CHAPTER 13

Crime and Punishment

Ca Razon es que los Fechos Malos e Desaguisados Non Finquen sin Pena

In the early Middle Ages criminal justice was mainly a private affair. The victim had to accuse the perpetrator, but many individuals remained silent rather than risk suffering worse harm from someone more powerful. The victim and his family might seek retribution through violent means or try to prove the charge by an oath of purgation, an ordeal, or a judicial duel. Monetary compensation was intended to alleviate recourse to blood feuds.

Under the influence of Roman and canon law, Alfonso X recognized crime as an offense against the community. Assuming responsibility for maintaining the peace, he claimed jurisdiction over specific crimes, reserved adjudication to judges whom he appointed, and curbed private vengeance by employing the inquest to bring criminals to justice.1 The Fuero real (4, 1–25) penalized a range of crimes, but the Espéculo’s analysis was in the lost ninth book. The Seventh Partida, drawing on Roman law, the municipal fueros, and Castilian territorial law, presented an extended treatment of criminal law and portrayed the ideal judge:

The person of man is the most noble thing in the world and so we decree that every judge who has to hear a case that could lead to death or loss of a limb, ought to take great care that the evidence… is loyal and true without any suspicion, and that the statements and words spoken… [by witnesses] are certain and as clear as the light so that there cannot be any doubt about them. And if they [the witnesses] do not speak and testify clearly… and the accused is a man of good reputation, the judge… ought to acquit him. And if, perchance, the accused is a man of ill fame and the evidence offers certain presumptions against him, he [the judge] can have him tortured in order to learn the truth. And if, either by his confession or the evidence alleged against him, he should find him not guilty of the offense charged against him, he must acquit him. (SP 7, 1, 25)

Charging a Criminal

An accusation or an inquest might initiate a criminal case. Alfonso X, by permitting anyone to make an accusation, shifted responsibility for bringing malefactors to justice to the entire community. Nevertheless, allegations by certain persons were inadmissible: wives, minors under fourteen, judges and public officials still in office, persons expelled from a community, Jews, Muslims, heretics, slaves, perjurers, excommunicates, retarded persons, and convicted criminals. Close family members could not accuse one another; nor freedmen, their former masters; household servants, their patrons; heirs, their benefactors; and benefactors, their heirs. Anyone worth less than fifty maravedís could not accuse a wealthier person. With the exception of minors, anyone could denounce treason, counterfeiting, adultery, rape, robbery, theft, heresy, apostasy, and crimes involving the death penalty, bodily punishment, and confiscation. The accuser had to be able to prove his charge lest he suffer the penalty inflicted on a guilty person (FR 4, 20, 1–6; SP 7, 1, 1–5).

One could only accuse a deceased person in case of treason, malfeasance by a royal official, heresy, stealing church property, or a woman’s attempt to kill her husband. Lest the dignity of his office be compromised, a royal official still serving could not be charged, unless he committed a serious crime. According to the principle of double jeopardy, no one could be tried again for the same offense unless evidence was suppressed. If several accusers appeared, the judge should select the one best-intentioned to make the complaint (FR 4, 20, 9–10, 13, 15; SP 7, 1, 7–13; LEst 9).

Given the gravity of the proceeding, the complainant had to appear in person and submit a written accusation identifying the accuser, the accused, the judge, the offense, and the month, year, and place of occurrence. He had to swear that his charge was true and that he was not prompted by malice. Frivolous accusations were severely punished. Neither the plaintiff nor the defendant could be represented by a personero, but each could have an advocate (FR 4, 20, 5, 7; SP 7, 1, 6, 14, 26).2

The defendant could be tried in the district where he committed his crime, or where he lived, or where he had taken refuge. The judge could arrest a defendant who attempted to escape, discipline him for obstreperous behavior, and imprison him if he were convicted of a major crime. If the complainant did not appear, the charge would be dismissed; he would be declared infamous and required to pay the accused’s expenses and damages and five pounds of gold to the king. He could withdraw his allegation within thirty days unless the judge concluded that it was false and malicious, or the suspect was in prison or tortured, or the crime was treason, desertion by a knight, falsehood, or thievery. The accusation usually died with the death of either party (SP 7, 1, 15–25). A suspect might settle out of court and could escape prosecution if the king, wishing to celebrate a notable event, decided not to pursue the matter (FR 4, 20, 14).

Responding to a royal inquest, a sworn body of men might accuse those whom they knew to be criminals. As the Third Partida discussed the inquest in detail, the Seventh Partida did not. However, the Fuero real (4, 20, 11–12) stressed that the king could order an inquest, “ca razon es que los fechos malos e desaguisados non finquen sin pena” (because it is right that evil and illegal acts should not go unpunished). If an inquest was general, only the king or his officials should see the jurors’ responses; but if it related to specific persons, they had to be informed so they could prepare their defense. If the accusers were upstanding men with no local enemies, whom they might be tempted to accuse, the king could order an inquest; he could also do so to punish forgery, perjury, notorious criminals, those making malicious accusations, or a guardian abusing his responsibility (SP 7, 1, 27–28). The Leyes del estilo (50–61, 102, 119, 121, 123) cited the use of the inquest in cases of arson, death in another’s house, the death of someone in the king’s service, rape, fighting, larceny, and robbery.

