CHAPTER 10

The Law of Persons

Status Hominum es el Estado o la Condición o la Manera en que los Omes Biuen o Están

Justinian’s Institutes (1, 2, 12) explained that “all our law is about persons, things, and actions.” The law of persons related to freedom and slavery, marriage, family, guardianship, and citizenship. A person’s condition in life entailed certain rights and obligations.1 The Alfonsine Codes touched on all those topics especially as they related to freemen. The previous chapter reviewed the Fourth Partida’s treatment of marriage and the family, and the Sixth Partida’s discussion of guardianship, wills, and inheritances. Next to be considered is the Fourth Partida’s exposition of the legal personality and juridical capacity of freemen and slaves, and the mutual obligations between a man and woman, a parent and child, a guardian and ward, a testator and beneficiary.² Rights and obligations arising from birth, vassalage, and friendship must also be examined.

Juridical Capacity

Alfonso García Gallo discussed the acquisition of juridical capacity and the elements shaping it, namely, one’s place of birth, age, gender, family membership, health, religion, and social and cultural condition.³ The term persona meant someone recognized as a legal person who could freely exercise rights and incur obligations under the law. Ordinarily one acted in a juridical capacity as a member of a family and/or a citizen of a town. In Roman law the paterfamilias or father of a family, having patria potestas, wielded almost absolute authority over his family, household, and property.4 Over time, however, the individual acquired greater legal significance as men became vassals of lords, or achieved independence by colonizing new lands or pursuing their livelihood as merchants and artisans. The revival of Roman and canon law acknowledged the individual freeman as the subject of rights and obligations, thereby minimizing the juridical status of the family. In addition to natural persons or human beings, the law recognized juristic persons, that is, institutions or corporations that enabled a group of individuals to act as one person.⁵ The personero who occupied “the place of the person of another,” whether an individual or a corporation, reflected that idea (SP 3, 5, 1).

Directing attention to the status hominum, that is, “el estado o la condición o la manera en que los omes biuen o están” (the state or condition or manner in which men live or exist), the royal jurists recognized three conditions: freedom, servitude, or emancipation. While most people were free, many were slaves or freedmen. Although the word persona was used of slaves because they were human beings, they did not have juridical capacity and were treated as objects. Comparable distinctions emphasized the legal superiority of nobles over nonnobles, priests over laity, legitimate children over bastards, Christians over Muslims and Jews, and men over women (SP 4, 23, pr., 1–5). In effect, the law did not admit the equality of all human beings.

In Roman law a child of free parents acquired a legal personality at birth.⁶ The Fuero real (3, 6, 3) admitted the right of a baptized child born after his father’s death to inherit his property, but the Partidas (4, 23, 3–5), following Roman law, stressed the viability of a newborn and eliminated the reference to baptism. Whatever was done for the benefit of the child in the womb was valid, just as if it were born, but anything done to the contrary was not. A child born to a free woman would be free. Although someone might maliciously postpone emancipating a pregnant slave so that her newly delivered child would inherit her status as a slave, the law determined that the child should be free as intended. A pregnant woman should not be executed for a crime until her child was born lest it be penalized for a crime it did not commit. A child born to a married couple within seven to ten months of conception was legitimate. A deformed child could inherit his parents’ estate (SP 4, 23, 4–5; 6, 6, 17).

A person achieved the fullness of juridical capacity on reaching his majority. According to Roman law, infancy extended to age seven, while puberty was fourteen for boys and twelve for girls. The age of majority was twenty-five, but a boy might be liberated from his father’s control at twenty and a girl at eighteen.7 Initially, Alfonso X seems to have been uncertain about that, but ultimately accepted twenty-five as the age of majority (SP 6, 19, 2; E 1, 1, 12). The Roman ages for puberty were also recognized (SP 6, 16, 13). Although the Partidas (2, 15, 3) declared that a royal minority should end at twenty, an interpolation, intended to eliminate the need for a regency for Sancho, put it at sixteen.

The inferior status of women was stated emphatically: “The condition of a man is better than that of a woman in many things and in many ways” (SP 4, 23, 2). The word “woman” meant a virgin over twelve and all others beyond that age, whether virgins or not (SP 7, 33, 6). Women ordinarily were subject to their male relatives and seldom could act independently, though a single woman or a widow no longer under that authority might be able to do so. A woman could not marry without the consent of her parents or act as surety for certain contracts (SP 5, 12, 3). Her right to own and dispose of property depended on her marital status. Unless she was a queen or a countess, she could not sit as a judge, as it was unseemly for a woman to be in a crowd of men. However learned she might be, she could not serve as an advocate (SP 3, 4, 4; 3, 6, 3), though she might argue her own plea (FR 1, 10, 4).⁸ The Fuero real (2, 8, 8) limited her testimony to “womanly matters,” but the Partidas (3, 16, 17) allowed a woman of good reputation to testify in all cases except wills (SP 6, 1, 1). In certain cases she was excused from knowing the law (SP 5, 14, 29, 31; E 1, 1, 12).⁹

A person’s place in society, which was hierarchical in nature, also determined the extent of his juridical capacity. By the beginning of the thirteenth century the theoretical division of society into three estates, the clergy, nobility, and workers, was well known. The clergy and members of religious orders, exempt from taxation and military service since Roman times and bound by the vow of celibacy, enjoyed the privilegium fori with their own law (SP 1, 6, 50) but were banned from many secular proceedings. They could not serve as advocates in civil cases other than their own or engage in commerce or practice medicine (SP 1, 6, 45–49). Although secular clergy could own or inherit property, monks and nuns, bound by a vow of poverty, could not.

