CHAPTER 8

The Judicial Process

Ffazer Derecho

When litigants, duly summoned, appeared before a judge through their procurators and advocates, they wanted him to ffazer derecho (to make right) (SP 3, 7, 1). If a defendant admitted the charge, the judge’s task was made easier, but in most instances that did not occur. After hearing arguments, the judge called for proof in the form of witnesses, sworn testimony, and documents. He could then ffazer derecho. Three passages from the Third Partida underscored the importance of making things right. Expressing a negative view of human behavior, the royal jurists stated that “the wickedness of human beings… is so great… that if justice and law did not prevent them, good men could not live in peace or secure their rights.” Moreover: “One of the things of this world about which kings and other lords, who hold the place of God on earth, should most exert themselves, in order to maintain it in justice, is to oppose the malice of human beings so that law may not be thwarted by them.” As a shield against malevolence, the king’s court was “a place where things ought to be done with greater accord and greater counsel so that they might not be lightly undone” (SP 3, 7, 9–10, 15). Thus, the Alfon-sine Codes outlined procedures to restrain evil and uphold right and justice.1

Under the influence of Roman and canon law the distinctive Germanic character of the judicial process was modified.² Henceforth the ordo iudiciarius, as the Romano-canonical process was called, was written rather than oral. Judges were encouraged to intervene actively by interrogating litigants and witnesses and to evaluate the truth of evidence. Ordeals and purgation as forms of proof were cast aside when the Fourth Lateran Council (canon 8) prohibited the clergy from blessing them. Instead, the inquest was commonly employed to gather evidence in both civil and criminal cases. Despite the judge’s efforts to render a just decision, his judgment could be appealed ultimately to the king.3

The Summons to Court

A lawsuit began when a defendant was summoned verbally or in writing by the king, a public official, or the plaintiff (E 5, 1, 1–3; SP 3, 7, 1; FR 2, 3, 1). In January 1264, for example, Alfonso X commanded the archbishop of Compostela and the city council to send their personeros with supporting materials to appear before him on the feast of St. Andrew (30 November).⁴

Although everyone was obliged to respond, certain persons, depending on their rank and circumstances, could not be required to appear immediately on a specified date. Among them were a priest saying mass, soldiers on military service, agents on a public mission, policemen restoring order, the sick and wounded, prisoners, those attending weddings or funerals, and the town crier. A judge summoned by an inferior could ignore the order. A summons to a member of a religious community should be directed to his or her superior. Minors, the insane, spendthrifts, freedmen, honorable women living at home, and even a woman who refused to marry a judge who summoned her out of spite could respond through a guardian or procurator. The summons should not be issued during festival days (SP 3, 7, 2–6).⁵

With the judge’s approval, the parties might agree to postpone the hearing, but if the plea “touches the king or the kingdom,” it could not be deferred without the king’s consent. If a defendant attempted to evade a summons, his name could be proclaimed at his home and in three public markets, and the judge could authorize the seizure of his possessions. The Cortes of Seville in 1252 declared that plowing animals could only be taken as a last resort. Only after a successful plaintiff’s claims were satisfied would goods taken as pledges be returned to the defendant.⁶ Should anyone adamantly refuse to appear, he would be fined heavily and obliged to pay his opponent’s expenses (LEst 21, 24, 26). A judge who deliberately refused to issue a summons had to reimburse the plaintiff for expenses and resulting damages. Persons summoned to the king’s court were given a grace period of three days (or nine days, if from another kingdom) beyond the date specified and were guaranteed security from the time they left home until they returned (E 5, 1, 2–5; SP 3, 7, 7–12; FR 2, 3, 2–8).

In a chancery formula, Fernando Mateos, the royal alcalde mayor in Seville, reported that Esteban Pérez, though summoned three times, by letter and by messenger, once in person, and twice at his residence, failed to appear to answer an allegation by Gonzalo Yuañez. Therefore, after Gonzalo swore that he had not brought suit maliciously, the judge awarded him compensation of one thousand maravedís (SP 3, 18, 108).

If the defendant did not appear or send a procurator, the judge, by an interlocutory decree, could authorize the plaintiff to temporarily take possession of property in dispute, but he could not alienate it. The property could also be sequestered until final disposition of the case. If, after being summoned three times over thirty days, the defendant failed to respond, he could be deprived of ownership; if he attempted to thwart justice by disposing of property, he would be fined severely (E 5, 1, 6–13; SP 3, 7, 13–17; 3, 8, 1–8; 3, 9, 1–2; FR 2, 3, 2; 2, 4, 1–2). The king applied that law in 1254 when Toledo complained about delays in the administration of justice.7 In effect, anyone who defied a summons to court was accounted as contumacious and rebellious.⁸

Court Procedure

Once assigned a day in court, the plaintiff was given the opportunity to present his plea or demand orally or in writing (libellus), and the defendant, his response (FR 2, 6, 1–2; DO 3, 1, 1–3).⁹ Civil suits ordinarily concerned property or personal obligations. In 1254 the king determined that if a plaintiff in Toledo submitted a written demand, the defendant should have a day to take counsel and prepare a written response. That stage in the proceedings when the issue was joined was known as the litis contestatio (SP 3, 10, 3).¹⁰ Without delay, the plaintiff was permitted to make a written counterargument. If either party had reason to believe that the judge would not be impartial, that suspicion should be raised immediately and ruled on by other judges (E 5, 2, 1–4).