Men often mistrusted the inquest because it might result in false or spiteful allegations. For example, Antolín Fernández protested that officials of Burgos wrongly carried out a closed inquest accusing him of murder. In 1279, after Antolín presented sureties that he would abide by the law, Infante Sancho ordered his release. Antolín then demanded that the dead man’s relatives be summoned to accuse him and that he be given a copy of any inquest executed against him. Sancho ordered the judges to adjudicate the case and to permit an appeal, but the resolution of the case is unknown. Alfonso Durant, the royal alcalde, probably rendered this judgment in Sancho’s name.³

Crimes, Great and Small

The Alfonsine Codes consider the panoply of crimes created by the human mind. One need not repeat, however, the discussion in chapter 4 of treason (traición), an offense against God, the king, and the kingdom and, like leprosy, an incurable disease corrupting the entire body (SP 7, 2, pr.).

Although noble feuding has age-old roots, nobles anciently bound themselves in friendship (FR 4, 25, 1). As noted in chapter 10, the Fourth Partida (4, 27, 1–7) encouraged amity among them as a deterrent to violence. Friendship might be undone, however, when a noble charged another with aleve or perfidy, a lesser form of treason (SP 7, 2, 1).4 In a procedure known as riepto, the aggrieved noble could seek justice by challenging his adversary in the king’s court. Only the king could declare a nobleman a traitor.⁵ After the accuser declared his readiness to prove his allegation by witnesses, documents, an inquest, or battle, his opponent had three days to issue a denial and choose the method of proof; he could refuse an inquest or trial by battle. If he died before the matter was settled, his reputation and that of his heirs remained unsullied. If he or his representative failed to appear, the king should proclaim him a perfidious traitor and order his execution. However, if he proved that the charge was false, the challenger had to retract it, and if he refused, the king could banish him (SP 7, 3, pr., 1–5, 8–9; 7, 11, 1–3; FR 4, 25, 2–7).

Trial by battle (lid, lat. lis), though no longer common, had to be authorized by the king who set a date and time.⁶ Judges fixed the boundaries of the battlefield, placed the adversaries in midfield with an equal share of sunlight, explained the rules, and ascertained that they carried the designated weapons. If a disparity of age, size, or strength disadvantaged the accused, he might appoint a substitute. If the challenger defied more than one person, he would have to fight them all at once or one by one. If he refused to fight, his opponent would be acquitted. If either party abandoned the field without consent or was driven from it, he would be defeated, unless he left because of an accident. The accused would be acquitted if he killed the challenger, or if he was killed but did not admit his perfidy. If he successfully defended himself for three days, he would be exculpated, and the challenger would be penalized for making a false accusation. The horses and arms of a man convicted of perfidy who died in battle belonged to the royal mayordomo (SP 7, 4, pr., 1–6; FR 4, 25, 8–13). The vanquished, declared to be “worth less” (menos valer), was no longer the equal of his fellow nobles and henceforth could not make an accusation, testify in court, or receive honors. As the restoration of friendship was the king’s preferred objective, a truce had to be arranged and the parties had to pardon one another (SP 7, 5, 1–3; 7, 12, 1–4).

The Poem of the Cid illustrates that procedure. In the royal court, the Cid, declaring that “you are worth less,” denounced the Infantes of Carrión as treasonous dogs for abusing his daughters. After the Infantes denied his charge and three of the Cid’s knights challenged them to battle, Alfonso VI set a date and appointed judges to supervise the encounter. When the Cid’s men defeated the Infantes, the king claimed their arms.7 The fazañas also record several instances of riepto in the early thirteenth century (LFC 247, 258, 300).

By carefully regulating this procedure, the king hoped to curb wanton violence among the nobility. An orderly society had to be a lawful society.

Closely linked to treason were attempts to deceive. Examples included forging documents or altering authentic ones, revealing the content of court documents that were to be kept secret, an advocate giving an adversary information about his client or citing forged laws, sentencing contrary to law, giving false witness, bribing witnesses and judges, revealing the king’s secrets or telling him lies, assuming another’s identity, using false weights and measures, falsifying boundary lines, and preparing false financial statements (SP 7, 7, pr., 1–8; FR 3, 10, 1) As good government depended on the acceptability of authentic records, a scribe who created a false document might lose his hand, his office, or his life and be forever infamous. A cleric who falsified the royal seal would be expelled from the clergy, branded on his forehead, banished, and his property confiscated. A perjurer would lose his teeth, and his testimony would be invalid (FR 4, 12, 1–4, 10; SP 7, 7, 4, 6).⁸

The most notorious example of falsification concerned Sancho IV. Refusing to marry Guillerma de Moncada, his betrothed, he opted to wed his second cousin María de Molina, but lacking a dispensation, his marriage, in papal eyes, was invalid and his children would be illegitimate. Given Alfonso de la Cerda’s claim to the throne, Sancho arranged to have a dispensation forged in the name of Pope Nicholas IV in 1292. Boniface VIII revealed the imposture in 1297, but in response to María de Molina’s petition, he legitimated Fernando IV in 1301.⁹

