Las Siete Partidas, Volume 5: Underworlds: The Dead, the Criminal, and the Marginalized (Partidas VI and VII) 9780812208566

Table of contents :
CONTENTS
Introduction to the Sixth Partida
Introduction to the Seventh Partida
Partidas VI and VII: Analytical Table of Contents
Partida VI: Text in Translation – Sixth Partida: Succession
Title I: Testaments
Title II: Sealed, Closed, or Mystic Testaments
Title III: Institution of Heirs
Title IV: Conditional Institution
Title V: Substitution of Heirs
Title VI: Deliberation of Heirs, Inventory, and Surveillance
Title VII: Disinheritance
Title VIII: Remedy for Wrongful Disinheritance
Title IX: Legacies
Title X: Executors
Title XI: Reduction of Legacies
Title XII: Codicils
Title XIII: Intestate Succession
Title XIV: Delivery of Inheritance
Title XV: Partition of Inheritance
Title XVI: Tutelage
Title XVII: Excuses from Thtorship
Title XVIII: Removal of Tutors
Title XIX: Restitutio In Integrnm
Partida VII: Text in Translation – Seventh Partida: Crimes; Exegesis; General Pinciples
Title I: Accusations
Title II: Treason (Trayción)
Title III: Charge of Treason Against Nobility
Title IV: Trial by Combat
Title V: Loss of Status
Title VI: Infamy
Title VII: Deceit (False dad)
Title VIII: Homicide
Title IX: Injuria (Deshonra; Dishonor)
Title X: Fuercas (Violence)
Title XI: Repudiation of Friendship Among Nobles
Title XII: Truce and Security Among Nobles
Title XIII: Robo (Robbery)
Title XIV: Hurto (Larceny)
Title XV: Injury to Property
Title XVI: Fraud
Title XVII: Adultery
Title XVIII: Incest
Title XIX: Seduction
Title XX: Abduction (Violación)
Title XXI: Sodom
Title XXII: Procuring
Title XXIII: Necromancy, Divination, etc.
Title XXIV: Jews
Title XXV: Moors
Title XXVI: Heresy
Title XXVII: Desperados (Desperate Persons)
Title XXVIII: Blasphemy
Title XXIX: Prisons and Prisoners
Title XXX: Torture
Title XXXI: Punishment
Title XXXII: Pardons
Title XXXIII: Exegesis
Title XXXIV: Maxims and General Principles
Index

Citation preview

LAS SIETE PARTIDAS Volume 5: Underworlds

THE MIDDLE AGES SERIES Ruth Mazo Karras, Series Editor Edward Peters, Founding Editor A complete list of books in the series is available from the publisher.

LAS SIETE PARTIDAS Edited by Robert I. Burns, S.]. Volume 1: The Medieval Church The World of Clerics and Laymen Volume 2: Medieval Government The World of Kings and Warriors Volume 3: Medieval Law Lawyers and Their Work Volume 4: Family, Commerce, and the Sea The Worlds of Women and Merchants Volume 5: Underworlds The Dead, the Criminal, and the Marginalized

LAS SIETE PARTIDAS VOLUME 5: UNDERWORLDS The Dead, the Criminal, and the Marginalized Translated by Samuel Parsons Scott Edited by Robert I. Burns, S.].

PENN University of Pennsylvania Press Philadelphia

Publication of this volume was assisted by a grant from the Program for Cultural Cooperation between Spain's Ministry of Education and Culture and United States Universities Copyright © 2001 University of Pennsylvania Press All rights reserved Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4011 Library of Congress Cataloging-in-Publication Data Las Siete partidas I translation and notes by Samuel Parsons Scott; edited by Robert I. Burns. p. cm. - (The Middle Ages series) Includes bibliographical references and index. Contents: v. 1. The medieval church - v. 2. Medieval government - v. 3. Medieval law - v. 4. Family, commerce, and the sea - v. 5. Underworlds. ISBN 0-8122-1738-1 (v. 1 : pkb. : alk. paper). - ISBN 0-8122-1739-X (v. 2 : pbk.: alk. paper)ISBN 0-8122-1740-3 (v. 3: pbk. alk. paper). - ISBN 0-8122-1741-1 (v. 4: pbk.: alk. paper)ISBN 0-8122-1742-X (v. 5: pbk. : alk. paper) 1. Law-Spain-Sources. 2. Law, Medieval. 3. Siete partidas. I. Scott, S. P. (Samuel Parsons), 18461929. II. Burns, Robert Ignatius. III. Alfonso X, King of Castile and Leon, 1221-1284. IV. Series. KKT1422000 340.5' 5 '0946-dc21 00-060738

CONTENTS Introduction to the Sixth Partida Testament as Perspective: Numbers The Testator The Universal Heir Legacies and Legatees, the Executor Wards: Guardians and Administrators Codicils, the Intestate, Slaves Context and Meaning Suggestions for Reading Introduction to the Seventh Partida

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x xi xii xiv xv xvi xvi xvii xix

Alfonso's Structure of Crime Treason, Infamy, Corruption Homicide and Violence Robbery, Theft, Larceny, Fraud Sex Crimes Sorcery and Magic The Jews Mudejars: Muslims Under the Latins Heretics, Assassins, Blasphemers Prisons, Punishment, Torture, Pardons Appendixes: Legal Maxims and Tags The Formation of a Persecuting Society? Suggestions for Reading

xx xxi xxii xxiii xxv xxv xxvi xxxii xxxv xxxvii xl xl

Partidas VI and VII: Analytical Table of Contents

xlvii

Partida VI: Text in Translation

1175

Partida VII: Text in Translation

1303

Index

1485

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INTRODUCTION TO THE SIXTH PARTIDA Alfonso had devoted the fifth partida to the manifold world of business and contracts, centering around the cherished concept of property. In the sixth partida he focuses closely on a single type of contract, the last testament by which men "of great prudence" can "arrange their property" to the profit and "pleasure" of their heirs as well as to "the advantage of their souls." In the sphere of contracts, this was literally "the last of their acts." To encompass contracts Alfonso had needed some 167 pages as measured by this English translation; to cover testaments alone he requires 127 pages. This contrasts with the hefty early partidas, respectively at 266 pages for religion and the church, 264 for king and country, and 344 for legal procedure. It compares favorably with the last four partidas, however, respectively at 130 pages for family, 167 for contracts, and 181 for crime. The king's topic in the sixth partida holds fewer surprises for the modern reader than does the seventh partida on crime and punishment. Consequently we can introduce this sixth book more cursorily, reserving a longer pagination for the more bizarre themes of the final book. Just as the conjoined fourth and fifth partidas combine to make a total of just under 300 pages (Volume 4 in the present series), a respectable size, so the sixth and seventh partidas now combine to a similar bulk as Volume 5. 1 The modern will, as explicated by Alfonso, is a medieval artifact. From the Roman law of testaments and elements of custom from the barbarian invaders, and building on the donatio mortis causa or gift-after-death, as Harold Berman notes, twelfth-century canonists "created a new law of wills." The focus was now on the individual rather than on the family, and on the testator rather than on the property itself. The testament had become a religious act and a religious instrument, the testator's final wishes a sacral obligation. In short, the "testament" had become a "will." The canonists "established a body of rules" to "interpret and reinforce" this artifact. Changes in the substantive Roman law included increasing and protecting the widow's rights, a care for pious causes, concern for the manner of burial, addition of many specific bequests, reduction in the number of witnesses, and such a development in 1. Representative general works on medieval wills include Alfonso Garda-Gallo, "Del testamento romano al medieval: las lineas de su evoluci6n en Espaiia," Anuario de historia del derecho espanol47 (1977): 425-97; Jesus Coria Colino, "El testamento como fuente sobre mentalidades (s. XIII al XV), " Misceldnea medieval murciana, 9 (1982): 193-219; Jordi GUnzberg, "Testamentos del siglo XIV del Archivo Historico de Protocolos de Barcelona (AHPB) y su aplicacion a la demograffa hist6rica: estudio archivfstico-metadologico," Acta historica et archaeologica mediaevalia 10 (1979): 89-98; M. C. Garcia Herrero, "La muerte y el cuidado del alma en los testamentos zaragozanos de la primera mitad del siglo XV, " Arag6n en la edad media 6 (1984): 209-245; Nathaniel L. Taylor, "Medieval Catalonian Wills: Family Charter Evidence in the Archives," Discovery in the Archives of Spain and Portugal: Quincentenary Essays, 1492-1992, ed. Lawrence J. McCrank (Binghamton, N.Y.: Haworth Press, 1994), ch. 3; Henri Auffroy, Evolution du testament en France des origines au XIII' siecle (Paris: A. Rousseau, 1899); Louis D. Charrin, Les testaments de la region de M ontpellier au moyen age (Am billy: Presses de Savoie, 1961); Samuel K. Cohn, Death and Property in Siena, 1205-1800: Strategies for the Afterlife (Baltimore: Johns Hopkins University Press, 1988); Steven Epstein, Wills and Wealth in Medieval Genoa 1150-1250 (Cambridge, Mass.: Harvard University Press, 1984); Stephen P. Bensch, "Inheritance and Strategies of Heirship," in his Barcelona and Its Rulers, 1096-1291 (Cambridge: Cambridge University Press, 1995),244-60; Paul Binski, Medieval Death: Ritual and Representation (Ithaca, N.Y.: Cornell University Press, 1996); Jacques Chiffoleau, La comptabiliti de l'au-delil.: les hommes, lamort, et la religion dans la region d'Avignon Ii lajin du moyen age (vers 1320-vers 1480) (Rome: Ecole Fran~aise de Rome, 1980) and "Les testaments proven~eaux et contandins a la fin du moyen ige: richesse documentaire et problemes d 'explication," in Sources of Social History: Private Acts of the Late Middle Ages, ed. Paolo Brezzi and Egmont Lee (Toronto: Pontifical Institute of Mediaeval Studies, 1984), 132-52; Carlos M. N. Eire, From Madrid to Purgatory: The Art and Craft of Dying in Sixteenth-Century Spain (Cambridge: Cambridge University Press, 1995); Michel Vovelle, La mort en l'occident de 1300 Ii nos jours (Paris: Gallimard, 1983).

