CHAPTER 7

Litigants, Judges, and Lawyers

Dar a Cada Vno su Derecho

By the twelfth century the administration of justice was recognized as a public function of the king as head of the body politic. As Alfonso X pointed out, “there can be no king without a kingdom nor a kingdom without a king, because the king is the head and the kingdom is the body” (E 2, 6, 2). Just as the human body was a union of heart and members, so also the bond between king and people forged the unity of the kingdom:

Saints declared that the king is put on earth in the place of God to carry out justice and to give each one his rights (dar a cada vno su derecho). And so they called him [the king], the heart and soul of the people. Thus, as the soul resides in man’s heart and the body lives and is sustained by it, so justice, which is the life and sustenance of the people, resides in the king. (SP 2, 1, 5)

In other words, justice was essential to the people’s well-being, and the king, as the earthly vicar of God, from whom justice ultimately derived, was its immediate source. He dispensed justice personally, but also through his judges. As the law became more complex, however, public officials, who were often legal amateurs, yielded the task of interpretation and judgment to professional jurists.1

The acts of the Cortes, the Alfonsine Codes, and the Ordinance of Zamora in 1274 gave ample attention to the administration of justice. The Third Partida, utilizing material from books 4 and 5 of the Espéculo, bears a close relationship to the Dotrinal de pleitos of Jacobo de las leyes, so much so that Alfonso García Gallo regarded him as its principal author. The clear and logical exposition makes the Third Partida one of the most admirable parts of the Alfonsine corpus.2

By showing earthly judges how to dispense justice, the royal jurists observed that God linked the human desire for justice with his own. Loving justice with all their hearts (Ws 1:1), judges were admonished to show mercy or severity as the case required. They should resist outside interference and administer justice with good sense and wisdom. Allocating rights equally to everyone, justice, “a fountain from which all rights flow,” is always oriented toward Jesus Christ, the sun of justice (Mal 3:20). Justice rewards good men for the good they do and induces wicked men to be good. Justice requires that one live honestly, not harming another, and rendering to each one his rights (“que de su derecho a cada vno”) (SP 3, 1, 1–3). That statement sums up the classic definition of justice by the Roman jurist Ulpian: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi” (Justice is the constant and perpetual desire to render his right to each one) (D 1, 1, 10). Both Alfonso VIII, in 1181, and Alfonso IX, in 1188 in the Curia of León, confirmed that principle.³ After repeating that phrase, the Espéculo (4, 1, pr.) emphasized that the king, more than all others, should love justice.⁴ Ironically, the hermandad of 1282 upbraided him for denying due process to Fadrique and Simón Ruiz de los Cameros whom he executed without trial in 1277. Although the king objected that he was deprived of authority without a hearing, his failure to adhere to the legal standards articulated in his own law codes brought him to that pass.⁵

Plaintiffs and Defendants

The business of doing justice involved litigants, judges, scribes, advocates, and procurators (E 4, 4, pr.). The right of a plaintiff (demandador) to initiate a lawsuit might be limited by family, seigneurial, or professional relationships and social status. Under certain conditions, however, a son could sue his father or a brother his brother. Spouses could proceed against one another in case of adultery or treason or to recover property. Slaves could only accuse their masters of treason. Just as a knight could sue his lord for his stipend, university masters, judges, and other public officials, who “are like warriors and opponents of those interfering with justice, which is another form of great war,” could sue to gain their salaries (SP 3, 2, 1–13; LEst 2, 6).

In demanding the return of property, the plaintiff had to describe it in detail: the location and boundaries of real estate; the extent of injuries suffered; the name, sex, and color of slaves and animals; the color, size, weight, and measure of objects. The defendant (demandado) was forbidden to destroy items in contention but could not be penalized if they were lost through no fault of his own. If he refused to produce them, the judge could order their seizure (E 4, 4, 1–8; SP 3, 2, 15–31; FR 1, 11, 1–8; 1, 12, 1–4).

The plaintiff should submit his written claim or libellus to a judge with jurisdiction by reason of residence, social condition, or location of the contested property. A claim worth less than ten maravedís could be stated verbally. The plaintiff should name the judge, himself, the defendant, the property at issue, the sum demanded or redress to be granted, and the rationale for it (E 4, 4, 9–12; SP 3, 2, 32–47; DO 1, 2).6 In responding, the defendant had to be wary of falsely denying possession or ownership. He ought to determine whether the plaintiff was acting for himself, or represented another, or was the guardian of a minor. Ordinarily the defendant was subject to the jurisdiction of the judge where he resided, but he could not object when summoned before the king (E 4, 5, 1–5; SP 3, 3, 1–11; DO 1, 3; LEst 1–5). The rule that he was answerable to the judge of his district court (SP 3, 3, 4) was one of several elements of Spanish law acknowledged later in the state of Texas.⁷

Courts and Judges

Although the king was the immediate source of justice, a diversity of jurisdictions existed. Aside from his court and the territorial and municipal tribunals that he authorized, secular and ecclesiastical lords, recipients of immunities granted by his predecessors, adjudicated disputes among their tenants. Bishops similarly claimed jurisdiction over their clergy and church property.

