CHAPTER 9

Marriage, Family, and Inheritance

Betrothal and Marriage

Marital law, based on ancient custom and Roman law, was embodied in the Visigothic Code and the municipal fueros. Marriage was viewed as a civil contract, but in the twelfth and thirteenth centuries the church, emphasizing its sacramental character, attempted to regulate it. Whereas the Fuero real reflected customary law, the Fourth Partida, following canon law, especially the writings of Ramon de Penyafort and Gregory IX’s Decretales,2 commented on betrothal, marriage, dowries, consanguinity, marital impediments, the dissolution of marriage, and related topics (SP 4, 1–12). As historians of canon law have thoroughly explored these subjects, I will not do so, except insofar as they reflect conditions in thirteenth-century Castile.3 The Espéculo treated marriage in the missing seventh book.

According to the royal jurists, God honored man above all other creatures by creating him in his own image and likeness and by giving him a woman as his companion. Although their bodies differed according to nature, their love would make them one, and their descendants would populate the world. The exposition of marriage, the first of the seven sacraments, “ordenado por Dios Mismo en el Parayso” (established by God in Paradise), was placed in the midst of the other six Partidas, “just as the heart, where the human spirit, whence comes life to all the other members, is placed in the middle of the body” (SP 4, 1, pr.).4

The marital union was initiated when two people were betrothed in accordance with the wishes of their families. The imposition of a penalty if the marriage was not solemnized was rejected because one should not enter marriage “out of fear of punishment, but out of the love and consent of both parties” (SP 5, 11, 39). Though their opportunities to become acquainted before marriage were limited, children were expected to be betrothed to others of equal rank. The church’s ban on marriages between persons related up to the seventh degree of kindred complicated the search for a spouse, but the Fourth Lateran Council in 1215 (canon 51) altered the rule to the fourth degree, thereby expanding the pool of eligible partners (SP 4, 6, 1–6).5

Children could be betrothed as early as seven years of age, because they were deemed capable of giving consent, though they surely did not understand the commitment that marriage entailed. Boys could marry at fourteen and girls at twelve (SP 4, 1, 1–6).6 In 1266 when Fernando de la Cerda was eleven years old, his procurators contracted marriage with Blanche, Louis IX’s daughter, then thirteen, but the marriage was not solemnized until three years later.7 The bridegroom’s gift of a ring to his bride, as tangible evidence of his intention to marry her, is illustrated in CSM 42. A young man, preparing to play ball, for safekeeping placed his ring on the finger of a statue of Mary. When he married, Mary reminded him that he was pledged to her; thus, leaving his wife, he became a hermit.8

A girl could not marry without her parents’ consent.9 Should she do so, she would be disinherited.10 If only one forgave her, she would share in that parent’s estate, or in the estate of both, if only one parent was living. After reaching her majority at twenty-five, she was free to marry as she wished. The brothers of an orphaned girl, out of a greedy desire to retain her property, could not withhold their consent, unless she intended to marry their enemy. The man who married her without her family’s approval became their enemy. She could also be disinherited if she dishonored her family by marrying an unsuitable person (FR 3, 1, 2, 5–6, 8–10, 14). A girl could not be compelled to marry, but if she rejected a worthy suitor, her father could disinherit her. Should she die before marriage, her father ought to offer another daughter to the groom. Although the bishop could compel a recalcitrant party to marry as promised, there were exceptions, for example: if one wished to enter a monastery, disappeared for three years, contracted leprosy, or became blind, deformed, or seriously injured; if the parties became related within the prohibited degrees; if both agreed to separate; if one was guilty of fornication, or was betrothed to more than one person, or ran off with someone betrothed to another; or if, on reaching legal age, they chose not to marry (SP 4, 1, 7–12).

CSM 135 tells of a boy and girl who vowed to be married, but their parents refused permission. Instead, the girl’s father arranged her marriage to a rich man, but when she told him of her childhood vow, he did not attempt to consummate the marriage and pledged to help her find her young man. Once he was found in Montpellier, they were duly married in church with a priest presiding. The final illustration shows the newly married couple in bed, nude from the waist up, and the caption tells us that “the bridegroom did as a man does with his bride when they are at their ease.”11

Given ongoing frontier warfare, many wives were likely widowed at an early age. Husbands, summoned to military service, were often absent for weeks and months, or even longer if they were captured and sold into slavery. Many died, leaving widows behind. No longer subject to a male relative, a widow enjoyed a degree of personal freedom. Supported by her dowry and arras, and having usufruct of her deceased spouse’s property, she could maintain her household. In 1256 and 1264 the king guaranteed widows of urban knights tax exemptions granted to their husbands. However, a widow who married a taxpayer would lose those benefits.12 Widows, seeking the emotional and economic support and legal protection of a new husband, risked losing custody of their children to a near relative. If a husband presumed dead returned home, he could sell both his remarried wife and her new spouse into slavery or punish them as he wished, except kill them. If his death was confirmed, she could remarry without her family’s concurrence, provided that she first observed a year of mourning. Should she violate that rule or behave wantonly, she would be condemned as a wicked woman. The king, however, perhaps thinking of potential political alliances, permitted a widow to remarry within the year after her husband’s death. If a woman and her lover killed her husband, they could not marry (FR 3, 1, 3–4, 11–13; SP 4, 12, 3).13