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administering estates that Berman can speak of "the new institution of the testamentary executor." Because the law of wills now concerned a religious act, overtly religious provisions, and the fate of widows and orphans, it entered as "a subsystem within the system of canon law as a whole" and experienced the linkages and interactions that medieval jurisprudents manipulated from the system at large in a "conscious concordance of discordant elements."2 Thirteenth-century archives in Spain are rich in wills; religious corporations from cathedral chapters to mendicant orders filed copies that contained legacies for them, while notarial registers preserved master copies routinely. In the evolution of Iberian wills from Visigothic through early medieval periods, the twelfth and thirteenth centuries mark a turning point. Widely diffused affluence from the Commercial Revolution in the western Mediterranean lies behind the spread of testamentary production, as does the passion for religious philanthropy that now multiplied ecclesiastical institutions inordinately. Both a cause and a consequence of this enthusiasm for wills was the newly evolved notarial profession, whose representatives flourished by the dozens, particularly in the Mediterranean coastal cities, and whose combination of rhetorical and legalistic expertise with ever-cheaper paper put will-making at the disposal of Everyman. The "notarial culture" embraced far more than wills, as Alfonso's extensive compendium of notarial formularies in the third partida demonstrates; but notarial clarity, security, and convenience drew even members of the Spanish Jewish community into its daily network, including notarial wills. 3 (As Shlomo Goitein notes, "there are no 'testaments' in Islamic and Jewish laws," though the "general practice" was to make last dispositions as legators according to the imperatives of their own religious cultures; a Latinate or Roman law testament could supplement or reinforce those last wishes. 4 ) TESTAMENT AS PERSPECTIVE: NUMBERS

With historians turning ever more to the trove of medieval wills in order to ransack them for social history, institutional and family evolution, statistical models, secular and religious behavioral patterns, and rhetorical-philological investigation, Alfonso's detailed treatise on medieval wills can become a valuable historiographical resource. With his assistance, researchers can exploit this mundane genre to "illuminate whole societies or display the religious conscience, ethical institutions, social mobility, or property dynamics of a group or region."5 Spanish wills run the gamut from wealth to modest possessions. They demonstrate the soul-body continuum at the heart of the Middle Ages, life as a journey not to death but to higher life. Each will fits the common genre, with inflexible diplomatic sequence from introductory Protocol to closing Eschatocol, heavy with boilerplate legalisms, and manipulated by the notary into patterns of legacy common to the local society.6 Each will nevertheless becomes 2. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983),230-37. See also Reuven Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (Oxford: Clarendon Press, 1960). 3. Robert 1. Burns, S.J.,Jews in the Notarial Culture: Latinate Wills in Mediterranean Spain, 1250-1350 (Berkeley: University of California Press, 1996), chap. 2. 4. Shlomo D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols. (Berkeley: University of California Press, 1967-93),5: 131-32,542 n. 19. 5. Burns, Jews in the Notarial Culture, I. 6. See for example Maria J. Arnall i Juan, "Testaments de fons monacals gironins existents a I'Arxiu de la Corona d'Arag6 (segles XI-XV): Hurs dausules diplomatiques," De scriptis notariorum s. Xl-XV, ed. Joselina Mateu Ibars (Barcelona: Universitat de Barcelona, 1989),39-159; Mariano Alonso y Lamban, "Las formas testamentarias en la alta

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something singular, a self-expression, with its own tonality and variations. A curiosity affecting some wills is the survival of the Visigothic testamentary model, basically the product of Germanic tribal custom codified with corrupt or Vulgar Roman law elements. Visigothic practice restricted the testator's freedom to distribute his estate (as Roman law enlarged it), enjoined equal shares for all children male or female, rejected the "Universal Heir" so absolutely central to a Roman law will, and transferred most of the assets to the family. In the realms of Aragon, despite the prohibition against Visigothic civil law in 1251, this older system survived as a testamentary rival. 7 Alfonso's distribution of space is instructive. He devotes 20 pages (again, in this English edition) to legacies-their nature, content, designation, property involved, conditions, revocation, delivery, and the like. Except for the 13 pages of general introduction on wills as such, this is roughly double the length of the nearest four topics: 10 pages on instituting the heirs, 9 pages on the heirs' response and on inventory, and 9 respectively on disinheriting and on tutelage or wardship. Only some 6 pages each go to conditions restricting an heir, sUbstituting one heir for another, and disposing of the property of an intestate person. After those items, the number of pages for remaining topics drops precipitately: some 4 pages each for reducing legacies, for dividing them after delivery, and for cases requiring restitution; and 3 pages each on secret wills, on wrongful disinheritance, on executors, and on delivering the legacies. A mere 2 pages each suffice for codicils, for refusing the office of tutor, and for being dismissed from that office. The division of each title within the partida into "laws" or essays is equally uneven. Title 9 on legacies has by far the most essays, 48 in all. Title 1 on wills in general follows, with 32 essays; title 3 on heirs has 25 essays; title 16 on tutelage and title 6 on the heir's response have respectively 21 and 20. The rest of the titles have a diminishing number of essays each-from 17 to 3. Thus the topics of exempting or removing from the office of tutor and of codicils are dismissed in 3 and 4 essays each. The technically complex arrangements for disinheritance as well as the conditional institution of an heir require a longish 16 or 17 essays. What is striking about this partida and its divisions is its relentless focus on the act of passing one's property at death: defining, constructing, executing, and administering a will. The dramatis personae are confined to the testator, legatees, widow and children, executors, wards, and the like, in a prosaic routine not unlike our own testamentary processes. This section lacks the experience of an expanding and diversifying subject matter of the other partidas with their byways and unexpected horizons. It is the most businesslike of the seven books. And yet, here and there, it is not without its small surprises. THE TESTATOR

Wills can be written or verbal ("nuncupative") and on any material from paper to waxed boards, Alfonso tells us, or in the case of a knight in battle "with his own blood on his shield" or "in the sand" or "in any way that he is able." Anyone may make a will except those the law expressly excludes such as a boy under 14 or a girl under 12 (at that age, neither is "endowed with complete intelligence "), a slave, a hostage, a spendedad media de Aragon," Revista de derecho notarial 5-6 (1954): 7-196; 9-10 (1955): 241-399. 7. See Manuel M. Perez de Benavides, El testamento visig6tico: una contribuci6n al estudio de derecho romano vulgar (Granada: Instituto de Historia del Derecho, 1975); Jean Bastier, "Le testament en Catalogne du IX' au XII'siecle: une survivance wisigothique," Revue historique du droitfranfais et etranger 5 1 (1973): 374-417; and Bensch, "Strategies of Heirship," 244-49.

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thrift under a Judge's restraint, someone under banishment or the death penalty, the insane unless in a lucid moment, women (though in fact some did),8 a felon, an apostate, or persons" sentenced for composing wicked songs" against others. A hermaphrodite can make a will only if "more of the nature of a man" than of a woman. Clergy have their own rules, taken up in the first partida, and religious owe their property to their monastery except for the positions assigned by law to their previous children. Instruction is given for blind, mute, or deaf persons (though someone both deaf and mute from birth cannot make a will). If the testator breaks a witness's seal on his will, or cuts the threads, or erases any writing of the notary, or tears the material, unless this happens by accident, he invalidates the will. Serious attention goes to the witnesses: seven as a norm, or five if effort cannot turn up the Roman law seven; if only illiterate rustics are available, at least one must be literate for the public reading. People who wickedly prevent a will, for example to remain the heir or to take advantage of an intestate situation, are to be punished by various exclusions from the benefits. Some such villains have even threatened the notary to keep him from going to the testator's house. This first title closes with three essays protecting pilgrims who wish to make a will when ill. Innkeepers sometimes intervene to acquire the traveler's goods. If a pilgrim dies intestate, the innkeeper must convoke "reliable men" to inventory his possessions and deposit them with the local bishop until contact can be made with the home area; and" all judges and officials" must stringently protect the rights of pilgrims and must hear the heirs" at once and decide their causes as soon as possible." In the course of this title, Alfonso defines the famous legitima or share that each child is entitled to receive without condition or encumbrance. Four or fewer children must receive at least a third collectively; five or more are entitled to a half. This follows Justinian's code; ancient Visigothic practice, still alive in places, assigned (in Chindasvind's code) a full four-fifths, thus severely restricting the testator's freedom and favoring the immediate family and relatives. THE UNIVERSAL HEIR