Among the nobility, distinctions emerged between magnates, possessing great wealth, power, and influence, and the knights or petty nobility. Claiming the right to be judged by their peers, nobles were tried in the royal court, but could not be tortured or subjected to corporal punishment or confiscation if they were banished. In judicial proceedings greater weight was given to their testimony than that of others. They were also exempt from personal or property taxes. As their principal task was to defend the realm, knights were excused from other legal responsibilities and were not required to know the substance of the law (E 1, 1, 12). Magnates were entrusted with the principal public offices. Toward the close of the thirteenth century, the wealthier among them began to entail their estates (mayorazgo) for the benefit of their firstborn sons.10

Freemen could testify in court, make wills, and serve as advocates and judges. Most people lived in rural areas as farmers, laborers, or shepherds. Many were free proprietors, but others were tenants burdened by a variety of rents and labor services. Although their lords attempted to bind them to the soil, the Partidas affirmed their right to move freely, taking their movables with them. As a result of the commercial revolution, merchants and artisans lived as freemen in the towns. Early municipal fueros accorded juridical capacity to a resident (vecino) possessing a casa poblada in the town, a house in which he lived with his family. As such, residents were regarded equally before the law. Over time, however, the caballeros villanos formed an urban aristocracy that dominated municipal government. As a consequence, most ordinary freemen had little involvement in political affairs.¹¹

The state of a person’s health also impacted his legal standing. As the insane and mentally deficient were incapable of understanding complex legal issues and making rational decisions, they did not have juridical capacity (SP 7, 34, 4). A blind man, incapable of recognizing anyone by sight, could not act as a witness, but he could marry by signing his consent. A deaf mute could not serve as an advocate. Obviously, given their handicaps, none of these persons, as well as those who were chronically ill, could hold public office, sit as a judge, or act as a witness, advocate, or guardian (SP 3, 4, 4; 4, 2, 5; 5, 11, 2; 6, 1, 9, 13; 6, 16, 4, 14). As spendthrifts were deemed unfit to act responsibly, their property was entrusted to a curator, and they could not be witnesses, guardians, or advocates, or make a will (SP 3, 6, 2; 5, 11, 4–5; 6, 1, 13; 6, 16, 4).¹²

One’s level of education and general culture was also a factor in assessing juridical capacity. Scholars trained in law held significant posts in public administration, served as counselors to the king, and helped to shape the Alfonsine Codes. During the early Middle Ages people were more or less considered equal before the law, and the Fuero real (1, 6, 1), acknowledging that principle, stated that the law was intended for everyone, men and women, the young and old, the wise and the not so wise, and urban and country dwellers. The Partidas (1, 1, 21), however, following the opinion of Roman jurists, declared that peasants or shepherds living in comparative isolation could not be expected to know the law (E 1, 1, 12). Nevertheless, over time, the principle that ignorance of the law is no excuse prevailed.¹³

Criminals, heretics, and non-Christians were denied the right to participate fully in civic life. A criminal who suffered mutilation or was declared infamous was deprived of legal standing (FR 3, 5–8, 11; SP 7, 6, 1–8). That was also true of a heretic (SP 7, 26, 1–6). Although Jews and Muslims were permitted to follow their own law, they did not have equal standing with Christians. They could not exercise authority over them or serve as witnesses against them, except in cases of treason (SP 7, 24–25).14

Foreigners enjoyed a full legal personality. Although pleas between foreigners could be adjudicated according to their laws (SP 3, 14, 15), they were otherwise subject to Castilian law (SP 1, 1, 15).¹⁵ Aware that foreign merchants helped to enrich his kingdom, the king prohibited anyone to harm them or their property (SP 5, 7, 4–5; 5, 8, 26).¹⁶ For the same reason, pilgrims journeying to Santiago de Compostela were especially deserving of care and protection (FR 4, 23, 1–4; SP 1, 24, 2–3). As a matter of diplomatic reciprocity, envoys from Muslim rulers had to be treated with respect and protected against injury (SP 7, 25, 9).

Juridical capacity, acquired a birth, normally ended with natural death (SP 7, 33, 12), but it might also be terminated by civil death, the result of a judicial sentence of imprisonment, exile, or infamy. Civil death was a legal fiction that abrogated one’s rights under the law. Such a person was dead “insofar as honor, nobility, and the affairs of this world.” Not only did he lose his authority over his children, but he could not make a will, and if he had done so it would not be valid (SP 4, 18, 2).¹⁷

Human Rights

Joaquín Cerdá Ruiz-Funes emphasized that in addition to juridical rights, people also enjoyed, in varying degrees, fundamental human rights, namely, personal freedom, security under the law and in one’s household, freedom of association, freedom of thought, religious liberty, and the right to participate in government. None of those rights was absolute, as each was limited by the circumstances of one’s life. References to them are scattered throughout the Alfonsine Codes rather than assembled in any declaration of human rights.¹⁸

The security of all the men of the realm was essential to an orderly society (SP 1, 6, 51). By restraining malefactors, the law enabled everyone, no matter his or her status, to live in justice and peace. All the people, both great and small, had to protect one another against injustice, error, violence, and injury. The king ought to suppress the proud and mighty and strengthen the weak and lowly so that all might dwell securely (SP 2, 10, 1–2).

