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Virtual Reality Headsets – A Theoretical
and Pragmatic Approach
Virtual Reality Headsets –
A Theoretical and
Pragmatic Approach

Philippe Fuchs
Ecole des Mines, ParisTech, Paris, France

Co-authors:
Judith Guez, Olivier Hugues,
Jean-François Jégo, Andras Kemeny &
Daniel Mestre
CRC Press/Balkema is an imprint of the Taylor & Francis Group, an informa business
© 2017 Taylor & Francis Group, London, UK
Originally published in French as: “Les casques de réalité virtuelle et de jeux vidéo’’,
© 2016 Presses des Mines, Paris, France
Typeset by MPS Limited, Chennai, India
Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY
All rights reserved. No part of this publication or the information contained
herein may be reproduced, stored in a retrieval system, or transmitted in any
form or by any means, electronic, mechanical, by photocopying, recording or
otherwise, without written prior permission from the publishers.
Although all care is taken to ensure integrity and the quality of this publication
and the information herein, no responsibility is assumed by the publishers nor
the author for any damage to the property or persons as a result of operation
or use of this publication and/or the information contained herein.
Library of Congress Cataloging-in-Publication Data
Applied for
Published by: CRC Press/Balkema
P.O. Box 11320, 2301 EH Leiden,The Netherlands
e-mail: [email protected]
www.crcpress.com – www.taylorandfrancis.com
ISBN: 978-1-138-63235-6 (Hbk)
ISBN: 978-1-315-20824-4 (eBook)
Table of contents

Preface xi
About the author xiii

Part I A theoretical and pragmatic approach for VR headsets

1 Introduction and challenges 3

2 Concepts of virtual reality 9

2.1 Definitions of virtual reality 9
2.1.1 Purpose of virtual reality 9
2.1.2 Functional definition 10
2.1.3 Technical definition 10
2.2 Fundamental approach for immersion and interaction 12
2.2.1 The hierarchical 3-level model 12
2.2.2 The behavioural software aids 18
2.3 Immersion and presence 19

3 Human senses 23
3.1 Introduction 23
3.2 Vision 25
3.2.1 The human visual system 25
3.2.2 The eye 25
3.2.3 Accommodation and vergence 26
3.2.4 The retina 27
3.2.5 Vection and illusions of self-motion 28
3.2.6 Visual perception of depth 28
3.2.6.1 Cognitive perception by monocular cues 28
3.2.6.2 Convergence and retinal disparity 31
3.2.6.3 Binocular vision and diplopia 33
3.2.6.4 Neurophysiological mechanisms of the
perception of depth 34
3.2.7 Psychophysical characteristics of vision 34
3.2.7.1 Visual acuity 34
3.2.7.2 Visual field 35
vi Table of contents

3.2.7.3 The Interpupillary Distance 36

3.2.7.4 Power of accommodation 36
3.2.7.5 Maximum temporal frequency in vision 36
3.2.8 Psychophysical characteristics of stereoscopic vision 36
3.3 Cutaneous sensitivity 38
3.3.1 The skin 38
3.3.2 Classification of biological sensors 38
3.3.3 Density of distribution 39
3.3.4 Classification of mechanoreceptors 39
3.4 Proprioception 40
3.4.1 Vestibular system 40
3.4.2 Articular proprioception 40
3.4.3 Muscular proprioception 41

4 Visual interfaces 43
4.1 Introduction 43
4.2 Processes for the visual perception of the 3D space 44
4.3 Visual interfaces with fixed support 46
4.3.1 Monoscopic or stereoscopic computer screens 46
4.3.2 Separation at the screen level 46
4.3.3 Large screen projection systems 48
4.3.4 Wearable visual interfaces 50
4.4 Stereoscopic restitution of vision 50

5 VR headsets 55
5.1 Introduction 55
5.2 Different types of VR headset 57
5.2.1 VR headsets designed for a smartphone 57
5.2.1.1 Cardboard VR headsets 57
5.2.1.2 Smartphone-based headsets with head band 58
5.2.2 Headsets which are intrinsically designed for VR 58
5.2.3 AR headsets 59
5.3 The design of optical system 59
5.4 Display screens 60
5.4.1 Current display screens 60
5.4.2 Future display screens 61
5.5 Head tracking sensor 62
5.5.1 Introduction 62
5.5.2 Mechanical trackers determining an orientation,
speed or acceleration 63
5.5.3 Optical trackers 64
5.6 The ergonomic design 65

6 Interfaces used with VR headsets 69

6.1 Introduction 69
6.2 Tracked handheld controllers 69
 Table of contents vii

6.3 1D treadmill and omnidirectional (2D) treadmill 71

6.4 Motion simulator 75
6.4.1 Introduction 75
6.4.2 Motion seats for single-user 75
6.4.3 Motion flight simulators for single-user 76
6.4.4 Full motion simulators 77

7 Functional and technical characteristics of VR headsets 79

7.1 Introduction 79
7.2 Main features 79
7.3 Technical characteristics of VR headsets 81
7.3.1 Smartphone-based headsets 81
7.3.1.1 Generalities 81
7.3.1.2 VR headsets without head band 82
7.3.1.3 VR headset with head band 83
7.3.2 Virtual Reality headsets 86
7.3.2.1 Generalities 86
7.3.2.2 With median field of view 86
7.3.2.3 With a large field of view 89
7.3.2.4 With eye-tracking system 90
7.3.3 Augmented Reality headsets 91
7.3.3.1 Generalities 91
7.3.3.2 With conventional screen 92
7.3.3.3 With optical see-through 92
7.4 Conclusion 94

8 Comfort and health 97

8.1 Comfort and health issues 97
8.2 Introduction to sensorimotor discrepancies 99
8.3 Taxonomy of sensorimotor discrepancies 101
8.3.1 Introduction 101
8.3.2 List of 5 beneficial sensorimotor discrepancies 103
8.3.3 List of 11 disruptive sensorimotor discrepancies 105
8.4 Controlling actions 112
8.5 Psychological problems induced by virtual environments 113
8.6 Optical and ergonomic constraints 114

9 Recommendations and solutions 117

9.1 Observational VBPs 118
9.1.1 Temporal visual-motor discrepancy 118
9.1.2 Temporal-visual discrepancy 121
9.1.3 Oculomotor discrepancy 122
9.1.4 Spatial-visual discrepancy 128
9.1.5 Localisation visual-motor discrepancy 130
9.2 “Unreal observational’’ VBPs 130
9.2.1 Spatial visual-motor discrepancy 130
9.2.2 Passive visual-motor discrepancy 131
viii Table of contents

9.3 Navigation VBPs 132

9.3.1 Visual-vestibular (or visual-proprioceptive)
discrepancy 132
9.3.2 Temporal visual-vestibular discrepancy 143
9.3.3 Visual-postural discrepancy 143
9.4 Manipulation VBPs 144
9.4.1 Visual-manual discrepancy 144
9.5 Analysis grid for the 32 solutions 145
9.6 Adapting to the virtual environment 148
9.6.1 Levels of adjustment difficulties 148
9.6.2 Levels of user adaptation 149
9.7 Safety rules 150
9.8 Conclusions 151

Part II VR headset applications

10 Introduction to applications utilising VR headsets 155
10.1 VR applications for all age groups 155
10.2 Professional applications 156

11 Behavioural lab experiments 157

11.1 How VR headsets change the VR landscape 157
11.2 Walking though virtual apertures 158
11.3 Conclusion 162

12 Industrial use of VR headsets 163

12.1 Introduction 163
12.2 Driving Simulation (DS) and Virtual Reality (VR) 165
12.2.1 Convergence between driving simulation and virtual
reality domains 165
12.2.2 Visuo-vestibular conflict 165
12.2.3 Transport delay or response lag 165
12.2.4 Distance, speed and acceleration perception at scale 1 166
12.3 Automotive and aerospace VR applications 167
12.4 Simulation sickness (VRISE) 168
12.5 Space and size perception (scale 1 perception) 170

13 Creating digital art installations with VR headsets 175

13.1 VR headsets in artistic creation 175
13.1.1 Virtual Reality as an artistic medium of creation 175
13.1.1.1 The relationship between the spectator and
the artwork in art history 175
13.1.1.2 Virtual Reality in digital art 176
13.1.2 Characteristics of VR headsets in regards to other
interfaces for artistic creation 177
13.1.2.1 Isolating the spectator from the real world 177
13.1.2.2 The spectator in an invisible body 178
 Table of contents ix

13.1.2.3 Accepting a virtual body 179

13.1.2.4 Designing interaction with the VR headset 179
13.2 A method to create with a VR headset 180
13.2.1 The Diving Model 180
13.2.2 The Immersion Protocol: Scenography and Storytelling 181
13.2.2.1 Create the real set of the artwork 181
13.2.2.2 Taking into account the exhibition space 182
13.2.2.3 Creating a scenography which helps the
transition from the real to the virtual world 182
13.2.3 Presence during the experience: maintaining the
relationship 183
13.2.3.1 The different styles of storytelling 183
13.2.3.2 Keep the spectator present in the virtual
world 183
13.2.3.3 Playing with the concept of presence 184
13.2.4 The Emersion Protocol 184
13.2.4.1 The last scene: transition from the virtual to
the real world 184
13.2.4.2 Back to reality and collecting feedback 185
13.3 Conclusion and future directions 185