The royal tribunal (corte del rey), with jurisdiction over “great affairs,” was the most important (E 4, 2, pr.).⁸ Comparing the court to the sea, the royal jurists emphasized that it ought to be spacious enough to handle all the business brought before it. Like seafarers in good weather, litigants could travel safely to and from the court, knowing that no one could appeal from its just judgment. Conversely, those who made unreasonable demands, like seagoing travelers caught in a storm, would find themselves rejected, and some, on account of their crimes, might have to “swallow the bitterness of justice” and lose their lives. Like the magnetic needle guiding sailors, justice should always direct the king to reward the good and punish the wicked. His counselors ought to be prudent, unswayed by oratory, prejudice, or envy, and encourage him to act according to justice and law (SP 2, 9, 28; E 2, 14, 1–2).

Casos de corte or pleas reserved to the royal court included, according to the Espéculo (4, 2, 12) and an ordinance given to Valladolid in 1258, the defiance of one noble by another (riepto), treason among nobles (aleve), violation of a royal truce or surety, and counterfeiting the royal seal, charter, or coinage.9 In addition, the Partidas (3, 3, 5) cited destruction of highways,¹⁰ rape, theft, outlawry, debasement of gold, silver and other metals, treason against the king or the kingdom, and a lawsuit against a powerful individual by a minor or a poor or wretched person. As these cases touched the king’s sovereignty, they could not go unpunished. The Ordinance of Zamora in 1274 (art. 46) added arson.¹¹ In 1279 the king reminded the alcaldes of Burgos that they did not have jurisdiction over these issues.¹²

Traditionally, the king presided over his court, but as judicial business increased, the burden grew. He informed the Cortes of Valladolid in 1258 (art. 8) that he would sit in judgment each week on Mondays, Tuesdays, and Fridays, but in 1274 he promised to do so until midday on Mondays, Wednesdays, and Fridays. No one was to disturb him with other business during that time. The alcaldes assisting him were expected to articulate the issues without engaging in stubborn disputations (OZ 1274, arts. 42–45). As he had no temporal superior, no one could appeal from his judgment, though one could always seek his mercy (SP 3, 23, 17).

Ordinarily, alcaldes de la corte del rey conducted most of its business. As they ought to possess a wholesome fear of God and of the king, and a knowledge of the law, the royal jurists urged them to administer justice promptly and evenhandedly, making it accessible to everyone (E 2, 13, 7; 4, 2, 7; SP 3, 4, 1–35).¹³ In the Cortes of Valladolid in 1258 (arts. 16, 18), and again at Seville in 1261 (arts. 3, 18), the king prohibited his brothers, and other great men, without first notifying him, from taking the side of someone whose case was before the royal court. Once their cases were heard, litigants were obliged to depart, doubtless because he did not wish them to take advantage of his largesse.

The royal court, according to the Ordinance of Zamora in 1274, would consist of twenty-three judges, all laymen, from three principal geographical areas: nine from Castile, six from Extremadura, and eight from León. The Castilian judges would take turns, three at a time, serving for three months each year. One of the Leonese judges had to be a knight familiar with the Visigothic Code still used in that kingdom. The day began with mass at matins (about 6 a.m.) and, in the summer, concluded with mass at tierce (about 9 a.m.), but in the winter at midday (arts. 17, 35).

Drawn from the class of knights and good men of the towns, the king’s judges were expected to be Christian laymen of good reputation, over the age of thirty. If married, their union should be in accordance with church law. Clerics, foreigners, ignorant persons, the blind and the deaf, madmen and slaves, excommunicates, criminals or their abettors, counterfeiters, traitors, and perjurers were disqualified. Clerics could not serve as advocates, counselors, or judges of appeals because they might allege laws (presumably canon law) other than those in the book (apparently the Espéculo and the Fuero real).14 Also barred were women, though a queen or lady who inherited a public office could act as a judge with the counsel of learned men, who, if necessary, could correct her (E 4, 2, 1–3; SP 2, 9, 18; 3, 4, 1–6; DO 2, 1; 3, 3–4).

Before taking office a judge had to swear a six-part oath: (1) to obey oral or written royal directives; (2) to protect the king’s sovereignty; (3) to keep his secrets; (4) to guard him against injury; (5) to adjudicate cases quickly and only in accordance with the laws in the Partidas, and not to be diverted from truth and justice by hostility, fear, gifts, or promises; and (6) never to accept a bribe. He also had to give sureties that after his term ended, he would be available for fifty days to respond to grievances (E 4, 2, 3; SP 3, 4, 6; 3, 16, 1).¹⁵

According to the Ordinance of Zamora in 1274, the judge should oblige the advocates to swear that they would not maliciously prolong the proceedings. Judgment should be rendered no later than the third day, so that cases could be settled quickly. A judge should never permit an advocate to reside with him, nor allow one advocate to plead his case privately without hearing the other. He ought to conclude a case before taking up another. If he failed, without a legitimate excuse, to appear in court, or attempted to hear more pleas in a day than he could, he had to pay the costs to the parties. If he had to transfer a case to another judge, he should provide him with the pertinent documentation. Admonished to hear cases gently, judges and the scribes should not participate in offensive exchanges with litigants. Judges should settle cases by themselves and not trouble the king unless they had a question for him. Six bailiffs and two porters were charged with maintaining order and removing those with no business before the court (OZ 1274, arts. 21–30). Jacobo de las leyes advised Alfonso Fernández, the king’s illegitimate son, that in order to uphold “the honor of your dignity,” he should hold court in an appropriate location, surrounded by judges, wise men, and scribes (FD 1, 1, 1). Anyone addressing the judge should be well spoken and avoid excessive familiarity that “breeds depreciation of the dignity” (DO 3, 3). On Fridays and Saturdays the judges would hear charges against prisoners, but in deference to Jesus’s death on Good Friday, they were forbidden to use torture on Fridays. Petitions unrelated to the administration of justice should be remitted to the Order of Santa María de España, and the order should receive fines levied in the casos de corte for “the affair of the sea.”¹⁶ Judges, scribes, and attorneys who accepted bribes would be at the king’s mercy (OZ 1274, arts. 31–34, 47).