Personal freedom was also of paramount importance. Endowed by nature with free will, men and women desire to be free to do as they wish, to go and come as they please, to live where they choose. However, in order to further the common good, the law restricted the individual’s right to do as he liked. No one could intrude on another’s person or property, and criminals were condemned. Social and economic circumstances—whether one was rich or poor, resident in town or country—also constrained personal freedom. By commending themselves to the protection and service of the more powerful, men compromised their freedom. Worst of all were slaves who were compelled to give unquestioning obedience to their masters. Nevertheless, the royal jurists, believing that the desire for freedom was inherent in human nature, declared that “all the laws of the world always fostered liberty” (SP 3, 5, 4). Moreover, judges were admonished to favor liberty as a rule of law, “because it is a friend of nature, which not only men, but all the other animals, love” (SP 7, 34, 1).

A man and his family should also be able to dwell securely in their own home (SP 3, 7, 3). The Visigothic Code and the municipal fueros enunciated that principle, and in 1188 Alfonso IX of León forbade anyone to violate another’s home.19 Just as everyone was guaranteed security in the royal household, so too nobles (SP 2, 18, 32), clerics (SP 1, 6, 51), scholars (SP 2, 31, 2), and merchants (SP 5, 7, 4), and by extension, ordinary families and their guests, were assured of the same right in their homes. As the home was expected to be a safe place, free of crime, a householder was forbidden to harbor counterfeiters, heretics, or arsonists (SP 7, 7, 10; 7, 10, 3; 7, 26, 5–6). A man should keep his house in good repair, making certain that it did not impinge on his neighbor’s property or interfere with public structures or communal places (SP 3, 28, 4, 8, 18). The law did not speak of a house as a possible eyesore or threat to property values, but that surely was the intent.

The right of men to associate freely with whomever they wished was admitted under certain limitations. A freeman was generally free to marry or not, to enter a monastery or the priesthood, to become a knight, to elect a profession, or to participate in the business or agricultural communities. Over centuries men voluntarily chose to live together in villages and municipalities, both old and new, and many settled in the reconquered cities and towns of Andalucía and Murcia. Ordinarily no one was banned from doing so. However, just as the nobility were forbidden to take part in asonadas, which could be described as military riots, merchants and artisans could not form confraternities that attempted to fix wages and prices (SP 2, 31, 6; 5, 7, 2). On the other hand, the king encouraged the formation of mercantile companies (SP 3, 18, 78; 5, 10, pr., 1–17) and assured university scholars of protection against robbers and other criminals (SP 2, 1, 2, 6). In both instances he recognized their contribution to the economic and cultural prosperity of his realm.

A scholarly king also valued a man’s right to follow his thoughts wherever they led him and to enunciate them clearly and truthfully. Human nature endowed man with the ability to think, to consider the facts before him, their past circumstances, and future possibilities, and then to make the decision that he deemed wisest (SP 2, 3, pr., 1–2). Thoughts were often expressed in words and could prompt action. For that reason, the king was advised to take counsel and weigh his words carefully before reaching a decision (SP 2, 4, 1–4). Knowing that words have consequences, he prized precision in thinking and speaking, as the many definitions of words in the Partidas make clear. Clarity of thought and expression was important in the business of government, but especially for all those involved in the administration of justice. Honest thinking and speech in everyday affairs also helped to foster peace and harmony (SP 2, 13, 9; 2, 23, 6). Although wicked thoughts might enter one’s mind, they were punished only when acted upon (SP 7, 31, 2). Free speech did not permit one to deprecate others, and using derogatory language when speaking of the king could lead to the charge of treason (FR 4, 3, 1–2; SP 7, 9, pr., 1–2).

Religious liberty was accorded to Jews and Muslims inasmuch as they were permitted to worship freely, but they could not proselytize among Christians. However, they could convert to Christianity. As a general principle, Christians were denied religious liberty, because they were required by law to adhere to the teachings of the church. If they did not, they were condemned as heretics.

Nature and Natural Relationships

The royal jurists next turned attention to the obligation of men to their lords by reason of naturaleza, a word meaning naturalness or a natural relationship. The Espéculo (3, 4) noted that royal vassals were subordinated to the king and the kingdom by virtue of naturaleza and sennorío. Sennorío referred to his rulership and naturaleza to being a native of the realm. One might acquire naturaleza in several ways: by birth in the kingdom, inheritance, adoption, residence for two years or more, or emancipation. In contemporary language these were various means of being naturalized.

Naturaleza was a natural bond uniting men and inspiring them to love and care for one another so that they became one (or so the king hoped!).20 Nature,²¹ the force holding everything in the state ordained by God, differed from naturaleza, which sustains everything deriving from nature. The ancients recognized ten types of natural relationships: the ties between (1) men and their natural lord; (2) lords and vassals; (3) parents and children; (4) a knight and the one knighting him; (5) a husband and wife; (6) an heir and his benefactor; (7) a captive and his liberator, or between one saved from death or dishonor and his savior; (8) a freedman and his former master; (9) a convert and the one who brought him to the faith; and (10) a resident born elsewhere and the country in which he lived for ten years (SP 4, 24, pr., 1–2).22

These relationships entailed obligations. The greatest was the natural duty to love and fear God who created and sustained man and gave him hope of eternal life (SP 2, 2, 1–4). A man similarly was obliged to love, honor, and protect his parents who gave him birth and reared him, the nurses who nourished him, and the tutor who counseled and directed him. He ought to alleviate their needs, safeguard them from all harm, and never kill, wound, rob, or dishonor them (SP 4, 20, 1–4). Natives (naturales) of the realm were also bound by the debt of nature to love, honor, and protect their lord who favored, honored, and protected them. If need be, they should gladly suffer death for him. So too they ought to love and increase their country and die for it (SP 2, 25, 3). By observing everything that they rightfully owed to one another, natives and their lord would always maintain the natural bond between them. As that obligation arose from nature, it could only be rightfully terminated for four reasons: (1) treason by a native against his lord or country; (2) the lord’s attempt to kill a native without just cause; (3) adultery by the lord with a native’s wife; and (4) the lord’s wrongful disinheritance of a native (SP 4, 24, 3–5). The word desnaturar described the rupture between a man and his lord or his country.