Marriages should be carried out publicly according to the rites of the church (FR 3, 1, 7). The king effectively yielded jurisdiction over marital cases to the church when he stated that anyone involved in a suit concerning marriage could not marry until it was resolved by an ecclesiastical court. Inasmuch as secret marriages or marriages contracted without parental consent often resulted in enmity, the church prohibited them. The king’s use of the word defendemos to prohibit secret marriages, and his establishment of a penalty for doing so, suggests that he enacted a separate law on this matter. Perhaps he alluded to the Fuero real (3, 1, 1), which fined the guilty parties one hundred maravedís, payable to the king, or placed their goods and persons at his disposal. Without mentioning monetary penalties, the Partidas declared that a man who dishonored a girl’s parents by secretly marrying their daughter should be handed over to them with all his property to serve them throughout his life. They were forbidden, however, to kill, wound, or harm him, but should be content with his permanent disgrace (SP 4, 3, 5).

Marriage between Christians and non-Christians was particularly relevant to Spain. As marriage was a sacrament, Christians were forbidden to marry heretics, Jews, or Muslims, but marriages among Jews or Muslims were valid. A marriage could not be dissolved if one spouse became a heretic, a Jew, or a Muslim, or committed adultery. A Christian could marry a Jew or a Muslim if his bride promised to convert to Christianity before marriage. As the rules of consanguinity applied only to Christians, Jews or Muslims related within the prohibited degrees would not be required to separate if they accepted Christianity. If one spouse converted, but the other refused and consistently denigrated Christianity, the Christian spouse could leave the marriage and remarry (SP 4, 2, 7, 15; 4, 4, 4; 4, 6, 6; 4, 10, 3). That accorded with the so-called Pauline Privilege enunciated by St. Paul (1 Cor 7:10–15).

A marriage was contracted in language like that used in Murcia in 1268:

I, Bernat Cadireta, a moneyer, in the name of the Father, the Son, and the Holy Spirit, give to you, Ramoneta, daughter of Ramon de Belloc, by these present words, my body as a loyal husband, and I receive yours as a loyal wife, as the law of Jesus Christ wishes, and as Mary and the Apostles St. Peter and St. Paul confirm it, and as Holy Church established and ordained it. And I, the said Ramoneta, in the same manner, give to you the said Bernat Cadireta, my body as a loyal wife, and I receive yours as a loyal husband.

The couple, out of their mutual love, pledged to live together and share equally whatever property they possessed or would acquire. At the time of death, each could bequeath half of it. Both affixed their sign in the presence of five witnesses, including a priest of Saint Bartholomeu church, who probably presided at their nuptials. Sadly, the marriage ended four years later with Bernat’s death. At that time royal judges upheld Ramoneta’s claim to half of their estates.14

CSM 135 depicted the public celebration of a wedding, as the church required.15 Kneeling before the altar, the bride and groom received the priest’s blessing. A banquet, such as that portrayed in CSM 42, usually followed the ceremony. The burgeoning problem of inflation, however, prompted Fernando III, in the Cortes of Seville in 1250, to curb extravagance at weddings. If a man seeking to arrange the marriage of a female relative, perhaps one less desirable, offered or received a gift, he would be fined double the value and fifty maravedís. A man was forbidden to give more than sixty maravedís for wedding garments to a prospective bride if she were a virgin, or no more than forty if she were a widow. The number of guests at the wedding banquet was limited to ten, divided equally between the bride and groom. If more were present, a fine of ten maravedís was levied, seven for the king and three for the one who made an accusation in good faith.16 The municipal council of Madrid had enacted a similar ordinance in 1235.17

During the Cortes of Seville in 1252 (art. 13), and again at Valladolid in 1258 (art. 45), Seville in 1261 (art. 31), and Jerez in 1268 (art. 40), Alfonso X repeated, with some modifications, his father’s strictures. The fine for arranging a marriage was increased to one hundred maravedís. The groom might still spend fifty maravedís for his bride’s trousseau, whether she was a virgin or a widow, and each party could invite five guests to the wedding banquet, not counting their parents, witnesses, godparents, and servants. The person who raised an orphaned bride or groom could stand in place of a parent. The wedding celebration was limited to two days. That austerity seems to have been forgotten in 1278 when Infante Sancho asked the city council of Burgos to permit his chamberlain to import fifty casks of new wine for his wedding.18

The bride and groom customarily exchanged gifts to establish a foundation on which they might live.19 Her family provided her with a dowry (dote) that gave her equal standing with her spouse and provided her with essential financial support in her widowhood.20 The amount was a sign of her family’s wealth and position and obviously made rich young women more attractive partners than others. Fernando de la Cerda named a procurator in 1270 to collect the dowry of ten thousand livres tournois that Louis IX promised to his daughter Blanche.21 In 1282 Juan de Montpellier, a physician, his wife, and her three sisters sold land for two hundred maravedís to Pedro Sarracín II, dean of the cathedral of Burgos, to pay the dowry of a fourth sister.22 In reality, the husband determined how his wife’s contribution to the marriage would be used. The Fuero real did not discuss her dowry, but the Fourth Partida, following Roman law, stated that she might provide the dowry from her own estate (adventitia) or that of her parents or other family members (profectitia). Should the marriage be terminated by divorce or her husband’s death, the dowry would revert to whomever provided it (SP 4, 11, 1–2).23