After the testator, the most important person in a Roman law will was the main heir, designated by medieval lawyers as the Universal Heir. Without him no will was valid, since he (or they, if jointly) was in Alfonso's phrase "the foundation and base of all wills," the person who took over the rights and the place of the testator, replacing him and his universum ius, and becoming responsible even for most of his legal obligations and debts. Not surprisingly Alfonso devotes 6 of his 19 titles to this figure, a third of the entire partida. The Universal Heir could be a corporation as a fictitious legal person, for example a local church, a town, or a king. The term could apply indeed to anyone not expressly excluded by Alfonso here as unworthy. The unworthy would include such persons as felons banished or sentenced to the king's mines or to his other works, heretics, those knowingly" baptized twice," a person born of incest, a widow remarried during the legal year of mourning, members of a brotherhood "contrary to the law," and in most instances a slave. 9 8. 1Welfth-century Barcelona had one in every five wills drawn by women, and in the thirteenth century one in every three (Bensch, "Inheritance and Strategies of Heirship," 247). See also Taylor's gender statistics for the period before 1200, "Medieval Catalonian Wills," 123. 9. The Universal Heir first appears at Barcelona under that title in 1264, and as "general heir" in 1227 (Bensch, "Inheritance and Strategies of Heirship," 257). See also Joana Canals i Ramon, Uhereu-una instituci6 en erisi? (Bar-

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The most important part of the will was the "institution" or designation of this main heir. He must appear by name and surname, or at least unequivocally, at the start of the will and be assigned by the testator personally; Alfonso supplies sample wordings. If a testator leaves everything indiscriminately "to the poor" as Universal Heir, Alfonso decrees a preference for inmates of the hospice/hospitals that were then proliferating, especially for those persons too infirm (diseased, lame, blind) to beg, those who" are very old," and the" abandoned children brought up" there.1O Other beneficiaries in a will may have a claim, though not properly as heirs-at-Iaw or joint co-heirs. Alfonso takes up the complicated mathematics recommended by "the ancients," in which an entire estate can divide into 12 shares or "ounces" (or into 24 or even 36) to be deployed in various combinations. This Roman disposition of property both real and movable contrasts strongly with the inheritance system in contemporary England, where primogeniture gave or conveyed by presumptive folkright almost the totality of land to the eldest son, and where wills normally dealt not in land, therefore, but in legacies of chattels. 11 A short title covers legitimate and illegitimate conditions imposed by the testator; tacit conditions are understood by law and need no expression. Invalidating conditions include those physically impossible for the heir to encompass, or those dishonoring the heir or "contrary to good custom or acts of piety or in violation of Natural Law." On the other hand, a condition can be bizarre but valid. Another short title reviews the half-dozen kinds of substitute heirs, in case the Universal Heir rejects his appointment or dies. This includes mention of the TrebelIianic Fourth, which preserves a fourth for the Universal Heir when the will obliges him as a fiduciary or trustholder to turn over the estate to a named trustee. The next stage is for the designated heir to decide whether to accept. He may ask a judge for one year, or nine months, or at least 100 days while he investigates possible obligations, encumbrances, other bequests, and likely disabilities. He can request all pertinent documentation about the estate and the will and take consultation; if he is under 25, his guardian will fill in. During this period, with a judge's oversight, he may draw from the estate such expenses as burial costs and property maintenance. An onerous obligation now is the inventory of the estate, which must begin within thirty days and finish within three months, unless the properties are so scattered as to require a year or more. If the heir neglects this duty, he and his personal property can become responsible for the testator's debts and problems. The notary, who figures prominently in Alfonso's account of wills, must supervise the inventory, and all legatees should be present at its drafting. Concealment of items or similar fraud will incur double penalties. Both notary and heir begin the inventory with a sign of the Cross. The reverse of establishing an heir is disinheriting, depriving someone not only of celona: Editorial Aedos, 1985); A. M. Udina Abe1l6, La successio testada a la Catalunya altomedieval (Barcelona: Fundaci6 Noguera, 1984); and Victor Tau Anzoategui, Esquema histmco del derecho sucesorio del medioevo castellano al siglo XIX (Buenos Aires: La Ley, 1971),33-62. to. Jose Maldonado y Fernandez del Torco, Herencias enfavor del alma en el deruho espanol (Madrid: Revista de Derecho Privado, 1944), with comments by Jerry R Craddock, The Legislati'Ue Works of Alfonso X, el Sabio, Research Bibliographies and Checklists 45 (London: Grant and Cutler, 1986), no. C430. For background and bibliography on these institutions in Spain, see James W. Brodman, Charity and Welfare: Hospitals and the Poor in Medieval Catalonia (Philadelphia: University of Pennsylvania Press, 1998). 11. On English wills see Michael Sheehan, The WiU in Medieval Englandfrom the Con'UeTSion of the Anglo-Saxons to the End of the Thirteenth Century (Toronto: Pontifical Institute of Mediaeval Studies, 1963). For Castilian heirs see Jose Martinez Gij6n, "La comunidad hereditaria y la partici6n de la herencia en el derecho medieval espanol," Anuario de historia del derecho espanol 27-28 (1957-58): 221-303. See also Enrique Gacto Fernandez, La condidon juridica del conyuge viudo en el derecho visigodo y en los/ueros de Leon y CastiUa (Seville: Universidad de Sevilla, 1975). Cf. Craddock, Legislative Works, nos. C256 (Gacto) and C456 (Martinez Gij6n).

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property but of the very right to it "as entitled by law to inherit. "12 The victim must have given serious offense as described here, be at least 10'12 years old, and stand in the direct descending (for example a son) or ascending line (for example a grandfather). The testator's language must be clear, unconditional, and apply to the entire estate. Alfonso's reasons for disinheriting a child include violence or dishonor to the father by word or deedj sex with the stepmother or father's formal mistressj becoming a heretic, Jew, Muslim, or entertainer who "fights for money in a field against another man" or against a wild beast (prizefighter or bullfighter ?)j "becoming a wizard or an enchanter or associating with those who are such"j and "becoming a buffoon against the wishes of his father" unless "the father himself is a buffoon." A daughter may be deprived of her legal share if she "lives the life of a bad woman in a brothel" unless she is over 25 years old. If children or relatives refuse to ransom parents or grandparents, or refuse to care for them when in a demented state, disinheritance becomes automatic. A testator can disinherit his brothers for any reason or none. Alfonso also offers eight analogous reasons for a son to disinherit his own father, and provides for an heir's bringing suit for wrongful disinheritance. LEGACIES AND LEGATEES, THE EXECUTOR

Alfonso's general consideration of other bequests rivals the sections on Universal Heir for space. These are legacies to other persons than the heir (though an extra gift for him could be included). They spring from the testator's concern for his own soul, from justice toward his obligations, and from love for family and friends. Alfonso follows the strategies, rules, and possible complications of legacies, including encumbrances on property, the consequences of an heir's refusal to respond, trusts, future properties, joint bequests, imprecise language, conditions imposed, and implicit or explicit revocation of a legacy. '!\vice he warns that "the laws of this our book" regulate legacies as well as disposition of the testator's remains. Incorporeal legacies include claims, rights, and property easements. "A mine or a quarry" can belong to a legatee only for a lifetime. The legatee must accept all of a legacy, not a part. The heir must deliver the property to the legatee within a reasonable time as set by ajudgej but the legatee owns the item from the time of the testator's death. No one can bequeath public properties, including "built in" elements such as "pillars, basins of fountains, doors, [and] lumber" that "contribute to the ornamentation of the towns," and thus "should not be forcibly removed under any circumstances. " Alfonso discusses the juggling or deductions required when insufficient properties remain after the will's processing. Prominent, of course, is the Falcidian Fourth, to be squeezed out of other legacies and legally imposed shares, and the reserved Thebellianic Fourth for an heir obliged to transfer the estate to another. Aside from those exceptions, legacies left for works of piety, the poor, ransom of captives, or ecclesiastical institutions must be paid in full, without regard to indirect heirs. Masked by such legal mathematics are social questions about how the mode of division involves consequences for the continuity of a family (if each generation subdivides the estate to the point of lineage incoherence and poverty, despite a main heir), about the history of surnames around a fixed patrimony, about the role of a strong 12. J. Pascual Quintana, "La desheredaci6n en el derecho espailol: su desenvolvimiento hist6rico,· Revista de Ia Facultad de derecho: Universidad de Oviedo 16 (1955): 227-43. Cf. Craddock, Legislative Works, no. C526.

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nobility as well as an urban patriciate, about the "clan" morphing into the "lineage," about the options of younger sons and dowried daughters as against male cousins with their autonomous lineages, and in James Casey's formulation, about "how the transmission of property became the framework within which a family defines itself." Casey notes that Alfonso's sixth partida encouraged subdivision of the patrimony, in a society able to overcome the consequent centrifugal forces by creating patrimonies on the Reconquest frontier. In Alfonso's explanation of how a just division greatly benefits all and forestalls discord, the king notes that" each one considers himself paid with his share when he possesses it, and he takes better care of it, and he obtains better and greater profit from the same." 13 A separate title takes up the executors named by the testator or appointed by a judge to carry out "the bequests and wishes" as "an act of piety and, as it were, a spiritual matter. " Under four situations outlined, they can take over the will's properties with a judge's approval. They must follow the time schedule set by testator or the law. The bishop can intervene in cases of negligence or fraud.