This exebçion or defensión was one of several exceptions that the parties could present to delay, to exclude from consideration, or to thwart the process. “This is like an arm by which a man defends himself against his enemies” (E 5, 4, pr.). By challenging the judge’s jurisdiction (exceptio declinatoria), the defendant hoped to avoid having to respond to the plaintiff. He might also object that the judge or the plaintiff was excommunicated, or that he that did not owe a debt claimed by the plaintiff. He could delay the proceedings (exceptio dilatoria) by arguing that a debt owed was not yet due, or that he should be excused from appearing on a designated date because he was engaged in the king’s business or was ill. Moreover, he might prove that a debt had already been paid (exceptio peremptoria), or that a court had previously rejected the plaintiff’s demand. The declinatory and dilatory exceptions had to be made before the litis contestatio, but peremptory exceptions could be raised throughout the process (E 5, 4, 1–11; SP 3, 3, 8–11).11

Before proceeding, the judge had to determine whether the plaintiff was eligible to bring suit. The plaintiff should specify whether his plea concerned real or movable property or services to be performed. In the first case, he should ask for restoration of the property and its income for however many years it was held by his opponent. A movable object in contention ought to be presented in court or otherwise described accurately. If the defendant could not immediately produce it, he could give surety to do so when he had it again in hand, unless it had been stolen or lost through no fault of his own. He would be punished if he deliberately concealed, damaged, or destroyed it. If he failed to complete work on time, he would be penalized and compelled to reimburse the plaintiff for any damage or loss. The defendant might reject the plaintiff’s charges (E 5, 7, 1–18; SP 3, 10, 1–8).¹²

If an assertion could not be proved otherwise, one or both parties might swear to the truth of their allegations. An oath taken against the king’s sovereignty or harmful to the realm or to one’s soul was invalid (FR 2, 12, 1–5). Oaths were of three kinds: voluntary, compulsory, and judicial. A voluntary oath sworn outside the courtroom by one party and accepted by the other could settle a dispute. Once a suit began, both litigants had to swear an oath of manquadra, or sacramentum calumnie to affirm their rights, to respond truthfully to the judge, not to offer false proofs, and not to delay the proceedings.¹³ If a litigant claimed to have been attacked, robbed, or defrauded by his opponent, the judge, so as to assess damages, could require a compulsory oath. The judicial oath was administered in court by one party who agreed to accept as true what the other said. If either party refused to swear, the judge would declare that he had lost his case. Ordinarily the one administering the oath should be twenty-five years old, a freeman of sound mind, living independently. The one taking an oath had to be at least fifteen (E 5, 7, 21; 5, 11, 1, 18; SP 3, 11, 1–29).¹⁴

The texts of oaths to be sworn respectively by Christians, Jews, and Muslims conformed to the tenets of each one’s religion. In the Cortes of Seville in 1252 (art. 38) Jews and Christians were directed to swear as in the time of Alfonso VIII, but no text was recorded. The formulas for the three oaths were set forth initially in the Espéculo (5, 11, 15–17) and were repeated in later texts.15 Placing his hand on the Gospels, the cross, or the altar, a Christian swore in the name of God the creator, his son Jesus Christ, born of the Virgin Mary, and the Holy Spirit. A Jew, with his hand on the Torah in the synagogue, in the presence of Jewish and Christian witnesses, recalled God’s favors to Abraham, Isaac, and David, and swore by the Ten Commandments given to Moses on Mount Sinai. If he swore falsely, he called down on himself the plagues that God visited on the Egyptians. A Muslim, standing at the door of the mosque with his hands raised and facing toward the south, swore that there was no God but God, who revealed himself to Muḥammad, his prophet and messenger. If he perjured himself he would be forever separated from God and Muḥammad, and excluded from Paradise (SP 3, 11, 19–21). For example, the former Muslim inhabitants of Écija, standing in their mosque and facing Mecca, swore to tell the truth concerning the boundaries of the municipality.¹⁶

After the litigants presented their respective positions, the judge might interrogate them in order to clarify the issues. They might also interrogate one another. The interrogatories were expected to be brief and to the point so that they could be easily understood and elicit a useful reply. Lest the search for truth be impeded, advocates were not permitted to advise their clients during the interrogatories (E 5, 7, 19; SP 3, 12, 1–2).

Next, the court would determine the proofs to be presented. As the burden of proof rested with the plaintiff, his case would be dismissed if he could not present it. Philosophical arguments were unacceptable because they could not be determined by law or judgment. Evidence should relate directly to the point in contention, and time should not be wasted debating extraneous matters. Proofs included admission by the defendant of the plaintiff’s demand, the testimony of at least two witnesses, the presentation of appropriate documents, and the presumption by the judge that the position of one of the parties was true, though presumption may often be incorrect and could not be used to prove an accusation of crime. Visual inspection of property or persons by the judge was another form of proof. Although the judicial duel was mentioned, it was not usually admitted as proof because it often resulted in the triumph of error (E 5, 10, 1–14; SP 3, 14, 1–15; 3, 15, 1–3).¹⁷