Counterfeiters who intended to deceive by using false gold or silver, or colored copper coins to make them appear more valuable, or clipped coins were burned at the stake and their property confiscated (FR 4, 13, 7–8; SP 7, 7, 9–10; LEst 78).¹⁰ Fernando III twice confiscated villages from counterfeiters.¹¹

Homicide, the killing of another human being, was a grave matter.¹² Despite restrictions on the right of accusation, every family member or member of the community could accuse someone of murder (SP 7, 8, 14). Omecillo, a murder fine, might be imposed on the community where the crime occurred or on a known killer (FR 4, 17, 2, 4–8; LEst 69, 104, 124). In 1278, Pedro, a carter, identified as a murderer by an inquest, claimed that according to the Fuero viejo, he should not be executed but ordered to pay the homicide fine. The king directed the judges of Burgos to send him the inquest, to allow Pedro to give sureties to abide by the law, and not to harm him until he decided the matter. Pedro’s fate is unknown.13

Deliberate killing was punishable by death. No penalty was imposed, however, if one killed in self-defense or killed someone raping his daughter, sister, or wife, or robbing his house, or burning or destroying his property. A notorious thief, a highway robber, or a knight attempting to desert could be killed with impunity. A madman or a minor who killed someone would not be punished. An accidental death resulting from negligence was punishable. A master who struck his apprentice, thereby causing his death, would be charged with homicide (FR 4, 17, 1–9; SP 7, 8, 1–5).

Medical malpractice was a medieval problem as well as a modern one. No one could act as a physician or surgeon until his competence was determined by good physicians of the town where he intended to practice, approved by the judges, and certified in writing by the town council (FR 4, 16, 1–2). A physician who caused the death of his patient by prescribing incorrect dosages, or blundering at the operating table, would be banished and barred from practicing medicine. If he acted intentionally, he would be executed. He would also incur that penalty if he castrated someone, unless he intended to cure a disease (probably syphilis).¹⁴ An apothecary who knowingly caused the patient’s death by giving him lethal drugs would be slain. So too would a woman who tried to induce the abortion of a living child; if it were dead, she would be exiled. As Jews reportedly coerced their Moorish women (probably slaves) to abort their children, the mother would not be punished (SP 7, 8, 6–8, 13).¹⁵

Fathers, masters, and teachers were admonished to take care in chastising their children, slaves, or students lest, by being overly harsh, they might kill them. Anyone who armed a man who was enraged, drunk, or insane so that he could kill himself or someone else would be put to death. A judge who wrongfully sentenced an innocent person to death, exile, or mutilation would also be executed. Parricide, one of the most abhorrent crimes, was similarly punished.¹⁶ Social standing safeguarded some murderers from the most severe punishment. Whereas a guilty noble would be banished forever and his property confiscated, a commoner would be killed. Anyone, however, who killed another in a treasonous or perfidious manner should suffer the death penalty (SP 7, 8, 9–12, 15–16).¹⁷ The fazañas record some instances of homicide (LFC 225, 228).

Although civil society was founded on the notion that everyone was entitled to respect, that principle was breached when individuals were insulted or dishonored by foul language, name-calling, or gestures.18 Leper, pederast (fodudincul),¹⁹ cuckold, traitor, heretic, or whore were common epithets (FR 4, 3, 1–2) subject to fines.²⁰ Defamatory postings, some directed against the king, as well as offensive songs were reprehensible.²¹ Stalking, striking, kicking, stripping, spitting, or posting horns on a cuckold’s door also brought dishonor (SP 7, 9, pr., 1–7). The desecration of graves dishonored the living and the dead (FR 4, 18, 1–5; SP 7, 9, 12–13; LFC 259).²²

Anyone defamed could seek redress in court, except a knight who deserted, a plaintiff who ignored a judge’s summons, someone tortured in accordance with the law, or a man seeking a public office who was passed over for someone better qualified. A woman of good fame who dressed provocatively or visited a brothel could not allege dishonor, because she wore inappropriate clothing and went where she should not (SP 7, 9, 8–19). That exemplifies the age-old argument that the woman who was assaulted had only herself to blame. In determining reparations, judges considered several circumstances: injuries to the eyes or the face; whether the act occurred in the royal court, a municipal council, or a church; the status of the one dishonored, for example, a father by his son, a lord by his vassal, a former master by his freedman, or a judge by someone under his jurisdiction; and songs, rhymes, and libels (SP 7, 9, 20–23; LEst 81).