WARDS: GUARDIANS AND ADMINISTRATORS

More responsible and difficult are the posts of guardian and administrator over a minor. The guardian or tutor has charge of males under 14 and females under 12; after that, a court-approved administrator serves until the minor reaches 25 (or older, for an insane ward).14 If the will does not appoint a guardian, the next of kin automatically serves; failing that, a judge chooses the guardian. He must be "a man and not a woman," except that the law prefers the mother or grandmother, who must promise not to remarry. (That condition kept "the great affection" of a wife toward this new husband from interfering with "proper care" for the children or their property.) A mother's will conversely can designate her son as heir and then appoint his guardian. The guardian must have a notary inventory the minor's property and documentation, see to maintenance and management, supply food and necessities, represent the minor at court, "induce good habits" in him and "teach him to read and write," and prepare him for his life's occupation. The guardian must eventually render a public account. He cannot alienate properties except for expenses as approved by a judge. Since this task of guarding was onerous, Alfonso lists categories of persons who can seek exemption, before a judge and within fifty days: a man over 70 or under 25, a father of five children, someone having previously held three guardianships, a royal tax collector or judicial figure, a poor manual laborer, an illiterate, a person chronically ill, a husband for his minor wife (lest she acquiesce in his mismanagement "on account of the love she has for her husband"), and "anyone who is a [university] teacher of grammar, rhetoric, logic, or medicine, instructing scholars in any of these sciences," or masters of law in royal service or "philosophers who teach the knowledge of nature. "IS A final title instructs as to when and how the ward may seek from the court restitution or indemnity for loss of property. 13. Casey develops all these points in "The Role of the Ancestors," in his The History of the Family (Oxford: Blackwell, 1989), chap. 2, especially 30-32. 14. See Antonio Merchan Alvarez, La tutela de los menores en Castilla hastajines del siglo XV (Seville: Universidad de Sevilla, 1976), an exhaustive survey; cf. Craddock, Legislative Works, no. C472. 15. On the elevated status of such men ofleaming, see the second partida, title XXXI.

xvi

INTRODUCTION TO THE SIXTH PARTIDA

CODICILS, THE INTESTATE, SLAVES

Along the way, Alfonso includes a short section on codicils, the afterthoughts that a testator declares before five witnesses to change or delete or add or nuance a provision of his will. Testators in Spain had generous recourse to this device, to judge from the many exemplars encountered in notarial registers. Much more amply Alfonso reviews the intestate situation, where a will is absent or invalidly drafted or becomes void upon refusal by the appointed heir or where a subsequent child intervenes. 16 The three degrees of relationship (direct descendants, direct ascendants from father up, and collateral as with uncles and their offspring) allow for various combinations with their several rules. For example, at the death of a grandfather the male and female children and grandchildren inherit where a will is lacking. When a wealthy husband dies intestate, leaving a widow who has neither dowry or personal property, the law presumes that a husband would so "love and honor" her as to wish her to have enough to "live well and honorably"; consequently she gets a fourth of the estate, so long as that amounts to no more than 100 pounds of gold. A bastard, born to a proper mistress when both testator and mistress had been single, can share with his mother twotwelfths of the divided estate, or can inherit all in the absence of other children. In this partida as in others, the role of slaves recurs prominently, complicating many aspects of inheritance. This phenomenon does not correspond with the situation in early Spanish wills, where slaves appear infrequently. Again one suspects an unrealistic borrowing from the ancient Romans via their codes. If all references to slaves and slavery in the Partidas were carefully gleaned, a rather large doctoral dissertation could result which might clarify Alfonso's slavery code, explore its sources, and relate it to the documentary realities. CONTEXT AND MEANING

Alfonso's treatise on wills, the most comprehensive and instructive from the Middle Ages, should be read in the context of western Mediterranean studies on wills and attitudes toward death. Books like Steven Epstein's Wills and Wealth in Medieval Genoa, Samuel Cohn's Death and Property in Siena from 1205, Carlos Eire's From Madrid to Purgatory, Michel Vovelle's La mort et l'occident, Paul Binski's Medieval Death: Ritual and Representation, and Jean-Claude Schmitt's Ghosts in the Middle Ages: The Living and the Dead in Medieval Society expand the horizons beyond the technicalities of inheritance and obligations. I) Social history and the evolution of ritual then intersect with legal and religious history. The balance of genders among testators, the varieties of philanthropy, the practicalities of inventorying, and the realities of family participation in legacies can be viewed in all the complexity and irreducible multifariousness of real life. Fleshed out in this fashion, one can visit the democracy of the dead, their controlling hands still operative in life beyond the law code. Alfonso's partida sums up that world of the dead only from a legal perspective. As I note in my recent book on wills in the medieval realms of Aragon, "wills are many genres at once." They are self-consciously literary products; economic records 16. See Francisco Tomas y Valiente, "La sucesion de quien muere sin parientes y sin disponer de sus bienes," Anuario de historia del derecho espanol 36 (1966): 189-254, with special attention to the king as heir to intestate estates. Cf. Craddock, Legislative Works, no. C649. 17. Epstein, Wills and Wealth; Cohn, Death and Property; Eire, From Madrid to Purgatory; Vovelle, La mort et l'occident; Binski, Medieval Death; Jean Claude Schmitt, Ghosts in the Middle Ages: The Living and the Dead in Medieval Society (Chicago: University of Chicago Press, 1998).

INTRODUCTION TO THE SIXTH PARTIDA

xvii

tied to the history of money, classes, and costs; cultural artifacts revealing and shaping mentalities; family portraits showing values, occupations, and household goods; and religious statements, fashioning a continuity in piety and practice between the generations and into the next life. Wills are above all human documents-a last farewell, a reaching out, a final time to order one's domestic world, a solemn last statement, sometimes a cry for help. IS Jacques Chiffoleau sees the testament as a dialogue between society, the individual, custom, and law, a union of the sacred and profane, "a veritable expression of civilization" by which society reproduces and redefines itself. Alfonso's code of testaments opens the door to that multifaceted reality. 19

SUGGESTIONS FOR READING

This list draws combines material from the notes with other sources that provide general background on wills and death, citing English readings where possible, as representative works to accompany Alfonso's treatise. For a larger bibliography see my Jews in the Notarial Culture. Alonsoy LamM.n, Mariano. "Las formas testamentarias en la alta edad media de Aragon." Revisla de derecho nolarial5-6 (1954): 7-196; 9-10 (1955): 241-399. Arnall i Juan, Marfa J. "Testaments de fons monacals gironins existents a l'Arxiu de la Corona d'Arago (segles XI-XV): llurs clausules diplomatiques." In De scriptis notariomm s. Xl-XV, ed. Josefina Mateu Ibars. Barcelona: Universitat de Barcelona, 1989. 39-159. Auffroy, Henri. Evolution du testament en France des origines au XIII' siecle. Paris: A. Rousseau, 1899. Bastier, Jean. "Le testament en Catalogne du IX' au XII' siecle: une survivance wisigothique." Revue historique du droitfranfais elitranger 51 (1973): 374-417. Bensch, Stephen P. "Inheritance and Strategies of Heirship." In his Barcelona and Its Rulers, 1096-1291. Cambridge: Cambridge University Press, 1995.244-60. Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 1983. Binski, Paul. Medieval Death: Ritual and Representation. Ithaca, N.Y.: Cornell University Press, 1996. Brodman, James W. Charity and Welfare: Hospitals and the Poor in Medieval Catalonia. Philadelphia: University of Pennsylvania Press, 1998. Burns, Robert I., S.]., Jews in the Notarial Culture: Latinate Wills in Mediterranean Spain, 1250-1350. Berkeley: University of California Press, 1996. Canals i Ramon, Joana. L'hereu-una instituci6 en crisi? Barcelona: Editorial Aedos, 1985. Casey, James. The History of the Family. Oxford: Blackwell, 1989. Charrin, Louis D. Les testaments de la region de Montpellier au moyen age. Ambilly: Presses de Savoie, 1961. Chiffoleau, Jacques. La comptabilite de l'au-deld: les hommes, la mort, et la religion dans la region d'Avignon d lafin du moyen age (vers 1320-vers 1480). Rome: Ecole Fran

PART.

VII,

T1T.

1.lSJ

IX

LAW IV. How One Man Wrongs Another by Mocking Him. Not only do men wrong and dishonor one another verbally by insulting and speaking evil of them, and by songs, rhymes, or statements, as we mentioned in the preceding laws; but also by mimicry and malicious gestures which they say and make towards one another. Wherefore, we decree that if a man is guilty of mimicry, or other wicked gestures in the presence of many persons, with the intention of dishonoring and defaming another, he who was the object of the insult can bring an action in court against him to compel him to make reparation for it, just as if he had wronged or dishonored him in some other way.