14 Conclusion and perspectives 187

14.1 Conclusion 187
14.2 Perspectives 189

References 191
Subject index 199
Preface

Since the beginning of 2014, a lot of companies have been announcing new products in
the field of Virtual Reality (VR). Oculus Rift, Hololens, Kinect, Leap Motion, Magic
Leap . . . so many new names that offer new opportunities. Whatever their nature
(VR headsets, sensors, glasses . . .), these new materials have a common denominator:
they cost much less than the previous equipment and therefore enable consideration
of applications for the general public.
These announcements have been relayed by a large quantity of news items in the
media but, unfortunately, most of them offer an incomplete or false analysis, because
of a misunderstanding of VR. Especially because many of these “journalists’’ are discov-
ering an area that is far from emerging. VR has existed for over a quarter of a century
with its uses, its companies and research laboratories. From all applications used for
a long time: automotive construction, conception of buildings, design and learning of
surgical procedures, archaeological reconstructions, industrial and sport training, etc.
The most common error is the confusion between VR and Immersion, allowing the
user to “plunge’’ into a virtual environment by providing his brain artificial sensory
stimuli. Immersion is necessary for VR, but it is not sufficient. The second essential
pillar of VR is Interaction between the system and the user so that he can perform a
task in a virtual environment. Thus, one cannot talk about VR for an exploration of
a site via a 360◦ picture using a VR headset (Head Mounted Display) or for a movie,
even if the image is projected in relief on a large screen, accompanied by a spatial
sound, because the viewer is fully passive.
Much more serious than this terminological confusion is that professionals, in both
the corporate and academic world, have known for many years that a VR immersion
causes problems that must not be overlooked. From a feeling of discomfort to a faint-
ness, VR sickness (cybersickness) has been studied for a long time to try to understand
its causes and to mitigate its effects. Curiously, no trace of these problems can be found
in these recent articles; no study is carried out by the VR headsets manufacturers who
simply publish a license dismissing any responsibility for any problem. Illustration: in
the instructions supplied with a famous recent VR headset, the manufacturer advises to
not drive a vehicle just after using the product! The desire to protect oneself against any
legal risk is not sufficient to justify such a recommendation. In practice, professionals
limit the duration of use of VR headsets for the reasons mentioned above. What will
happen if our children play an immersive game several hours daily? At an age when
their visual system is still developing, what consequences are to be feared? It is really
surprising that at a time when the precautionary principle is needed in many areas,
xii Preface

this question does not raise more interest, nor, to our knowledge, in long-term studies
involving experts from various domains.
It is therefore essential to present, as clearly as possible, VR concepts, to explain the
operating principles of these new VR headsets and to study their use for understanding
both the opportunities and the risks. Unfortunately, there was a missing link between
these articles for the general public and communications in journals or at scientific
conferences for experts, whether industrial or academic.
It is to fill this gap that Philippe Fuchs has decided to write this book. It fully describes
the concepts, modes, uses and ways to avoid discomfort and possible faintness. I am
betting that this book will meet with success for several reasons: first, Philippe Fuchs
is a pioneer of VR in France and he has been helped by experts to write this book.
Second, because he has already demonstrated the qualities necessary for such success
with the “Traité de la réalité virtuelle’’ (“Treatise on Virtual Reality’’ in French with an
abbreviated English edition: “Virtual Reality: Concepts and Technologies’’, published
by CRC Press). This collective work was supervised by Philippe Fuchs. Recall that
there is no equivalent of this encyclopedia whose latest edition, over 2000 pages in
length, brought together 101 authors!
This is no surprise at all, coming from a man who likes to take on the wildest
challenges, not just academic, like running seventy kilometers a day, six days a week,
for five months, linking Paris to Beijing for the Olympics opening in 2008! The question
I ask myself now is: what will be his next challenge?
Pascal Guitton
Professor of Computer Science at the University of Bordeaux
Founding Member and Président of the French National Association
of Virtual Reality (2009–2011)
Scientific Director of Inria (2010–2014)
About the author

Philippe Fuchs, PhD, Professor in Mines ParisTech engineering school (Paris), PSL
Research University, is the leader of the “Virtual Reality & Augmented Reality’’ team.
The field of his research is the theoretical approach of VR and industrial applications.
The team’s lines of research focus mainly on human “behavioural interfacing’’ in a
virtual (or mixed real/virtual) world, by making judicious use of a person’s natural
behaviour on sensory motor and mental levels. Our methodology for designing a VR
system has been extended on the technical and psychological levels thanks to collab-
oration undertaken this year with ergonomists and psychologists. The team’s lines of
research focus on visual interfaces, especially VR headsets and stereoscopic vision.

• Email address: [email protected]

• www.philippe-fuchs.fr

Co-authors
Judith Guez is a digital artist and researcher. She creates experiences, art installations
and performances using Virtual Reality. After graduating with a Master of contem-
porary arts of the University of Paris 8, Judith obtained a PhD in digital arts at
the University Paris 8 in France. She teaches Virtual Reality at the Art department
of the Paris 8 University and is also a member of the INREV virtual reality laboratory
at the Paris 8 University
Olivier Hugues received his PhD in computer science from the University of Bordeaux
I (Aquitaine, France). He then worked at the Université du Québec in Abitibi-
Témiscamingue (QC, Canada) in the mining sector and, subsequently, served as an
Assistant Professor in MINES ParisTech’s Center for Robotics in the “Virtual Reality &
Augmented Reality’’ team. His interest fields include the understanding of augmented
reality from the user point of view and human-robot collaboration.
Jean-François Jégo is a digital artist and researcher. He creates immersive and inter-
active experiences, art installations and performances using Virtual Reality. After
graduating with a Master of contemporary arts of the University of Paris 8, Jean-
François obtained a PhD in computer science and virtual reality at the CAOR robotics
center of Mines ParisTech in France. He teaches Virtual Reality at the Art depart-
ment of the Paris 8 University and he is also a member of the INREV virtual reality
laboratory at the Paris 8 University.
xiv About the author

Andras Kemeny, Doctor ès Sciences (1983, Université Paris Est), is the Head of
the Virtual Reality and Immersive Simulation Center of Renault-Nissan Alliance
Engineering, Digital Vehicle Testing and Customer Performance Division and Director
of the Laboratory of Immersive Visualization (LIV), a joint Renault – Arts et Métiers
ParisTech research laboratory.
Daniel Mestre, Ph.D, is a research director at Centre National de la Recherche
Scientifique (CNRS) and affiliated to the Institute of Movement Sciences (CNRS
and University Aix-Marseille II). He is also the head of the Mediterranean Virtual
Reality Center (CRVM) and founding member of the French Association for Virtual
Reality (AFRV).
Part I

A theoretical and pragmatic approach

for VR headsets
Chapter 1

Introduction and challenges

Virtual reality has developed in the world over the last twenty years. It potentially opens
up new perspectives for our society. But let’s be realistic – first of all, virtual reality
creates many scientific challenges for researchers and professionals. Being aware of the
immensity of the task at hand, we have participated enthusiastically in helping virtual
reality in France blossom. For our part, we conducted theoretical and applied research
on the interface of the subject (user interface) in a virtual environment. However, no
researcher can ever have a precise, essentially interdisciplinary knowledge of all the
sectors of virtual reality. We wanted other French researchers, Pascal Guitton and
Guillaume Moreau, to participate in writing the book “Virtual Reality: Concepts and
Technologies’’, publisher CRC Press, originally published in French as: “Le Traité de la
Réalité Virtuelle’’, with 101 authors, five volumes, publisher “Les Presses des Mines’’.
Thanks to technological developments, man has been able to satisfy this need
through various but set representations of the world that are mainly audio or visual.
Set in the sense that the user can observe the representation only as a spectator, be
it a painting, a photograph, or a film of real or computer-generated images. Virtual
reality offers him an additional dimension by providing him a virtual environment
in which he becomes the actor. The readers must not be mistaken; the novelty is
not in the creation of virtual environments that are increasingly efficient in terms of
their representation, but rather in the possibility of being able to “act virtually’’ in
an artificial world (or “interact’’ in a more technical sense). Imagining virtual reality
has been possible only recently, thanks to a significant increase in the intrinsic power
of computers, especially the possibility of creating computer-generated images in real
time and enabling a real-time interaction between the user and the virtual world.
And 2016 is the year of virtual reality in the field of general public applications: the
new VR headsets (or Head Mounted Display – HMD) are sold for the general public
with a low cost price. The reader must note that it is these technical developments that
have permitted the new boom of virtual reality. The technology is more affordable and
more accessible now. In November 2015, I decided to write a new French book about
the use of this new visual interface: VR headset, originally published in French as:
“Les casques de réalité virtuelle et de jeux vidéo’’, publisher “Les Presses des Mines’’,
May 2016.
The user will no longer experience virtual worlds on simple screens, but through
VR headsets offering new possibilities of visual immersion, the advantages and limita-
tions of which are the primary concern of the present work. This does not mean that
4 Virtual reality headsets – A theoretical and pragmatic approach

industries interested in using VR within their sectors should automatically choose VR

headsets when other more suitable visual interfaces exist. This question too will be
addressed here.
Though the term “virtual reality’’ generally refers to professional applications built
around interactive environments, VR researchers and manufacturers are well aware
that the same concepts and core technologies, whether hardware or software, are used
in the video game industry. Examples of this abound, with such VR software as Vir-
tools and Unity, developed primarily for video games, being used for professional VR
applications, both in the past, in the case of Virtools, and the present, in that of Unity.
As for hardware, Microsoft’s input motion control device for Xbox 360 consoles,
Kinect, was rapidly diverted from its original use to be utilised by researchers today
for a whole host of non-gaming VR applications. Needless to say, such technological
strides are owed solely to the enormous wealth of the video game industry, which can
afford to pour huge sums of money into the development of pioneering technology.
There is no need to go on about the enormous financial interests at stake—just look
at the stir caused by Facebook with its purchase of Oculus!
We have been using the term “virtual reality’’ for more than twenty years. This
term is debatable and has been questioned by some. The oxymoronic expression virtual
reality was introduced in the United States by Jaron Lanier in the 1980s.
After an initial reassessment of what virtual reality actually is, we will need to
address a number of issues regarding human sensorimotor response, in both the real
world and in virtual environments. A particular focus will be placed on the sense of
vision, given the visually invasive nature of VR applications, which directly impact
both the sensory perception and the motor response of users. Furthermore, a refresher
course on the five senses—which in actual fact are more than five!—will be provided
for those readers who may not be overly familiar with the topic, myself included at
the start of my career. This review of sensory fundamentals will be enormously helpful
in understanding the problems and the solutions particular to VR headset usability.
In short, to fully exploit the capabilities of VR headsets, a good knowledge of human
vision is necessary.
Virtual reality holds a special position in the usual scientific scheme by cou-
pling human sciences with engineering. This position is an advantage of the intrinsic
interdisciplinary nature of this domain. However, this position is also a difficulty to
overcome, on the one hand in terms of training the actors of the domain, and on the
other hand in terms of recognition for this multidisciplinary foundation on the part
of the various disciplines that enrich it. For example, it would be too simplistic to
consider virtual reality merely as a branch of computer science. Though computers
make it possible to effectively program and simulate the virtual worlds, interaction
of man with these worlds is possible only through software programs and technical
devices compatible with cognitive, perceptive and social processes. Conversely, better
understanding and formalising of the difficulties and characteristics of cognition and
interaction in the virtual worlds offers an empirical foundation to stimulate research
and innovation.
In any virtual reality application, the person is immersed in and interacting with
a virtual environment. He perceives, decides and acts in this environment, a process
schematised in a standard “perception, decision, action’’ loop, which must be achieved
within the technical, physiological and cognitive constraints (Figure 1.1).
 Introduction and challenges 5

Action

Decision

Perception
Man Virtual Environment

Figure 1.1 The standard “perception, decision, action’’ loop.