The dower or marriage gift (dotarium) given by the husband to his bride, and known in Spain as arras, has been likened to the Germanic bride-price whereby a man effectively purchased a woman from her family.24 As the dower’s purpose was to support her after her husband’s death, it remained under her control. When Fernando III married his second wife, Jeanne of Ponthieu, in 1237, for example, he endowed her with estates in Andalucía, but Alfonso X, soon after his accession, reclaimed those lands for the royal domain.25

Following the invocation of the Trinity, a charter concerning arras ought to state that marriage was the first ordinance made by God when he created Eve from Adam’s rib. Citing biblical passages emphasizing the union of husband and wife (Gen 2:24; Mk 10:9; Mt 19:6; 1 Cor 7:1–16), the man should specify the amount of her arras and declare that she would share equally in whatever God granted them as husband and wife. A record of their respective estates on their wedding day should be prepared so that if either one died, all would know what each brought to it. The charter, sealed and witnessed, should be given to his bride (E 4, 12, 39). In another formula, Juan García gave five hundred maravedís as arras for Teresa, the daughter of Martín Esteban, who promised to secure her consent to the marriage within two months and to endow her with estates. If the marriage did not take place, Juan García would forfeit the arras. In still another formula Juan García and Teresa agreed to marry, and as customary, he placed a ring on her finger. Teresa gave him a dowry of five hundred maravedís that he pledged to return if their marriage was terminated by death or otherwise (SP 3, 18, 84–87).

The Fuero real limited the amount of arras at a tenth of the man’s estate. The estate of Juan García of Burgos must have been substantial because, in 1275, he promised to give his bride one thousand maravedís as arras.26 After a wife died, a quarter of her arras could be offered for her soul, but the remainder would pass to her children. If there were none, the husband could use the arras as he wished. If she was under twenty-five, her parents had to preserve her arras until she reached her majority. Should her husband die before they were intimate, but he had kissed her, she could retain half his gifts of clothing or other items but had to return the rest to his family. If he had not kissed her, she had to return everything, including arras. Conversely, if she gave him anything, whether he kissed her or not, but they were not otherwise intimate, he had to return it. If she died and they had been intimate, he could keep her gifts. If she was guilty of adultery or abandoned him, he could reclaim her arras (FR 3, 2, 1–6; FJ 3, 2, 6).

A fazaña concerning Elvira, espoused to a knight who gave her several gifts, exemplified that law. As the marriage was never celebrated, he demanded their return. When she refused, he complained to Diego López de Haro, adelantado of Castile, who offered Elvira two options. If she had kissed and embraced the knight, she could keep his gifts, but if not, she had to return them. Declaring that she had not, she gave them up (LFC 241; FV 5, 1, 4).27 The arras of twenty thousand maravedís given to Berenguela López, the daughter of Lope Díaz de Haro, by her husband, the magnate Rodrigo Gonzálvez Girón, was especially high. In 1258 she sued her deceased spouse’s executors to obtain the arras, but they argued that after paying his debts, only ten thousand maravedís remained. Alfonso X ordered that amount to be given to her as well as the income from the sale of certain properties of the deceased. In accordance with the Fuero real (3, 2, 1), he directed her to donate 2,500 maravedís, a quarter of the remainder of the estate, for her husband’s soul.28

In addition to her dowry, the bride might have personal property or paraphernalia,29 which could serve the common purpose of the marriage. Although she retained ownership, she could not dispose of it without her husband’s consent (SP 4, 11, 17).

Although the couple should share equally whatever property they acquired, the law did not absolutely establish the principle of communal property.30 The king might make a gift to both, but if it was intended for one partner, only that one should have use of it. A husband could also use as his own an inheritance, a gift, or a stipend received from the king for military service. However, if he and his wife paid the expenses of his service, they would share whatever he gained from it, for, as the cost was communal, so also should the profits be. This principle also applied to whatever a wife acquired on her own. Although one or the other might bring greater resources to the marriage, they were expected to exploit them together, but each one retained his or her inheritance, which would pass to their heirs (FR 3, 3, 1–3).31 The law recognizing the right of husband and wife to own property individually was transmitted to California and Texas.32