GeBtures, or any other acts tending to bring a perBon into contempt were also punishnble. The Genloo Code makes no mention of libels, but preBcribes fines for the utterance of falso and scandalous exprelBionl, which increase in severity when directed against women or persons of superior caste. If the culprit was intoxicate(l at the time he was not amenable. A person guilty of public abuse of a magistrate, B country.!. or a caste--correBponding in some respects to the .candolum magnatum of the English law-was compelle to pay a much larger Bum than for an ordinary offence of the kind. Defamation of one's kindred, so far from bringing exemption from punishment, was rather an aggravation. (Genloo Cod. XV·II.) Moslem law primarily recognizes no diBtinction between slander and criminal libel. In order 10 bring an accusation, the injured party mnst be free, of sound mind, of mature age, chaste, Rnd B Mussul· man-il i. no breach of the law to slander a misbeliever. Owing to tbe injunction of Mohammed, which defined the offen Be and fixed the punishment, the former has, in most cases, reference to charges of adultery and illegitimacy. (Koran Sura. XXIV·IV.) A son cannot prosecute his father for slander, nor a slave his master. An heir has a right to have the slanderer of his aneestor punished. Four wilnessM are necessary to establiBh the truth of any statement by way of justification. The penalty is eighty laBhe. if the offender is B freeman, forty if he iB a slave. ('fhe HedllYB.· II·VII·5.) 'l.'hose who oonsure, disparage, or insult, either orally or in writing, any public official while in the disc.hBrge of his duty or with reference thereto, are declared by the laws of Spain to be guilty of de.acato, or want of reverence, Bnd are liable to a fine of 150 to 1,500 peRetaB ($30·$300), and imprisonment. Where false Rnd scandalous imputations are made against a private individual, the offense is either calltmnia, which implies the accusation of a crime which may lead to pro.ecution; or injuria, which include. Rny expression or act that may discredit, or bring dishonor or contempt upon him towards whom it i. directed. Where the statements are in writing the offens. is more seriou8, Rnd the penalty proport.ionately .evere, Rnd the character and the intent of the language used must always be taken into consideration. If lhe party accused of calumnia proves the truth of his statements, he cannot be convicted; but anyone prosecuted for injuria i. not allowed to plead in justification that hiB imputations al'e true; except where they concern the act. of some public functionary in the performance of his official duties. Both calumnia and injuria can be committed by means of allegories, earicature8, emblems, or allusions. The penalties vary from 8 flne of 125 p ••• ta., and impriBonment for two month. and one day, to a fine of 5,000 p••• ta., and con' finement in prison for four Tears and two months. (C6d. Pen. de EBp. 11·111·5. Art. 266·270. X·l, 2, Art. 467·476.) In Italy, calumni.. is p'unished by imJilrisonment for from five to fifteen years, which may be reduced from one·third to a half .f a retraction .s made before conviction; dil!omaziono and ingiuria (different degrees of the Bame offense), by fines varying from one hundred to three thousand lire ($20·$600) and imprisonment for from fifteen days to five yean. The offense is even punishable when committed alone in the presence of the injured party. (Cod. Pen. d' It. I1·IV·8. Art. 212, 218. IX·7. Art 393, 394, 895.) The primitive Anglo·Saxons punished Blander by cutting out the tongue of the culprit, an effective if· barbarous method of permanlently silencing him, which was adopted by Alfred. The definition of· the common law, as given by Bracton, practically coincided with that promulgated by the jurists of JUfltinian's time. "Fit autem in.ittria., non solum crtm quia "u.gflo "rerCfUlIlu,8 /rtl'rit, Vf.rbllrntUif. 'Vlllneratm

ve! laatib...

UBI",

ven'm cum •• conuitium dictum fuerit, ve

cle

eo factum carmy the CIvil lnw-is necessary. WIlere one party, by the nse of tJlTeat. or violence, compels another to sign or surrender B public document he i. guilty of

1378

LAS SIETE

P ARTIDAS

robbery. When the value of the article taken exceeds 500 pea.taa and weapons are used, tJle offense is considered aggravated. ffhe extreme punishment is penal servitude in chain~ for life; when homicide results, the crime is a capital one. (C6d. Pen. de Esp. II·XIII·!' Art ..515-529.) The Italian laws are similar, the ordinsl'y penalty being imprisonment for from three to ten yell ... Where threats against the life of the victim are mude by armed persons, or where the PIU'ty robbed i. restrained of his liberty at the time, th", offender can be sent to prison for fifteen years. Blackmail is very properly classed as robbery by the Italian Code. (Cod, Pen. d' It. II-X-2. Art. 406, 410.) All infractions of the law involving the conversion of the property of another are classed by the French jllrists nnder the general head of theft. "Quiconqu. a aouBtrait fraud'lll.u •• "'.nt 'un •.chos. hwu..rl..t, "el qui. Bootractaa all hi8 Rci.nteB BIIBC"p ...."t... (Corp. Jur. Civ. Inst. IV-XVIII·9.) A party guilty of the embe••lement or conversion of either public funds or private property is, by the French law, punlRhable at hard labor for a term of years, where the value of the property appropriated il more than 3,000 francs ($600). The same rule applies, regardless of the amount involved, if What was taken or converted was equal to .. third of what was received, or on deposit at the time. If th,e ,....lue I, lell than 8,000 franca, the dishonest olllcial can be imprisoned for from two to five years. (Ood. PAn. de Fr. 111·1·2. Art. 169, 170, 171.) .... The ItaliaD Code punished peculation by imprisonment for from three to ten yearl, and a line of not lu. thaD 800 I",. ('80.) (Ood. Pen. d: It. II·IlJ.1, Art. 168.)-Ed,

1386

LAS SlE'C'E

P ARnDAS

LAW XVII. Children Under the Age of Ten Years and Six Months, Insane Persons, and Those Who Have Lost Their Minds, Are Not Liable to Any Penalty for Larceny Which They May Commit. \Vhere a boy under the age of ten years and six months steals anything, although if they find him with the stolen property it can be taken from him, nevertheless, suit cannot, and should not be brought for the property together with the penalty of the larceny.1 We decree that the same rule shall apply to a madman; or to a person who has lost his memory; or one who is violently insane. Moreover, we decree that, where a youth that a man keeps for hire in his house, or for charity, or anyone else employed by him for daily wages, steals something from him which is not of much value, although he has a right to sue for the property which was stolen, still the thief shall not be obliged to pay him for the larceny; for a larceny of this kind is called in Latin furtulIl domesticum; but the master who has such a person in his house, can, himself, without applying to a judge, punish the party for his offense according to his will, provided he does not kill or maim him. But where the larceny is one of importance, or property was taken which is of great value, the owner can then bring suit for it, along with the penalty, against anyone of the said parties. And in order to ascertain whether the larceny is great or small. and whether judicial proceedings shall be instituted or not, we order that this shall he left to the decision of each judge of the district, and that he shall always take into consideration the nature of the stolen property, as well as the private character of the party who stole it, and also that of him from whom it was stolen.

LAW XVIII. What Punishment Thieves and Robbers Deserve. Thieves may be punished in two ways, on account of the larceny or harm which they do; first, by fine; second, by corporal punishment. \Ve decree that where the larceny is open, the thief must return the stolen property, or the estimated value of the same, to the party from whom he stole it although it may be dead or lost, and he must also pay four times as much as the said property was worth; and where the larceny was committed secretly, the thief must then return the stolen property, or the estimated value of the same, and pay, in addition, twice as much as said property was worth. A party who gave advice ancl assistance to the thief to commit the crime must pay the sallie penalty, but one who only gave counselor aid for its commission must pay double the amount which was stolen by means of his assistance, and no more. Moreover, judges, whenever it is requested of them in court, must punish 1 'l'his follows the rule of the civil law which declared that a child under the age of ten years and 8 balf waR doli itlCapa:r, and could not he punished for crime. From that age until fourteen, he was presumed to be capable.of committing it, hut his youth was taken into consideration in pronouncing sentence. At fourteen, the age of puberty, criminal responsihility wns deemed to he fully estahlished. Children younger than that were not liahle to torture, and the law directed that they he sternly l"t:Pl'oved, and chasti.ed with a rod or whip. (Oorp. Jur. Oiv. Dig. XXIX-V·33.l 'rhe Common Law, also, fixed the age of criminal responsibility at fourteen years. For centuries, however, it has heen the practice of the English courts, based upon legislation, in determining capacity for guilt to he governed b¥ the circumstances of each case, and to ascertain the degree of intelligence, and the habits and characteristICs of the juvenile defendant, in QI'der to decide whether he WitS sufficiently developed ment.ai1y to be ahle to dis(~l'iminate hetween right nnd wrong, nnd Elllln'ecintc the moral etred of the offense of which he was accused. 'rhis doctrine, which also obtains in the United Stutes, is, of course, in accordance with the rational principle that all iudividl1Uls nre not to be meHsured hy the same standard, nnd thnt the intelleetunl ('aparity and malevolence of tlip. dlild may he fill' in acivtlll('c of his yenrs, since "lIUllitill sUJlplet lletnte1fl. ... Infants only tt'n yel1Ts old have heen hung in 11~ng')ancl fol' felony; in this couutry. twelve is' the youngest age at widell a ('lind III\H lJCt~1I pxe('utecl for H ('al'it.d ('riIllH. 'fhe law is accustomed to regurd with lenieney the commission of iIIe~1I1 acts hy minors, hut it is n (jllOstiun whethor the institution of juvenile courts for the t,rial of slwh ofl'(,yulers, now so 1)Upullll', may not, hy the hope of impunity held out to the latter, be productive of more harm than good to those suhject to their juri.· diction.-Ed.

PART.

VII,

TIT.

XIV

1387

the thieves publicly, by scourging, or in some other way, so that they may suffer pain and disgrace. No one shall be put to death, or dcprived of a limb, except where the party is a notorious rohhcr. who opcnly frequents highways, or robs persons on the sca hy mcans of armcd ships, such malefactors being called corsairs; or where robbers break into the houses or property of others, forcibly to rob them, either with or without arms; or a robber steals from· a church, or from some other religious institution, or holy place; or where an official of the king has charge of the treasure, or is employed to collect taxes or duties, and intentionally steals or conceals them; or where a judge steals the maravedis belonging to the king, or to some council, while he is in office. Where anyone of the aforesaid persons is convicted of having committed larceny in any of these ways, he must be put to death on account of it; and all others who have given aid or counsel to thieves of this kind in order to enable them to steal, or who conceal them in their houses or in other places, must suffer the same penalty. If, however, the king or Council should not bring a prosecution for the larceny committed by one of their officials, within five years after having positively ascertained it, the party cannot afterwards be put to death for his crime; although he can be sued for four times the amount of the .stolen property by way of penalty.

