usually such contracts would be void.[108] If a free person abandoned a free minor, that person would serve as the slave of the minor else would be permanently exiled. Lawsuits regarding minors, or contracts that were signed by minors, had a thirty-year statute of limitations.[109]

Visigoth Criminal Law

Collecting Criminal Evidence by Accusation and Torture

Bringing a criminal to court was not unlike the current Grand Jury system used in the United States. A person would bring his evidence of a crime to the King or his agent and would present a case. After the hearing was concluded, there would be a document signed with three witnesses, which informed the defendant that he was being formally charged with a crime and that he was ordered to appear.[110]

This is when the similarities end. If the freeman defendant were accused of the capital crimes of homicide or adultery, he would be tortured.[111] In fact, the papers filed were not referred to as claims or charges or indictments, but rather “demands for torture.”[112]In recognition of the fact that torture is nearly as extreme as the accusation of homicide or adultery, if “after undergoing the torture, [the defendant is] proved to be innocent, the accuser shall at once be delivered to [the defendant] as a slave, to be disposed of at his will.”[113] Interestingly, this section continues in a way unseen in other “delivery” sections of the code: “except that [the accuser] shall not be deprived of life.”[114]

It is specifically stated many times in the code that a person may not charge someone of superior rank with a crime. However, homicide is an exception: any person, regardless of rank, may accuse anyone of homicide.[115]

There is another remedy for false accusation mentioned in the code for heinous, but not necessarily capital crimes such as counterfeiting and witchcraft. In false accusation cases such as this, the accuser “shall be delivered over into the power of him he accused, that he may he himself suffer the penalty which he endeavored to inflict upon an innocent person.”[116] Essentially, this is an eye-for-eye provision.

If the freeman defendant were accused of a non-capital crime such as theft, the defendant will not be tortured in order to determine his guilt or innocence, but rather would be required to submit evidence that he was innocent or otherwise to swear an oath.[117]

If a slave defendant were accused of any crime, he would be tortured to determine his guilt or innocence if the matter in dispute was worth more than fifty gold coins.[118] A slave might also be tortured to provide evidence against their master or mistress in cases of “adultery, [treason], counterfeiting, homicide, or witchcraft.”[119]

If an accuser’s demand for torture regards a master’s slave, the accuser must bond in writing a slave of similar value in case the accusation is false. If the defendant’s slave is killed or maimed in the torture, or is proved innocent, the accuser must give the master two slaves of equal value to the accused and tortured slave’s master. Mercifully, the injured slave will be set free, and the judge who did not regulate the torture properly will also owe to the master a slave of equal value.[120]

Special Crimes: Witchcraft, Poisoning, and Sorcery

The second title of the Visigothic criminal law was devoted entirely to three special crimes: witchcraft, poisoning, and sorcery. Punishment for fatally delivering to someone poisoned food or drink was “to be punished by the most ignominious of deaths”[121] after they are put continuously to torture. If however the victim survived, the poisoner would be delivered to the victim to be “disposed of absolutely” as desired by the poisoned. The statute is written without an intent element – mere delivery of food or drink that causes the death of another offends the code. It is unclear whether the statute was ever enforced as harshly as the text would imply.

Sorcery under the code is defined as the work of “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 daemons, or celebrate nocturnal sacrifices to devils, summoning them their presence by infamous rights.”[122] It is absolutely unclear how proof is made, but punishment for sorcery is scalping, public lashing two hundred times, and being forcefully dragged through ten villages as a public warning.[123] Anyone found to aid or abet the sorcerer would be lashed two hundred times.

Witchcraft is defined in the code as the employment of someone skilled in sorcery for the purpose of harming another. The punishment for participation of a scheme involving witchcraft is, oddly, to “suffer in person and property the same damage he endeavored to inflict upon others.”[124] In practice, if a freeman sought the aid of witchcraft to kill his neighbor, the freeman would be killed.