Robert MacDonald identified many of the alcaldes del rey, including Jacobo de las leyes and Fernando Mateos.17 Fifteen judges shared in the partition of Seville.¹⁸

In order to foster a common system for recording court proceedings, the king reserved the right to appoint scribes. Intelligent, principled men, they should write legibly, understand what they were writing, and guard the king’s secrets. Municipal scribes should be residents who knew their neighbors and their concerns. As scribes often had to compose documents involving the death penalty or corporal punishment, clerics were excluded because canon law forbade them to shed blood. Royal scribes had to swear that they would faithfully, impartially, and without prolixity draft the king’s charters, and guard his privacy, sovereignty, family, and property. Urban scribes should take a similar oath. Both royal and municipal scribes registered documents, so that if the original were lost, the register copy could be produced (E 2, 12, 2–3, 6; 4, 12, 1–12; DO 3, 3).¹⁹

The Ordinance of Zamora added further detail concerning scribal work. Every Sunday the scribe would obtain sufficient parchment from the chancery for the following week’s work. Before a suit began, he would present all relevant documents to the judge. After the midday meal, he exhibited his notes to the judge who affixed his seal and signature. In the evening the scribe presented the record to the notary for review. The official record was issued the next day so that the litigants would not suffer any delay (arts. 36–41). Fees for sealing documents were listed in the Espéculo (4, 12, 54–59). A scribe who accepted a bribe would lose his office and pay a heavy fine (E 4, 12, 18).

The alguacil (ar. al-wazīr) or justicia de la casa del rey or justicia mayor maintained order in the court, carried out arrests on the king’s command, and had custody of prisoners. When required, he administered torture in the presence of a judge and a scribe who recorded the prisoner’s words so they might be used in the judicial proceeding (E 2, 13, 5; 4, 3, pr., 1, 8, 14–15; SP 2, 9, 20; LEst 113, 120).

Whereas in earlier times, a court judgment was final, the right of appeal, derived from Roman law, permitted one to turn to the king’s court.²⁰ In the-Assembly of Seville in 1264 the king assured the Extremaduran towns of that right (art. 11).²¹ Whether one or more judges were assigned to hear appeals is problematic. In an undated case in the reign of Fernando III, don Diego, adelantado del rey, and the other adelantados heard an appeal (LFC 3). The Espéculo (2, 13, 3) stated that the adelantados mayores de la corte del rrey heard appeals and adjudicated major pleas (E 4, 2, pr., 11). These passages suggest that there were multiple adelantados mayores in the king’s court, but the section treating appeals refers to a single adelantado mayor de la corte (E 5, 14, 12, 14). The Partidas (2, 9, 19) referred to only one adelantado mayor de la corte or sobrejuez, a superior judge who attended to major pleas and functioned as a judge of appeals. His decisions could not be appealed (E 5, 14, 12; SP 3, 23, 17, 19). Jacobo de las leyes confirmed that his rulings were final (DO 6, 1, 1; 6, 1, 16). However, there is no documentary evidence of anyone holding that position, and the Ordinance of Zamora’s omission of any reference to it suggests that it may have been eliminated. Possibly, one of the royal alcaldes fulfilled that function on an ad hoc basis.

The people had access to royal justice through officials entrusted with territorial administration.22 From Fernando III’s time, the king was represented in Old Castile, León, and Galicia by a merino mayor, assisted by subordinate merinos. In addition to collecting royal revenues, he executed judgments of the royal court, secured the king’s highways, and prevented riots and the erection of fortresses without royal permission (E 2, 13, 4–5; 4, 3, 1–7, 11–13, 18; SP 2, 9, 23). In the Cortes of Seville in 1253 (arts. 14–15, 18–20) the king forbade merinos in León to seize property without a judge’s authorization, to delegate their responsibility to negligent persons, and to enter immune lordships, except in four cases specified by Alfonso IX: homicide, rape, pursuit of known criminals, and highway robbery.²³

There were no merinos in Extremadura, the kingdom of Toledo, and the lordships of the military orders between the Tagus and Guadalquivir Rivers, but Fernando III assigned a merino mayor to the kingdom of Murcia. In 1253, Alfonso X appointed the adelantado mayor de la frontera with appellate jurisdiction in Andalucía. Five years later, he replaced the merinos mayores of Old Castile, León, and Galicia with adelantados mayores. In 1263 Murcia received an adelantado mayor, whose judgments could be appealed to the king. Whereas the merino mayor enforced judicial decisions, the adelantado mayor was a judge with territorial jurisdiction.²⁴ More than likely the king’s intent was to guarantee uniform administration of justice.²⁵ A royal letter of appointment charged the adelantado mayor to dispense justice, punish criminals, and hear appeals (E 4, 3, 2; 4, 12, 17; SP 2, 9, 22; 3, 18, 6).²⁶ Eventually, as his financial needs escalated, the king restored the merinos mayores, perhaps thinking they could best collect his revenues. In the Cortes of Burgos in 1272, the magnates objected, but their expressed preference for adelantados had more to do with their unwillingness to be taxed than the administration of justice. While the king promised to correct the excesses of the merinos mayores, he refused to replace them, and the nobles did not press their demand.²⁷ Probably during this time a private person composed the Leyes para los adelantados mayores.28