Georges Martin remarked that the word natural, meaning a native, born and raised in the kingdom, was used at least from the twelfth century onward. Natives owed allegiance to the king as their señor natural, a term employed early in the thirteenth century (SP 4, 24, 2). Although the laws quoted above refer to sennores in the plural, the royal jurists obviously were thinking of the king. His rulership, often cited as sennorío, was founded on his people’s obligation of naturaleza, as the king noted in his privilege to the towns of Extremadura in 1264. Among the royal duties, two were especially important: first, to reward those who served him loyally, and second, to do well by them and to favor them, so that they might be more inclined to serve him in the future, even though they were obliged to do so by reason of naturaleza and sennorío.²³ In the codicil to his last will, Alfonso X directed his heir to carry out his wishes “because of the sennorío natural that we have over him through lineage and naturaleza.”²⁴ As Martin noted, the king based his authority on dynastic and territorial considerations. Naturaleza was an obligation binding men to one another and subordinating them to the royal lordship by virtue of their being natives or naturalized residents of his realm.

Vassalage

The bond between lord and vassal entailed mutual rights and obligations that were elaborated in several anonymous collections of customary law.25 Prominent among them were the Ordinance of Nájera, probably enacted by Alfonso VIII in the Curia of Nájera in 1185, and the Fuero viejo purportedly drafted by the nobility at the king’s request after 1212.²⁶

A lord, in return for giving his vassal a benefice, often a monetary stipend known as soldadas, could require certain services (SP 3, 18, 68). Money drawn on the royal treasury was called tierra; if it derived from the revenues of a town or castle, it was an honor. The royal jurists, perhaps because of the king’s hope of securing a base in Lombardy to further his imperial aspirations, explained fiefs by drawing on the twelfth-century Lombard Libri feudorum.²⁷ However, Julio Valdeón commented that although many of the elements of northern European feudalism were present in Castile, they were never fully developed.²⁸ Therefore, we need not discuss the account of fief-holding in the Partidas (4, 26, 1–11).

There were five types of lordship: (1) the king’s authority over his people, called merum imperium,²⁹ meaning the unfettered and absolute right to judge and command them; (2) a lord’s ascendancy over his vassals; (3) his control over his estates; (4) a father’s power over his children; and (5) a master’s rule over his slaves (SP 4, pr., 1–2).

In northern Castile, custom recognized several other types of lordship dating from the early Middle Ages, namely, devisa, solariego, and behetría. While some free proprietors owned their own land, most men were tenants commended to the protection of powerful lords. Devisa was a lordship shared by deviseros, members of the same family entitled to provisions, lodging, and other benefits.³⁰ Solariego (solar, a settlement) described a tenancy held by a freeman who owed rent and services to his lord. He could leave whenever he wished, taking his movable goods, but he had no right to any improvements (FV 1, 7, 1–4). In these lands the king only claimed moneda, the tax collected in exchange for his promise not to alter the coinage. In earlier times, because of the availability of land, many freeholders could choose any lord and sever ties with him at any time while retaining their holdings. Because of their advantageous situation, they were known as hombres de behetría (lat. benefactoria, benefit). Like other tenants, they owed rents, labor services, and hospitality (SP 4, 25, 3). By the thirteenth century, whereas some peasants were still free to choose a lord from sea to sea (behetría de mar a mar), many more were bound in a hereditary relationship to their lord (behetría de linaje).31

By pledging homage to his lord a vassal became his man. He sealed that pledge by kissing his lord’s hand and did so again when receiving knighthood or renouncing his vassalage. Magnates kissed the king’s hand on ceremonial occasions. The most notable example occurred during the Curia of Carrión in 1188 when Alfonso IX of León received knighthood from A lfonso VIII of Castile and kissed his hand as a sign of vassalage.³² A vassal had to love, honor, protect and serve his lord. Ordinarily he owed three-months’ military service in return for his soldadas. The lord similarly had to love, honor, and protect his vassal. During the first year, a vassal could not leave the lord who knighted him, unless he tried to kill him, dishonor his wife, or deny him justice. Thereafter, he could leave for whatever reason, but he had to inform his lord personally or ask another to do so if he feared that his lord would kill or dishonor him. Whatever arms or horses a vassal received from his lord and whatever he gained thereby were his to keep; but if he left his lord, he had to return everything except his stipends. If he refused to do so, the lord could invoke the procedure of riepto and sue him. The lord was forbidden to harm or speak disparagingly of a vassal who left in the proper manner. After ending their relationship, neither man should attack the other. A vassal who refused to serve his lord could be compelled to pay double the amount of his stipend; conversely, a lord who failed to pay him would owe the same amount. A vassal who failed to attend the summons to war or to bring the required number of knights would lose whatever he held from the king. Although a vassal holding from a secondary lord was not required to become a vassal of his deceased lord’s sons, he had to surrender whatever he had received from his lord. Magnates and other royal vassals, however, always had to renew their vassalage to the son of a dead king (SP 4, 25, 4–10; FR 3, 13, 1–7; FV 1, 3, 1–3).