A defendant at least twenty years of age might resolve the dispute by an admission (conoscencia) of facts. If he implicated others in a crime, his testimony alone was insufficient for them to be charged, except in case of treason against the king or the kingdom or heresy, when only one witness was necessary. A deathbed confession would also be valid. Whereas a client could correct an admission made by his advocate, he could not do so if he was not in court, except in case of error or fraud, because he had authorized his advocate to act on his behalf and agreed to be bound by his actions. A confession made out of court or under torture or fear of death was invalid, but would be accepted if the person afterward, freely and without fear, confirmed it (E 5, 12, 1–12; SP 3, 13, 1–7). If the defendant admitted the charge, the judge could then proceed to judgment (FR 2, 7, 1–3).18

The testimony of witnesses was especially valuable, mainly because they could be interrogated, a process that could prove their undoing.¹⁹ The judge had to decide whether a prospective witness was properly qualified and a person of good character, and once he was heard, he had to ascertain the truth of his testimony. The testimony of slaves and disrepu-table people was inadmissible except in case of treason against the king or kingdom. As slaves were likely to lie, they should be tortured to elicit the truth. Also excluded were perjurers, liars, forgers, counterfeiters, poisoners, abortionists, those who killed another, except in self-defense, married men who kept concubines, rapists, seducers of nuns, persons in incestuous marriages, traitors, those publicly degraded who were not equal in rank to the other party, the insane, thieves, robbers, pimps, gamblers, women dressing as men, wandering monks or nuns, and the very poor worth less than twenty maravedís who kept bad company. A woman of good character could testify in all cases except those concerning wills. That was also true for a hermaphrodite, but if the male nature predominated, he could bear witness in testamentary actions. Jews, Moors, and heretics could testify against one another, but not against Christians, except in case of treason against the king or the kingdom. Spouses and family members in a direct line of descent or in a collateral line to the third degree of kindred ordinarily could not testify against one another, nor could business partners. In criminal cases, fathers and grandfathers could not bear witness against their sons or grandsons, nor could a freedman against his former master; the testimony of prisoners, bullfighters, and prostitutes was also inadmissible. As children under fourteen lacked sufficient intelligence to comprehend the truth, they could not testify. In criminal matters a witness had to be twenty years of age. Quite reasonably, judges, advocates, and procurators could not be witnesses in cases in which they were parties. If a witness testified to matters extraneous to the suit, his entire testimony could be thrown out. Prior to trial, out of concern that an aged or infirm witness might die, his testimony could be recorded and introduced later in the proceedings. Testimony could also be taken before the beginning of a trial to gather evidence through an inquest or in preparation for an appeal or another legal procedure, or when a litigant accused a judge of partiality, or when public officials were denounced for misappropriating royal revenues or abusing the people under their jurisdiction (E 4, 1–14; SP 3, 16, 1–22; 6, 1, 10; FR 2, 8, 1–14).20

Depending on their distance from court, witnesses had to appear within a reasonable time; for example, three days for a resident, nine for one living within the municipality, and thirty days beyond that. A witness from another realm could be assigned a date, or his written testimony could be forwarded at the expense of the litigant who requested it. The judge or his representative might travel to obtain the testimony of prominent persons, or the sick and elderly. Swearing on the Gospels to tell the truth, the witness declared that his oath was freely given, not prompted by bribery, love, hatred, or any threat. His testimony, given privately to the judge, was recorded by a scribe. He was questioned as to his relationship to the party on whose behalf he testified, whether his evidence was based on what he knew or heard, and when and where the events transpired. Always looking directly at the witness in a kindly manner, the judge should listen quietly and ask the witness to confirm his testimony. In some rare instances hearsay evidence was accepted. Two witnesses of good character were usually required. Recalcitrant witnesses could be compelled to testify, and those who swore falsely would be punished as perjurers. In case of contradictory testimony, the judge could use his discretion as to which witness to believe (E 4, 7, 15–36; SP 3, 16, 23–43; FR 2, 8, 15–21).

The testimony of a pope, emperor, or king was sufficient by itself and did not require corroboration. As the king knew that he would have to account to God for his actions in wielding the temporal sword, he would act and speak truthfully and command what is right (E 4, 7, 29). The insertion of this law seems jarring and may indicate the direct intervention of the king, perhaps in reaction to a doubt posed by a judge concerning a charter containing the king’s unsworn testimony.

The sworn inquest or inquisition (inquisitio, pesquisa) gathered the testimony of witnesses in a more comprehensive manner. Numerous twelfth-and early thirteenth-century documents reveal that the inquest had become a customary means of discovering the truth. King Alfonso used it as a multi-faceted tool for administrative and judicial purposes, namely, to gather information about taxes due, alienations of royal lands, the export of prohibited goods, and the identification of criminals; and to settle civil cases concerning municipal boundaries, property disputes, and other matters.²¹ The use of the inquest to identify those who committed murder, the desecration of churches, rape, violation of households, arson, and highway robbery greatly expanded royal jurisdiction in criminal cases (E 4, 11, 1; SP 3, 17, 1).²²