Bishops, monasteries, nobles, and military orders enjoying the privilege of immunity in their lordships were authorized to grant fueros, appoint judges, and administer justice. The king reserved the right to intervene in cases of treason, robbery, destruction of highways, and homicide, though his officials occasionally overstepped their authority.²⁹ For example, in 1257 he forbade any merino to demand hospitality or levy fines in villages belonging to the Order of the Hospital, and in 1265, he barred any merino or adelantado from entering the order’s lands to arrest evildoers, unless the order failed to do justice.³⁰ Although the king in 1271 ordered municipal judges to respect the bishop of Zamora’s privileges, Infante Fernando had to admonish them in 1275 not to prevent the bishop from appointing judges. He also directed the municipality of León to allow a judge appointed by the bishop to hear cases, except those involving the shedding of blood.³¹

The archbishop and the municipality of Santiago de Compostela engaged in a long-standing conflict concerning jurisdiction, the administration of justice, and economic matters. The jurisdictional battle pitted old usages against Roman and canon law. The parties quarreled over the proper relationship between secular and ecclesiastical judges, the role of clerical and lay advocates, the archbishop’s right to hear suits already initiated in the municipal court, his jurisdiction over royal pleas, appeals to the king, the pursuit and punishment of criminals, and the imposition of fines. Also in contention was the town’s right to receive peasants as new citizens, the cultivation of municipal lands, and the obligations of tenants to their urban landlords and to the archbishop. These topics will be reviewed in the course of this study.³²

A bitter quarrel erupted in Alfonso X’s last decade as the nobility protested that he ignored their traditional customs. Despite his assurance, in the Cortes of Seville in 1253 (art. 3) that he would punish anyone who dishonored them, they became increasingly wary of royal justice.³³ As they observed the influence of Roman law and the presence of legists in his court, they realized that the old customs were giving way to the new juridical order. In 1272 prior to the Cortes of Burgos, they complained that they and their vassals were judged according to the fueros of the towns in which they lived. Insisting on the principle of trial by peers, they remarked on the absence of alcaldes de Castilla or noble judges in the royal court. Upholding their traditional fueros, the king promised to appoint alcaldes de Castilla and declared that nobles would not be judged according to municipal fueros unless they wished. If any noble had a charge against him, it would be resolved according to “the ancient fuero.” When the Cortes assembled, the magnates demanded that they be tried only by two alcaldes de fijosdalgo or noble judges. The king promised to appoint them, although he commented that his predecessors had not done so. Despite his assurances, they repudiated their vassalage and went into exile to Granada. In negotiating with Queen Violante, they insisted that he confirm traditional customs, objected to the presence of legists and canonists in his court, and reiterated their demand that their suits be adjudicated by lay judges of Castile and León. The prologue to the Fuero viejo stated that at Martinmas (11 November 1272), he confirmed that they would be judged according to their traditional fueros. He also reportedly set aside the Fuero del libro that he had given to the Castilian towns and directed Burgos to use its old fuero. At the end of 1273 they renewed their allegiance and in the Cortes of Burgos in 1274 agreed to support his proposed journey to the empire.34 Notwithstanding the outward appearance of calm, they remained suspicious of the king and joined Infante Sancho in his rebellion in 1282.

Justice was ordinarily dispensed in municipal courts. Many municipalities depended directly upon the king who set down their rights, privileges, and obligations in charters or fueros.³⁵ In the Cortes of Seville in 1252 (art. 35), Alfonso X expressed his irritation with local alcaldes who failed to do justice and required them to pay the plaintiff double the amount of his plea as well as the cost of traveling to and from the court. Through the Fuero real he determined to exert greater control over the administration of justice and to overcome the difficulties caused by the miscellany of municipal fueros. Thus, in 1255 he gave Aguilar de Campóo “el fuero del mio libro aquel que estava en Cervatos” (the fuero of my book that was in Cervatos), a nearby village, and appointed two alcaldes to judge according to it. He also ordered several villages in the municipality of Burgos to follow the Fuero real.³⁶ Reserving the right to nominate judges, he demanded that they swear before the town council to uphold the rights of the king, the people, and the litigants, and to judge according to the Fuero real and no other book. If a judge was ill or absent for a legitimate reason, he could name a substitute (FR 1, 7, 1–2). In 1263 the king stated that the decision of a substitute judge could be appealed, first to the alcaldes mayorales of Burgos, and then to him.³⁷ References to mio alcalde in municipal charters usually meant the judge whom he appointed.³⁸ The chancery formula for appointing a judge mentioned Fernando Mateos, alcalde of Seville (SP 3, 18, 7).

Court should be held in a certain place every morning until midday from 2 October to 31 March, and until the celebration of mass at tierce, or 9 a.m., from 1 April to 1 October. The court was closed on feast days, fair days, royal birthdays, days commemorating the beginning of a reign, the birth of an heir, or a victory over enemies, and during the wheat and grape harvests (E 4, 2, 15; 5, 6, 1–8; FR 1, 7, 2; 2, 5, 1; LEst 209–10).

Only judges named by the king could impose the death penalty. Once a suit began, the parties could not settle privately without official approval. A judge who overstepped his jurisdiction or failed to summon the accused or favored one of the parties was subject to a fine and damages. If he proved to be biased, another judge would replace him. Should a plea arise that was not dealt with in the Fuero real, the towns could ask the king to provide a law to be inserted in their copy of the text (FR 1, 7, 4–10).

