BOOK II. CONCERNING THE CONDUCT OF CAUSES. (continued 2)

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]