At times insults preceded violence. Disturbances of the peace by armed men were banned by Alfonso IX in 1188,²³ by the Ordinance of Nájera as recorded in the Ordinance of Alcalá in 1348 (32, 1–2), and in the Espéculo (4, 3, 4). However, a man was permitted to defend himself and his property (SP 7, 10, pr., 1–7; FR 4, 4, 8, 11). In 1252 Alfonso X forbade anyone to commit violence against masters and students at the University of Salamanca, but his prohibition against providing arms to escolares peleadores indicates that they were ready to brawl.²⁴ In 1271 Infante Fernando admonished knights of Toro and neighboring towns engaged in turbulent acts.²⁵

Common penalties were banishment, confiscation, a declaration of infamy, restitution, and compensation for damages (SP 7, 10, 8–18). Monetary penalties were assigned for various bodily injuries: for example, two maravedís for striking the face or twenty-five maravedís for loss of a thumb, and lesser amounts for the other fingers in descending order (FR 4, 5, 3). That payment schedule, however crude, was an advance from the barbaric past when the law of an eye for an eye prevailed.

Other major crimes were robbery, the forcible seizure of another’s property, and larceny, secretly doing so.²⁶ A robber had to make restitution, pay a fine, name his accomplices, and endure physical punishment (SP 7, 13, 1–4; FR 4, 4, 15–18; LEst 71–72). In 1279 Infante Sancho ruled that an inquest charging Giralt Bernalt with robbery should not have been carried out. Although he allowed the victim to sue, the outcome is unknown. The royal alcalde Alfonso Durant probably adjudicated the case in Sancho’s name.27 In 1188 Alfonso IX enacted a law condemning larcenists,²⁸ who were usually fined or whipped. Rustlers, highwaymen, pirates, and officials who plundered the royal treasury were executed. Although a commoner who kidnapped children, slaves, or freemen to sell them to the Moors would be condemned to death, a nobleman would be put to hard labor for life. Innkeepers, customs officers, and custodians of royal granaries were responsible for losses resulting from theft (SP 7, 14, pr., 1–22, 30; FR 4, 4, 6; 4, 5, 6–7; 4, 13, 5–15; LEst 73–76).

When a criminal act resulted in damage, the one at fault had to make amends.²⁹ Reparations might not be ordered if an unintended injury occurred, for example, when building a house, digging potholes, or setting traps. However, the original and the appraised value of damaged property had to be assessed and restitution made within thirty days when the act was deliberate, such as causing a ship to sink, polluting a cargo of wine or oil, facilitating a slave’s escape, misdiagnosing a patient, cutting down trees or vines, endangering passersby, or throwing bones or garbage into the street (SP 7, 15, pr., 1–28; FR 4, 4, 1–7, 10, 12–13, 19–20, 22).

Fraud was a deliberate attempt to deceive by lying, keeping silent, or responding ambiguously with the intention of misleading.³⁰ Deception might be justified to ensnare evildoers or one’s enemies, but a promise made in a truce with an enemy, even of another religion, should be kept. If one could prove that a contract was fraudulent, compensation had to be made. One had to sue for reparations within two years, but the victim and his heirs had up to thirty years to recover the estimated loss or depreciation of property suffered as a result of a trick. In addition to that amount, the defendant had to pay the plaintiff’s legal costs (SP 7, 16, 1–6).

The endless possibilities of fraud included passing off false metal as gold or silver, offering an item for sale and then switching it for something inferior, concealing mediocre merchandise under stuff of good quality, diluting oil, wine, wax, and honey, or selling plain glass as precious stones (SP 7, 7, 4; 7, 16, 7–8). One of the more ingenious tricks was to soak bread in red vinegar and, when it was dry, to put it in water that turned red. In that way, the people were tricked into believing that the cheat was a saint (SP 7, 16, 10). Also despicable was the man who used a locked chest supposedly filled with valuables as security for a loan. Upon opening the chest later and discovering that it was full of sand, he accused his creditor of stealing, though he knew that it was there from the outset (SP 7, 16, 9). The most notorious double-dealer who perpetrated this rip-off was the Cid, who presented two coffers packed with sand to Raquel and Vidas, two Jews of Burgos, who lent him six hundred marks and pledged not to open the coffers during his absence. The royal jurists may have had this story in mind.31

On a more sophisticated level, people attempted to manipulate the legal system. For example, when a man wished to buy or sell property, another might attempt to prevent him by maliciously bringing suit for the property. A man fearing prosecution might persuade an accomplice to accuse him so that a third party could not sue him for the same offense. An advocate might assist his client’s opponents or otherwise impede the successful prosecution of his client’s case. Given the diversity of these fraudulent acts, the judge was advised to take into account the nature of the crime and the status of the victim and the perpetrator (SP 7, 16, 11–12).

Intent on controlling criminal activity by gamblers, the king banned private gambling establishments and licensed casinos for a fee. A nobleman, however, was permitted to bet within his own house. No one could pledge the body of another as security for a loan, and a knight was forbidden to pledge his weapons. A wagering cleric in legal trouble could not claim canonical protection but would be subject to the king’s law (Libro de las tahurerías 23–26, 32).