Several charters illustrate the practical application of the Code. In 1264 the king appointed two judges and a justicia or police officer in Escalona. Swearing to execute his commands, the judges had to hold court in a fixed place and at the times established and to render judgment promptly according to “our libro del fuero.” As he paid their salaries, they had to be impartial, not sharing fines or accepting gifts or services.39 Four years later, he commanded the judges of Burgos, during construction of the tower, to hold court in the plaza where wood was sold, but with the consent of the litigants, they could also do so in their homes. As some judges came late and left early, they were ordered to rise at the sound of the bell for mass at prime (about 6 a.m.) and to sit in judgment until the hour mandated by the Fuero real (9 a.m. in the spring and summer and midday in the fall and winter). If a case had to be dealt with quickly, they should sit again after the midday meal. Judges should punish anyone who maliciously summoned another and chastise advocates who wandered off topic. Clerics, except in those instances permitted by the Fuero real, were forbidden to counsel judges, thereby prolonging lawsuits. On Saturdays the fate of prisoners was decided. Fines established in the Fuero real for abusive language and assault had to be levied. Making justice accessible to everyone continued to be difficult, as both the king in 1279 and his son Sancho in 1279 and 1282 had to remind judges to hear cases in the tower of Burgos or in another public place, as the Fuero real required, and not in their own homes (as he had allowed in 1268).⁴⁰ In 1271 Vitoria raised identical issues.⁴¹

Municipal judges often called on the king to defend their jurisdiction against competing claims. In 1277 he forbade the merino mayor of Castile, for example, to exercise jurisdiction in villages pertaining to Burgos. Emphasizing that original jurisdiction belonged to the municipal judges, in 1279 he banned members of his household from settling their disputes with citizens of Burgos in the royal court. He also prohibited judges from adjudicating matters reserved to his court.⁴² Rejecting ecclesiastical jurisdiction over wills, he commanded the alcaldes of Badajoz in 1270 to hear testamentary cases and to ignore threats of excommunication. He also barred the bishop and chapter from interfering with municipal judges exercising jurisdiction.43 Several times he sustained the jurisdiction of judges of the city of León in villages in the municipal district.⁴⁴

The variety of laws created jurisdictional problems in the kingdom of Toledo. Whereas the Mozarabs used the Fuero Juzgo, the Castilians followed the Fuero de los castellanos. In order to avert juridical chaos, in 1254 Alfonso X upheld usage of the Fuero Juzgo in Talavera, and three years later gave the Castilians the Fuero real. However, it is not clear which law book was followed when litigants adhering to one or the other came into conflict. In 1282 Infante Sancho confirmed his father’s privilege to Talavera and ordered the alcalde and the alguacil to render judgment in the same manner as in Toledo. Whether that clarified the issue is uncertain.⁴⁵

The municipal council of Compostela complained of the partiality of clerical judges appointed by the archbishop, who held the city in lordship, and his attempt to restrict appeals. In 1263, the archbishop’s representative asserted the archbishop’s temporal jurisdiction and his right to appoint both clerical and lay justices. However, both sides agreed that the archbishop would name a neutral judge to resolve pleas between the townspeople and the archdiocese (ley 5). While confirming that litigation among townspeople should first be adjudicated by municipal judges before an appeal could be directed to the archbishop, the king ordered the archbishop to present any royal charters authorizing him to do so (ley 6).⁴⁶

The municipal council of Oviedo and the bishop, who held partial lordship of the city, quarreled over the appointment of judges. In 1261 the council asserted its right to freely appoint two jueces (administrators) and two alcaldes, while the bishop named one juez and one alcalde. Although Fernando III’s charter of 1234 ordered the council to ask the bishop’s advice concerning judicial appointments, Alfonso X declared that it had been obtained contrary to law and tore it up. Henceforth, he determined that the council did not have to consult the bishop.⁴⁷

The king appointed as many scribes as necessary to record judicial proceedings in the municipal courts. They had to prepare accurate notes for drafting charters and register documents. Their fees depended on the value of the matter involved. When a scribe died, his register would be given to his replacement (FR 1, 8, 1–7). In 1264 Madrid complained about custody of the municipal seal and the role of the scribes in preserving registers.⁴⁸

The law recognized two types of extraordinary judges, namely, jueces delegados or judges delegate, and jueces de avenencia or arbiters. The idea of judges delegate, with temporary jurisdiction to hear special cases, was borrowed from papal practice. A royal judge could delegate to a subordinate responsibility for resolving a case. The charter appointing him ought to identify the issues, the judges, and the persons involved (E 4, 2, 4). Ordinary judges were not authorized to designate judges delegate. If two parties (or only one) asked the king to name a delegate, he should appoint someone acceptable to both sides. A judge delegate could not adjudicate any other quarrel between the litigants, but if the defendant, after first responding to the original charge against him, wished to sue the plaintiff, the delegate could hear that. The delegate might lose his authority if his superior revoked it or died before the issue was joined (SP 3, 4, 19–22).49

Jueces de avenencia were arbiters freely chosen by the litigants. They were of two types: auenidores who functioned in the same manner as ordinary judges; and arbitratores or aluedriadores who decided contested matters as they thought best. Persons submitting to arbitration should identify the issue, authorize the arbiters to resolve it, and promise to accept their decision. If one refused to do so, he had to pay a penalty. Prior to agreeing to arbitrate, the arbiters should determine whether the case was such that it could legally be settled in that way, and a written statement of their responsibility and authority should be prepared. Not subject to arbitration were cases involving the death penalty, loss of limbs, exile, slavery and freedom, marriage, or the common good of a particular region or of the entire realm. No one could allow his opponent to arbitrate their quarrel unless he wished to make reparation for his actions. A minor under twenty-five could not ask for arbitration without his guardian’s consent, but a minor over fourteen, lacking a guardian, could do so (SP 3, 4, 23–26).