The king or a judge appointed men of probity known as pesquisidores or examiners to execute an inquest. They had to swear to loyally seek the truth and not to be deterred from asking essential questions; nor would they conceal the results of their inquiry by reason of friendship, allegiance, fear, hostility, or bribery. Clerics were barred from serving as examiners. Pesquisidores appointed in administrative districts seem to have been permanent officials but were forbidden to conduct an inquest except by order of the king or the merino mayor. Abuse of the procedure may have prompted the king in 1254 to direct the merino mayor of León not to carry out a pesquisa in the towns in the diocese of Oviedo without his authorization.23 Several months later, he banned the use of the pesquisa unless it was general for everyone.²⁴ In 1261, after an inquest found that the bishop of Oviedo interfered with construction of the city walls, Alfonso X ordered the work to be finished.²⁵ Similarly, when officials responsible for regulating exports in the diocese of Burgos carried out a closed pesquisa, but failed to interrogate the bishop or his clerics, the king in 1278 ordered a new inquiry in which they would participate.²⁶

Ordinarily, two pesquisidores and a scribe who transcribed the proceedings were appointed. Except for illness or hostility to one of the parties, no one could excuse himself from accepting this responsibility. Depending on their appointment and the scope of their task, they were entitled to the honor and protection accorded to royal or municipal judges. Either the king, the litigants, or the municipality would pay their expenses. An examiner who encouraged witnesses to lie would be severely punished (E 4, 11, 2–6, 10–16; SP 3, 17, 2–8, 10–12).

The pesquisidores summoned upstanding and knowledgeable members of the community to give pertinent information under oath within three to nine days. Each one had to swear to tell the truth concerning what he knew, what he had heard, and what he believed to be true (E 4, 7, 16; SP 3, 16, 25). Interrogated separately, each witness was forbidden to reveal his testimony until the investigation was complete. The written record, closed and sealed, was submitted to the judge or the king. If a person was accused, he should be informed so that he could prepare his defense. The king would decide how to proceed against a municipality (E 4, 11, 8–9; FR 2, 8, 3; SP 3, 17, 9; DO 4, 3, 1–2).

In 1261 Alfonso X, responding to a complaint by the municipality of Santiago de Compostela, chastised ecclesiastical officials for refusing to show the results of pesquisas generales to those accused. Instead, he declared that an inquest ought to discover the truth of church robberies, rape, burning of harvests, vineyards, and trees, disruption of highways, and wounding, seizing, or killing people. In explanation of his decision, he provided texts of the Espéculo (4, 11, 5–12) relating to these matters.²⁷ As the Partidas was not yet complete, the Espéculo remained in force.

The complete transcript of an inquest executed in 1280 in the quarrel between the monastery of Oña and the town of Frías occupies thirty-five printed pages. Marín Pérez, alcalde of Burgos, the royal alcalde Juan Iñíguez, and Juan Pérez de Frías carried it out. Oña presented seventy witnesses, and Frías, thirty-eight. After each witness was identified by name, residence, and status in the community, he swore to tell the truth. Many mentioned that their knowledge extended back for ten, twenty, thirty, or even forty-five years.28

Alfonso X justified his use of the inquest “so that the truth of things might not be hidden” (SP 3, 17, pr., 1), but the searching nature of royal inquests prompted the Cortes of Seville in 1281 to object to “enquisas de mascarade” (inquests of deceit).²⁹ In 1283 he rewarded Murcia’s loyalty by cancelling all pending inquests there.³⁰ The Cortes of Palencia convened by Sancho IV in 1286 declared that parties named in a closed, general inquest should be informed so they could be heard and judged according to law (art. 7).³¹

The presentation of appropriate documents was also an accepted form of proof. Most valuable was an original text bearing the seal of the king, another person, or an institution as a sign of authenticity. Also acceptable was a charter containing a text written on the top and bottom of the page and separated in the middle by the letters ABC. The charter was cut through the letters, and each party received half. Authenticity was demonstrated when the halves were presented later and the letters fitted neatly together. Confirmations of charters issued by the king or his predecessors were also admissible, as was a true copy made by a public scribe or the chancery and properly sealed (SP 6, 15, 18). Royal privileges were valid during the king’s lifetime, but Alfonso X, during his early years, ratified many charters of his predecessors. Charters contrary to the Catholic faith, natural law, the law of the land, royal rights, the common rights of the people, or copies lacking the royal seal were invalid. Charters issued by excommunicates or obtained by falsehood, fraud, or deceit, or directed against women, minors, and the aged and infirm were rejected. A charter initiating a lawsuit was valid for ten years, provided that all the parties were living (E 4, 6, 1–25; SP 3, 18, 25–55; FR 2, 9, 1–8).³²

For the guidance of notaries and scribes the Espéculo (4, 12, 13–45) and, more elaborately, the Partidas (3, 18, 56–110) presented examples of how charters should be drafted for all kinds of transactions: conveyances; sales; exchanges; donations; transfers; leases; loans; rentals of houses, vineyards, and orchards; hiring workers; forming partnerships; division of land among several persons; payment of debts; making peace or a truce; giving one’s daughter in marriage; parental consent to marriage; dowries and the marriage portion; entry into a religious order; securing the services of a retainer; emancipation of slaves; adoption; guardianship of minors; letters of procuration; inventory of the property of a deceased person; wills and codicils; compromises and arbitration; the final judgment by a court and appeals. Whereas the examples in the Espéculo were couched in generic terms, those in the Partidas were often issued in the name of actual royal judges, while others were impersonal. As I suggested previously, these notarial formulas may have been gathered in the king’s “book, which was made por corte in Palencia” in 1255.33

The authentication of documents was essential to determining the truth or falsity of claims. Scribes, therefore, were responsible for accurately recording privileges and charters and the testimony of witnesses. As the seal affixed to a document was another sign of authenticity, custody of the seal and the responsibility of sealing were assigned to trustworthy persons. Just as the king appointed municipal scribes, so too he named sealers and fixed their compensation at six dineros of the moneda comunal. Sealers in the royal chancery received a maravedí for a privilege and a half maravedí for a charter (E 4, 13, 1–4; SP 3, 19–20).