The king could expel a vassal who incurred his wrath, for example, the Cid, banished by Alfonso VI.³³ If the vassal failed to dissuade him, he had to go into exile, but he could live off the land and wage war against the king for refusing to state why he was banished. Meanwhile, the king guaranteed the safety of the vassal’s family and the families of his vassals who accompanied him. If he entered another king’s service, his vassals had to return home within a month. However, those who chose to go to Muslim lands and aid “the enemies of the faith” would be charged with treason, and their families would also be exiled. A vassal who sought the king’s pardon could return home, but he would have to pay double the value of whatever he stole (SP 4, 25, 10–13; FV 1, 4, 1–2).

The rupture between the king and his vassals during the Cortes of Burgos in 1272 exemplified those laws. Sending emissaries to inform the king that they repudiated their vassalage, the magnates asked for a month’s grace to purchase necessities and arranged to surrender royal castles to his porteros. Lest they plunder the countryside, the king appointed men to guide them and provide them with lodgings on their journey to Granada. Nevertheless, they stole cattle, burned places, and violated churches. While trying to dissuade their vassals from accompanying them, the king chastised the magnates for their crimes and threatened to bring them to justice. While the magnates and their retainers, numbering about 1,200, took service with the emir of Granada, they continued to negotiate with Alfonso and returned home in the following year.34

Friendship

Friendship, which encourages men to love one another (Prv 18:24), was also a legal obligation (SP 4, 27, pr.).³⁵ In this first treatise on friendship in the Castilian language, the royal jurists followed Aristotle’s teaching.³⁶ Although friendship developed when two persons loved one another, it was not identical with love, benevolence, or concord. Love, for example, might not be reciprocated, and one might regard benevolently a person one did not know, or live in harmony with another without loving him or being friends with him. True friends would have no need of courts or judges, because their friendship would prompt them to do what justice required. Friendship was advantageous to everyone. The rich and powerful needed friends to assist them in using their wealth to do good; others required friends to help them in their poverty and support them in time of danger. A child needed friends to rear him, a young person to guide him, and an old man to assist him in dealing with the frailties of age. A friend in whom one could confide conveyed a sense of serenity and security. Cicero warned, however, that one should be wary of flatterers who did not have one’s best interest at heart.³⁷ There was no pestilence worse than having a false friend (Mi 7:5). Aristotle urged the value of taking time to develop a firm acquaintance before making someone a friend (SP 4, 27, 1–3).

Aristotle distinguished three types of friendship: (1) the natural friendship between parents and children, husbands and wives, and natives of the same country; (2) affection among friends of long standing; and (3) friendship based on the expectation of gaining some benefit from another. The latter was not true friendship because it might dissipate once the anticipated advantage was won. The custom of Spain recognized another kind of friendship, whereby the nobles pledged not to dishonor or harm one another, without first renouncing their friendship and issuing a challenge, as expressed in the title on challenges (SP 7, 3, 1–9). That topic is treated in chapter 13 (SP 4, 27, 4).

Three rules sustained friendship: (1) to be loyal always; (2) never to say anything that might cause a friend to be declared infamous; and (3) to strive as much for a friend’s well-being as for one’s own. Cicero commented that without the firm foundation of good faith, there could be no love between friends.38 Aristotle observed that one should not believe anything malicious about a friend who had proved his loyalty over a long time.³⁹ The peril of disparaging a friend was highlighted purportedly in the book of Ecclesiasticus: “whoever dishonors his friend by word destroys his friendship with him.”⁴⁰ Trust could be lost if a friend revealed his friend’s secrets (Sir 7:16). After remarking that only a man motivated by ill will would insult his friend by throwing up to him past services, Cicero argued that a friend should share his good fortune or honors with his friends.⁴¹ Stressing that there were no levels of friendship, St. Augustine declared that friends should always be equal (SP 4, 27, 4–5).

Friends ought to love one another truly and without deceit. Cicero likened to a commercial transaction the notion that a man should love his friend as much as his friend loved him or that he should love his friend as much as he loved himself. That could not be a perfect friendship. Yet, as there were few men willing to do things for a friend that they would not do for themselves, perfect friendships were rare. Although a man ought to protect his friend and even risk his life and property for him, he should not commit a crime for him.⁴² Friendship might be terminated if someone disinherited his descendants, or became an enemy of his country, or turned to wicked ways. On the other hand, friendship should not be abandoned because of sickness, poverty, or misfortune. Indeed, adversity strengthened true friendship, while false friendship would collapse on its own account (SP 4, 27, 6–7).

At first glance this disquisition seems misplaced, but the royal jurists made the point that friendship was a legal obligation like vassalage and naturaleza. Without mentioning Justinian, they drew on the rich literature of antiquity, namely, Aristotle, Cicero, Solomon, the prophet Micah, and St. Augustine, so that this treatise has more of a literary than a legal character. The placement of this topic immediately following the discussion of vassalage was deliberate. The purpose was didactic and the pupils were the nobility, whose feuds destroyed lives and property. By encouraging them to think of each other as friends, the king hoped to restrain their penchant for violence and thus foster a more tranquil society. He also realized that if all his people took to heart the lessons of friendship, peace and harmony would prevail. Clearly, that ideal was difficult to achieve, but as Aristotle noted, true friends would try to live justly with one another so that courts and judges would be unnecessary.