The authority of the arbiters expired on the day specified, unless an extension was permitted. When no time limit was stated, the matter should be resolved within three years. Should the arbiters needlessly prolong the suit, the ordinary judge could shut them up in a house until they decided it. If they were equally divided, another person could be chosen to help them. The case should be heard in the place assigned or in the town where it arose, and the ordinary court calendar should be observed. Arbitration ended if one of the arbiters died or entered a religious order, unless the parties agreed that the surviving arbiters could decide the case. Arbitration also ended if the property in dispute was lost or died, or if one party willingly relinquished it to the other. Arbiters were not required to hear the case if the parties also submitted it to the judgment of the ordinary judge. Arbiters could be excused if they went on pilgrimage or had to attend to the king’s business, or were otherwise impeded, or were harshly treated by one of the parties. An arbiter who was hostile to one party or accepted a bribe would be disqualified. All the arbiters had to state their individual opinions before the decision of the entire group was rendered. They could demand that one or both of the parties take some action by a specified date, or within four months, if no date was cited. An order contrary to royal law, natural law, or good customs, or based on fraud or false testimony, or dealing with a matter not subject to arbitration need not be obeyed. If a penalty was agreed upon initially, no one could appeal the decision. If there were no penalty, one had to object to the decision immediately or within nine days (SP 3, 4, 27–35).50 A dispute between the monastery of San Salvador de Oña and the town of Frías illustrating the work of arbiters will be discussed in the following chapter.

Personeros and Advocates

Men learned in the law played a prominent part in the administration of justice. During the early Middle Ages, a man had to plead his own cause or appoint a spokesman to do so (FJ 2, 3, 3). The emergence of Roman and canon law, however, spurred the development of the legal profession.⁵¹ Drawing on Justinian’s Code, jurists compared the militia legum, the knighthood of laws, to the militia armata, the knighthood of arms, and demanded recognition as knights.⁵² Today’s attorney using the title of esquire perpetuates the notion that lawyering is a form of knighthood. As their function was professionalized, jurists concluded that given the king’s lack of formal knowledge, he should yield the responsibility of pronouncing judgment to judges trained in the law.⁵³ Asserting that “the science of the laws is another form of knighthood,” Alfonso X declared that masters of law were entitled to the honors of knights (SP 2, 10, 3). Wielding the weapons of the law, jurists “are like warriors and adversaries of those who thwart justice” (SP 3, 2, 2). Jacobo de las leyes described himself as “juez et cauallero del rrey de Castilla.”⁵⁴

Summoned to court, a litigant might be represented by a personero, the equivalent of a procurator.⁵⁵ Whereas the personero physically stood in place of his principal (dominus, dueño de la voz), an advocate argued his case in court. In Roman law a procurator or proctor was ordinarily endowed with plena potestas, that is, full power to act for and bind his principal, so that the principal could not later claim that his procurator exceeded his authority.⁵⁶ By the early thirteenth century, kings, bishops, cathedral chapters, monasteries, and municipalities were adopting the system of proctorial representation. Although ecclesiastics usually preferred the term procurator, municipalities commonly used personarius or personero, a word with the same meaning. Indeed, the terms were often used interchangeably.⁵⁷ In 1250 the personeros of the municipality of Santiago de Compostela carried cartas de personería, letters of procuration, granting them lleno poder, full power, and binding the city by their actions. To my knowledge this is the first document referring to the plena potestas of municipal representatives.58

Any freeman over the age of twenty-five, and a minor on his guardian’s advice, could designate a personero. Excluded were madmen, deaf mutes, accused criminals, slaves, and women, though women could represent aged and infirm family members. Monks could act for their communities and ecclesiastics for the church. Knights serving the king and royal officials were forbidden to act as personeros. However, the king, his sons, and other powerful men, so as not to intimidate an inferior adversary, should be represented by personeros. A personero could be appointed for every civil suit, but in a criminal case involving the death penalty, mutilation, or exile, the principal had to stand alone (SP 3, 5, 1–12; E 4, 8, 1–6, 13; FR 1, 10, 2–5, 7, 16; LEst 11–17).

A valid letter of procuration, naming the principal, the personero, the suit for which he was appointed, and the judge, had to be drawn up by a public scribe, witnessed, dated, and sealed. The principal should give his personero power to demand, respond, acknowledge, and deny, and to bind him by whatever he did. For example, Ferrand García granted his personero “free and full power (libre e llenero poder)” to manage his property, and promised to hold as firm whatever was done in his name. Similarly, Rodrigo Esteban and Alfonso Díaz, alcaldes of Seville, with the consent of the city council, appointed a personero for their suit with the archbishop. Granting their “true personero” the power to ask questions, to respond, to defend, to appeal, and to do whatever else a “true personero” might do, the council pledged to “hold as firm and stable” whatever he might do and never to challenge it (SP 3, 18, 97–98).⁵⁹

One could also appoint a personero verbally in the judge’s presence. If someone had several personeros, each one’s role could be limited by the terms of the carta de personería or by the judge (SP 3, 5, 13–21; E 4, 8, 7–14; FR 1, 10, 1–2, 5). In the Cortes of Valladolid in 1258 (art. 8), and again at Seville in 1261 (art. 17), the king limited to two the number of municipal personeros and ordered them and their principals to leave his court once their case was settled.