Whereas canon law acknowledged the validity of a marriage solemnized in the presence of a priest, as well as a clandestine marriage by consenting spouses, civil law accepted barraganía or concubinage. Like marriage, barraganía was a long-lasting relationship based on friendship, love, and fidelity, but it did not have equivalent legal status.33 While admitting that the church condemned concubinage, the royal jurists argued that ancient wise men decided that it was less wicked for a man to have one concubine, rather than several, so that the parentage of children might be more certain. In effect, barraganía regulated by law was a safeguard against polygamy. An unmarried man could take as a concubine a free woman over twelve who was not related within the prohibited degrees. If she were an honorable woman, he should declare his intention in the presence of witnesses; but he need not do so if she were of inferior rank, or an adulterer, or of ill repute. An unmarried adelantado mayor could take a concubine, but he could not marry a woman from the province that he governed, lest he be accused of threatening her father to give consent. Although kings and other great men kept concubines, they were advised not to contaminate their noble blood by taking up with slaves, freedwomen, minstrels, barmaids, hucksters, procuresses, or other degraded women. The bastard child of such a woman was not entitled to a share in the father’s estate (SP 4, 14, 1–3). The Espéculo (4, 7, 7) denied a married man who kept a known concubine the right to testify in court. The Libro de los fueros de Castiella (175) and the Fuero Juzgo (5, 6, 1) stated that a noble could ennoble his children by a concubine by giving them five hundred sueldos, but they would have limited rights of inheritance. CSM 104 related a tale of sacrilege as a barragana, discovering that her lover intended to marry another, planned to win him back by making a love potion with the Eucharistic bread. The Virgin Mary prevented her, however, and to atone for her sin she entered the convent.

Reading these guidelines, one ought to conclude that Mayor Guillén de Guzmán was Alfonso X’s barragana. In 1244 she gave him a daughter, Beatriz, who proved to be his favorite and, on her mother’s death in 1262, inherited her estates.34 Although he had children by other liaisons, his relationship with Mayor Guillén seems to have had some permanency even after his marriage to Violante of Aragón in 1249.

Like laymen, many clergy, notorious for their failure to observe the rule of celibacy, lived with barraganas.35 CSM 151, for example, told the story of a priest who pursued many women, but one night, while visiting his concubine, he was distracted by the sight of a church dedicated to Mary and thereafter gave up his wicked life. The Council of Valladolid convened in 1228 by the papal legate Cardinal John of Santa Sabina condemned concu-binary clergy, excluding them from any ecclesiastical office, excommunicating their concubines, consigning them at death to burial with animals, and disinheriting their children.36 The council’s decrees were quickly forgotten, however. Although the Partidas (1, 6, 53) prohibited clerics from keeping barraganas, in 1262 Alfonso X assured the diocesan clergy of Salamanca that their children and other direct descendants could inherit their estates.37 Eight years later, he legitimated the children of the clergy of the deanery of Roa in the diocese of Osma, and guaranteed their right of inheritance, provided that none of their property was given to the church or to a religious order.38 Little had changed when Juan Ruiz, archpriest of Hita (d. ca. 1351), mocked the plan of the clergy of Talavera to appeal to the king against the archbishop of Toledo’s decree forbidding them to live with women.39

Children, Legitimate and Illegitimate

Just as animals care for their young, the royal jurists argued, human beings should take even greater care of their children. Children, in turn, ought to love and fear their parents and look after them in time of need. The primary responsibility for children rested with the mother during the first three years, but thereafter with the father. If the parents separated, the one at fault had to provide for the children, while the other cared for them. If the mother remarried, her first husband should take charge of their children. Paternal grandparents or great-grandparents should assume that responsibility if the parents were too poor. Whereas the father had to support his mistress’s children, their immediate relatives were not obliged to do so, though they might out of courtesy. A father was not required to support a child who accused him of a major crime or a son who could live independently. A man who cared for a stranger’s children could not treat them as servants or, when they reached adulthood, demand payment for rearing them. Parents who abandoned a child could not reclaim it, unless they did so immediately and reimbursed those who provided for it (SP 4, 19, 1–7; 4, 20, 1–3).

Legitimate children could inherit family estates and aspire to public offices and were not exposed to the shame directed at illegitimate children. If, after a couple married, an impediment was discovered, their children already born would be legitimate, but not if the couple concealed the impediment by marrying in secret. A concubine’s children could become legitimate if her lover married her. An illegitimate child was denied any share in its parents’ estates. By declaring that the pope could only legitimate someone seeking priestly ordination, and by reserving to emperors and kings the right to grant legitimacy in the temporal sphere, Alfonso X limited spiritual authority. An example of a royal charter legitimating Remondo, the son of Remón Pérez by Doña Perona, guaranteed his right to inherit his father’s property and to be treated with the respect accorded to a legitimate son (SP 3, 18, 9).40 A father could legitimate his son in his will or in a notarized document or by offering him to the service of the king or a municipal council. A declaration of legitimacy erased all legal barriers to inheritance and public service (SP 4, 13, 1–2; 4, 15, 1–9; FR 3, 6, 1–2, 4, 17).41

The legitimacy of a child born after the death of a woman’s husband might be called into question. Relying upon the Greek physician Hippocrates (ca. 460–ca. 370 BC), who declared that pregnancy lasted no longer than ten months,42 the royal jurists asserted that if the woman had been living with her husband and gave birth within ten months of his death, the child would be legitimate. However, that would not be so if she gave birth on the first day of the eleventh month. A deformed child had the right to his parents’ inheritance, but a creature having the head or limbs of an animal could not. In that instance the king’s men perhaps gave too much credence to fairy tales about monstrous births.43 More realistically, they warned against a woman who, with an eye on a rich estate, tried to pass off her bastard as her deceased husband’s child (SP 4, 23, 4–5; 6, 6, 17).