Liberty and Servitude

The royal jurists, following Roman law, devoted the greater part of their discussion of the law of persons to those deprived of liberty. All creatures love liberty, “the power that every man naturally has to do whatever he wishes, provided that the force or right of law or fuero does not prevent him” (SP 4, 22, pr., 1).43 By contrast, “servitude is the vilest and most despised thing among men because man, the noblest and freest creature among all the creatures made by God, is placed in the power of another who can do with him as he wishes.” Divested of control over his person and property, a slave was subject to his master’s command (SP 4, 5, pr.).

Although slavery existed in Roman and Visigothic Spain and the Muslim world,⁴⁴ the open frontier in the northern kingdoms enabled Christian slaves to gain their freedom. By the twelfth century their number had dwindled, but as the reconquest proceeded, frontier warfare became the major source of slaves. Men, women, and children on both sides, caught up in the throes of war, were seized as booty shared by the victors. Isolated from family and community, and laboring as personal servants or cultivating the fields, slaves were often treated harshly and sold or held for ransom. Ownership of slaves was visual evidence of one’s wealth and standing.⁴⁵

Servitude, according to the royal jurists, originated in ancient times when it was decided, contrary to natural reason, that freemen might be enslaved. Slaves were known as siervos, a word derived from servare, supposedly because the emperors resolved that captives should be preserved and used. Slaves might be enemies of the faith taken in war, children of female slaves, and freemen who sold themselves into slavery. The latter had to be at least twenty years old, know that they were free, willingly consent to the sale, and obtain part of the purchase price.⁴⁶ As slavery was determined by one’s mother, anyone born to a female slave, although the father was free, would be a slave. If she was emancipated, her newborn child would be free and would remain free if she was enslaved again. The child of a free mother and a slave father would also be free. However, if a priest married a free woman, their child would be a slave of his church, forever bound to it, because church property could not be alienated. Although a slave child could inherit his mother’s estate, but not his father’s, whatever he received ultimately belonged to his master. Wicked Christians who abetted the Moors in war could be enslaved. A slave had to protect, honor, and obey his master and his family, and even give up his life for them, unless he was ill, imprisoned, or far away. A master should not kill or wound a recalcitrant slave, unless he discovered him with his wife or daughter. If a slave complained of his master’s cruelty, a judge could sell the slave and give the money to the master. A slave’s earnings and any inheritance that he received belonged to his master. Non-Christians could not own a Christian slave; one so owned could gain his freedom by declaring his desire to become a Christian. However, if he converted during three months while his owner was trying to sell him, he had to pay the owner twelve maravedís or give service as a freeman until the price was paid (SP 4, 21, 1–8). Slave owners, whether Jews, Muslims, or Christians, were surely loath to encourage conversions because they knew they would lose control of their slaves.

A slave could not obtain ownership of property by reason of long possession, but he might accumulate a fund over time by keeping a shop belonging to his master or working as an artisan. Ultimately, however, all that he earned belonged to his master (SP 3, 29, 3). If a slave, on his master’s direction, purchased a certain property, believing in good faith that it belonged to the seller, the master could acquire ownership, unless he knew that the seller was not the owner and did not object at the time of the sale. If a slave sold his master’s property without his consent, the sale would not be valid (SP 5, 5, 60).

Although their masters objected, slaves could be joined in a valid marriage recognized by the church. Marriage became more complicated when slaves married freemen or women or when they belonged to different masters. If a slave married a freewoman who was aware of his status, their marriage would be lawful, but otherwise not, unless, after discovering the truth, she consented. The union of a female slave and a freedman was valid only if they were Christians. Masters were forbidden to sell their married slaves separately. Should a master demand some service from his slave at the same time that the slave’s wife asked him to fulfill his conjugal debt, he had to obey his master, unless the husband believed that she would commit adultery. If the couple could not cohabit because their individual masters lived in different regions, the church could require one of them to buy the other’s slave. If he was unwilling, the church could arrange the sale in order to unite them. Should a slave wed a freewoman or a freeman marry a female slave in the presence of either one’s master and he did not claim his slave, they gained their freedom. When a freeman or a freewoman unknowingly married a slave, the marriage would not be valid, unless, on learning the truth, he or she consented or had intercourse with the slave (SP 4, 2, 11). A slave claiming that he did not know that his wife was free could not part from her, but if she learned that he was a slave only after their wedding, she could leave him. A slave who inadvertently married another slave, assuming that she was free, could not terminate the marriage. If a freeman, believing that he was marrying a freewoman, mistakenly wed a slave, the union would not be valid, unless, after learning the truth, he gave his consent. Should her master claim her, her husband, after realizing that she was a slave, should not be intimate with her, lest, by acknowledging their marriage, he could not leave her. A marriage could not be annulled if a husband, wishing to be rid of his wife, became a slave, surely an act of desperation! Determined not to bring dishonor upon herself or her children, she could claim him and emancipate him (SP 4, 5, 1–4).