Unless his principal gave him full power, the personero could not take certain actions without his consent, but the principal could give retroactive approval. If a personero’s power seemed questionable, the judge could permit him to proceed if he gave sureties that his principal would confirm his decisions. A personero was expected to answer questions fully and truthfully and not delay the proceedings. The letter of procuration was terminated if the principal died before the suit began; if he died during it, the personero had to complete it. The principal, after notifying the judge and his opponent, could replace his personero, who could also ask to be relieved. If he lost the case, he should enter an appeal, but he could not pursue it without the principal’s consent. He had to deliver to his principal anything awarded by the court, but he also owed reparations for any loss incurred through his fault or negligence. The principal had to pay his just and reasonable expenses (E 4, 8, 15–19; FR 1, 10, 8, 10–11; SP 3, 5, 20–27).

In the second half of the thirteenth century, proctorial representation was commonplace. In 1256, for example, the archbishop and chapter of Compostela dispatched two canons with a carta de personería to acknowledge the king’s daughter as heir to the throne.60 The procurators of the municipal council of Orense also pledged fidelity, but the bishop and chapter, claiming lordship over the city, appointed three procurators to protest and promised to ratify their actions.⁶¹ In subsequent years the municipalities of La Coruña, Cuéllar, Tardajos, Burgos, Frías and the abbey of Oña, and the Order of the Hospital appointed procurators and pledged to abide by their actions.⁶² In 1281 the king summoned all the cities and towns to send their “procurators with personerías complidas” to the Cortes of Seville “to grant all that should be decided” there.⁶³ From his point of view, it was imperative that personeros should have plena potestas or lleno poder legally binding their principals to accept judgments rendered in court.⁶⁴

While a procurator might represent a litigant in court, the task of arguing his case was entrusted to an advocate (aduocatus).⁶⁵ Known in the vernacular as abogado or vocero, and sometimes as an omne bono or good man, an advocate was a person of upstanding character authorized to speak on behalf of his client.⁶⁶ Familiar with customary law and the municipal fueros, he was expected to provide effective and honest representation.⁶⁷ Lest justice be delayed, the king, in the Cortes of Seville in 1252 (art. 37), forbade any advocate to refuse to settle a case when his principal wished to do so and imposed a heavy fine. Anyone meddling in the proceedings was also penalized and excluded from court. In order to avoid confusion, no one was permitted to have more than one advocate. If the advocate and his principal wished to consult others, they were to do so privately.⁶⁸

The mester de los voceros—the craft or trade of the advocates, who were professional jurists—offered certain benefits.⁶⁹ Pleas could be adjudicated more surely, because an advocate could effectively present the case of a litigant who, out of fear, intimidation, or lack of skill, could not. Furthermore, the advocate’s familiarity with the law and court procedure and ability to engage in verbal argument served his client’s interest and assisted judges in the quest for truth. The vocero, so-called “because he uses his voice and words in carrying out his office” (SP 3, 6, 1), should know the laws, fueros, and customs and could only argue pleas according to the fuero of the region where he lived. He ought not to take a case unless he was able to present it before a judge. Minors under the age of seventeen, deaf mutes, blind men, madmen, absentminded people, and criminals could not act as advocates. Monks and cathedral canons could only act on behalf of their communities. Foreigners were also excluded (E 4, 9, pr., 1–3; FR 1, 9, 2, 4; SP 3, 6, pr., 1–3; OZ 1274, arts. 1–2, 9, 16; DO 2, 2, 1).

Reference to the mester de los voceros indicates the existence of a formal guild of lawyers, but how it was organized is not clear. Obviously, the court could call upon designated advocates familiar with pleas (“sabidores del fuero e usando en los pleitos”) (E 4, 9, 1). If a litigant did not have an advocate, he could ask the judge “to give him one from among those who are accustomed to take pleas” (FR 1, 9, 1). In his laws for Toledo in 1254, the king repeated that point. If the vocero refused to accept the assignment, he would be barred from acting as an advocate for a year, except in his own case.70 No one whose ignorance of the law might disturb the proceedings should function as an advocate. Rather, an advocate should be selected by the “judges and the experts in law in our court” or from the region where he wished to function. If he were found to be knowledgeable and suitable for the task, he had to swear to loyally assist his client, and not to participate knowingly in a false suit, or protract litigation maliciously. Once approved, his name would be written “in the book where the names of other advocates are written.” Anyone not so designated could not act as an advocate (SP 3, 6, 13). Thus, a prospective advocate had to pass an examination, in much the same way as a modern lawyer is examined before being admitted to the bar. After taking an oath to do right by his client, his name was recorded in a book listing those permitted to practice law in the courts. In preparation for a career as an advocate a young man may have been accepted as an apprentice and set to learn the law under the guidance of experienced advocates. After completing his studies and successfully passing the examination described above, he was likely admitted to full standing in the guild of advocates. By the middle of the thirteenth century, therefore, a professional class of advocates existed in Castile (LEst 19).