Lacking children of their own, couples often resorted to adoption (porfijamiento).44 Roman law recognized two forms of adoption: adrogatio, the adoption of someone no longer under his father’s authority, and adoptio, adoption of one still subject to his father.45 Adoptive parents could not marry their adopted children; nor could their true children marry their adopted siblings (SP 4, 7, 7–8). However, adopted children could marry one another (FR 4, 21, 1–7). Any adult freeman could adopt a child eighteen years younger than he, but a woman could adopt only if she lost a son in military service. Minors, monks, and castrated persons could do so only with royal permission. The king’s consent was also required to adopt an orphan under seven, or a child between seven and fourteen. A guardian, lest he be suspected of a wicked purpose, could not adopt the boy in his care, though he could do so, with royal approval, after the boy reached twenty-five. If an adoption was annulled, the adoptee was entitled to whatever property he possessed at the time of adoption. An adopted child could also share in his adoptive father’s estate (SP 4, 16, 1–10).46 If, after adopting children, a man had legitimate off-spring, the latter would inherit his estate, but he could make other provision for those he adopted. If an adoptee died intestate before his adoptive parent, his estate would pass to his nearest relatives. He was also entitled to a fourth of the estate of his adoptive parent who died intestate (FR 4, 21, 1, 2–5; 3, 6, 5). The law concerning adoption was also accepted in the state of Texas.47

Although the title concerning adoption in the Espéculo (4, 7, 11) is not extant, there is a formula for adoption. If the adoptee was a married freeman and not subject to parental control, the adopting person, with the king’s assent, could designate him as his heir. If the adoptee was still under his parents’ authority, the local judge should grant the adoption (E 4, 12, 40). Two charters demonstrated a legal adoption. In the first, the child was still in his father’s power, while in the second he was not. Thus, Ruy Pérez, with the consent of Gonzalo Ruyz, alcalde of Toledo,48 adopted Fernando, the son of Garcí Pérez, who consented and, in a symbolic transfer of authority, gave his son’s hand to Ruy Pérez. In the second case, Domingo Ruiz adopted Pero Ferrández, the son of Ferrand Velásquez. All declared their consent. As the laws concerning adoption were observed, the adoption was approved and recorded (SP 3, 18, 91–92). In neither case were the reasons for adoption expressed.

In their confrontation with the king in 1272 the nobles protested the adoption at some uncertain date of Fernando de la Cerda by Mencía López de Haro. Following Mencía’s death in 1271–72, Fernando’s representative took possession of her Leonese estates, prompting Infante Felipe to complain that his wife, Leonor Ruiz de Castro, was done out of her inheritance. The king replied that he could not interfere with anyone’s right to freely choose an heir.49 As Mencía had no children and did not lose any in the reconquest, it is evident that the king made an exception to the law of the Partidas. It is also unlikely that he allowed her to exercise authority over his son as the law provided. In one sense his comment that he could not override her right to designate her heir was correct, but in another it was disingenuous. She could have simply bequeathed her estates to Fernando, but adopting him evidently seemed a firmer guarantee that he would actually take possession of them. The adoption was a calculated move by the king to secure her inheritance for his son.

In treating the guardianship of minor children, boys under fourteen and girls under twelve, the Partidas (6, 16–19) adhered to Roman law.50 A father might appoint a guardian, a man over twenty-five, in his will, but if he did not, his nearest relative, preferably the mother or grandmother, could act as such. Otherwise, a judge could designate a guardian. The woman had to promise not to marry during the minority, and if she did so, a judge would entrust her minor children to their closest male relative. A widow could appoint a guardian in her will, but a judge had to confirm it. When a boy became fourteen and a girl twelve, the judge should select a curator to serve until the child was twenty-five.51 Barred from acting as guardians were deaf mutes, the physically or mentally incapacitated, spendthrifts, immoral or impoverished persons, the terminally ill, the child’s debtors, enemies of his father, royal officials, knights in royal service, teachers of the liberal arts, royal judges and counselors, and philosophers. Members of the secular clergy could act as guardians for their relatives, but bishops and monks could not (SP 6, 16, 1–14; 6, 17, 1–4; FR 3, 7, 1–3).

A guardian had two principal obligations: the prudent management of his ward’s property, and his proper care and upbringing. Encouraging the child to develop good behavior, the guardian should teach him to read and write, and assist him in finding an occupation appropriate to his character, income, and capability. The guardian could enter binding contracts in his ward’s name and represent him in court. He was forbidden to dispose of his ward’s real estate except, with a judge’s permission, to pay his father’s debts, to marry his sisters or the child himself, or for another legal purpose. Although the Fuero real (3, 7, 2) allowed the guardian 10 percent of the income from the estate, the Partidas did not specify a figure. At the conclusion of the minority, the guardian had to render an accurate account of his stewardship. If he wasted his ward’s estate or taught him immoral behavior, a judge could require him to make restitution, convict him of malfeasance, and declare him infamous. His ward could abrogate any contracts made by his guardian that he deemed detrimental to his interest (SP 6, 15, 15–21; 6, 18, 1–4; 6, 19, 1–9).