Among sexual crimes rape was harshly punished.³² A man who raped a single woman would be killed, but if he abducted her and did not have intercourse he would be fined or imprisoned. If she suffered a gang rape, all her assailants would be killed. The rapist of a married woman would be left to her husband’s mercy. A husband could chastise a madam (alcahuete; ar. al-qawwād) who prostituted his wife, though he could not kill or mutilate her (FR 4, 10, 1–8). CSM 291 related that a scholar at the University of Salamanca raped a girl, but repented after being captured and composed a song praising the Virgin Mary, who set him free. However that may be, most rapists probably languished in prison or suffered brutal penalties, such as having one’s eyes put out, loss of a hand, and hanging (LFC 105, 303; FV 2, 2, 2).

Adultery was closely linked to the concept of honor.³³ A woman who committed adultery dishonored her husband, but in an obvious instance of a double standard, if he were the adulterer, she suffered no dishonor, because she derived her honor from him (SP 7, 17, 1). A woman’s husband and male relatives could accuse her, but no one else could, lest her disgrace become widely known. If she proved that she acted at her husband’s behest, she and her partner should be acquitted, but her husband would be punished. If, knowing that she committed adultery, he received her into his bed, it would be understood that he pardoned her. If a man was acquitted of adultery, his paramour could not be charged, unless they had intercourse again. An aggrieved husband could punish his wife and her lover, even killing them, but he was forbidden to kill one and spare the other (FR 4, 7, 1–7; SP 7, 17, 7–12, 15).34 When a knight, for example, discovered his wife and another knight in a compromising position, he cut off the man’s genitals, but Fernando III ordered the husband hanged because he did not also punish his wife (LFC 116).

Sexual relationships outside of marriage also drew serious penalties. A father who discovered anyone with his daughter, or a brother with a sister, could kill them. If an unmarried woman willingly committed fornication, her partner would suffer no penalty; nor would a man who had intercourse with a vile woman. A couple related within the prohibited degrees would be sentenced to a life of penance in separate monasteries. Men who seduced nuns, widows, or virgins of good reputation were fined, banished, or scourged. A nun who married, whether willingly or not, was compelled to return to her monastery, and her husband would be banished. A man who slept with his father’s wife, or a father with his son’s wife, would be charged as a traitor.³⁵ A bigamist suffered exile. The penalty for incest was the same as for adultery, but a boy under fourteen or a girl under twelve could not be so charged (SP 7, 17, 16; 7, 18, 1–3; 7, 19, 1–3; FR 4, 8, 1–3; 4, 9, 1; 4, 10, 4).

Procurers and pimps, in the king’s mind, brought great evil to his realm. Some men exploited prostitutes in brothels, while others prostituted their own wives, or opened their houses to women of good reputation wishing to commit fornication. A man pimping for his own wife would be executed. Although a wicked woman sinned by sleeping with men, she was entitled to keep whatever money they gave her (SP 5, 14, 53). Moreover, she would not have to pay tithes on her earnings because the church would not condone her conduct by accepting her money (SP 1, 20, 12). Though pimps and their women should be expelled from a town, they probably took that as a risk of doing business and established themselves elsewhere. Women enslaved as prostitutes would be given their freedom, and their pimp had to provide them with a dowry (SP 7, 22, 1–2).³⁶ In one instance, the village authorities of Belorado arrested Mari García, a madam working for Diago Abad, whom they accused of seducing Giralt’s wife. While Mari was beaten through the village, Giralt seized Diago’s property and wanted to burn his wife, but the judges put her in stocks (LFC 137).

Homosexuality was condemned as a sin against nature that brought mala fama and other evils to the kingdom that tolerated it (SP 7, 21, 1). Aggrieved even to have to speak of it, the king commanded that gays be castrated and hanged by their legs until they died. As a public example, their bodies would never be taken down (FR 4, 9, 2). Men or women who had intercourse with animals were executed, and the animal was killed to erase any memory of the deed (SP 7, 21, 2).37 CSM 235 seemed to imply that either or both Infante Fadrique and Simón Ruiz de los Cameros, whom the king executed in 1277, were gay.³⁸

Although astronomers were acknowledged as scholars, sorcerers, soothsayers, fortune-tellers, and diviners who attempted to discern the future and necromancers who summoned evil spirits were condemned to death (SP 7, 23, 1–3).³⁹

Heresy, a topic discussed in chapter 4, was perceived as a crime menacing the good order of society. As despair was sinful, no one should commit suicide, but some did so because of illness, insanity, loss of inheritance or honor, or shame. Assassins, desperate men who often passed themselves off as monks or pilgrims, were a special danger for kings and magnates and should be executed (SP 7, 27, 1–3). Whereas a noble who blasphemed would lose his land, a lowborn person would receive fifty lashes for the first offense, branding with a hot iron on the lips with the letter B for the second, and for the third, lose his tongue. Blaspheming Jews and Moors would be punished as the judge saw fit (SP 7, 28, 1–6). The Libro de las tahurerías (1) penalized blaspheming gamblers with fines, lashes, or loss of tongue.