Figure 1.2 Diagram showing the issues of virtual reality, based on the “perception, decision,
action’’ loop.

Three fundamental issues of virtual reality can be deduced from this diagram
(Figure 1.2):

• The issue of the analysing and modelling the human activity in real environment
and in virtual environment;
• The issue of analysing, modelling and creating an interface for the subject for his
immersion and interaction in a virtual environment;
• The issue of modelling and creating the virtual environment.

VR headset utilisation raises the three following questions:

– How are VR headset users affected by display latency and sensorimotor discrep-
ancy in virtual worlds?
– Which types of user interfaces and interactions generate the above latencies and
discrepancies?
– How can various systems and computer algorithms help reduce the effects of the
aforesaid artefacts?
6 Virtual reality headsets – A theoretical and pragmatic approach

The book is divided into two sections: “Theoretical and pragmatic approach for
VR headsets’’ and “VR headset applications’’. The chapter 2 introduction to virtual
reality clarifies the book’s scope and presents the theoretical approach, also known as
“3I2 model’’. Then, chapter 3 about human senses is necessary to understand the senso-
rimotor immersion, especially vision in real and virtual environments. These chapters
are followed by chapter 4 which presents the different visual interfaces available, chap-
ter 5 is about the VR headsets, chapter 6 about the user interfaces exploited with VR
headsets and chapter 7 about the commercial devices available on the market (author:
Olivier Hugues). These visual interfaces can imply comfort and health problems with
the sensorimotor discrepancies. Chapter 8 is devoted to these problems, followed by
chapter 9 that gives a detailed discussion of methods and 32 solutions to remove, or to
decrease the VR sickness. Then, the “VR headset applications’’ second section presents
different VR applications that use headsets (Behavioural Lab Experiments – author:
Daniel Mestre; Industrial uses of VR headsets – author: Andras Kemeny; Creating
Digital Art Installations With VR Headsets – authors: Judith Guez and Jean-François
Jégo) and the last chapter gives conclusions and future VR challenges.
We can only wonder whether developers are fully aware of the enormity of the
task at hand, of the obstacles that need to be overcome and the laws that need to
be complied with for designing effective VR applications. Moreover, if these issues
are indeed resolved, can we be certain that users will be able to successfully adapt to
visual immersion? The main purpose of this work is to present a general review of
such questions, keeping in mind that VR technologies “perturb’’ our physiological and
sensorimotor response. This can be likened to the sensorimotor discrepancy created by
the accommodation/vergence conflict of stereoscopic vision. However, professionals in
the field, or stereographers, have long been aware of the rules governing stereoscopic
image making (3D). The first of these, dating back more than 150 years, was deter-
mined by David Brewster in 1856, and many experiments have since been conducted to
establish the types of imagery that viewers are comfortable with. As for VR headsets,
the latest of these visually intrusive interfaces, user feedback is still very limited. We can
only hope that the experts will address this question to which very little attention has
been paid to date. In part to protect themselves from this lack of scientific data, some
VR headset designers warn of the potential risks linked to their products and have set
a minimum user age. At first glance, these issues seem far more complex than those of
stereoscopic vision, from a purely intuitive perspective at any rate. Furthermore, since
VR headsets are not yet used by the general public, researchers lack data from large
target group studies. The fact is, it remains to be seen how well we will adapt to visual
immersion in virtual worlds; some people may be more sensitive than others yet with-
out really knowing why. Another issue raised by VR headset use is whether the risk of
video game addiction will be greater for gamers wearing VR headsets than for those
interacting via a simple screen. This question, which is a matter for psychologists and
psychiatrists, will not be discussed here, though, to my knowledge, no serious research
has been conducted on the subject to date.
Though the effects of VR headset use raise special problems of comfort and health,
they also afford exciting possibilities, as virtuality allows us to go beyond the limits
of reality. Questions of physical perception, of experiencing “presence’’ in a space in
which we are either unable, or only partially able, to see our own body (our avatar’s
hands) must also be answered. How do we respond to seeing ourselves visually but
 Introduction and challenges 7

in another body, to what could be qualified as an out-of-body experience? All of

these behavioural questions, as well as our capacity to respond to potential virtual
environments that have little in common with real-world environments, need to be
addressed by researchers in the cognitive sciences.
So the question is – how can we take advantage of this ground-breaking visual
interface while minimising its drawbacks? This work proposes to provide insights on
the development of effective well-thought out VR headsets, as it is essential, in my view,
to inform both professionals and the general public about this technical innovation that
is anything but trifling.
Chapter 2

Concepts of virtual reality

2.1 DEFINITIONS OF VIRTUAL REALITY

Defining virtual reality is an indispensable task. In literature, we still find defini-

tions that inappropriately mix the purpose of virtual reality, its functions, applications
and the techniques on which it is based. We must reject these approaches, firstly
because they are centred on only one particular technology, and secondly because they
are extremely restrictive in terms of scientific issues related to the complexity of the
dimensions involved in the interaction between the human user and the virtual envi-
ronments. We have given definitions with various levels to give a clear picture of the
domain of virtual reality.

2.1.1 Purpose of virtual reality

Before elaborating its functions or techniques, it would be wise to first determine
the purpose of virtual reality shared by all French practitioners. After having studied
the objective that is common to all its applications, we can claim that (Fuchs, 1996;
Arnaldi & Fuchs, 2003):

The purpose of virtual reality is to make possible a sensorimotor and cognitive

activity for a person (or persons) in a digitally created artificial world, which can
be imaginary, symbolic or a simulation of certain aspects of the real world.

A simulation of certain aspects of the real world: These aspects are to be determined
at the time of designing the application. You will realise that this initial phase of
designing is fundamental and thus must be analysed clearly. Errors, which are found
often, are of the designer who tries to reach the highest “degree of realism’’. This
incorrect approach is taken without trying to understand precisely which aspects of
reality are necessary to be covered in the application. It is completely absurd to naïvely
expect, if possible, that the behaviour of the virtual world would be exactly identical
to that of the real world. If we want to create a “virtual’’ reality, modifying the aspects
of the “real’’ reality is well within its purpose. For instance, it can be used for training
in a virtual environment, without real danger for the trainee.
A symbolic world: We can also use symbolic representations to improve the under-
standing of the simulated world. Virtual reality is then used either to represent a
10 Virtual reality headsets – A theoretical and pragmatic approach

phenomenon (structure of molecules, flow of fluids, etc.) or to add symbolic con-

cepts to the simulated real world. These concepts help the user to have a better mental
representation of his environment. For example: information can be displayed in dia-
grams to help the user understand the structure of a mechanism or the plan of a task
to be completed.
An imaginary world: Virtuality is used to create an unreal world, a figment of
imagination of an artist or a science-fiction writer. In this case, the created world does
not have to be a simulation of the real world.
There are certainly different ways of using the potentials of virtual reality; the
three cases can obviously be associated to a single application. A sensorimotor activity
for a gamer is low when he plays video games with a computer and a single screen.
But the sensorimotor activity will be greater with video games which use VR headsets
and hand tracking.

2.1.2 Functional definition

In 1996, Fuchs proposed a taxonomy based on “theoretical’’ functions: Vis-à-vis his
own perception of the reality, man has conceptualised the notions of time and space
on which he can interact only as per the immutable physical laws.

Virtual reality will help him to come out of the physical reality to virtually change
time, place and (or) the type of interaction: interaction with an environment
simulating the reality or interaction with an imaginary or symbolic world.

This definition refers to the opposite demand of the authors of tragedies of the
17th century, who advocated the rule of three units – time, place and action. See this
approach in the article (Nannipieri & Fuchs, 2009).

2.1.3 Technical definition

A more technical and literal definition of virtual reality attempts to characterise the
domain. Immersion and interaction are the two key words of virtual reality. The
technical definition of virtual reality is (Arnaldi & Fuchs, 2003):

Virtual reality is a scientific and technical domain that uses computer science (1)
and behavioural interfaces (2) to simulate in a virtual world (3) the behaviour of
3D entities, which interact in real time (4) with each other and with one or more
users in pseudo-natural immersion (5) via sensorimotor channels.