The day slaves were offered for sale was to be dreaded. The sale might be private or through an auction. Married slaves could not be sold apart from their spouses, but that may not always have been observed. If the seller deliberately failed to inform the buyer of a slave’s defects or bad habits, he had to return the purchase price, take back the slave, and pay damages (SP 5, 5, 64; FR 3, 10, 12). As slaves were known to offend their masters, a seller could stipulate that a buyer remove the slave to another area; but if the buyer did not, the seller could recover possession or demand a penalty (SP 5, 5, 47).

For example, in 1266, Infante Manuel’s representative purchased three mamelukes or slaves, a husband, wife, and daughter, for fifty-three gold maravedís, from a servant of the comendador mayor of Calatrava in Madrid, in accordance with the law concerning purchases. The seller warranted that the slaves were not stolen or illegally acquired and that he was legally competent to sell them and pledged his property to guarantee the sale.47

At times a freeman, burdened with debt or anxious to provide for his family, allowed himself to be sold into slavery. Although no one could sell a freeman, if he agreed to the sale he would be entitled to a share of the price, but if he changed his mind and returned the money he would regain his liberty. If he was sold against his will, the seller had to pay him one hundred maravedís, unless he was unaware that the man was free. A father faced with grave necessity could not sell or pledge his children or give them away (FR 3, 10, 8; SP 4, 21, 1). Anyone who knowingly sold a freeman against his will, or imprisoned him to sell him, or put him in the power of his enemies, would be executed. No one could sell another’s slave without the owner’s consent; if he did so, he had to return him and pay a fine (FR 4, 14, 1–2). A slave purchased with his own money would not become free because whatever he had belonged to his owner (FR 3, 10, 9–12).

While some slaves accepted their fate, others tried to escape. If anyone concealed a fugitive slave or facilitated his getaway, he had to return him and, as a penalty, give a slave of equivalent value. A householder who discovered that a slave had taken refuge in his house had to turn him over to the local alcalde. If a fugitive asserted that he was a freeman, he had to prove that in court. Anyone who encouraged the disobedience or immoral behavior of another’s slave had to pay the owner twice the expense of the harm done (FR 4, 15, 1–7; SP 7, 14, 22–29).

In sum, slaves were entitled to basic maintenance: food and drink, clothing, a place to sleep, and fair treatment. They were permitted to marry and have children, who would inherit their status if their mother was a slave. They might receive an inheritance or acquire property, though ownership was vested in their master. Married slaves could not be sold separately. In addition to labor in the fields or in the household, some might be allowed to work as craftsmen or manage a shop; the more trustworthy were used as messengers. Lacking juridical capacity, a slave could not function as a judge, an advocate, or a personero, nor could he give testimony unless it concerned treason against the king or the kingdom. If he was asked to bear witness concerning accusations of adultery or heresy, he would be routinely tortured. Though he normally could not sue in court, he could do so if his master was abusive. Unable to endure the life of a slave, some fled in the hope of gaining their liberty, but the life of a fugitive was always perilous.

Manumission

A master could emancipate his slave in a public place, in his will or a charter, or he could command his descendants to do so.48 Though a minor ordinarily could not free his slaves, one between seventeen and twenty, with his guardian’s consent, could liberate his child by a female slave, his parents and siblings, his teacher, tutor, or nurse, or his other slaves. He could also do so if he had the same foster-mother as his slave, or if the slave saved him from death or defended his good name, or if he intended to appoint his slave, who had to be seventeen years of age, as his agent for nonjudicial affairs, or if he wished to marry a female slave within six months (SP 4, 22, 1).⁴⁹ Once emancipated, a slave acquired juridical capacity and the status of a freedman.

A charter of manumission had to have five witnesses. The chancery formula commented that although men were naturally free, some were enslaved on account of their wickedness. After declaring that Jesus Christ died to liberate men, the master expressed his intention to restore his slaves “to that freedom that they ought to have by natural law.” He then granted the slave and his descendants the freedom enjoyed by any freeman. The formula referred to the title on emancipation in book 7 of the Espéculo, which is not extant (E 4, 12, 42). The Partidas provided a more detailed formula: Gonzalo Yuañez, in the presence of a scribe and witnesses, emancipated Muḥammad, his wife Aisha, and their children, giving them true freedom and releasing them and their property from his power. Henceforth they could appear in court, make contracts, agreements, and wills, and do whatever else freemen could do. As the price of freedom, Muḥammad paid Gonzalo one hundred gold doblas (SP 3, 18, 90). A slave who, in return for his liberty, refused to pay his master a promised sum of money could be compelled to do so (SP 5, 11, 6).

If a slave had two masters and one wished to emancipate him, he could buy his colleague’s share for an appropriate price set by a judge. Should the second master obstinately refuse to accept the money, it would be deposited in a church, and the slave would be free. In four instances of exceptional service to the king a slave merited his freedom: notifying the king (1) that someone raped a virgin; (2) that someone engaged in counterfeiting; (3) that a military commander abandoned his post or that a knight deserted; or (4) that someone killed his master or committed treason against the king or his kingdom (SP 4, 22, 2–3).

Female slaves were often subjected to abuse by immoral masters who, effectively becoming their pimps, prostituted them. Declaring that the women should be free, the king ordered local judges to protect them so their masters could not enslave them again. A slave who, with his master’s consent, married a freewoman became free, as did a female slave who married a freeman. If a slave, with his master’s knowledge, received holy orders, he would be free; but a master who objected could repossess his slave up to the order of subdeacon. A priest or deacon remained free but had to pay his master his value at the time of his ordination, or give him another slave of comparable worth, or two in the case of a bishop. A slave who believed he was a freeman and lived publicly as such gained his freedom in ten years, if his master resided in the country, or in twenty years, if he lived elsewhere. A fugitive slave dwelling in Christian lands could be reclaimed within twenty years, but after thirty he would be free. However, if he fled to the land of the Moors and lived there as a freeman and then returned to Castile, his former master, having lost his right of ownership, could not enslave him again (SP 4, 22, 4–7; 7, 14, 23).