LAW XIX. What Penalty Those Who Steal Cattle, as Well as Those Who Conceal Them, Deserve. A certain kind of thieves who employ themselves more in the larceny of beasts of burden than of other property, are called, in Latin, abigei. For which reasons we decree that where a man is convicted of a crime of this kind, and has been in the habit of perpetrating similar ones, he shall be put to death. \Vhere, however, he was not in the habit of committing such crimes, although he may be convicted of having stolen some animal, he shall not be executed, but he may be condemned to labor for a time upon the public works. Where anyone stcals ten or more sheep, or five hogs, or four mares, or an equal numher of the young of said animals-for the reason that a flock or drove is composed of the aforesaid numbers of each of said kinds of cattle-he shall be put to death for it, although he may not have been in the habit of committing such crimes. Persons. however, who steal a less number than those aforesaid, must be punished on this account in another way, as we stated concerning other thieves. We also decree that a party who conceals or knowingly receives stolen property of this description, shall be banished for ten years from the dominions of the king.t 1 The Twelve Tnbles condemned a thief. taken in faurante dtliolo, to be scourged, and to serve the owner of the stolen property 1\8 R 1dn.ve. A perRon 0 servile condition was hurled from the TBrpeian Rock. If the guilty party wns a minor, his punishment WRS left to the discretion of the magistrate. (Leg. XII Tab. II·V.) The "furtum," or theft, of th:e Romans, was a term of broad meaning and cap.ble of many interpt·e· tations. In the fact that it was considered a IlrivRte wrong to be remedied by a civil suit, i. to be detected an analogy with other offences which, like adultery. homicide, and ma.yhem, were regarded as of a personal nature, to be avenged by the injured pRrty, lind with which the community at large was practically assumed to have no concern; a relic of the I..: taUnni8, the right to whose exercise, bequeathed by baronrou;f" .ncestors, waR asserted even in mediaeval times by the descendants of the victim, and even tlOW is not whol\y abrogated. Theft, Rccording to the civil law, WM either open or secret, diurnal or nocturnal; embracing the rrimes of l'obhery, Inrceny, and burglary, as known to our jurisprudence. The differences b, which the subdivision of the above·mentioned cl,,"ses are marked seem to have exercised the utmost tngenuity of the Roman iurists. Secret theft, Rtyled larceny by the Englisb law, implied the highest degree of guilt, and was punished hy 1\ fine of double the amount of the property stolen, and either its recovery or dam· ag~s e'lunl to it. ful\ value, by the Betio revindioationi. rei furtiva.. (Corp. Jur. Civ. Inst. IV·VI·14.) Moslem jurisprudence defineR larceny 88, "secretly taking away the property of another when lIuch property is in custody;" that is, when it is in a house, or personal\y guarded. The authorities diller a. to the value npces.nry to eRtahlish the crime; the lowest amount being three dirhe",o, about sixty cents. )lany things, such a9 wood, fish, fowls, vegetables, and ungathered fruit and grain are not susceptible of

1388

LAS 5IETE PARTIDAS

LAW XX. Where Property Is Stolen by Several Persons Suit Can Be Brought Against Every One of Them. Persons from whom property is stolen, and their heirs can bring suit for said property, or the estimated value of the same, against the thieves and their heirs; but the penalty which should be paid on account of the larceny shall not be demanded of the heirs of the thieves, except where a suit has been begun by complaint and answer to recover the same, during the lifetime of the parties who stole the property; for in this case the heirs will be bound to pay the penalty. We also decree that the robbers and their heirs must return the stolen property along with the profits which the others might have obtained, and must pay all damages and losses which the owner sustained on account of the property which was stolen from him. For which reason we decree that if the owner of said property was bound to deliver it, or the income of the same, to any person under a specified penalty and on a certain day; and became liable to the penalty because he was not able to deliver said property, for the reason that it has been stolen from him; then the robbers and their heirs wiII he obliged to make good the injury and loss which he sustained for a reason of this kind, or for any other similar to it. And if the stolen property should happen to die, or be lost, the robbers and their heirs shall always be hound to pay as much for it as it was worth, from the time that they stole it until the day when suit was begun. Where, however, the robbers or their heirs are willing to return the stolen property to the owner or his heirs, and the latter refuses to receive it; and afterwards it should die or be lost without any fault of theirs; they will not be bound to pay the estimated value of the same; although they can sue the robber for the penalty during his lifetime. theft, as they are not strictly "in custody;" ~either are liquors; nor the emblems and utensils of another religion being articles forhidden to, and held in abhorrence by, the devout Mohammedan. A book cannot ue stulen, because the object of the taking is 11resumed to be the contents, and not the volume itself: a fiction worthy of the fin~ly drawn subtleties of the common law. Ampullltion of 1\ hand is the penalty prescribed by Mohammed, and still enforced. "lf a man or woman steal, cut off their hands." (Kol'au, Sura XLIL) Many of the penalties for larceny under the Gentoo Oode are exceptionally severe, and range from a fine equal to what the article stolen was worth, to eleven times as much. The theft of a domestic animal such 8.S an elephant, a horse, a cow, or a camel, was punished by the amputation of a hand or a foot; that of portable articles, whose value was considerable and easily ascertained, hy death. "If a man 6teals gold, or silver, or fine cloth, to a greater amount than one hundred rupees, the mngistrate shall deprive him of life." (Gen. Ood. XVII·IIL) 'I'he Hindu law, like the Roman, 1·ecogni.ed the denominations of open and secret theft, and made almost every conceivahle substance or chattel the object of the crime. 'l'he laws of the Visigoths, with reference to larceny, were minute and exhaustive. Not only did the actual participants in the offense incur severe punishment, but the associate with thieves and the receiver of stolen goods were placed in the same category, and were equally liable. 'I'he heirs of a male· factor of this kind could be sued for tho proceeds of his depredations, as could a master for the dishonesty of his slave. A freeman was required to pay the owner of th .. property taken nine time's, and a slave six times its value, and c.ach was sentenced to a hundred lashes with the scourge. Where neitlHw of tht!se had the means with which to make reparation, or the master did not componnd for his slave, th,& culprit was sentenced to servitude for life, and delivered to the injured party. "Ouiuslibet rei furtum, et quantalibet pretii aestimatione ta.:r:atunt, ab ingenuo novies, a servo varo sexie8, ei qui perdidU 8arcietur. et utel"fl'ue reus O. flagellor ..", ve1'beribus c08rc8atltr." (For. Jud. VII·II·13.) The distinction between grand and petit larceny was early established by the common law. The penalty for the former was hanging, the same as that for robbery. Petit larceny was the unlawful taking of property of less than the value or twelve pence, and wa. punished by deprivation of eyesight or standing in the pillory; the sentence twillg dependellt upon the amount 8tolen, anti whether the party was an hahitual crilllinul or not. 'rhe ddinqtwnt WitH nlso 1nI'o-vcr inrapacituted from heing sworn in court, serving 011 U jury, or u(~ting as n wit.uess. "lla so·lent ",ys al pillory pa,r vn lwure de vn i.OUT, et que ,nes ne soie'11t TeCe!l.'~l.able8 al serment juil'e eu· iures, fte en en(llleate6. n8 en tvsmoin 'illges." (BrItton 1 De Larcyn. XV·fo. XXIIII.) The Spanish Penal Code classifies larceny in general under several heads. The animu8 fu.randi must exist and the article be taken against the will of the owner, and without violcnee. Persons who wilfully destroy property are declared guilty of theU, as are also those who convert to their own Use anything they have found, whether they know w~o its owner !S, or not. (OM .. Pen. de. Esp. U:YJII·2. Art. 530.) The finder of property under onr law ,. not hable If he used due dIligence In attemptlDg to asce1'tain to whom it belongs. The lowest penalty for larceny, in Spain, is imprisonment for one month; in Italy, any term less than three years in the discretion of the court; in France, one month, and a fine of not less than sixteen franca. (clid. Pen. de Esp. I1·XIII·2. Art. 531.) (Cod. Pen. d' It. II·X·I. Art. 530.) (Cod. P6n. 48 Fr. III·I1·I. Art. 'Ol.)-Ed.

PART.

VII, TIT. XIV

1389

Moreover, we decree that when many persons are present at the time when property is stolen, anyone of them will he hound to pay the value of it to the owner; hut where one of them surrenders said property to its owner or pays him its estimated vaille, he canllot afterwards sue the others for it, although the entire penalty can he demanded of each one of them, and some of them cannot make excuses for themselves on account of the acts of others.

LAW XXI. A Person Who Steals Any Property of a Deceased Person Which Is Unprotected, Must Pay for the Same. The property of a deceased person is sometimes, as it were, abandoned after his death, for the reason that those who have a right to inherit it are 110t present, and do not know that they have been appointed heirs, or for some other reasons like this; and persons maliciously take and conceal personal property which they find there; and although they cannot be prosecuted for larceny because the property was at that time abandoned, and was without an owner; nevertheless, anyone who maliciously takes any of said property is guilty of wrong hecause he has no right to do so; and an ofTence of this kind is called, in Latin, crimen e.rpilatae haereditatis, which means an ofTence which a man cOllll1lits in taking property belonging to another. For this reason the party who takes property in this way, although he cannot be sued and forced to return the same along with the penalty for larceny; still he can be sued for it and the profits which he ohtained frol1l the same, and the judge of the district should also banish him for a specified term to some island, where he who committed the offense is of noble birth; or in his discretion he may inflict some other penalty upon him taking into consideration the value of the property which he appropriated in this way. Where he is not a man of noble lineage, he must sentence him to labor on the royal works for a specified term, according as he thinks he deserves.