This definition introduces certain terminology requiring some explanations in

order for us to position it with respect to the points developed in the introduction:
We use material interfaces of virtual reality, which we call “behavioural interfaces’’
because they exploit human behaviour. We prefer the “behavioural interface’’ term
to “user interface’’ term. They are made of “sensorial interfaces’’, “motor interfaces’’
and “sensorimotor interfaces’’. In sensorial interfaces (visual interface, tactile feedback
 Concepts of virtual reality 11

Figure 2.1 The “perception, decision, action’’ loop going through the virtual world.

interface, audio interface, etc.), the user is informed about the development of the vir-
tual world through his senses. A visual interface is always used: VR headset, CAVE1
or screen). Motor interfaces inform the computer about man’s motor actions on the
virtual world (joystick, data glove …). Sensorimotor interfaces work in both directions
(force feedback interface2 ). The number and choice of these interfaces depends on the
objective of the application. Real-time interaction is achieved when the user does not
perceive the time lag (or latency) between his action on the virtual environment and
its sensorial response. This constraint is difficult to fulfil.
The user must be in the most effective “pseudo-natural immersion’’ possible in the
virtual world. The immersion cannot be natural because we have learnt to act naturally
in a real world and not in a virtual world (sensorimotor biases are created, that is why
the term pseudo). This sensation is partly a subjective notion which depends on the
application and the device used (interfaces, software programs, etc.) We will discuss
at length the concepts of immersion and interaction which must be well defined and
analysed at various levels.
We can derive a fundamental principle of virtual reality from this analysis. This
principle is given in the loop shown in Figure 2.1. The user acts on the virtual environ-
ment by using the motor interfaces which capture his actions (gestures, movements,
voice, etc.). These activities are transferred to the calculator, which interprets them
like a request to modify the environment. In compliance with this request for modifi-
cation, the calculator assesses the changes to be made to the virtual environment and
the sensorial reactions (images, sound, effects, etc.) to be transferred to the sensory
interfaces. This loop in interactive virtual environment is only a transposition of the
“perception, decision, action’’ loop of man’s behaviour in a real world. But two major

1
CAVE: Cave Automatic Virtual Environment is an immersive virtual reality environment where
projectors are directed to between three and six of the walls of a room-sized cube.
2
A “force feedback interface’’ applies forces to user’s hand who handles a virtual object. See the
book “Virtual Reality: Concepts and Technologies’’, publisher CRC Press.
12 Virtual reality headsets – A theoretical and pragmatic approach

constraints, which are inherent to the techniques, disturb the “perception, decision,
action’’ loop and consequently the subject’s behaviour: latency and sensorimotor dis-
crepancies. Latency is the time lag between the user’s action on the motor interfaces and
the perception of the consequences of this action on the virtual environment through
sensorial interfaces. The existence of latency in the loop has an influence on the quality
of any virtual reality application. This latency is an artefact inherent to interactive vir-
tual environments. Sensorimotor discrepancies are the other artefacts of virtual reality.
No matter how many sensory channels are used in an application, no matter how many
interactions are provided to the subject, sensorimotor discrepancies with respect to the
sensorimotor behaviour of the subject in the real world almost always exist. Do these
sensorimotor discrepancies disturb the behaviour of the subject? These two issues are
covered in chapter 8.

2.2 FUNDAMENTAL APPROACH FOR IMMERSION

AND INTERACTION

2.2.1 The hierarchical 3-level model

After presenting the purpose and the technical definition of virtual reality, we will
now explain our method for designing and assessing effective VR systems. Let’s not
forget that the purpose is to help a person (or persons) to perform a sensorimotor
and cognitive activity in an artificial world. Thus it is necessary to first specify man’s
behaviour in a real world before going on to virtual world. Physically, man perceives
his environment through his senses. A stimulus is received by a specific sensory organ
(eyes, skin, nose, etc.). This sensory entity is the starting point in the transfer of infor-
mation in the body through the nerve tracks. The afferent nerve message coming from
the receiver is transferred to the nerve centres (spinal cord, brain). After integrating
and processing the information, these centres transfer the efferent nerve message to the
effector organs (skeletal muscles, ocular muscles, muscles of vocal cords, etc.). These
organs perform the motor behaviour which results in movements. Man acts using his
muscles and perceives the world through his senses, which are in fact more than five,
if counting them is worthwhile! The kinesthetic sense, which is often ignored, creates
problems in the static transport simulators and other VR devices. The sensory field
of proprioception must not be ignored when we work on virtual reality. All sensory
perceptions must be known and their impact must be studied for any VR application,
even if not all of them are simulated. This often leads to sensory or sensorimotor
discrepancies which should never be underestimated. The senses do not function inde-
pendently of one another. Elsewhere3 , we explain in detail the concepts of behavioural
interfacing, immersion and interaction in interactive virtual environments to deduce
a model of man interfacing with these environments. We can use this model as a
reference for designing and assessing any virtual reality application, with or without
VR headset.

3
“Virtual Reality: Concepts and Technologies’’, P. Fuchs, P. Guitton and G. Moreau, publisher
CRC Press.
 Concepts of virtual reality 13

VIRTUAL WORLD

SENSORY INTERFACES MOTOR INTERFACES

Perception
forces on
muscles Muscles
Hearing
Nerves
Vision

Nerve
Touch centres

Taste
Nerves
Smell Muscles

Kinaesthesia
MOTOR INTERFACES
SENSORY INTERFACES

VIRTUAL WORLD

Figure 2.2 Anthropocentric diagram of man’s vision of the virtual world.

Cognitive study of immersion and interaction in virtual environment is based on

the approach of the subject’s activity. Man is at the heart of the system since the virtual
application is meant for him. It is the anthropocentric vision for the application user.
In the absolute sense, it is possible to schematise (Figure 2.2) man as being completely
immersed in an artificial world, the way he should perceive it as a user. But for the
VR application designer, this anthropocentric vision is not enough. He must use this
anthropocentric diagram, an objective to be achieved for the user, both by splitting
and completing it because it is necessary to finely analyse the interfacing process and
the devices to be designed. We will study behavioural interfacing using a technocentric
diagram. The designer must keep switching between an anthropocentric approach
and a technocentric approach to create an application in virtual reality. Knowing and
mastering this duality of virtual reality helps to better understand the difficulties and
the possible failures in making a human being become immersed and interact in an
artificial world.
To have an in-depth understanding of this issue, we have made a fundamental
choice of analysing this process at three levels. At first, we can schematise the interface
between man and the virtual world at the physical level. In this case, we talk about
14 Virtual reality headsets – A theoretical and pragmatic approach

Figure 2.3 Technocentric diagram of sensorimotor immersion and interaction (Level 1).

sensorimotor immersion and interaction (Level 1). We obtain a “sensorimotor loop4 ’’

between the subject and the computer. Disruptions caused by latency and sensorimotor
discrepancies should be as limited as possible. We obtain the technocentric diagram
(Figure 2.3) at the physical level of sensorimotor immersion and interaction. We can
observe that at the sensorimotor level, we disrupt the user’s “perception, cognition,
action’’ loop, by incorporating the artefacts (interfaces, their drivers and one or more
computers). This diagram is restrictive as it gives only a partial representation of prob-
lems and solutions that every designer must study. This is a limited approach, which
is seen to be used by certain designers who focus mainly on the technical aspects of
virtual reality. If virtual reality exists thanks to technical developments, the technical
problems should not be the only problems covered, ignoring the rest.
Behavioural interfacing poses a problem of interfacing similar to that of an opera-
tor with his machine or tool. In this case, thinking only about the physical interfacing
(control buttons and feedback on actions) is not enough. It is equally necessary to
understand the mental models according to which the person will think and act. In his
instrumental approach of interfacing, Rabardel (1995) describes the instrument (inter-
face) as a mediator of activity. In concrete terms, this activity is performed physically
by effective motoricity and perception between man and the behavioural interfaces.
These interfaces depend on artefacts (or instruments), and the user operates them using
his cognitive processes. But which cognitive process would the immersed subject use in
this situation? Will it be the cognitive process imagined and hoped for by the designer?
Can the user master it and use it efficiently? This is one of the major difficulties of
interfacing in virtual reality.
In principle, we would like to offer the user a relatively natural interaction and
immersion so as to make them effective with respect to the application. In this case, we
will talk about a pseudo-natural immersion (and also the interaction). What does this
concept cover? First of all, we can confirm that whatever is done naturally in the real
world is done unconsciously and without a great mental effort. We can, in principle,
think that it will be the same in case of a virtual environment if the interaction and
immersion are relatively similar to the human behaviour in the real world. Let’s take an

4
Generally, a number of sensory methods are used. Therefore, we should rather use the plural,
“loops’’.
Exploring the Variety of Random
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The Project Gutenberg eBook of The Visigothic
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Title: The Visigothic code

(Forum Judicum)

Translator: S. P. Scott

Release date: December 30, 2023 [eBook #72551]

Language: English

Original publication: Boston: The Boston Book Company, 1910

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*** START OF THE PROJECT GUTENBERG EBOOK THE VISIGOTHIC

CODE ***
 THE
VISIGOTHIC CODE
(FORUM JUDICUM)

TRANSLATED FROM THE ORIGINAL LATIN, AND EDITED BY

S. P. SCOTT
Author of “Through Spain” “History of the Moorish Empire in Europe”
Member of the Comparative Law Bureau of the American Bar Association

Lex est magistra vitæ

I-II-2

BOSTON
THE BOSTON BOOK COMPANY
1910

Copyright 1910
BY THE COMPARATIVE LAW BUREAU OF THE AMERICAN BAR ASSOCIATION

The Riverdale Press, Brookline, Boston, Mass.