A slave given or sold to another on condition of emancipation on a certain day would become free even if his new owner neglected to liberate him. If no specific date was set, the slave would gain his freedom when his master died. A slave whose buyer promised to free him when he could would be free within two months. An obdurate slave sold with the stipulation that he never be freed could only obtain his liberty if he alerted his master to a plot against his life; or avenged his master’s murderer or accused him in court; or if the purchaser used the slave’s own money or that of his relatives to buy him (SP 5, 5, 45–46).

Though emancipated, a freedman did not enjoy the fullness of freedom. In all humility he was bound “to obey, love, and honor” his former master and his family for the gift of freedom. If his master became impoverished, he ought to relieve him as best he could. He should not sue, defame, or accuse him, except in a matter concerning the king, or if his master assaulted or offended him.50 If a freedman accused his master of crime, defamed him, aided his enemies, refused to allay his poverty, or displayed ingratitude, the master could ask a judge to reduce him to his former estate. The master was entitled to his freedman’s property if he died intestate, without direct heirs, or to a third of his estate worth two hundred gold maravedís if he made a will. The master and his descendants up to the fourth degree could lose that right if he neglected to succor a starving freedman or forbade him to marry or have children; if the slave was freed because of a good deed or was freed by the emperor or king; if the master was exiled forever; if he received something from the freedman in lieu of a share in his estate; if he required the freedman to perform a task after manumission; or if he released the freedman from all claims against him (SP 4, 22, 8–11).

La Fuerça del Estado de los Omes Se Departe en Muchas Maneras

One of Alfonso X’s principal responsibilities was to assure each person of his fundamental rights. That process began by recognizing the legal standing or juridical capacity of every free man and woman born in the kingdom or resident there for several years. That meant that a person possessed certain rights and corresponding obligations under the law, such as the right to testify, to represent another in court, or to make a will. A person who reached his majority at age twenty-five was fully capable of taking legal action.

Nevertheless, not all were equal before the law. As the royal jurists explained, “la fuerça del estado de los omes se departe en muchas maneras” (the importance of the estate of men varies in many ways) (SP 4, 23, 2). Women were clearly inferior to men, children to parents or guardians, slaves to free-men, nonnobles to nobles, laity to clergy, and non-Christians to Christians. Standing at the head of a hierarchical society were the clergy, privileged with their own law, exempt from taxation and military service, but also excluded from secular offices and professions. As defenders of the realm, the nobility had a principal role in the king’s council and in territorial administration. Exempt from direct taxation, they were entitled to be judged by their peers and were not subject to some of the cruder aspects of the judicial process; nor, because of their military responsibilities, were they expected to be acquainted with the niceties of the law. The majority of freemen dwelling in towns or rural villages also possessed the fundamental right to appear in court as plaintiffs, defendants, witnesses, advocates, personeros, and even judges. Peasants living in isolated areas, however, were not presumed to know the law. Slaves, of course, did not have juridical capacity.

In addition to social standing, other situations circumscribed a person’s juridical capacity. The paterfamilias acted on behalf of the members of his family and his household, and the guardian of a minor child had to protect his legal rights. A spendthrift, or someone who was mentally disturbed or deficient, or blind, deaf and dumb, or chronically ill, could not personally exercise his rights. Criminals and heretics lacked all legal standing. Although Jews and Muslims could practice their religion and live in accordance with their own law, a kingdom that publicly proclaimed itself as Christian could not admit that they had legal equality with Christians. On the other hand, foreigners, many of whom were merchants or pilgrims, were assured of their security but had to obey the laws of the kingdom. The law also guaranteed a man’s personal safety and the security of his household and his freedom to go and come as he pleased, to choose his companions, to entertain whatever thoughts came to his head, provided they did not lead him to commit a crime or indulge in heresy, and to take part in local government and represent it in the Cortes. When a person died, his juridical capacity died as well, but it might also be terminated by his civil death if he were condemned to imprisonment, exile, or infamy.

The most basic source of the rights and obligations described above was naturaleza, a comprehensive natural relationship embracing everyone born in the kingdom, the naturales or natives, and those resident there for many years. On that account, men were bound to God, the king, their families, and their fellow countrymen. Naturaleza required everyone to recognize the king as their natural lord and to submit to his authority. Vassalage was a more restricted relationship that compelled a lord’s vassals to counsel him and serve him militarily. For their sustenance, he gave each one a benefice, usually a financial stipend, but that relationship might be terminated if either party neglected to fulfill his obligations. By emphasizing the significance of friendship, the king wished to remind his people, but especially the nobility, that friendly relationships were essential to the peace of the realm. With that in mind, the royal jurists also elucidated the rights and obligations of masters and slaves, the process of manumission, and the continuing relationship between freedmen and their former masters.

Throughout his law codes, Alfonso X stressed the necessity of promoting the common good. In order to achieve that purpose, he recognized that a proper balance between the rights and obligations of every person was essential. Thus, while the law acknowledged a diversity of rights and obligations, none were absolute; rather, all were subordinated to the task of maintaining a well-ordered society that would serve the best interests of everyone.