In 1253 Alfonso X required the archbishop of Compostela to submit charters of Fernando III that he cited in support of his case against the municipality.³⁴ The presentation of charters on behalf of the bishop of Burgos helped royal officials partition a village near the city in 1278.³⁵ In the quarrel between Oña and Frías, Oña’s personero presented three privileges, four charters, and four cuadernos. However, as two of the charters lacked a seal or sign, and another had two signs but no seal, their authenticity was questioned. The personero of Frías had a privilege sealed with Alfonso VIII’s leaden seal and a charter sealed with Fernando III’s wax seal. All were accepted as authentic.³⁶

Judgment and Appeal

In 1254 the king declared that once arguments were completed, the alcalde should render judgment “so that each party should have his rights.”³⁷ Before doing so, he was advised, especially in great pleas and those involving the death penalty, to seek the counsel of intelligent, virtuous men who knew the law. If their advice was helpful, he should act on it (E 4, 10, 1–3; SP 3, 21, 1–3).³⁸

The judge’s definitive judgment “should be certain and right as the laws of our book command, and the truth of the matter should be examined, scrutinized, and established” (SP 3, 22, 3). The litigants should be present, but he could pronounce sentence in the absence of either one. Given the solemnity of the event, he should act in the daytime, while seated in his usual place. He ought to read his decision aloud, but if he could not read, he could ask another person to do so, and then confirm it orally. Each litigant should receive a copy, and the court should retain another. Written in easily understood language, the decision should state clearly that the defendant was released from or held responsible for, either in whole or in part, the claim made against him. After declaring sentence, the judge could not change it except, on the same day, to clarify it by inserting information previously omitted. If a defendant was too poor to pay a fine, the judge, out of compassion, could excuse him, thereby altering his decision (E 5, 13, 1–10, 18; SP 3, 22, 1–5; FR 2, 13, 1–6; 2, 14, 1–3).39

According to a chancery formula, Fernán Matheos, the royal alcalde of Seville, after hearing the plaintiff’s demand and the defendant’s response, affirmed that he listened to witnesses, examined documents, reviewed arguments, sought the counsel of men learned in the law, and then summoned the parties to hear his definitive judgment, namely, that Domingo surrender to Pedro a house or land that was rightfully his (SP 3, 18, 109; FD 3, 1, 7–8).

Following that formula, in 1261, Alfonso X rendered what he hoped would be a final judgment in the controversy between the archbishop of Compostela and the city council:

We, having heard the arguments, both oral and written, and the pleas already begun by demand and response;… and having reviewed the charters and writings and materials that both sides showed us; and having taken our consent and our counsel with… our brothers…, our magnates and our judges and other good men of our court…: we judge and we command and we hold as right that the agreement made by… King don Fernando… is entirely valid as was stated in the charters sealed with the leaden seal in Seville… in the era 1288 [1250]; and that the later agreement made by the archbishop and chapter with the council of Santiago in charters divided by ABC in the era 1288 is not valid.

Using similar language, he pronounced judgment on thirty-six separate issues. Anyone violating his decision would be fined ten thousand maravedís. The archbishop and the city council received copies (fourteen printed pages) of the document sealed with his leaden seal.⁴⁰

More than likely, the task of hearing cases and fashioning the definitive judgment fell to professional jurists. For example, a royal charter of 1254 restricting use of the inquest in Oviedo bears a notation that Fernando Fernández, alcalde del rey, acting on the king’s command, ordered that to be done.⁴¹ If a case involved less than ten maravedís, the judge could issue an oral decision. He could also act summarily to place minors, widows, and others in possession of their property. If he could not reach a decision, he should send a sealed copy of the proceedings to the king for judgment. Judges were admonished, however, not to shirk their responsibilities by turning to the king. If a judge concluded that a plaintiff brought suit out of malice, he could decide against him and order him to pay costs incurred by the defendant (SP 3, 22, 6–11).

Just as physicians sometimes erred in prescribing medicines, judges also made mistakes. For example, a decision was invalid for these reasons: it was not in the proper form; or was based on false testimony or forged documents; or failed to address the plaintiff’s complaint; or was founded on a fazaña; or the judge was standing, rather than sitting, or in an inappropriate place, or acting at the wrong time; or he lacked jurisdiction. When several judges disagreed, the majority decision should be followed. If they were equally divided concerning the amount of money required of the defendant, they should exact the lesser amount because they should always be merciful. For the same reason, they should always favor a person’s freedom (E 5, 13, 12–13, 15–17; SP 3, 22, 12–18).