 TO

MY FELLOW MEMBERS
OF THE COMPARATIVE LAW BUREAU
IN THE HOPE THAT IT MAY PROVE AN ACCEPTABLE CONTRIBUTION
TO THE LITERATURE OF THE NOBLE SCIENCE OF THE LAW

THIS TRANSLATION
OF ONE OF THE MOST VENERABLE MONUMENTS OF JURISPRUDENCE
IS DEDICATED
 EDITOR’S PREFACE
It was well said by Gibbon that “Laws form the most important
portion of a nation’s history,” for from them, more impartially than
from any other source, we derive information of the customs,
virtues, vices, political ethics, faults, follies, and religious prejudices
of a people. Especially is this true of the Visigothic Code. In it are
depicted the traditions and history of a race which, originally
nomadic, with unprecedented rapidity became stationary; and, from
being for ages subject to institutions formed by the desultory acts of
tumultuous assemblies, often dictated by caprice and enmity, in less
than two generations acknowledged obedience to a government
partly imperial, partly theocratic. In the annals of no people so
recently barbarian, is to be found more marked and substantial
progress, from the primitive surroundings of pastoral and predatory
life, to the tastes, the laws, the refinements, and the social usages
of civilization.
An analysis of the Visigothic Code may be made under three
heads: historical, descriptive, comparative. Its story is practically that
of the Gothic monarchy in Spain. In the variety and scope of its
provisions; in the skilful adaptation of its canons to the purposes of
ecclesiastical supremacy; in the care with which it preserves the
distinctions of caste; in the accuracy and conciseness of its maxims
defining the principles of equity; in the elaborate, yet simple,
arrangement of its judicial system; in the thoroughly philosophical
spirit that pervades the greater portion of its pages; it is radically
different from, and, in many respects superior to, all other
collections of legal enactments of ancient or mediæval times.
It is far more instructive and suggestive than a chronicle.
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.
The Goths, a branch of the Indo-Germanic race, from which the
Caucasian of modern times is descended, and whose habitat once
extended from Western Europe to the great plains of Central Asia,
seem to have wandered farther, and to have changed more
materially, as regards their laws, customs, and religious belief, than
other tribes of migratory barbarians. Distinct from the Germans, or
Teutons, they have, nevertheless, often been confounded with them;
a fact due to their nomadic tendencies, personal appearance, and
general habits of life. The similarity which characterized the vast
hordes, or vagrant multitudes, which issued in ancient times from
the officina gentium, has been the cause of much confusion in the
more or less fanciful accounts of classic annalists and historians. The
coincidence of numerous terms of the Gothic language with those of
Sanscrit, and the identity of many roots of words in both languages,
have established the origin of the Goths to be Indian, and not
Scandinavian, as was once generally supposed. It is related by
Herodotus, that Darius, a thousand years before Christ, repelled
from the confines of the Persian dominions, across the Danube, a
great migration of barbarians, moving and living on horses and in
chariots. This people, known as Scythians in antiquity, were the
ancestors of the modern Slavs, and kindred of the Goths. Driven
back by the Persians, they, with others who followed them,
distributed themselves over Northern Europe, whence, in time, they
descended to overwhelm, with their numbers and their valor, the
decadent and tottering Roman Empire.
The original Goths were typical 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. From such unpromising progenitors was
derived the race destined to be, in large measure, the lawgivers of
Europe.
 The Visigoths, in the course of conquest firmly established in
Gaul and Spain, and everywhere victorious over the Romans by
arms, were, in their turn—as inevitably happens under similar
circumstances—both enervated and subjugated by the arts of luxury
and peace. Despite their surroundings, they, for a long period,
preserved their ancient habits and traditions. For more than a
century they went about half-clad and unkempt, as they had done
on the shores of the Euxine and the Baltic, to the astonishment and
disgust of the polished Roman provincials, who had inherited the
luxurious tastes, courteous manners, and artistic conceptions of
Greece and Italy. To the last, they wore long hair as a badge of
sovereignty; a barbarian custom which first became known to the
Romans, when the city was saved by Marius from the invasion of the
Cimbri and Teutons. In the early days of their domination in the
West, the laws of the Goths, like those of all other unlettered races,
were based upon custom and oral tradition. They carried with them
in all their migrations the same principles which had guided them in
distant countries, and under a far different political and climatic
environment. Many of their rules and customs were never
abrogated, and eventually constituted no unimportant part of their
Code. Under new conditions of government and society, changes
became necessary in their jurisprudence. Roman laws, generally
subjected to modification, and rarely adopted in toto, were
incorporated into their statutes. Never, however, was servile
obedience, without remonstrance, offered to despotic authority.
Their government was strictly one by law. The Crown, long elective,
and unsuccessfully attempted to be made hereditary within a quarter
of a century of the Saracen invasion, while at first bestowed by the
votes of the entire people, ultimately became dependent upon the
choice of the clergy. The Throne and the Altar were thus closely
connected, and, to a certain extent, necessary to one another. The
bishops, having the power of election, and likewise of deposition,
exercised unbounded influence over the king, who was indebted to
them for his throne. On the other hand, the sovereign had many
opportunities for granting favors and privileges to the ecclesiastical
order, a prerogative which he did not hesitate to frequently exercise.
Ecclesiastical supremacy, however, rarely countenanced oppression
in the early ages of the Gothic monarchy. The Visigoths, in common
with others of their race, professed the Arian heresy, whose
adherents, unlike their successors, the Catholics, were never noted
for bigotry or intolerance, and, as a rule, never accepted a point of
religious faith or discipline without free and careful deliberation and
debate. The omnipresent sacerdotal order, basing its claims upon
Divine precept and example, discouraged, with unfaltering
persistency, the tyranny of the Crown. The coronation oath of the
king was long and minute and abounded in promises to support and
defend the interests of his subjects. When invested with the insignia
of royalty, he was admonished “Rex ejus eris si recta facis; si autem,
non facis, non eris.” “Thou shalt be king so long as thou dost do
right; but if thou do not do right, thou shalt no longer be king.”
The legal and political events of the Visigothic domination are
written in the annals of its ecclesiastical councils, which designate
the chief events of every reign. These were of three kinds, national,
provincial, diocesan. Of the national councils there were nineteen in
all; one of which was held in the fifth century, two in the sixth, and
sixteen in the seventh; all, after the sixth council, being held at
Toledo, which gave to that venerable city vast and permanent
prestige and influence in the affairs of the hierarchy and the
kingdom. The national councils assembled at the order of the king,
who also presided over them; and this prerogative, strange to say,
was assumed and exercised, without remonstrance from Christian
prelates, by the emirs of Moorish Spain. These ecclesiastical
convocations which have been frequently referred to as the first
representative popular assemblies of Europe, were very far from
deserving that title. While, originally, the laity were admitted to their
deliberations and participated, to some extent, in the discussion of
secular matters, the clergy, at all times, were supreme in power, as
they were superior in learning and eloquence. By degrees, laymen
were excluded; the secular element lost its influence; there was no
representation, even theoretical, either of the nobility or of the
people; the sovereign was but the presiding officer of the assembly;
legislation was wholly inspired by the priesthood; and the authority
of the clergy became absolutely paramount. The State became
synonymous with the Council; the theory of popular representation
had vanished; and, while the monarch still assumed the name and
state of royalty, the government of the once independent and
liberty-loving Goths was, in fact, purely and essentially theocratic,
and the clergy, from being teachers, advisers, and pious mediators,
were now the absolute rulers of the Peninsula. This predominance,
progressive from the very beginning, was felt and acknowledged in
everything, whether of greater or minor importance, which affected
the welfare of the kingdom. Although the bishops sometimes
imposed upon the weakness of their kings, their rule was, in the
main, beneficent; and the theocratic character, which they imparted
to the government, elicited the respect of the nobility, and the
reverence of the people. These wise and pious legislators
contributed, by their tact and piety, to the thorough fusion of the
victorious and subjugated races. They confirmed the royal power.
They stifled conspiracy, and suppressed rebellion. They crushed the
treasonable aspirations of many a daring aspirant to the throne. The
truculent impulses of the barbarian rabble, never entirely
extinguished, were quietly, but effectually, restrained by their
judicious display of gentleness, firmness, and devotion. By anointing
the sovereign with holy oil, at his coronation, they confirmed his
title, and instituted a ceremony which came to be regarded as
essential to the royal accession. As they possessed a monopoly of
the meagre knowledge of the age, they enjoyed an immense
advantage over all other classes, which they did not hesitate to
employ, by every available means, for the maintenance and
perpetuation of their authority.
Thus, under the Arian system, the government of the clergy was,
all things considered, highly salutary. With the conversion of the
nation to the Catholic communion, the organization of the hierarchy
was little altered; but a far different spirit animated the legislative
assemblies. Heresy was punished by the most barbarous laws. The
Jews, whose wealth and intelligence had long been conspicuous in
the Peninsula, were made the subjects of legal enactments
especially devised to deprive them of their property and their liberty.
Every expedient was employed to bring them within the pale of the
Church. Authority over them was vested in the priesthood, and
where a Jew was tried for a criminal offence, it was provided that an
ecclesiastic should always be present. Such Jews as refused to
profess Christianity were subjected to the most stringent and
harassing regulations. They were placed under the constant
supervision of spies. Exorbitant taxes were levied upon them, and, in
addition to their own, they were compelled to pay those of their
apostate brethren. They were not permitted to testify in the courts,
to sue, or to defend an action at law, unless the adverse party was
one of their own sect. Under the pretence of loans, enormous sums
were wrung from their unwilling hands. By means of frivolous
pretexts and false accusations, they were frequently reduced to
servitude. The laws even went so far as to prohibit them from
entertaining thoughts relative to the customs and observances of
their sect. Yet, under all these oppressive restrictions, the Hebrews
prospered. They were the wealthiest class in the kingdom, and well
understood how to employ their riches for their own preservation
and profit; while the heavy penalties prescribed for the bribery of
judges and other officials, indicate how common and widespread
was the influence of such corruption. The extraordinary intelligence
and information of the Jew rendered his advice and assistance
always acceptable, and often indispensable, to the ignorant and
profligate noble; services which were often requited with open
protection. Nor was this tolerance and partiality confined to the laity.
Not only were the clergy often remiss in enforcing the laws against
the Hebrews, but the Code specifically and significantly prohibits
their intimacy with Jewish women. In certain offences where
punishment was meted out to them for breaches of the law, they
underwent the Biblical penalty of being stoned to death; and this
was inflicted by certain of their brethren, who, it appears, were
appointed for that very purpose, and were recompensed for their
