Note 37 — BOOK VI. CONCERNING CRIMES AND TORTURES.

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.]