A definitive judgment justly declared had the force of law, and the litigants were obliged to obey it. However, the subsequent loss of property in dispute or accounting errors might necessitate some alteration of the original judgment. If no appeal was undertaken, the judgment would remain in effect even if new documents were discovered that might have caused the judge, if he had seen them, to render a different decision. However, new evidence affecting a judgment against the king could be presented within three years. A just judgment continued in force even after the death of the king or the judge. The heirs of the one in whose favor it was given had thirty years in which to claim any property awarded (E 5, 13, 19–22; SP 3, 22, 19; FR 2, 14, 1–3).42

A judicial decision could be appealed to the king. In the Cortes of Seville in 1253 (art. 1), Alfonso X assured the Leonese towns that if a plaintiff could not obtain satisfaction in court, he could appeal to the local bishop; if still not satisfied, he could ask the bishop to petition the king to do justice. In that same year, the city council of Compostela protested that the archbishop would not allow an appeal to the king, but the archbishop’s representative contended that an appeal was permissible only after judgment was rendered (ley 5). Determined to uphold his right to hear appeals, King Alfonso demanded that the archbishop produce Fernando III’s charter allegedly justifying his position (ley 9).⁴³ In 1254, the king informed Toledo that if a litigant was displeased with the judge’s decision, the judge could review it with a body of good men, so that each party could have his rights.⁴⁴

The Alfonsine Codes outlined the process whereby every free man could make an appeal.45 No one could appeal a sentence involving the death penalty (FR 2, 15, 1–9; LEst 163). A parent or guardian of an orphan or of someone mentally incapacitated or the owner of a slave could appeal on his behalf. So too could anyone who might be affected negatively by a judgment; for example, a beneficiary who would lose his legacy if a will were nullified. A litigant who failed to attend the appellate court would lose his appeal and be deemed a rebel. If the court upheld the original judgment, the appellant would have to pay his opponent’s costs. A municipal council could appeal to the king concerning the negligence of royal officials. An appeal could be carried from a lower court to a higher one, but one could bypass those intermediate steps and appeal directly to the king. No one could appeal from the judgment of the king (or an emperor) because he had no temporal superior and, as a lover of justice and truth, he was surrounded by men learned in the law so that everyone should know that his judgment was right and complete. Yet one could always appeal to his mercy. As the adelantado mayor of the royal court was superior to all other judges and could call upon prudent men learned in the law, no one could appeal his decisions (E 5, 14, 1–12). Many appeals to the royal court might be heard by judges who daily adjudicated cases, but if more than five hundred maravedís were involved, the king should be informed. If he could not personally attend to it, the adelantado mayor should do so. The king could always ask the adelantado mayor to suspend his judgment as a matter of mercy. Although the Fuero real (2, 15, 5) stated that a judgment involving less than ten maravedís could not be appealed to the king, he was expected to personally hear the appeals of widows, orphans, the poor, the aged, and once wealthy persons now impoverished (SP 3, 23, 1–19).⁴⁶

When the aggrieved party asked for an appeal, the judge, within three days, should describe the case in writing and ask the appeals court to assign a date for a hearing (FR 2, 15, 1–2; E 4, 12, 45). Once a decision was announced, a litigant should say “I appeal,” or present a letter to the judge asking him to address a letter of appeal to the king within three days. Taking festival days into account, the appeal ought to be heard within two months. If the appellate judge confirmed the original judgment, it was accepted as just and in accordance with the law. The king might set aside a sentence when he wished to show mercy or favor, even if no appeal were made. Judgments against minors under twenty-five or their guardians could also be nullified even though they had not been appealed. Judgments based on false charters, false proofs, or contrary to law were also declared invalid, while true and authentic sentences had to be carried out (SP 3, 23, 22–29; FR 2, 15, 9).

A chancery formula reported that Don Marín, alcalde of Burgos, gave judgment in favor of the abbot of Oña against Gonzalo Ruiz, who appealed to the king. Fernando Yuañes (Ibáñez) el Gallego and Domingo Yuañes (Ibáñez),47 auditors (oydores) and judges of appeals (judgadores de las alçadas) in the royal court, reviewed the decision, heard the appellant’s arguments, consulted good men knowledgeable in the law, and confirmed the original sentence (SP 3, 18, 110).⁴⁸ In 1271, a trial judge issued a sealed charter granting the appeal of the villagers of Gradefes in their dispute with the monks of Eslonza and set a date for the personeros of both parties to appear before Fernando de la Cerda. After hearing their arguments, he rejected the appeal, confirmed the original judgment, and ordered Gradefes to pay court costs of three hundred maravedís. Alfonso Martínez, the royal alcalde, who probably heard the case in the infante’s name, recorded the decision. Also in 1271 Fernando overturned the decision of the trial judge in the quarrel between the monastery of Vega and the men of Benavente. Martín Amador, alcalde del rey, probably heard the appeal in the prince’s name.⁴⁹

The Ordinance of Zamora in 1274 (arts. 19–21) provided for three judges to hear appeals from the entire realm, except for Castile, where appeals would be carried from the ordinary royal judges to the adelantado mayor of Castile and ultimately to the king. Leonese appeals would be resolved according to the Fuero Juzgo. The right of appeal to the royal court within three days was guaranteed, but the appellant had to swear that he was not maliciously trying to prolong a suit (E 4, 2, 11; SP 2, 9, 19; 3, 23, 17–20).