LAW XXII. What Penalty Those Deserve Who Steal or Kidnap the Children or the Slaves of Others. Rohbers entice away, or steal the children or the slaves of others, with the intention of taking them for sale into the enemy's country, or in order to make use of them as slaves; and for the reason that persons of this kind are guilty of great wickedness they deserve punishment. Wherefore, we decree that whoever cOl11mits a larceny of this kind, (if the thief is a person of noble birth) shaH be placed in irons and he condemned for life to labor on the royal works; and if he is not a man of noble birth, he shall be put to death for his crime; and if he is a slave, he shall he thrown to wild beasts that they may kill him. The same penalty shall be illflicted upon all those who give away or sell a freeman, and on those who knowingly purchase, or accept as a gift a person of this kind, with the intention of either making use of him as a slave, or selling him.

LAW XXIII. Concerning Slaves Who Escape, or Who Steal Themselves. Slaves steal themselves when they escape from their masters with the intention of not returning to them; but a slave who escapes in this way, cannot be lost by his lord through lapse of time, for whenever he finds him he can bring suit for him in court and return him to slavery; except where the slave

1390

LAS.

SIF:TE P ARTIDAS

escapes to the country of the Moors, and after he has been there in safety and freedom he afterwards returns, of his own free will, to the country of the Christians, coming in the character of a peaceful Moor, and as an emancipated slave; for then, although his master may find him, he cannot return him to slavery because the ownership which he had in him was lost as soon as he reached the country of the Moors, and recovered the freedom which he enjoyed before he was taken captive. We decree that the same rule shall apply where a slave has been a fugitive, for thirty years, in the country of the Christians, his master having lost possession of him during that time; for after that, even though he finds him, he cannot institute legal proceedings to return him to slavery. We also decree that where a slave has been brought up from childhood in his master's house, and has gone about for twenty years in good faith as a freeman, thinking all the time that he was free, although he was a slave; and no claim is made for him within the said twenty years; and afterwards an attempt is made to claim him as a slave, this cannot be done; hut we decree that he is free and has obtained his liberty by this lapse of time; as we stated in the Title concerning property which is acquired or lost by lapse of time, in the laws which treat of this subject.

LAW XXIV. How a Master Should Search for His Slave, When He Escapes. When a slave escapes from the power of his master the latter should go to the judge of the district and notify him of it, and the judge must give him his writ and furnish persons to help seek said slave, and to search the houses where it is suspected he may be. When this is requested of a judge and he does not grant it, or any person in whose house the master suspects his slave to he, forbids him to enter and search for him, then both of them, not only the judge but the person who would not permit his house to be searched, must pay to the royal treasury a hundred maravedis of gold for their disobedience; and moreover, the house must he searched, in order to ascertain whether the slave is there or not. We also decree that every man who knowingly receives a slave who is escaping from his master, or who conceals him, must pay for ~his reason a hundred maravedis of the aforesaid money to the royal treasury, and double the amount to the master of the slave. If, however, within twenty days from the day when he knowingly received him, he should inform the master of the slave, or the judge of the district that he has him in his house, he can then be released from the penalty of the hundred maravedis; but he will be required to give the owner of said slave another of the same kind, because he concealed him for so long a time; and if he has no other slave to give along with the one that he concealed, he shall pay instead twenty maravedis of lawful money, instead of the other slave he was obliged to give by way of penalty.

LAW XXV. A Minor Is Not Liable to a Penalty If a Fugitive Slave Is Concealed in His House. Where the slave of another party, who has escaped from the control of his master, is received in the house of a minor, the latter does not, for this reason, become liable to the penalty which we mentioned in the preceding law; although the slave may have been concealed there with his knowledge. But where a party who has charge of the minor was aware that the slave had sought the protection of his ward, consents to his concealment, and receives

PARr. VIl, TIT. XIV

1391

him in the house of the minor of whom he has charge, he shall payout of his own property the entire penalty which we mentioned above. We also decree if that any man who conceals a fugitive slave with the intention of causing his master to lose him, should not have the means with which to pay the penalty which we mentioned in the precedin~ law, he shall be publicly whipped, so that shame may be inflicted upon hIm, and others avoid acting in the same manner; but this punishment shall be inflicted in such a way that he will be neither killed nor maimed.

LAW XXVI. For What Reasons a Man May Conceal the Slave of Another and Not, on That Account, Be Liable to Punishment. VI/here a man fraudulently orders his slave to escape from his house and conceal himself in that of another person. with the intention of doing the latter harm, and claiming the penalty; and it is proved that fraud of this kind was committed by the master of said slave; we decree that the said person shall not be obliged to pay the penalty, but that the master shall lose his slave on account of the fraud which he intended to commit against the other party, and the slave shall be forfeited to the royal treasury. But where the fraud was committed in the first place by the party in whose house the slave was found, hecause he had enticed him, or begged him to come there, he shall then be hound to return the slave and pay the penalty; and in order to ascertain certainly with which of these parties the fraud originated, the slave shall be subjected to torture. to compel him to give the information. We also decree that where a man's slave, through fear which he has of him on account of some offense which he has committed, conceals himself in the hOllse of a friend of his master. with a view to having him obtain his pardon, he is guilty of no wrong by doing so; and no penalty can be demanded of the party in whose house he is found, for the reason that he received him with good intentions. LAW XXVII. In What Way a Judge Should Decide a Case Between a Master and His Fugitive Slave. Where one man brings another into court stating that he is his slave, and that he is a fugitive, although the defendant may acknowledge that he was in the power of the former and that he kept him in irons as a slave. having wrongfully taken him prisoner; then the party who asserts such a claim is bound to prove a lawful reason for it, as, for instance, by producing some document, bill of sale, or deed of gift, hy means of which he obtained said slave. If he can prove his case, the judge must put the party establishing such a claim in possession of the slave, but we decree that the other party shall have the right to prove his allegations, and introduce testimony before the judge concerning his freedom, either in person or by his attorney; and if it should afterwards be positively ascertained that he is free, he shall be liberated from slavery and the control of the party who holds him and declared to be acquitted and emancipated. LAW XXVIII. What Penalty Those Deserve Who Conceal Slaves That Have Escaped from the Household of the King. Where one of the shives belonging to the king's household escapes, and conceals himself in the house of another person, and the party in whose house he conceals himself suppresses the fact, with the intention that the king shall

1392

LAS

Su:rE

PARTIlIAS

lose him, he shall be required to return the slave, and to pay, in addition, one pound of gold. Where the slave is one of those employed on the royal works, the party who concealed him must return him, and, in addition, pay twelve pounds of silver; and where he belongs to the council of some city or town he must return the slave, or provide another as good as he, and, in addition, pay twelve pounds of gold.