treachery with the property of their victims. The persecution of the
Hebrew under these atrocious laws, exercised indirectly a great
influence upon the destinies of Europe. The Jews of the Peninsula
had long entertained intimate relations with their co-religionists of
the northern coast of Africa; the oppression under which they
languished; the confiscation of their property; the seizure of their
children; their enforced proselytism; and the prospect of the ultimate
annihilation of their race, tightened the bonds of union existing
between them and their African brethren; established an
understanding between itinerant traders and the Moorish conquerors
of the West; and thus invited and accomplished the Mohammedan
conquest of Spain. The most drastic of these regulations against the
Jews were enacted under the reign of Ervigius, in the latter part of
the seventh century; and, less than forty years afterwards, the
whirlwind of Saracen invasion swept the Visigothic monarchy from
the face of the earth.
The cruel and unrelenting pursuit of the Jews, commanded by
the Visigothic Code, was the foundation of the Spanish Inquisition
and its diabolical procedure. From it were derived many of the
dogmas, tortures, and penalties, of that awful tribunal; with the
exception, that what was once only directed against a single sect,
was destined eventually to include the votaries of every heresy. That
the descendants of a nation renowned throughout all antiquity as
ardent lovers of liberty, should, in a few short generations, be
transformed into the most merciless of persecutors, is one of the
most remarkable political anomalies to be met with in history. Even
San Isidoro, referring to driving the Jews to baptism, and into
enforced communion with the Church, declared indignantly that it
was “non secundum scientiam;” a remark which, made under the
reign of Sisibutus, in the beginning of the seventh century, is one of
remarkable significance, as emanating from a Father of the Church,
in an age of almost universal ignorance and religious prejudice.
The Hispano-Gothic church was absolutely independent of Rome.
The supremacy of the pope was not recognized, and, in all the
annals antedating the Reconquest, there is no mention of an appeal
to the Holy See on questions of government, ceremonial, or
doctrine. The bold and haughty spirit of the Basques and Iberians,
animated the ecclesiastics of both the Arian and Catholic churches of
Spain. Before the Saracen conquest there were no archbishops. The
metropolitans, or bishops of the principal churches, were equal in
rank in the hierarchy, until the national councils began to be
regularly held in the sixth century; when, gradually, by common
consent, Toledo became the seat of the Primacy, a distinction which
it has ever since maintained. The dominance of the priesthood in the
government, once established, advanced with prodigious strides. In
the eighth Council of Toledo, seventeen nobles and fifty-two bishops
sat; in the sixteenth Council, held fourteen years afterwards, there
were in attendance sixteen palatines and counts, and seventy-seven
prelates, and, with this preponderating ratio of ecclesiastics, the
authority and importance of the latter naturally increased. The
morals of the clergy in that age, while far from being blameless,
were not subject to the reproach which they so justly incurred from
the profane and ribald poets and novelists of subsequent times.
Their influence over the people was unbounded, and their popularity,
for the most part, well deserved. Their intervention in behalf of the
oppressed effectually curbed the ferocious instincts of the monarch
and the noble. The criminal, pursued to the doors of the church, or
to the foot of the altar, could not be removed from their sacred
precincts without the consent of a priest, or a bishop; and the mere
fact that he sought refuge in the House of God rendered him exempt
from the death penalty, no matter how grave the character of his
offence might be. To the bishop was granted the right of supervision
over the conduct of the judge, when the latter exceeded his powers,
or rendered decisions manifestly in violation of justice. The Goths,
the most plastic and obedient of proselytes, regarded their spiritual
advisers with peculiar respect and veneration. They were their
guides, their protectors, their benefactors. Nor was the potent
influence of the clergy in the maintenance of justice and right,
confined to the lower orders. They pronounced anathemas against
treason; excommunicated pretenders to the throne; curbed the
ambition and greed of marauding nobles; compelled the reverence
of aspirants to the royal office; and exacted from the king, who was
often their creature, the deference and submission which they
considered due to their sacred office and authority.
The people of the Peninsula, while apparently attached to the
Arian heresy, evinced little steadfastness in faith with the appearance
of orthodox Christianity. Confident in their power, and well aware
that no monarch would venture to promulgate an edict menacing
their supremacy, or, in any way, conflicting with the privileges of the
Church, the priesthood did not require, as an essential condition of
its validity, that every law should be confirmed by the voice of a
council. Consequently many regulations were established by the sole
authority of the king; and this privilege, at first merely a concession,
came, in due time, to be considered and accepted as a royal
prerogative. The appeal to the sovereign instead of to the pope,
further strengthened the authority of the throne; but never, at any
time, was the king permitted to forget to whom he owed his election
and his title; and that the same power which had raised him to that
exalted position could, at any time he violated his coronation oath,
depose him, and reduce him again to the subordinate and
comparatively obscure position, from which ecclesiastical favor,
aided, perhaps, by his own talents and ability, had raised him.
This circumstance, alone, shows the primitive state of society
under the Visigothic domination; a state largely due to the simplicity
of popular manners; the spirit of inherited traditions; the enjoyment
of intellectual preëminence by a single class, in its turn, favorable to
the overwhelming growth of sacerdotal power.
The Visigoths were different from other barbarians, in that, in
legislation and the management of their civil affairs, they manifested
a sense of humanity, and a genuine philosophy, rarely to be found
even among nations that are thoroughly civilized. They intermarried
with the conquered race. Under their system all persons were equal
before the law. The distinction between citizen and foreigner, as
defined by the Jus Civile and the Jus Gentium of Roman
jurisprudence, was repudiated. The punishment for crime was
graded according to the wealth of the offender, rather than
according to the rank and station of the party injured. Children of
both sexes could inherit alike the property of their parents; a
measure of undoubted justice, but in direct contravention of the
laws governing the descent of property in most of the countries of
modern Europe. The slave being merely a thing, an injury to him
was rated according to his commercial value. His rights were,
however, carefully guarded against the abuse and cruelty of his
master. When emancipated, his freedom was either absolute, or
burdened with certain restrictions by the terms of which he and his
family forever owed loyalty and obedience to his former owner, and
were, in turn, entitled to the advice and protection of the latter and
his descendants.
The love of freedom, as with all migratory races, was strong in
the hearts of the Visigoths. Always obedient to the Church and to
their king, they, nevertheless, stubbornly resisted every
encroachment upon their ancient rights and liberties. The throne,
originally elective, was not as far removed from the body of the
people as it was in other nations; for any person of the pure blood of
the Goths who had never entered the cloister, or been sentenced for
some crime by a court, and who was eminent for great qualities or
distinguished services, could aspire to the supreme power. At the
time of the monarch’s accession, justice, honor, truth, piety, faith,
and mercy, were diligently inculcated, to be ever observed as virtues
most appropriate and becoming to the royal office. At the same
time, fearful penalties were denounced against all princes who
violated the coronation oath; and, during the ceremony, these
penalties were repeated aloud by all persons present, both
ecclesiastics and laymen. Subsequent to the seventh century, when
Catholicism was adopted, the generous and noble spirit which had
hitherto pervaded the councils of the kingdom, was supplanted by a
fierce intolerance, and the king was obliged to bind himself to the
relentless extirpation of heresy. The sovereign was treated with
much less consideration under the Gothic system, than under those
established by other peoples in ancient or in modern times. Regal
supremacy, while necessarily invested with much importance in time
of war, on the other hand, in time of peace had comparatively little
significance. Not until the reign of Leovigild, in the latter part of the
sixth century, did the Gothic kings assume the outward marks and
insignia of royalty. They did not differ in dress or general appearance
from their subjects, nor was a conspicuous place reserved for them
in the assemblies of the people; all classes were entitled to address
their sovereign with familiarity; and, still retaining in his manners
and demeanor the traces of his barbaric origin, he seemed rather
the elective magistrate of a republic (which to all intents and
purposes he was) than the supreme ruler of a great and powerful
nation. The right of primogeniture, derived from feudalism, and
omitted from the Salic Law, was likewise unknown to the Goths. A
monarch, in the same manner as a private individual, could only
transmit to his heirs the personal property which he, in his turn, had
acquired by his talents, or inherited from his ancestors. Like the
chieftains of the Ostrogoths and other barbarians, who considered
long, blond hair a badge of royal authority, he assumed the title of
Flavius, from the Latin flavus, as indicative of this august and highly
prized distinction.
With the fusion of races the identity of the Goths was speedily
and completely lost. The military spirit to which they were indebted,
not only for their civil and political organization, but also for their
integrity as a people, and for their preservation as well, disappeared.
In former times, and for ages after their occupation of the Spanish
Peninsula, that spirit which was their most distinguishing trait, and
the most prominent one which they possessed in common with the
Germans, was, by degrees, imperceptibly weakened, and finally lost
in the premature decadence of an entire nation. The servile spirit of
the Roman colonist and slave, whose sense of independence had
been crushed by centuries of oppression, now asserted its
predominance over the bold and active sentiments of the hardy
soldiers who had overrun and conquered Europe. Under the
Visigothic polity there was no pay for military service, and the glory
and adventure held out by a campaign, were not considered a
sufficient recompense for its hardships. Formerly, the Goths paid
their soldiers only in time of war, and, during peace, the army was
supported by taxes. The Feudal System, originally derived from the
emphyteusis, or perpetual lease, of the Roman law, with its rule
exacting military service for the possession of a fief, had not yet
been established. The unconquerable repugnance of the Visigoths to
war caused them to avoid, under every imaginable pretext,
extending their aid to their rulers in times of either conquest or
invasion. They refused to protect the person of their monarch, or
defend the frontiers of their country. The nobles and wealthy
landowners persistently violated the law requiring them to bring into
battle one tenth of their slaves, thoroughly armed and equipped.
The ninth book of the Code contains stringent regulations against
such delinquents as, under various pretences, sought to evade the
service in the army, due from them and their dependents; and it was
said that, at one time, half the able-bodied population of the
Peninsula had, by reason of their refusal to obey those regulations,
rendered themselves liable to the dreadful penalties which they
imposed. In this fact alone is significantly disclosed, not only the
thorough deterioration of the once valiant Gothic race, but one cause
of the amazing and unprecedented success of the Saracen power.
The Mohammedan squadrons, impelled by the mighty force of
fanaticism, could not be withstood by a mob of ill-treated peasants
and effeminate nobles, disunited by faction, without reverence for