The Courts in Session

The extant records of actual lawsuits reveal that the procedures described above were generally followed. Those records, including arguments, oaths, interrogatories, cartas de personería, and other documents, and the testimony of witnesses, likely filled many pages, but complete documentation relating to most cases has disappeared. Nevertheless, the one hundred printed pages recording the suit between Oña and Frías suggest what a comprehensive record looked like. Existing records are generally summaries of the disposition of cases redacted for the benefit of the court and the litigants. As such, they usually adhered to a certain formula. Ordinarily the text began with the phrase “Let all those who see this charter know that, concerning the dispute (contienda)….” The king then summarized the case and declared that the litigants, responding to his summons, appeared before him in person or through their personeros on the assigned day. Whereas the names of personeros are always given, those of advocates are never mentioned, despite their prominent role in the Alfonsine Codes. While it is possible that a personero may also have acted as an advocate, it is more likely that arguments attributed to the personero were actually made by an advocate. Probably following the libelli presented by the litigants, the document then outlined the plaintiff’s demand and the defendant’s response. After oral arguments were heard and closed (the encerramiento de las razones), the king examined documents, the testimony of witnesses, and the sureties given, and then consulted with his brothers, sons, prelates, magnates, and sabidores de derecho of his court. Employing the formula “tuve por bien et mandé” or “tengo por bien et mando” or “judgamos et mandamos” (“I held [or hold] it to be right and I commanded [or command],” or “we judge and we command”), he pronounced judgment and threatened with a penalty of ten thousand maravedís anyone who infringed it. Following the date, one or more alcaldes del rey ordered the document to be recorded in the king’s name. In all probability they actually heard the pleading, assessed the evidence, and pronounced judgment on his behalf.

Boundary disputes were commonly brought to court. In 1253, for example, the king confirmed the boundaries between lands of the Orders of Alcántara and the Temple in Extremadura. Gonzalo Vicente and Fernando Mateos, alcaldes del rey, announced his decision.50 He also settled boundary conflicts between the Order of Alcántara and Toledo; Alcántara and Badajoz;⁵¹ the Order of Calatrava and Córdoba;⁵² Toledo and Talavera;⁵³ and Cuéllar and Portillo.⁵⁴ Sometimes Moors appointed by the emir of Granada were asked to identify boundaries as they existed under Muslim rule.⁵⁵

The royal court resolved other issues. For example, in 1258 Garcí Guillén, commander of the convent of San Clemente of Toledo, and two men from Talavera, with their respective cartas de personería, presented their quarrel concerning a bridge built across the Tagus River by the nuns. Pronouncing judgment for the nuns, the king directed Talavera to reconstruct the bridge, restore it to the convent, and pay the nuns twice the cost of knocking it down and all other damages.⁵⁶ The bishop of Osma and the city council contended over episcopal rights;⁵⁷ Archbishop Remondo of Seville and the magnate Roy López de Mendoza fought over vineyards;⁵⁸ Oviedo demanded payment of taxes by servants of the bishop;⁵⁹ and the villagers of Humanes protested the lordship claimed by the Order of the Hospital.⁶⁰ The king ruled in 1262 that the bishop of Zamora could not claim as vassals persons living within the municipality of Toro.⁶¹ Infante Fernando similarly upheld the rights of the abbey of Samos to certain vassals. Martín Amador, alcalde del rey, probably heard the arguments and issued the judgment in his name. Fernando also decided in favor of the bishop of León’s possession of a church and upheld the tributary rights of the collegiate church of San Isidoro de León.62

The issue of ecclesiastical jurisdiction arose in 1254 when the Orders of Alcántara and the Temple contended for possession of Ronda on the Tagus River. Alfonso X prohibited three judges delegate named by the pope from inquiring into this affair, because issues relating to the royal domain or donations by his predecessors were not subject to the church’s judgment. For the first time in a royal document that I know, he added: “Leida la carta, dadgela” (Having read the letter, obey it). Despite that, the judges delegate persisted in their effort to adjudicate the matter.⁶³ In response to other charges by the Templars against Alcántara, the king directed two judges to investigate and to submit their report to him for judgment.⁶⁴

Resolution by Arbitration

The alternative to adjudication by a court was arbitration, a procedure that was quite common, perhaps more so than a court trial. The main reason for that, as the king remarked, was the expense of bringing suit in a court of law and pursuing it through judgment and a possible appeal. Arbitration might also preserve positive relations between the litigants that might otherwise be frayed by a court trial. At times, the king was asked to act as arbiter, but usually the parties chose one or more persons; the king might add another impartial arbiter. The parties had to agree beforehand to abide by the decision of the arbiters and to give sureties that they would do so. The sureties not only guaranteed acceptance of the decision, but also payment of a fine for failure to agree to it.⁶⁵ Arbiters, sometimes employing the inquest, also decided a variety of quarrels concerning tithes, first fruits, and other offerings, tolls, pasturage, the use of woodland, and water rights.⁶⁶

The most extensive record of a lawsuit settled by arbitration concerned the monastery of San Salvador de Oña and the town of Frías and occupies one hundred printed pages. Their dispute originated in the early thirteenth century when Alfonso VIII exchanged certain lands with the monastery and established the royal town of Frías. After initiating their suit in the royal court, the monks agreed to submit it to arbitration. As arbiters, they designated the alcalde Juan Iñíguez, and Frías chose the alcalde Juan Pérez; both sides added Marín Pérez, one of three alcaldes of Burgos nominated by Alfonso X. The three arbiters were directed to carry out an inquest, but it was delayed when Frías demanded that it should be conducted from the death of Alfonso VIII onward. In July1271 Fernando de la Cerda (or Diego Pérez, alcalde del rey, acting in his name) ordered the arbiters to commence the inquest on 1 September and send him their sealed findings. Although the completed inquest was sent to the king, he failed to act on it and the document was lost. When Abbot Pedro complained, Alfonso X, in April 1278, ordered Marín, the royal alcalde of Burgos and one of the original pesquisidores, to send him the text. This mandate was drawn up by the royal alcalde Juan Iñiguez.67