Alfonso X was himself accused of blasphemy. Pedro Afonso, count of Barcelos, reported that the king remarked: “if he had been there with God when he made the world, he [the king] would have amended many things so that they would be better made than as he [God] made them, and for that God was angry with him.”⁴⁰ That comment, taken as a sign of royal arrogance, was said to have stirred the wrath of God, who decreed that the king should be dispossessed and come to a very bad end.⁴¹ Later authors regarded it as proof of his irreligious attitude, implying that it derived from his scientific curiosity, his interest in astrology and alchemy, and his admiration for the wisdom of Muslims and Jews.⁴² Whether he ever made such a remark cannot be proven, but he may have done so in jest. However, the conclusion that he was contemptuous of God is unwarranted. His lifelong devotion to the Virgin Mary, his profession of faith and acceptance of church teaching, and his plea for divine guidance in his wills of 1282 and 1284 attest to his orthodoxy.

Arrest, Incarceration, and Punishment

Once charged, a criminal had to be apprehended and brought to trial. Some tried to elude justice by seeking asylum in a church or cemetery.⁴³ Early church councils acknowledged that right, and the royal jurists summarized canon law on the matter (SP 1, 11, 1–5; PPBM 1, 11, 1–5).44 While respecting asylum, civil authorities were expected to protect the church against profanation. For example, during the reign of Fernando III three men fled to a church, but their enemies dragged them out and killed them. Lope Díaz de Haro, acting in the king’s name, fined the murderers three hundred sueldos and required them to pay the bishop one hundred sueldos and to do penance by going to Rome barefoot. Observers of the sacrilege were compelled to fast (LFC 262).

Alfonso X reserved the right to seize criminals seeking sanctuary in a church and enacted a law forbidding churchmen to protect them (FR 1, 5, 8). In July 1263, he confirmed that criminals fleeing to a church should not be harmed, but he denounced those who sought asylum in the cathedral of Seville where his father was buried. He directed the sacristans to close the doors after religious services so malefactors could not enter. If one did so, he should be dragged out and imprisoned.⁴⁵ In November 1263 when the municipal council of Alicante hesitated to seize criminals taking shelter in churches, he quoted the Libro de las leyes (PPBM 1, 11, 5; SP 1, 11, 4) forbidding the church to protect them and authorized their arrest. This decision emphasized his insistence that the Partidas was the law of the land and should be enforced.⁴⁶

While awaiting trial, the accused was imprisoned.⁴⁷ A decent man or a scholar was treated respectfully and was not confined with other prisoners, but notorious criminals were detained more closely. This resembles the modern distinction between blue collar and white collar criminals. Whereas the former are treated harshly, the latter enjoy the comforts of country club prisons. The Alfonsine Codes instructed that women not be imprisoned with men, but rather in a convent until summoned to court; surely that disrupted the nuns’ monastic routine. At night prisoners were confined in stocks or irons under the watchful eyes of guards. At dawn doors were opened and prisoners, one at a time, were permitted to speak with visitors. The chief jailer had to keep a written record noting the charge against each prisoner and make a monthly report to a judge. Prisoners usually had to pay a fee for their food and drink. A prisoner who posted bail (except for a crime punishable by death or loss of limbs) might remain free until his trial, but if he failed to appear in court, his surety would suffer the penalty. If the chief jailer abused prisoners, he could be executed. Guards who killed a prisoner or assisted his escape or suicide would also be executed. A fter an escapee was recaptured, the judge, taking his flight as evidence of guilt, could sentence him immediately or imprison him more securely. Whereas private prisons had once been used, Alfonso X prohibited anyone from building a prison without royal consent. An act in contravention of royal sovereignty, it was punished by execution (SP 7, 29, pr., 1–15; FR 4, 5, 4; 4, 13, 12; LEst 111, 113).

Torture, as a means of eliciting evidence of a crime, was sanctioned by Roman law and incorporated into the Visigothic Code, but it was unknown to the municipal fueros and the Fuero real.48 With the reception of Roman law, torture was reintroduced in the Espéculo and the Partidas and continued in use until its abolition early in the nineteenth century.⁴⁹ Only a judge could authorize torture to ascertain information that might otherwise be kept secret. A prisoner could be scourged, hung by his arms, or have weights piled on his shoulders and legs. Those who could not be tortured included minors under fourteen, knights, masters of laws or other sciences, because of the nobility of the sciences, royal or municipal councilors, and a pregnant woman, lest her unborn child be harmed. A disreputable person of inferior rank, accused by only one witness but generally believed to be guilty, could be tortured. The procedure should be conducted privately in the presence of the judge and a scribe who recorded the accused’s responses. If the prisoner subsequently confirmed what he said, the judge could impose sentence, but if he determined that the accused falsely confessed out of fear, insolence, or insanity, he had to release him. However, if the accused retracted his admission of treason, counterfeiting, theft, or robbery, he could be tortured twice again on two different days. And a confession made under torture and not confirmed later was invalid. A judge who maliciously tortured a prisoner, thereby causing his death or loss of a limb, would suffer the same penalty. When having to torture several persons, the judge should begin with the youngest or the one of the most vicious upbringing, because he was most likely to confess. All should be tortured separately, so no one would know what the others said. Torture should be applied with restraint lest anyone be killed or maimed. Slaves could only be tortured to compel them to testify against their masters in case of adultery by the master or mistress, fraud by a royal tax collector, treason, murder, and counterfeiting. If a master or family member was killed in his own house, his slaves and servants should be tortured to determine the killer. As various family members were not obliged to testify in capital cases or those resulting in loss of limb, they could not be tortured (SP 7, 30, pr., 1–9; E 4, 3, 5; 4, 7, 1, 3).