Several chancery formulas concern the role of guardians. Rodrigo Esteban, alcalde of Seville,52 designated two men of good reputation as guardians of their nephew. Swearing to act in his interest, they pledged to render a faithful account at the end of his minority. In another case, Gonzalo Yuañez, alcalde of Toledo, appointed a prudent woman, Doña Urraca, as guardian of her minor son. She promised not to marry while he was under age and renounced “the laws in this our book that state that women cannot obligate themselves for others” (SP 3,18, 95). She also appointed a personero to defend her son in court. As protection against any accusation of malfeasance or misappropriation of funds, García Álvarez prepared an inventory of his ward’s estate. Similarly, Álvar Peréz, then over fourteen, on receiving from his guardian a true account of his estate, acknowledged that he had faithfully fulfilled his legal responsibilities. A guardian who overstated his ward’s wealth could not minimize it when subsequently rendering accounts (SP 3, 18, 94–96, 99, 102, 120).

Living in a patriarchal society, the royal jurists reaffirmed the Roman principle of patria potestas, whereby a father had absolute authority over all the members of his family, except for his illegitimate children, because “such as these are not worthy to be called children because they are conceived in sin” (SP 4, 17, 1–4).53 Assuming that Alfonso X read that, one wonders what he thought of his illegitimate children. Ordinarily, a father had a right to his child’s income while he was under his control. That included earnings from use of the father’s property (profectitia), or from the child’s own labor, or from gifts and bequests by the child’s mother or other relatives (adventitia). However, a child had an absolute right to income (pegujar, lat. peculium) earned in other ways, as, for example, income from military service known as castrense peculium. Quasi castrense peculium referred to the salary paid by the royal treasury to a master of sciences, a judge, or a scribe.54 A father on the verge of starvation could sell or pledge his child.55 He could ask a judge to compel an obstinate son to obey him. A son could sue his father if he attempted to seize his income. If a son was robbed while traveling, he could seek redress in court, without having to ask his father’s permission and perhaps lose his rights because of the ensuing delay (SP 4, 17, 5–12).

Wishing to acknowledge his son’s independence, a father should inform a judge. As compensation for rearing his son, he could retain usufruct of his adventitious property. A father who treated his child cruelly, encouraged his daughter to lead a life of sin, abused a stepson or wasted his property, or accepted a bequest obliging him to emancipate his children had to give them their freedom. A newly independent son who, instead of showing gratitude, dishonored his father would be subjected to his power again. The son’s behavior was “one of the greatest evils that a man could do” (SP 4, 18, 15–19). In light of Infante Sancho’s rebellion and Alfonso X’s scathing denunciation, those words seem especially prophetic. An emancipation formula declared that Diego Aparicio, appearing before Gonzalo Yuañez, alcalde of Toledo, took his son by the hand and, with his consent, released him from his power and authorized him to do everything that a man could do in or out of court. Renouncing a father’s right to his son’s property, he granted him an estate to hold by hereditary right (SP 3, 18, 93).

A father’s authority ceased when he died or suffered civil death, that is, if the king condemned him to compulsory labor, or exiled him for life and confiscated his property. However, a man banished but allowed to retain his property was not civilly dead and would still have power over his children. A father proclaimed an outlaw, or convicted of incest, child abuse, or sexual molestation of his daughters, also lost patria potestas. A son appointed to an office in royal service would be emancipated from his father’s power (SP 4, 18, 1–14).56

Wills and Inheritance

The desire to transmit one’s estate to one’s heirs without challenge encouraged the making of wills.57 As Harold Berman remarked, under the influence of the canonists a will was regarded as a “religious instrument,” whose primary purpose was to secure the testator’s eternal salvation.58 The Fuero real (3, 5, 1–14) summarized the law on wills, but the Espéculo’s discussion of testaments is in the missing seventh book. Robert I. Burns commented that “Alfonso’s treatise on wills” in the Sixth Partida, adapting Roman and canon law, is “the most comprehensive and instructive from the Middle Ages.”59

A will might be made orally or written on any suitable material. Although seven witnesses were necessary, a knight on campaign only required two, and a villager could make do with five literate witnesses (SP 6, 1, 1–8, 12; FR 3, 5, 1–2). A man in possession of his senses should compose his will in the name of God, appoint executors, list his bequests, threaten to disinherit anyone who challenged it, revoke all earlier wills, and record the names of witnesses (E 4, 12, 44). In a chancery formula, Esteban Fernández, stating that he was ill but sound in mind, appointed his heirs and executors; made a bequest; provided for his burial, payment of his debts, and correction of any wrongs he had committed; and canceled previous wills. Although a minor could not make a will, if he were in danger of death, he could donate his property with his father’s consent. An ailing Nicolás Fernández, for example, still subject to his father, whom he named as his executor, bequeathed money to a hospital, gave his books to a classmate, and left a vineyard to a friend. If he regained good health, those donations would be annulled (SP 3, 18, 103, 105).

A blind man could make a will, but others could not: a son under his father’s control; a boy under fourteen; a girl under twelve; a deaf mute; someone condemned to death or banished for life; a knight who sold or gambled away his weapons; a hostage, heretic, or traitor; or a monk, unless he did so before entering religious life. According to a formula, Domingo Vicente, after making his will and disposing of his property, made his profession as a Benedictine monk (SP 3, 18, 88). Secular clergy, not bound by the vow of poverty, could bequeath their personal possessions but not church property. Should a Christian designate as his heir a Jew, a Muslim, or a heretic, his estate would pass to the king. Barred from witnessing a will were persons convicted of serious crimes or declared infamous, apostates, women, minors under fourteen, slaves, deaf mutes, the insane, wastrels, a hermaphrodite who was more of a woman than a man, and persons condemned for writing malas cantigas. Ironically, Alfonso X himself wrote nasty songs. A man could revoke his will and make a new one if his circumstances changed, as, for example, the birth or adoption of a child or death of an heir (SP 6, 1, 9, 13–29; FR 3, 5, 5–7, 10; 3, 6, 11, 16).