Despite that, the issue was still pending several years later. The king delegated it to Infante Sancho, but as he was hastening to the frontier in 1280, he directed the monks and townspeople to submit their quarrel to arbitration. Each side nominated an arbiter, and Sancho added Marín, alcalde of Burgos. All three were instructed to review the earlier inquest. The monks and the townspeople agreed to accept the arbiters’ decision, on penalty of two thousand maravedís. Each party also named four trustees to guarantee acceptance of the decision.⁶⁸

In mid-July the arbiters began to listen to arguments presented by Pedro Pérez, the monastery’s personero, and Domingo González, personero of Frías. The hearing resumed in early September and continued through October. Designating Domingo as “nuestro procurador e nuestro personero cierto,” Frías pledged to accept whatever he said or did. In a similar carta de person-ería the monks gave Pedro Pérez “lenero e complido poder,” that is, full and complete power, to act on their behalf.⁶⁹ Occasionally, the arbiters asked both men to swear the oath of manquadra, declaring that they would speak the truth and not resort to falsehood. In addition to presenting documentary evidence, the personeros referred to statements made by the more than one hundred witnesses summoned to the inquest.

Pedro Pérez of Oña, among other arguments, cited the prohibition attributed to the Curia of Nájera that ecclesiastical lands should not pass to the royal domain. Domingo González, however, countered that Alfonso VIII, as lord of the realm, was justified in acquiring lands from Oña, through exchange, in order to found the town of Frías. Pedro also argued that Frías used violence to subject many of Oña’s tenants to vassalage, but Domingo asserted that they freely chose to submit to Frías. Rejecting Frías’s reliance on the Fuero del libro or Fuero real (2, 11, 1–10), which recognized ownership after occupation for a year and a day, Pedro stated that according to the canonical rule of prescription, the monastery could not lose rights that it had enjoyed for forty years or more. This citation implies that despite the challenges made at the Cortes of Burgos in 1272, the Fuero real continued in use in Old Castile. The Leyes del estilo (242) also cited this law.

At last, on 13 February 1281 two of the arbiters, Marín Pérez, alcalde of Burgos, and Mathe García of Oña, rendered their decision, which generally favored San Salvador de Oña. Infante Sancho confirmed it on 27 February.⁷⁰ Then, on 2 April 1281, Roy Pérez, a ballestero in Sancho’s service, acting on his command, put the monks in possession of the lands and rights determined by the arbiters.71 Two days later Alfonso X directed the merino of Castile to deliver the lands in question to the monks. In May of the following year, Infante Sancho reiterated that order. Despite that, Frías was dissatisfied with the outcome, and the matter dragged on into the reign of Sancho IV.⁷²

Que Cada Una de las Partes Aya Su Derecho

In the foregoing pages we have reviewed the process of fazer derecho—doing right—outlined in the Alfonsine Codes. The task of the court was to guarantee “que cada una de las partes aya su derecho” (that each one of the parties should have his rights).⁷³ The litigants, responding to a formal summons, made their way to court, where, if there was no objection to the impartiality of the judge, the plaintiff initiated his suit by presenting his demand and the defendant responded. The judge might require them to swear the oath of manquadra whereby they affirmed their intention to tell the truth and to shun any falsehood. Christians, Jews, and Muslims, when brought before a judge, had to swear an oath tailored to their specific religious beliefs. Throughout the proceeding the judge could attempt to elicit the truth by interrogating the litigants and witnesses. When the issue to be decided became clear, he had to determine the method of proof and then whether the proofs offered were sufficient, conclusive, and valid. A simple acknowledgment of the facts by the defendant might easily resolve the matter, but the judge had to be certain that the defendant acted freely and truthfully. Some cases probably required something more. A few witnesses might be summoned, or a more searching inquest might be undertaken. In each instance, the judge had to consider the witness’s demeanor and determine the veracity of his testimony. Documentary proof might seem irrefutable, but forging documents to bolster one’s claims was a notorious practice. The task of establishing the authenticity of documents was very serious. When all the arguments were finished and all the evidence presented, the judge had to render sentence, but before doing so, he was advised not to rely solely upon himself, but to seek the counsel of good men, especially men learned in the law. The observance of proper decorum in pronouncing judgment was intended to emphasize the solemnity of the occasion. Once he announced his decision, he was expected to order steps to be taken to enforce it. However, should either party wish to appeal the judgment, the judge had to notify the appellate judge and forward to him a complete record of the suit.

Whether settled by the sentence of a judge in a court of law or resolved by arbitration, the procedures delineated by Alfonso X and his jurists were intended to fazer derecho in an orderly and timely manner that would guarantee a fair and honest hearing to both plaintiff and defendant. Ideally, once final judgment was pronounced, each side, whether pleased or not by the verdict, should come away believing that he had received what was rightfully his and that justice was served.