Conviction inevitably led to punishment.⁵⁰ Punishment, in a spiritual sense, was chastisement for sin, but legally its purpose was to castigate the criminal and deter others from committing similar offenses. The royal jurists instructed that only after a thorough procedure determined that the culprit acted intentionally should the judge inflict punishment. If the offense was not deliberate, a lesser penalty should be imposed; and if it was accidental, no penalty was due. A person who did not carry out a planned crime would not be punished, but he would be if he did so, even in part (SP 7, 31, 1–2).

Crimes were classified under four headings: (l) murder, theft, or robbery; (2) insults, defamation, perjury, or false advocacy; (3) forgery, wicked songs, or malicious statements; and (4) conspiracy or rebellion. There were seven forms of punishment: (1) execution or loss of limb; (2) confinement in irons for life and labor in the royal mines; (3) confiscation and exile for life to an island, a penalty borrowed from Roman law;51 (4) imprisonment of a slave awaiting trial; (5) exile to an island without confiscation; (6) declaration of infamy, ouster from public office, or dismissal from the legal profession; and (7) public whipping, placement in the pillory, or exposure to the sun of the naked body seared with honey to attract flies. On one occasion, Diego López de Haro ordered a Gascon who killed a hawk to be stretched on a pillory in the sun until he died (LFC 253). An ordinary judge could sentence a criminal to death or loss of a limb and confiscate his property, according to “the laws of this our book.” Only the king, however, could banish anyone to an island or confiscate his property in a case not specified in the law code (SP 7, 31, 3–5).⁵²

As God created man in the divine image, it was deemed inappropriate to disfigure a criminal by branding him on the face with a hot iron, severing his nose, or putting out his eyes; in practice, however, this was often ignored. Punishment could be inflicted on other parts of the body, so that others, seeing it, would be deterred from crime. Capital punishment was carried out by beheading with a sword or a knife, but not with an axe or a sickle used at harvest time. A criminal might be burned to death, hanged, or thrown to wild beasts, but not stoned, crucified, or thrown from a high place (SP 7, 3, 6). The Fuero of Cuenca (arts. 1.11, 1.25, 2.32, 11.16), however, ordered serious criminals to be cast down from nearby cliffs. CSM 107 relates that a Jewish woman, thrown from the cliffs of Segovia by her fellow Jews, cried out to the Virgin Mary who saved her. In gratitude, she became a Christian. Local legend hailed her as Marisaltos, Leaping Mary.⁵³

Lest anyone be wrongfully convicted, Alfonso X admonished his judges not to be swayed by suspicions or presumptions, although they might justify the use of torture. Punishment should be founded on incontrovertible proof, because any abuse of the body could never be undone. The nature, circumstances, and seriousness of the crime had to be taken into account, as well as the status and intention of both the perpetrator and the victim. For example, a nobleman or a learned person who committed a capital crime should not be executed ignominiously by being dragged, hanged, burned, or thrown to wild beasts, but made to bleed to death, drowned, or banished. After giving careful attention to all these possibilities, the judge could intensify or lessen the punishment or forego it altogether, but he could not alter it later. Execution ought to be carried out publicly as a deterrent to others. Relatives of the deceased or members of a religious order might claim the body for burial (SP 7, 31, 7–11; FR 4, 5, 2).

A criminal’s reputation might also be destroyed by the brand of infamy. The preservation of one’s good name was an ideal, and its loss had dire consequences.54 Fama referred to an honest man who lived in accord with the law and good customs. Infamia or desfamamiento resulted either from an action over which one had no control or from commission of a crime. A bastard child, for example, was infamous by reason of birth. A father who denounced his son in his will rendered him infamous (SP 7, 6, 1–2). That was certainly Alfonso X’s intention when, in 1282, he harshly condemned Sancho and disinherited him.⁵⁵

Persons who became infamous as a result of their own conduct included a woman caught in adultery, a widow engaged in “wickedness with her body” within the year of her husband’s death, a madam, minstrels, mimes, wandering singers and comics, except those entertaining the king,⁵⁶ boxers and men battling wild beasts for money, a knight stripped of his knighthood, usurers, violators of sworn contracts, and homosexuals. A judicial sentence rendered infamous one who committed treason, forgery, adultery, and other crimes. The law distinguished between ill-repute (nombradía mala) and infamy. The former was long-lasting and might never be overcome. Once a man gained a bad reputation, people would likely not forget it. On the other hand, an emperor or king could lift a judicial sentence of infamy by pardoning a man, though his reputation might still be tarnished in the popular mind. Infamy not only deprived a man of whatever dignity or honor he held, but also barred him from holding public office. A man who unjustly caused another to be declared infamous and sentenced to death or exile should suffer the same penalty (SP 7, 6, 3–8).