Given the economic importance of the pilgrimage to Compostela, the Fuero real (4, 23, 2–4) repeated Alfonso IX’s law of 1228 guaranteeing the right of pilgrims to make wills.60 Alfonso X’s inclusion of these provisions in a constitution granted to the cathedral of Santiago in 1254 demonstrates that the Fuero real was composed prior to 1255.61 Reiterating them in the Partidas (6, 1, 30–32), he required an innkeeper to inventory the belongings of a guest who died intestate, so the bishop could deliver them to his heirs. If no one claimed them, they would be devoted to pious purposes (LFC 58).

Among potential heirs, who should be identified by name, were an emperor, empress, king, or queen; a corporate body; and anyone not excluded by “the laws of this our book.” Those who could not be named were men exiled for life, heretics, those knowingly baptized twice, apostates, confraternities banned by royal command, the children of incest or of nuns, or a widow who remarried within a year of her husband’s death. If there were several heirs, the estate should be divided, according to Roman law, into twelve parts to be apportioned among them. All would share equally if the testator neglected to specify each one’s allotment. If he bequeathed his estate to the poor, the king would designate the beneficiaries.62 A master might emancipate his slave and declare him as his heir, but if he had no other property and was in debt, he could not do so. An heir could not be required to abide by a condition impossible to accomplish. In case his heir were to pre-decease him, a testator could designate a substitute; he could also do so if he believed that his original heir would not comply with a conditional bequest (SP 6, 3, 1–25; 6, 4, 1–16; 6, 5, 1–14; FR 3, 5, 14).

As acceptance of a will could be problematic, especially if the deceased’s estate were burdened with debt, a presumptive heir had a year to assess the wisdom of accepting it. Meanwhile, an inventory had to be compiled, and no portion of the estate could be alienated except to pay burial expenses or to fulfill a pressing obligation (SP 6, 6, 1–20). Two formulas illustrated this process. In the first instance, in order to determine whether he could satisfy his father’s creditors, Domingo had an inventory of his estate prepared. Similarly, Rodrigo Ygneguez, appearing before Gonzalo Yuañez, alcalde of Toledo, refused to accept an inheritance from his father because payment of his debts would be overly burdensome (SP 3, 18, 100–101).

A presumptive heir might so offend his father or other benefactor as to be disinherited.63 The classic example was Alfonso X’s condemnation and dis-inheritance of his son Sancho.64 A son could be disowned if he assaulted his father, dishonored him, accused him of a major crime, plotted his murder, slept with his wife or mistress, spoke ill of him, refused to pay his debts, or tried to prevent him from making a will. A father could cut off a daughter who refused to marry as he wished, or married against his will, or became a prostitute. A stranger caring for an insane person neglected by his family could inherit his estate to the exclusion of the family. A father who fell into enemy hands could disinherit his family if they refused to ransom him. Although a son who became a Muslim, a Jew, or a heretic might be disinherited, a heretical father could not dispossess his son who accepted Christianity. A father’s Christian sons would inherit his estate, to the exclusion of non-Christians. An heir could be deprived of his inheritance if he caused the death of the testator. A testator’s direct descendants whom he did not name as his heirs might sue to break his will. However, anyone disinherited for any of the reasons cited above could not do so (SP 6, 7, 1–17; 6, 8, 1–7; FR 3, 9, 1–5).

When the testator made a bequest, he should identify the beneficiary and state any conditions. The validity of all bequests would be determined by “the laws of this our book.” Ecclesiastical or royal property, as well as public spaces, could not be disposed of by will. One could not bequeath a slave to a Jew, a Muslim, or a heretic. A knight who received a castle from the king with the obligation to defend it could not bequeath it to someone incapable of that responsibility. A beneficiary could refuse a bequest that he believed was unnecessarily onerous (SP 6, 9, 1–48).

A testator’s executors (cabezales, lat. capitales) were responsible for carrying out his wishes and were forbidden to act according to their own whims.65 Prohibited from serving as executors were slaves, monks, women, minors, madmen, heretics, Jews, and Moors, deaf mutes, traitors, and those condemned to death or banished (FR 3, 5, 7). If the executors failed to fulfill their duty within a year of the testator’s death, the diocesan bishop could compel them to act or appoint other executors. Absent an executor, the bishop could also implement a bequest for ransoming captives. The local judge should record the sum allotted and the date on which it was received, and at the end of the year the bishop had to report the number of captives ransomed and the amount paid for each one (SP 6, 10, 1–8; FR 3, 5, 11–13).66

An heir was entitled to falcidia, a fourth of the estate, and reimbursement for expenses incurred in handling it.67 After satisfying the testator’s debts, bequests had to be distributed, but if there were insufficient funds the amounts allotted could be reduced. If the debts were high, the heir might be left with little or nothing. Pious bequests, however, ought to be paid in full. A man could add a codicil to his will, but he could only change his heir or disinherit his children by preparing another will (SP 6, 11, 1–8; 6, 12, 1–3; FR 3, 5, 4).68 As an example of a codicil, Pero Fernández transferred property from one person to another, bequeathed to his heirs a vineyard originally allotted to a church, donated one thousand maravedís to a friend, and named a new guardian for his children (SP 3, 18, 104).

