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The Visigothic Code: (Forum judicum)

ed. S. P. Scott



Book III: Concerning Marriage

Title III: Concerning the Rape of Virgins, or Widows

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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 [89] 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.(1)

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 [90] 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 if, 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 [91] 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 defense 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.(2)
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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 [93] 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 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.


Notes for Book III, Title III

1. 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 kidnaping; 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.

2. 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.