their king, or love for their native land; in whom the martial spirit of
their ancestors had long been supplanted by the ignominious
passions of cruelty and avarice; where their leaders served under
fear of the confiscation of their property, and the rank and file were
driven into action with the scourge.
The original Visigothic laws, wholly based upon oral tradition,
were first reduced to order and committed to writing by Euric, at
Arles, in the latter half of the fifth century. This collection is
unfortunately lost, but many of its provisions were incorporated into
the Visigothic Code, although, no doubt, subjected to important and
numerous modifications in the course of centuries. At the beginning
of the sixth century, Alaric II. promulgated the Breviarium
Alaricianum, a body of laws compiled mainly from the Codes of
Justinian and Theodosius, which collection was the source of the
subsequent Lombard and Bavarian Codes. From the two
compilations of Euric and Alaric, under the reigns of Kings
Chintasvintus and Recesvintus, 649–652, was formed the Forum
Judicum, or Visigothic Code; the most remarkable monument of
legislation which ever emanated from a semi-barbarian people, and
the only substantial memorial of greatness or erudition bequeathed
by the Goths to posterity. Like the Roman works on jurisprudence it
is divided into twelve books, sub-divided into titles and chapters. The
language in which it is written is monkish Latin, a barbarous jargon,
extremely difficult to translate, and vastly different from the polished
idiom of Tacitus and Cicero. Its examination discloses many
discrepancies, variations, ambiguities, and contradictions,
unquestionably due to the ignorance of the various transcribers; a
fact which is not surprising when the imperfect knowledge and
defective education which prevailed in Spain during the seventh
century, are considered. There is no mention of the Forum Judicum
during the Saracen domination, except that it is known to have been
preserved by the Moors; and as Christians were permitted the use of
their own laws, where they did not conflict with those of the
conquerors, upon the regular payment of tribute, it may be
presumed that it was the recognized legal authority of Christian
magistrates during the period that Spain remained under the Moslem
sceptre. When Ferdinand III. took Cordova in the thirteenth century,
he ordered the Forum Judicum to be adopted and observed by its
citizens, and caused it to be rendered into Castilian. This translation,
which is usually appended to the Latin version, is incomplete,
incorrect, and unsatisfactory. It contains many omissions and
substitutions; the meaning of the sentences, in many cases, is not
even approximately given; the proper names seem to have
originated in the fertile imagination of the monkish translator; and,
not infrequently, interpolations, derived from some unknown source,
have entirely usurped the place of the original text.
 In considering the general details of the Visigothic Code, one of
the striking and suggestive features which presents itself is the
inculcation of exalted precepts of honor, probity, and justice, and, at
the same time, the acceptance and adoption of a belief in the basest
and most grovelling forms of superstition. Upon the same page
where the duties to be observed between man and man are set
forth with a perspicuity and a piety worthy of all praise, appear laws
denunciatory of divination and sorcery. With all its imperfections,
however, it presents us not only with noble and accurate conceptions
of justice, but indirectly gives us, as well, a faithful and picturesque
representation of the gradual, but constant, advancement of a
people. Unlike other Codes which preceded and followed it, it is
deficient in regularity of classification and division, and, in that
respect, signally differs from the Institutes of Justinian, whose
arrangement was almost literally followed by Blackstone in his
Commentaries on the Laws of England. The irreconcilable character
of many of its enactments; the identity of penalties for offences of a
widely different gravity and nature; the enunciation of the most
sublime principles of morality, side by side with mandates requiring
the infliction of tortures whose inhumanity would almost appal a
savage; the absence of ordeals and the wager of battle, so
frequently appealed to in that and following ages, as proofs of guilt
or innocence; are, in addition to those previously referred to, among
the most prominent characteristics of this extraordinary compilation.
The array of one caste against another, a practice which has never
failed to destroy a government and degrade a people, is conspicuous
everywhere. The court was regarded rather as a place of execution
than the seat of the rendition of justice; the judge rather an avenger
of injury, than the representative of the law and the guardian of
social order. The words ultio and ulciscor, constantly recurring in the
Code, disclose only too plainly the vengeful sentiments of the
legislator. In common with all barbarians, and likewise with the
majority of civilized men, force, with its consequent inconvenience
and suffering, was the only idea which appealed strongly to the
Gothic mind, and the moral and deterrent influence of legislation
was almost entirely lost sight of.
 In the arrangement of the Visigothic Code, the oldest laws, that
is, those based upon the unwritten observances of ages, are without
any evidence of the time of their adoption; such as are derived from
Roman sources are designated antiqua, or ancient; the edicts of
kings are promulgated under the royal title, a distinction indicative
also of those which were exclusively enacted by the national
councils.
In an age of ignorance and degeneracy a body of laws enacted
and compiled by a semi-barbarous people, was necessarily largely
dependent upon the maxims and precedents of such as had
preceded it. The harsh, and often cruel, provisions of the Twelve
Tables and the Civil Law, were greatly softened in the Visigothic
Code. By the terms of the Roman Nexum, a debtor hypothecated
himself as security for his obligation, forfeiting his liberty in case he
failed to fulfil his contract; and thus, as is also declared by the Bible,
“the borrower was servant to the lender;” a custom absolutely
prohibited by the Forum Judicum. The relations of patron and client
were essentially different under the Roman and Gothic dominations.
At Rome, the condition of clientage could not be renounced; in
Gothic Spain a freedman, or libertus, had the right to leave his
patron and select another, provided he previously surrendered all the
property he had received from his benefactor; the obsequious
behavior of the Italian client often degenerated into abject servility,
which was regarded with gratification by its object; while among the
Visigoths nothing was exacted by the patron for his favor but the
practice of obedience, and the manifestation of gratitude. The rules
governing the control of public lands did not differ greatly under the
civil administration of the two races; in the Peninsula, two-thirds of
the conquered domain, in accordance with the usual custom of
barbarians, became the property of the State by right of conquest;
and the remaining third was abandoned to those who had been
vanquished in the appeal to arms. The Lex Talionis, a prominent
feature in the history of all nations in the early times of their
formation, while known to have existed at Rome from the reign of
Numa, and which appears with such frequency in the enactments of
the Visigothic Code, was unquestionably borrowed by the authors of
the latter from the institutions of Moses, in accordance with their
theocratic prejudices and predilections. According to Roman ideas, a
person unquestionably guilty of crime, and caught in flagrante
delicto, was not entitled to a trial, which was considered superfluous,
and his punishment could be inflicted then and there; a principle
also frequently acted upon by the Visigoths.
This famous Code consists of laws emanating from four different
sources: first, those based on ancient Gothic customs; second, such
as were adopted from the Roman jurisprudence; third, the acts of
ecclesiastical councils; fourth, edicts of kings, promulgated at
different times, according to the various exigencies that arose; all of
which seem to have had equal validity. One of the most remarkable
characteristics of this collection is the maintenance of the principle of
legal responsibility, irrespective of wealth, rank, or dignity. Every
precaution was taken to prevent the interference of the sovereign
with the magistracy and the tribunals, in instances where the royal
power might be improperly exerted to pervert the course of justice;
and where the judge, yielding to superior influence, rendered an
unjust decree, that decree was declared to be void. In cases where
an appeal was taken to the throne, the king, in the consideration of
the questions brought before him, was admonished to strictly
observe the forms and principles of equity, and to render his decision
accordingly. While the judge derived his authority from the Crown,
he was in fact, independent of it; and, equally removed from the
voice of popular clamor, unlike the elective magistrates of the
tribunals of antiquity, was under no obligations to the populace. The
sacerdotal legislator, never unmindful of his own interests while
defining the rights of the people, was, nevertheless, himself subject
to the secular power. While this was the case, however, a great
distinction existed between the punishment inflicted for practically
the same offences upon the clergy and the laity, with the advantage
entirely upon the side of the former. The penalties usually imposed
upon ecclesiastics for breaches of the law were fines, penance, and
monastic seclusion; and their sacred office was a safeguard against
the horrible and degrading punishments from which even the
highest nobility were sometimes unable to escape. In this
undisguised leniency, and practical exemption from severe judicial
sentences, may be discerned the germ of the “benefit of clergy,”
carried to such lengths, and productive of such manifold injustice
and abuse, in mediæval times.
The theocratic principle animating the Visigothic Code is
conspicuous in almost all its chapters. The pious and significant
maxim, “Omnis potestas a Deo,” pervades it from beginning to end;
in the preambles, which recite the reasons for the enactment of the
laws; in the body of the latter, which appeal to Divine sanction for
their promulgation; in the penalties, which breathe the ferocious
sentiment of the ordinances of the Pentateuch. Many of the latter
are copied almost verbatim from the Bible. Recalcitrant Jews were
stoned to death. Adultery was the only cause for which divorce was
permitted. In the long, elaborate, and frightful oath which Jews,
apostatizing to Christianity, were compelled to take and subscribe,
everything that was most reverenced by them and could be
considered most binding, was borrowed from the Old Testament,
and, supplemented by appeals to, and confessions of, Christian
doctrine, invoked the direst maledictions upon the heads of all who,
either tempted by ambition or influenced by hypocrisy, violated their
vows, the impressiveness of which was increased by every
circumstance of solemnity, superstition, and power. In the contest
for ascendency, the Church possessed the advantages of thorough
organization and submissive obedience of inferiors, of reverence for
alleged celestial origin, and of unity of language; advantages never,
in any former age, enjoyed to such an extent by any other society,
political, or religious; and which, inspiring respect among all classes,
founded upon a solid and enduring basis the magnificent fabric of
her authority and grandeur.
The innumerable details relating to the infringement of the rights
of property show that many abuses must have previously existed.
The great number of laws designed for the protection of agriculture,
indicate the importance with which it was considered by a people
who, but a few generations before, had been shepherds and
predatory vagabonds. The Visigoths were the first of the nomadic
barbarians of the North to acknowledge the privileges and
responsibilities attaching to the occupation of a permanent and
limited domain. The offences of trespass, and forcible entry and
detainer, are clearly and explicitly set forth. Severe penalties are
denounced against all who deface, remove, or in any way interfere
with, established landmarks. Questions relating to transfers, devises,
partition, leases, land belonging to the state, boundaries, disputes
concerning the ownership of real-property, and title by adverse
possession, are discussed and determined with an ability and an
accurate conception of the principles of equity, most remarkable for
that age. While enjoyment of liberty was theoretically the