When a man died intestate, his children or grandchildren, or if there were none, his brothers or closest relatives, would inherit his estate.69 Parents could inherit the estate of a son who died intestate. If there were no heirs, the estate would pass to the king (FR 3, 5, 3). After an heir presented a valid will, a judge could give him possession of the deceased’s property. If there were two or more claimants, a judge should decide who had the better right, or he might allow them to share equally. The heir who failed to claim his inheritance within ten years (or twenty if he were in another country) would lose it. Any dangerous items among the deceased’s belongings should be burned (SP 6, 13, 1–12; 6, 14, 1–7; 6, 15, 1–10; FR 3, 6, 1, 10, 13). A testator could create an entailed estate by declaring that his son and his descendants should possess it forever (SP 5, 5, 44).

Several extant wills, including Alfonso X’s, reflect the laws described above.70 Usually, after expressing some pious sentiment and asserting his soundness of mind, the testator detailed various bequests, appointed executors, and disinherited anyone who objected. Four to six witnesses often attested the will. Sometimes property was set aside to commemorate the anniversary of the testator’s death.71 For example, Esteban Domingo, royal alcalde in Ávila, being of sound mind, with his family’s consent, for the salvation of his soul bequeathed property to the cathedral and established an endowment of forty maravedís for two chaplains to say daily mass and the canonical hours for him.72 Mateo Sanz, commending his soul and body to God and Mary, named his executors, annulled previous wills, arranged for payment of his debts and burial expenses, and left the remainder of his estate to his wife and son.73 Several ecclesiastics bequeathed books of theology and canon and civil law.74

In his will of 1283 Infante Manuel, sound of mind, directed his executors to pay his debts and right his wrongs. His beneficiaries included members of his family, servants, and retainers, but his principal heir was his son Juan Manuel. Recalling his own efforts to secure Sancho’s right to the throne, Manuel placed his wife and son under Sancho’s protection and reminded Juan Manuel of his obligation to serve him. After providing for his burial and masses to be said for his soul, and forbidding any of his heirs to transgress the terms of his will, he revoked all other wills and ordered his last testament to be sealed and witnessed.75

Civil and ecclesiastical authorities disputed jurisdiction over wills. As one’s last testament was drawn up in expectation of death and a future life of rewards or punishments, churchmen argued that as this was a spiritual matter, they ought to adjudicate it. In 1270, however, the municipal council of Badajoz complained that the bishop excommunicated lay judges hearing contested wills. Expressing astonishment, Alfonso X confirmed the jurisdiction of secular judges and forbade the bishop or any cleric to contravene his decision.76

Parentesco de Linaje es Cosa que Ata los Omes en Grand Amor

The royal jurists, recognizing that the family created by the marital union was the cornerstone of society, emphasized that “parentesco de linaje es cosa que ata los omes en grand amor” (kinship by lineage is something that binds men in great love) (SP 4, 6, pr.).77 In order to give the family the greatest stability, the Fourth Partida accepted the rules embodied in canon law. Parents hoping to achieve greater economic and social standing betrothed their children and, with their consent, arranged their marriages. Vows were usually exchanged in a church in the presence of a priest, and a banquet followed. While the couple shared their resources, each one might have his or her property. In addition to her personal possessions and gifts from her spouse, the woman had a dowry and arras to provide for her after his death or the dissolution of their marriage. The children born of a union blessed by the church could rightfully inherit their parents’ estates.

Paralleling Christian marriage was the civil practice of barraganía whereby a man might keep a concubine whose children were allowed a share in his estate. Children of illicit affairs, however, were not. The king emphatically asserted his right to legitimate them but admitted that the church could legitimate anyone wishing to become a cleric or a monk. He also recognized that a childless couple might wish to adopt a child, and the possibility that one or both parents might die leaving minor children who would need the care of guardians. Thus, the paternal household might embrace many people, wives, barraganas, children, legitimate or not, under age or adopted, and servants. The father, by virtue of patria potestas, wielded absolute authority over them all.

One of the purposes of marriage was to ensure the transmission of the family’s property to the father’s direct descendants. Building on the foundation of Roman law, the proper form of a will was delineated, as well as the disposition of the estate of one dying intestate. Among the issues clarified were the rights of heirs, the appointment of executors, the drafting of codicils, the acceptance or refusal of the will by an heir, the distribution of bequests, and the disinheritance of hostile children.

Although the king proclaimed that marriage was ordained by God in paradise, the many permutations in the relationship between husband and wife, between parents and children, and the convolutions of inheritance reveal the capacity of human beings to create an extraordinarily complex society quite at odds with the idyllic existence of Adam and Eve before the fall. Familial relations were one aspect—a most important one—of the law of persons.