THE ATTITUDE OF THE CIVIL LAW TOWARDS PAGANISM

Mention was made above of the fact that once the Visigoths had been converted to Catholicism the principal cause of friction between them and the natives of Spain disappeared. Yet for a period of more than sixty years the Goths and the Spaniards were governed by separate laws. King Chindaswinth (642-653) realized the anomaly of this situation and began a codification of Roman and Germanic law that would satisfy the two races in the kingdom. Chindaswinth did not live to see the realization of his plan. It remained for his son, Receswinth, to promulgate in 654 the new law-code that was binding upon all in Spain, irrespective of their race. The Forum Iudicum, as the new code was called, is important in our present study, for it enables us to grasp the forms of paganism that existed in Spain in the middle of the seventh century, and the attitude towards them of the civil authorities.

Attention has already been called to the fact that in the Theodosian Code and the Lex Romana Visigothorum most of the laws on paganism were concerned with the practice of divination and magic. These two forms of paganism were also condemned by the fourth council of Toledo in 633 and the fifth council in 636. Hence it is not surprising that the legislation on paganism in the Visigothic Code was directed solely against those who practiced augury and magic and those who consulted such persons on these matters.

Two laws against augury were incorporated in the. The soothsayer and all those who consulted him, if freeborn, were flogged, their property confiscated, and they were reduced to the status of slaves. The same penalties befell their children if they participated in their parents' crime. Slaves who practiced augury were to be tortured and sold into slavery overseas. Another law against augury lectured the people on the impossibility of finding out the truth from soothsayers, for the devil "a liar from the beginning spoke through them." The law went on to state that a judge who consulted soothsayers with the intention of proving something was subject to the same penalties as those who consulted them about the life or death of an individual. It concluded by stating that since augurs were hateful in the sight of God they were to receive as punishment fifty lashes. Though the Visigothic Code was indeed very severe against those who practiced augury, it did not inflict upon them the death penalty, as did the Theodosian Code.

Besides condemning the practice of augury, the Forum Iudicum also contained some stern laws against magic, especially that intended to injure the person or property of another. Under this heading of "harmful" magic, poisoning was included. The idea, prevalent among the Romans and Germans, that poisoning was in some way connected with magic still persisted among the legislators of Spain in the middle of the seventh century. The same section of the code which treats of magicians also treats of poisoners. They believed, for example, that certain women who committed the crime of adultery could by some magical potion so change and derange the minds of their husbands that the latter were unable to accuse them of adultery in the public courts, or even to depart from them. In such a case the law provided that the children of the couple, if of legal age, could give testimony in court against the adulteress; if, however, they were not old enough, the relatives of the husband were to conduct the accusation. Another law stated that a person who gave a potion to a pregnant woman for the purpose of causing an abortion was to suffer the penalty of death. A slave who tried to secure this potion in order to commit an abortion was to receive two hundred lashes, while a free-born person, guilty of this same crime, was to lose the dignity of her rank, and to be sent as a slave to whosoever should be named by the king. Finally, the law stated that anyone, whether slave or free, who caused the death of another by poisoning, should himself be put to death. If, however, his attempts at poisoning proved unsuccessful, the poisoner was to become the slave of his intended victim.

Besides the civil penalties which the Forum Iudicum inflicted for these offences there doubtless were canonical prohibitions. Thus in the council of Lerida (524) it was decreed that a person who gave poison to another for the sake of committing an abortion was to be excluded from Communion for life. Perhaps the same ecclesiastical penalty was attached to this crime in the Catholic period of Visigothic Spain.

The Forum Iudicum sternly punished the use of magic to injure the person or property of another. One of these laws was directed against enchanters and invokers of tempests, who by incantations were said to bring down storms upon the vineyards and crops of others, and who invoked the devil and thereby disturbed men's minds. These words were taken almost verbatim from an interpretation of a law in the Lex Romana Visigothorum, issued by the emperor Constantine in 318. While Roman law left the penalty indeterminate, the Visigothic Code ordered that these magicians should receive two hundred lashes and the punishment of decalvatio. The guilty one was to be led about the ten neighboring estates in order that the sight of this punishment might deter others from committing this crime. This regulation was similar to, but not as harsh as a law found in the Capitulary of Chur (800/820). This same Visigothic law ordered that a person found guilty of magic was either to be cast into prison or brought before the king, who could do with him as he pleased. Those who consulted a magician were to receive as punishment two hundred lashes.

Another law of this code stated that a magician who placed ligatures or other charms upon persons or upon their beasts with the intention of killing or harming them, or who sought by magical charms to injure the property of another, was to be punished in the same way as he had intended to injure the person or property of his victim.

An interesting law on magic was concerned with robbing a coffin for some magical purpose. This is the only mention of such magic among the Visigoths; the only other law concerned with robbing a grave was directed against those who committed this crime for the sake of enriching themselves. Those who robbed a coffin for a magical purpose were fined twelve solidi, which were to be given to the heirs of the deceased. There is here very probably a reference to necromancy, which Isidore defines as uttering incantations over a corpse in the belief that the dead person would arise, and utter words of prophecy or give answer to questions put to it. Isidore goes on to add that since the demons [always associated with idolatry and magic] love blood, the necromancer in performing his magical rites always used blood mixed with water. Among the Greeks and Romans the evocation of the dead took place in caverns and near rivers and lakes where communication with the abodes of the dead was thought to be easier.

The strict punishment meted out to those guilty of magic shows quite clearly the horror that the law-makers of Spain felt towards this crime. Still they did not wish to see injustice done. This is evident from a decision of the council of Merida (666) which was held shortly after the promulgation of the Forum Iudicum. The complaint was made to the bishops at this council that certain priests in time of sickness believed that their illness had been caused by some magical rites which the members of their household had practiced, and ordered the suspected persons to be tortured. The council in answer to this complaint declared that in future a priest who should suspect anyone of doing injury to him by the practice of magic was to bring the matter before the bishop of the diocese. The latter was to delegate certain worthy laymen as judges. If the accused person was found guilty of the charge of magic the judges were to inform the bishop, who was to inflict a penalty upon the criminal severe enough to deter others from committing this crime. A priest who did not follow this procedure when he suspected some one of magic was threatened with the penalty of deposition and excommunication.

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