In 1253 the king prohibited clerics from acting as advocates against lay-persons in Compostela. By their subtleties and by citing Roman law contrary to the Libro de León (the Fuero Juzgo) and municipal usages and customs, they were accused of delaying justice for three or four years, effectively denying it (leyes 2–3).⁷¹

A woman was also barred, because it was inappropriate for her to assume the “office of a man” and to mix publicly with men. In ancient times, a learned woman named Calpurnia (Ulpian, D 3, 1, 5) spoke so shamelessly in court that the judges could not abide her. Distressed by her lack of decorum and finding it difficult to listen to her and to contend with her, they forbade a woman to act as an advocate. That passage acknowledges the possibility that a woman, like a man, might be knowledgeable in the law, but ancient wise men, perhaps embarrassed by her superior legal knowledge and skill in argument, decided to ban all women from court. On the supposition that he might be susceptible to bribery, a man paid to fight wild animals was also forbidden to act as an advocate. A Jew or a Moor could not represent a Christian. The judge had to appoint advocates for widows, orphans, and poor people. If his client could not afford his fee, the advocate might have to serve “for the love of God” (E 4, 9, 3; SP 3, 6, 3–6).

When making their arguments, advocates, unless prevented by infirmity, had to stand before the seated judge. The plaintiff’s advocate spoke first and then the defendant’s. If several advocates appeared for one party, only one was to speak. Avoiding provocative or offensive language, not shouting or insulting his opponents, the advocate should address the judge calmly and courteously. If he did not conduct himself properly, the judge could prohibit him from representing anyone. Should he make an error in his argument, he could correct it before the final sentence. If he revealed his client’s secrets to the other party or committed any fraudulent act, he could be barred from ever acting as an advocate. Irritated by an obstreperous or overly garrulous advocate, the judge could set a time when he could speak (SP 3, 6, 7–12; E 4, 9, 4–7; FR 1, 9, 5; OZ 1274, art. 4). Following the prescriptions in the Partidas (3, 6, 7), Texas law also required advocates to speak plainly in understandable language.72 The Ordinance of Zamora required the advocate, prior to beginning his case, to swear that he would not act maliciously and would not lie. If he swore falsely, he would be permanently excluded from the office of advocate and could not serve as a witness or a judge. He would also be fined twice the amount at issue and subjected to confiscation of property, exile, and condemnation as a perjurer. Other fines were imposed if he extended the proceedings unnecessarily, and if he were absent without a legitimate excuse he had to pay the expenses of both parties (arts. 3–7, 12).

As compensation, the vocero in Toledo in 1254 was entitled to a tenth of the value of the plea, to be paid in thirds during the course of the suit.⁷³ Although the Espéculo (4, 9, 8–9) and the Fuero real (1, 9, 1, 5) allotted a fee of one-twentieth, the Partidas (3, 6, 14; LEst 18, 20), acknowledging that an advocate should be paid in accordance with the nature of the case and his own learning, fixed the fee at one hundred maravedís. The Ordinance of Zamora cited the figure of one-twentieth, but also set a maximum of one hundred maravedís. If the value of the case were uncertain, the judge, in consultation with others, would determine fair recompense (art. 14). In 1280 the king ordered Burgos to pay its vocero his salary for four years at the annual rate of one hundred maravedís.74

Under penalty of being forever declared infamous, the advocate was prohibited from making an agreement with his client to receive a share in the property at issue, lest that induce him to use inappropriate methods to win the case. If he deliberately aided his client’s adversary, or introduced forged documents or false witnesses, he would be executed and his property turned over to his client (SP 3, 6, 14–15; FR 1, 9, 5). In the expectation of reducing unnecessary litigation, the king required an advocate who believed that a judge’s decision was correct to swear that he would not advise his client to appeal it (OZ 1274, art. 13).

Bien et Leal mente Deue Fazer su Ofiçio el Judgador

In order to do justice to everyone, Alfonso X endeavored to create an effective judicial system and insisted that judgment be in accord with his law codes. Judges were chiefly laymen trained in the ius commune, the civil and canon law taught in the universities, and knowledgeable in the substance of the Alfon-sine Codes. As assurance that his law would be applied throughout the realm, King Alfonso appointed the judges of the royal court and the provincial adelantados mayores, as well as municipal judges and scribes. By requiring judges to hold court at certain hours and seasons, he tried to establish a judicial calendar that would make justice available on a regular basis. The burden on the ordinary courts was relieved somewhat by permitting arbiters to settle many cases, but ultimately they acted on royal authority and their decisions could be appealed to the king. Litigants could appoint personeros to appear on their behalf and to make binding decisions, and they could also be represented by a professional class of advocates familiar with the royal law codes.

The king, as God’s temporal representative, had the primary responsibility to dispense justice and promised to hear lawsuits three days every week, but it seems likely that he could not always do so. The cases presented to him probably concerned great men and grandes ffechos, or the so-called casos de corte. He also reserved the right to attend to appeals from every jurisdiction. Hoping to assure fair judgment, he ordered his judges to act promptly and not to tolerate unnecessary delay. As a guarantee of justice for all, legal counsel had to be provided to the poor and downtrodden. The smooth working of the judicial system depended on the sense of honesty and responsibility shared by judges, procurators, advocates, scribes, and litigants.

As a judge of the royal court, Jacobo de las leyes admonished his fellow judges: “Bien et leal mente deue fazer su ofiçio el judgador et deue trabajar de saber la verdad del pleito que es antel quanto mas pudiere, et no se deue partir dela carrera del derecho” (Every judge should fulfill his office well and loyally and should strive to know the truth of the case before him, insofar as he can, and he should not depart from the pathway of the law) (DO 1, 3, 3). If the other participants in the legal process behaved similarly, justice would be done.

Although the king believed that by entrusting the administration of justice to skilled professionals the right of every man would be defended, it is clear that many of the failings in the modern judicial system were present in the thirteenth century. Human nature being what it is, one should not be surprised to learn of fraud, cheating, collusion between judges and advocates, laziness, absenteeism, grandstanding by advocates, and other abuses.