In some instances, the king might grant a pardon.⁵⁷ The Fuero real did not treat the subject specifically, but it likely was included in a missing section of the Espéculo that also refers incidentally to pardons. Condemning any attempt on the king’s life as the worst of treasons, the royal jurists declared it an unpardonable offense. Should anyone suggest a pardon, he would be expelled from the kingdom. Nevertheless, the king, moved by pity, might pardon a traitor seeking to dispossess him, but should first put his eyes out (E 2, 1, 6; 2, 6, 2). That contradicted the law stating that the king could not pardon a traitor or an excommunicated person (E 4, 2, 1). There was a chancery formula for issuing a pardon except in cases of aleve or treason (E 4, 12, 20).⁵⁸ The fee for pardoning a crime requiring corporal punishment was ten maravedís for a rich man and five for a poor one (E 4, 12, 58).

Emperors and kings ought especially to possess the virtues of mercy and grace to dispose them to pardon criminals. The king might issue a general pardon to celebrate the birth of a son or a victory over his enemies, or to commemorate Good Friday. Or he might pardon an individual because of previous service, or because he possessed certain qualities or knowledge beneficial to the realm. Someone pardoned before sentencing would recover his standing and property, though his reputation might never be fully repaired. Unless the king declared otherwise, someone pardoned after being sentenced would not regain his property, fame, or honor (SP 7, 32, 1–3).

Two instances, one of insubordination and the other of outright rebellion, surely necessitated pardon. In 1264, during the Mudéjar revolt, the king’s long-time friend Nuño González de Lara abandoned the citadel of Jerez without royal permission. He seems not to have suffered any punishment, though years later the king reproached him for his conduct, commenting that he had fined him.59 In 1272 the nobles, led by the king’s brother Infante Felipe, repudiated their vassalage and exiled themselves to Granada, but they returned in 1274 and renewed their allegiance. Although the sources do not mention pardon in either case, the nobles must have made some formal acknowledgment of error in return for the king’s pardon.⁶⁰

Conuiene que Saquedes los Malos Omnes de la Tierra

In order to sustain a peaceful society, the legist Master Jacobo de las leyes, in his Flores de Derecho (1, 1, 4), counseled Alfonso Fernández, the king’s son, that “conuiene que saquedes los malos omnes de la tierra” (it is necessary that you rid the realm of evildoers). That statement confirmed the king’s responsibility to purge the kingdom of criminals so that his people might live in peace. By permitting anyone (with certain exceptions) to accuse another of a crime, and by using the inquest to ferret out criminals, Alfonso X broadened the competence of royal justice, while emphasizing that crime was the public’s business, as it harmed the entire community.

The catalog of crimes described in the Alfonsine Codes is, rather perversely, a tribute to human cunning and inventiveness. Treason against king and kingdom endangered the institutions intended to maintain the tranquility of the realm. Aleve or perfidy disrupted public order, but by regulating the process of riepto, the king hoped to restore peace and friendship among the nobility. Forging official documents and counterfeiting the royal coinage or seals were treasonable acts that cast doubt on the trustworthiness of government. The manipulation of false weights and measures was detrimental to economic well-being. Murder, robbery, theft, fraud, and insulting language stirred cries for vengeance and led to violence. Sexual offenses destabilized the life of the family, the nucleus of society. Heresy, communicating with evil spirits, blasphemy, and suicide contravened church teaching and were unacceptable in a Christian society. As all these crimes were regarded as destructive of the common good, the king, whose duty it was to do justice to everyone, had to punish them in the community’s name.

Although an accused criminal might seek asylum in a church, Alfonso X authorized his forcible removal. The accused might also be subjected to torture, but he had to confirm his statements when he was no longer under duress. Before meting out an appropriate punishment, the judge had to be convinced of the certitude of the evidence, but he also had to consider the status of the culprit. By treating nobles and scholars with greater respect and leniency than ordinary people, the law recognized the inherent inequality of thirteenth-century society.

Corporal punishment included execution, deprivation of liberty, mutilation, and humiliation. The death penalty, reserved for the most serious crimes, was carried out publicly as a deterrent to others. A wrongdoer sentenced to exile was uprooted from his home and family. Mutilation served as a permanent visible reminder of the offender’s crime. Whatever dignity a criminal may have had was lost when he was publicly humiliated by being whipped, pilloried, or put in stocks. Especially degrading was the brand of infamy, of being declared menos valer—to be worth less. The malefactor suffered not only the loss of public esteem, but also whatever honor, status, or office he may have possessed. Financial penalties struck the offender in his pocketbook. Confiscation of property impacted his family and his heirs. Should the king be inclined to be merciful, he could mitigate punishment or pardon a criminal.

In an ideal world, if the law was applied honestly, fairly, and justly, crime and criminals would likely be held in check, but as the royal jurists acknowledged, criminals threatened public order and required judges and other officials to take exceptional measures to suppress them.