Abortion

The third title of the criminal law exclusively regards abortion. Unsurprisingly, the exceptionally religious views of the Visigoth were reflected in this section of the code. “No depravity is greater than that which characterizes those who, unmindful of their parental duties wilfully [sic] deprive their children of life.”[125]

A freeborn woman who voluntarily takes a potion or other drugs for the purpose of inducing a successful abortion will be publicly executed.[126] If, however, the judge determines that leniency is appropriate, she will only be forcefully blinded and permanently enslaved.[127] If her husband conspired with her, he will suffer the same punishment.

If the freeborn woman did not know that she was taking a potion or drug, and the child dies, she would be subject to a loss of rank and permanent enslavement “to whomever we may select.”[128]

A freeborn man who assaults a pregnant woman that causes the death of the unborn fetus will be fined two hundred gold coins if the child is unaffected. If, however, the child is not “fully formed” at birth the man will only pay one hundred gold coins.[129] This barbaric discrepancy is not explained.

Unintentional Homicide

Four thousand words outline the varying degrees of homicide and their respective punishments. Involuntary killing was not a crime, for either a freeman or a slave.[130] If a person kills another by pushing him or by rushing at him, he is not guilty of homicide,[131] although interestingly if the pushed person runs into another person and both are killed, the pusher is fined one pound of gold, not for homicide but for failure to “avoid commission of an injury.”[132]

Similar to a pushing homicide, two persons whose fight causes the death of a third party are guilty of homicide. The instigator of the fight is guilty of intentional homicide and fined one hundred coins, the other of unintentional homicide and fifty.[133] If the deceased third party was trying to intervene to stop the fight, the fines are increased to a pound of gold and a third of a pound of gold respectively.[134]

An eggshell victim homicide rule exists in the code. If a person merely intended to inflict a small injury causes death, he is punished for intentional homicide, which may be punishable by death.[135]

A reckless or incautious homicide is never subject to capital punishment because “no malicious intention or desire to injure existed.”[136] However, the defendant may be liable to give a pound of gold to the relatives of the deceased and may receive fifty lashes for failure to avoid injuries.[137] This differs from mentioned punishments in that the gold is not a fine given to the royal treasury, but rather a restitution made to the family.

A person who accidentally kills a student or patron while performing “moderate corporeal punishment” for the purposes of a lesson is not guilty of homicide.[138]

An accidentally freeman-killed slave requires restitution of one half the slave’s value,[139] while an accidentally slave-killed freeman requires restitution of a pound of gold.[140]

Intentional Homicide

It is very clear that “every man who kills another intentionally, not by accident, is liable to punishment for homicide.”[141] Differences in punishment depended only on mitigating factors, rank of the victim and aggressor, and motivation of the aggressor. Usually, the punishment for intentional homicide of a freeman was for the aggressor to be delivered to the family of the victim to be disposed of as they saw fit.[142] If the victim’s family intentionally killed the aggressor, they were not guilty of homicide.

Usually, the punishment for the intentional killing of a slave by a freeman or a slave was restitution of the slave’s value (or half the value, in some cases) to the owner of the slave.[143] In the case where slaves are the aggressor, lashings are usually involved as well. [144] Further, a freeman may not kill his slave without good reason, and never without permission of the court.[145] If the freeman does not have leave of the court or good reason, he will be shamed, forever exiled, forced to do penance, and have his property forfeit. A master may also not maim his slave as a lesson or punishment. Mutilation of a slave will cause the master to be exiled for three years of penance.[146]

A slave charged with homicide accuses his master of giving permission or instructions to commit the crime will be scalped. The master of the accused slave will be free from punishment if he swears innocence.[147]

Interestingly, an aggressor of homicide who takes refuge in a church will be ejected, but will not be subject to capital punishment.[148]

[1] 2 L.V.F.J. 1 § 5

[2] 2 L.V.F.J. 1 § 11

[3] 2 L.V.F.J. 1 § 10

[4] 2 L.V.F.J. 1 § 31

[5] 2 L.V.F.J. 1 § 14

[6] 2 L.V.F.J. 1 § 19

[7] 2 L.V.F.J. 1 § 18

[8] 2 L.V.F.J. 1 § 10

[9] 2 L.V.F.J. 1 § 23, See also 2 L.V.F.J. 1 § 29

[10] 2 L.V.F.J. 1 § 3

[11] Id.