unquestioned right of every person except the slave, the limits of
castes and classes, adopted, for the most part, from the Roman
polity, were strictly defined. Notwithstanding minute and often
voluminous provisions, designed for the protection of the people,
oppression by the rich and powerful was not unusual, and was
sedulously provided against. Cruelty, and persecution of the weak,
could be practised by no one, no matter how exalted his dignity,
without reprobation and punishment. The interference of individuals
of rank in the trial of causes, and their obstruction of the process of
the law—evidently a common practice, and a source of endless
trouble in former times—is repeatedly prohibited; and every attempt
was made to preserve the courts from external influence, and insure
the justice and impartiality of their decisions. An appeal could be
taken from the decision of the judge to the governor of the city,
from him to the governor of the province, and from the latter to the
king. Where a person was too poor to incur the ordinary expenses of
litigation, he could appeal directly to the bishop; who, as the
protector of all within his diocese, was authorized to settle their
claims and disputes, and enjoined to interpose his good offices to
prevent the exercise of injustice and injury. Founded upon the strict
principles of morality which everywhere should control the conduct
of mankind, the precepts of the Visigothic Code present a strong and
remarkable analogy to those which govern the proceedings of
modern judicial tribunals. A contract made under duress, or vitiated
by fraud, was void. A principal was liable for the act of his agent,
where the latter was known not to have exceeded his authority. A
master was responsible in damages for injuries committed by his
slave. Guardians were held to strict accountability in the treatment
of their wards. The rights and disabilities of minors are clearly and
definitely stated. The legal incapacity of insane persons, excepting
during lucid intervals, when publicly recognized to be in possession
of their faculties, is declared. The questions of lis pendens, res
judicata, judgment by default, and vendors’ lien, are treated in much
the same way as in modern treatises on those subjects. The laws of
inheritance, and the descent of estates, are explained at great
length, and with a minuteness corresponding to their importance
and effect upon social and domestic life. The relations of husband
and wife are exhaustively discussed; no marriage was valid without a
dowry, which was given by the husband; the amount was
proportioned to the wealth and position of the latter; and a sum in
excess of that established by law could not be bestowed through
affection, or exacted by improper influence. Patrimonial estates, in
the possession of widows, could not be alienated without the
consent of a council of relatives; a provision which was, for
centuries, the law in Portugal. In the penal legislation of the Code
there is a curious mingling of the barbarous and the civilized. The
compounding of crimes was permitted by law. The amount of
damages to be assessed, like the penalty for the offence, was
estimated according to the dignity and possessions of the culprit.
The law of retaliation was sanctioned and enforced in cases where
the injury was of a personal character; and, in support of this
barbarous custom, the authority of the Bible was constantly invoked.
The inhumanity of the punishments imposed is another striking
indication of the survival of barbarism. Decapitation was the ordinary
sentence for capital crimes. The penalty for arson was death by fire.
Branding, maiming, scalping, and castration were inflicted for
offences not deemed of sufficient gravity to require the imposition of
the extreme penalty. Blinding, probably the most cruel of all, though
abolished by the Code of Justinian, had been retained by the
degenerate Greeks of the Byzantine Empire, from whom the
Visigoths acquired it. Scourging was frequently inflicted; the number
of blows varied from fifty to three hundred; they were almost always
given in public; and even a judge who had been guilty of misconduct
in office, was liable to the lash, symbolical at once of suffering and
disgrace, and only surpassed in infamy and horror by scalping with
fire, or decalvation. Torture, though authorized by law, was sparingly
used. Under the Roman system it could only be inflicted upon slaves;
the Visigoths, however, countenanced its exercise where the crime
sought to be discovered by its means was one implying great moral
turpitude; but it was solely employed as a method of eliciting
evidence, and never as punishment for crime. With a people so
jealous of their liberties, false imprisonment was naturally regarded
as one of the greatest of wrongs; while, on the other hand, few
penalties are more common than that involving the forfeiture of
freedom. Informers, another institution of Byzantine treachery and
deceit, were encouraged, and, where they were not participants in
illegal acts, were substantially rewarded for their suspicious and
ignominious services. The recognition of malice prepense, and
criminal intent, especially in cases of homicide, reveals a just
perception of the responsibility attending the commission of crime,
rare, indeed, among nations just emerging from barbarism, and
quite at variance with other provisions asserting the existence of
witchcraft, charms, and incantations. Under the Visigothic polity, a
crime is expressly declared to die with its author, where he
underwent a capital penalty; no blame or reproach attached to his
family or his posterity, where they were not implicated in his guilt;
and the sweeping and unjust law of attainder, which confiscated the
property, and branded the descendants of an offender with infamy,
for centuries in force in England, was unknown to the more
equitable and indulgent system of the Visigoths.
We are ignorant of the details of the procedure followed by the
Visigothic tribunals. They had, however, their summonses and other
writs of various kinds, their pleadings, arguments, depositions,
appraisements, judicial opinions both oral and written, appeals and
executions. The proceedings were conducted with due solemnity;
the most assiduous care was exercised to insure the integrity of the
magistrate; the rules of propriety were strictly enforced; exhibitions
of contempt were punished with exemplary severity; and even a
person of the highest rank, if guilty of marked disrespect to the
judge, or participating in any unseemly demonstration, was
unceremoniously ejected by the bailiffs. By the enforcement of such
measures, the courts were not only invested with a proper dignity
and importance, but their impartiality was established and secured;
and all, even including the people of the lower classes, came to
regard these tribunals as fountains of equity, and the protection and
mainstay of their liberties. They were almost continually open; the
judges had but few hours of rest or recreation; they were made
responsible, in both person and property, for a proper determination
of the causes brought before them; their remuneration was fixed by
law, and was independent even of royal favor; and the crimes of
oppression and bribery, when committed by a magistrate, were
made the subject of some of the most savage enactments in the
Forum Judicum, including degradation from office, forfeiture of
property, scourging, decalvation, exile, slavery, and death.
The employment of compurgators under the Visigothic system
was an important and popular one. Their number is not stated, and
does not appear to have been limited, but originally it consisted of
twelve. The probable predecessor of our system of trial by jury, this
institution was derived from the Saxons, and was, without question,
of remote antiquity. The oath, under other systems of jurisprudence,
rarely employed in purgation of crime, was frequently resorted to by
the Visigothic magistracy, as it formerly had been under the primitive
legal procedure of the Germans. An accused party, if he had hitherto
borne a good character, was entitled to establish his innocence by
this means; a proceeding which could be confirmed and
accompanied by the affidavits of his friends, neighbors, and
kinsmen, who, being persons best acquainted with his character and
habits, came into court, and swore to their belief in his innocence.
No testimony was offered in their presence, and no arguments were
made before them, as with the modern jury. With more correct
notions of the requisites and effect of legal evidence than their
German predecessors, the Visigothic courts did not admit the
intervention of compurgators, except under circumstances where
competent proof had failed to conclusively establish the guilt of the
accused. It is a curious fact that their services were enlisted by
criminals and litigants in the courts of England until comparatively
recent times. At first limited to criminal prosecutions, their
introduction was subsequently extended to various civil actions, and
especially to those brought for the recovery of debts; and,
recognized by the Canon Law, compurgators were sworn in England
as late as the reign of Elizabeth. This remarkable institution, which
bears so plainly the impress of ecclesiastical influence, appealing to
the piety and superstitious fears of the ignorant, evinces, by the
surprising vitality which it exhibited, its peculiar adaptation to the
purposes of legal procedure in the age when it prevailed.
While members of the sacerdotal order were, to a certain extent,
subject to secular justice under the Visigothic polity, the reverence
with which they were universally regarded, the great power they
exerted over the institutions of the kingdom, and their superior
intelligence, which with the ignorant of all classes, invested them
with mysterious powers, rendered their appearance in courts of law
most infrequent.
The history of the Visigothic monarchy, especially after its
adoption of Catholicism in 587, is, therefore, as has already been
remarked, closely interwoven with that of the Visigothic Church. The
Crown possessed little real authority. The complete and universal
municipal organization, instituted by the Romans, had disappeared
with the Gothic occupation. Civil and judicial officers, although
appointed by the Crown, were subject to ecclesiastical supervision;
not only in the parish and the diocese, but in the tribunals of justice,
in the most intimate relations of domestic life, in the determination
and settlement of secular disputes, and even in the presence of the
throne. The influence of the priest increased in the same ratio in
which that of the soldier declined. It reached its climax at the time
of the Saracen invasion, when, to all but the most discerning eye,
the rule of the Church seemed destined to endure through many
centuries, and its civil and political power appeared impregnable.
The illusory character of this apparent greatness was soon to be
exhibited. Two years after the last of the Gothic kings ascended the
throne, the Moorish armies were in possession of the Spanish
Peninsula.
The enactments of the Visigothic Code, from their promulgation
to the present day, have been never entirely abrogated by the
legislative powers of Spain, and, as the foundation of the national
judicature, many of its precepts and its rules still maintain their
original force and power in the legal and ecclesiastical tribunals of
the Spanish Peninsula. During the Moslem domination, their
authority was unquestioned in the different Christian kingdoms of
the North. The voluminous compilation, known as Las Siete Partidas,
published by Alfonso el Sabio in 1348, was largely borrowed from
the Forum Judicum. Charles III. in 1788, expressly declared that the
provisions of the latter had never been repealed by subsequent
statutes, and ordered that they should prevail in a contest involving
the law of inheritance, where the property of a deceased monk was
claimed both by his monastery and his relatives, in the royal
chancery court of Granada. Not only are some of these laws still
recognized as binding in the Peninsula, but they were long used in
Southern France, and the capitularies of the early kings of that
country bear unmistakable internal evidence of their derivation from
this same source.
The Castilian version of the Visigothic Code, notwithstanding its
coarseness, its ambiguities, and its errors, is still most useful for the
purposes of the philologist and the historian. It displays the
beginning and the development of the noble and elegant Spanish
idiom, from its origin, full of barbarisms, down to its perfection of to-
day; from the crude and awkward expressions of the chronicle and
the missal, to the perspicuous and polished diction of Calderon,
Mendoza, and Cervantes. We detect in its labored and awkward
sentences the corrupt Latin of the times when classic purity was lost,
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