LAW XXIX. What Penalty Those Deserve Who Corrupt Slaves, Making the Good Ones Bad, and the Bad Ones Worse. Men at times are guilty not only of receiving the fugitive slaves of others in their houses, but also of corrupting them in many ways, so that if they are good they become had, and if they are bad they become worse. This would be the case where a man advises a slave belonging to another to disobey his master; or to lie with some woman of his household; or to steal something from him; or to escape; or to become intoxicated; or, in any other way like this gives him advice or assistance, to commit some offense, or to do something by which he may become worse. We decree that in any of these cases, or in others like them, where ·anyone attempts to corrupt a slave belonging to another, although the said slave may have heen already willing to do wrong, the party who gave him such advice or assistance in order to increase his wickedness, is greatly to blame, and therefore shall be hound to pay to the owner of said slave a sum equal to twice the amount of injury or deterioration he receivj'!d in or hy said slave, on account of the evil advice and encouragement which the other gave him. And what we stated in this law concerning those who corrupt the slaves of others applies also to those who corrupt the sons, daughters, grandsons, granddaughters, or servants of a hotlsehol(J.1 1 Kidnapping, both of freeman and slaves, for the pu rpose of redueing them to servitude, familiar to the Romans, as plagi1lm, was punished by the Lex Fa-vi« with line. It was subsequently made a capital crime by the civil law. Special stress was placed upon the point that the pet"son implicated must have acted knowingly and maliciously. All parties to the transaction were rendered equally Iillhle, and no distin(,tion of ronk wos recognized in the abduction or concealment of the vi(,tim or fugitive. 'rhe t·erms of the L.O) Favia, wlJich seems to have been ,·eenacted in 1010 by imperial legislation are thus stufted in the Digest: "Lege Pallia. cuvetur, ut liber, qui hominem illgenuum, vel Ubertin'flm invitum celaverit, i,(..vinctulI' Itnbuerit, e1nerit scieRa dolo m.alo, quivB in earum qua re 8ol?iu8 eN. q'lli.fJU8 servo alieno SeJ'VlBt'B 1Je.r811aS8rif, llt a d01nino dominave fugiat, vel eU1n eamve invito vel inscientB dornino d01ninav8 cel.averit, 1'i'Retum habtterit. emerit, 8cienB dolo malo, qtlive m sa re SOCtU8 Brit, e'iu8 poena teneatur." ·(Corp. JUl". Civ, Dig. XLYIII·XV·6.) Many of the provisions in the taxt with reference to fugitive slnves are derived from the Visigothi. Code. 'Vhero n. man concealed a fugitive slave he was not only required to surrender him to Ilia lnn.ster. hut in nddition to give him one ns valuahle in every respect. If he y.ersunded the slave of nnother to escape, ho was compelled to give two slaves, and, if the fugitive was not found, three. (~'or .•Tud. IX·l·5.) The laws of the nncient Hindus condemned n. party who kidnapped a mun or woman of a superior custe to death hy tire; if he or she were of an inferior easte, he was heavily lined, or all his property con· IIscated. When the victim was of a caste between these two, the penalty was also severe. "If a person steal. a man or woman of " middling cast the magistrate sh,,11 cut off both his hands and feet, and east him out upon a highway where four roads meet." (Gentoo Cod. XVII·III.) By Moslem law, a man cannot be sentenced to amputation, the ordinary penalty for larceny, if he kidnaps a child, for the reason that a free born person of any age is not property; hut the case is different if he steals one that is in servitude. On the other hand, the stealing of a slave that is fully grown is not larceny, but a species of fraud. Notwithstanding the atrocious nature of the offense, the forcible ahduction of a human being WIIS not felony at common law, except where the clothes of the child were the object of the crime. and kidnapping was merely considered false imprisonment. This rule was prohahly based upon the doctrine accepted by Islamic law that a free horn individual is not property, and therefore not susce!ltible of theft. The seizure and holdin,: of persons, especially children, for ransom, now so common in our cities, is not specillcally referred to In any of the ancient legal treutises. It is now a felony, punishahle in some states with death. While, by no means of modern origin, its extraordinary developnient in recent years is an outgrowth of the brigandage of Italy transportled to our shores, encouraged by the lax administration of justice, and the noxions and widely pervading inlluence of political corruption which sells immunity to the criminal. The penalty IIxed by the Spanish Code for the kidnapping of a child under seven year. of age, is imprisonment in chains for from twelve years and one day, t.o twenty years. (C6d. Pen. de Esp. JI·XII·2. Art. 498.) In France, th"a abduction of minors, by fraud or force, is punished by imprisonment or penal servitude, dependent upon the circumstances attending the illegal act, and especially the sex and age of the child. (Cod. P~n. de Fr. III·II·4. Art. 354·857.) Tn Italy, for centuries tho hrigand's anel kid· napper's }laradis8, the abduction of " minor lORB thnn twolve y(!l~l's nld, or tho i1I(!gn,1 dUI)1'ivntiull of l)erlonal liberty, renders the offender nable to imprisonment for lrom one to twenty years. The "buse of official power: the fact that the victim i8 a female; the employment of threats or violence: and the· gratification of rennge, .errante the crime and increase the penalty. (Cod. Pen. d' It. II·III·s. Art. 145·149.)-Ed.

"n-

PART.

VII,

TIT.

XIV

139.1

LAW XXX. What Penalty a Party Deserves Who, by Stealth, Changes the Landmarks of Any Property. A landmark is an indication of the boundary by which one tract of land is separated from another, and no man should change it without an order of the king, or of the judge of the district; and if anyone should violate this law, and maliciously move the landmarks hetween his land and that of his neighbor, although it cannot strictly speaking, he said that he is guilty of larceny, hecause his act is committed on immovables; he. nevertheless, comlJlits an offense, and a wicked action which is similar to larceny. Wherefore every man who does this, must pay the king fifty maravedis of gold for every landmark which he changes in this way; and, moreover, if he has any rights in any portion of said property, which he thought that he could acquire hy means of stealthily changing the landmarks, he shall lose said rights. If he has no rights in said property, he must return what he entered upon in this way to its owner, along with an amount of his own property equal to that which he took from the other. What we have stated in this law with reference to the change of landmarks estahlished he tween the lands of men. applies also to an o/Tense which parties cOlJlmit in interfering with the landmarks designating the limits of cities, towns, castles, and other places.1 1 The removal of landmarks was .. grave off.nse under the civil law. the )llmishment for which varied with the age. rank, position, and intent of t.he culprit. Patricians were condemned to rel_flatio, a mild form of hanishment, those who were young to the longest terms. Persons occupying positions of trust were sentenced for two years at hard I"bor on the puhlic works; thoRe who even ignorantly or accidentally appropriated the 8tones were scourged. In later times, a fine of fifty aur,; ($138.00) wa. imposed, and where a slave was guilty, and his master refused to pay tbe fine, he was put to death. (Corp. JUl'. Oiv. Dig. XT,VII·XXI·l.) 'l'he penalties prescrihed hy t.he Vi.igothic Code were a fine of twenty ".lid; for a freeman. lifty lashes for" .IRve, and compulsory restitution of the landmark and boundnry. (For. Jud. X·III·2.) The offence i. II mi.demPllnor in grenter part of the United Stntes. In France. it i. classed III destruction of puhlic monuments, and i. punished hy imprisonment of from one month to two yeara, Ilnd I fine of from 100 to 500 francs. (Cod. Pen. de Fr. 111·1·6. Art. 257.)-Ed.

tI".

TITLE XV. Concerning the Injury, of Every. Character Whatsoever, Caused by Men or Animals to the Property of Others. Men inflict injuries upon others in their persons or their houses, which are neither robbery, larceny, nor acts of violence, but which happen sometimes by accident, and sometimes through the fault of the other party. Wherefore, since in the preceding Titles we spoke of Robberies and Larcenies, we intend to speak here of other .injuries, and we shall show what an injury is; how many kinds there are; who can demand reparation for the same; before whom, and of whom this can be done; and how reparation shall be made after the injury has been proved. LAW I. What Injury Is, and How Many Kinds There Are. Injury is the diminution or depreciation in value, or the destruction which a man sustains in person and property, through the fault of another. There are three kinds of these; the first is when property is deteriorated on account of something which is mixed with it, or through some other injury which is done to it; the second when it is diminished in quantity on account of the injury it undergoes; the third when the property is entirely lost or destroyed in consequence of the injury. LAW II. Who Can Demand Reparation for Injury. The owner of the property which is damaged can demand reparation for the same. His heir can also do this, but where the owner of said property has given it to another person, granting him the usufruct of it for his life; or where some other party has possession of the property, and holds it in good faith, thinking that it is his; or where some person has charge of it in some place where the owner of the same does not happen to be; then anyone of said persons, or their attorneys can demand reparation for damage caused to property which they hold in this way. We also decree that where anyone damages property which is pledged, and the party who pledged it has no way to pay his debt, or the one who holds it cannot recover the debt from the party who pledged it; he has then a right to demand that reparation be made for the injury suffered by the property which he holds in pledge; but whatever he thus receives by way of reparation, shall be credited as partial payment of the debt to which he is entitled. If it amounts to more than the debt, the excess must be returned, together with the property itself, to the owner of the same; but if the said owner has the means to discharge the debt, or was in the neighborhood where the property which sustained the damage is situated, he, and not the party who holds the property in pledge, must then demand reparation. Moreover, we decree that when any man has a right to receive from another a slave, a beast of burden, or any other property whatsoever, left him by will; and said property is injured so that it is destroyed, or depreciated in value, he who had possession of it at the time when the injury was committed can demand reparation for the same, if the party entitled to said property was not present. But where he to whom said property was bequeathed was present, then the person in possession of the same, must grant him authority to demand reparation for the injury done to it. 1394

PART.

VII, TIT. XV

1395

LAW III. Of What Persons, and Before Whom Reparation for Damage Can Be Demanded. The party who caused the damage 111ust make reparation for it to the party who sustained it. Suit can be hrought against him, whether he committed the act with his own hands, or whether it happened through his fault, or was committed by his order or advice; except where the party who committed the damage is insane; or has lost his memory; or is under the age of ten years and six 1110nths; or whether he did it while protecting himself or his property; for under these circllmstances reparation for injury committed in this way cannot be demanded. We also decree that the heirs of those, who have injured the property of others, shall not be bound to make reparation for the same, after the death of the parties from whom they inherit, except where issue has been joined by answer to obtain said reparation during the lifetime of the parties who caused the injury; for then they shall be bound to do so if they lose their case. Moreover, we decree that although issue may not have been joined by answer, as aforesaid; if said heirs have obtained any benefit from the injury done by those from whom they inherited, they must pay for the same to those who suffered the injury, or to their heirs, a sum equal to the amount of the henefit which they derived. And we decree that a suit for damages must he brought hefore the judge of the district where the act was committed, or before one of the other judges whom we mentioned in the Title concerning Accusations, in the laws which treat of this subject.

LAW IV. Where a Judge, in the Discharge of his Duty, Justly Injures Another Party He Is Not Bound to Compensate Him. Where a judge renders a decision according to law, against a party and orders him to obey it; and, afterwards, persons hinder him from doing so; and for this reason or for some other like it, he, or others by his order injure the. other parties or interfere with their affairs, they shall not be bound to make alllends for the same; but if the judge wrongfully injures another or orders it to be done, he shall be compelled to make reparation for his act. We also decree that if a judge or any of those who have power to administer justice, or the tax collectors of the king, should seize beasts of burden, or cattle, for taxes, or for any other reason whatever, they must not keep them shut up so that they cannot eat or drink. Any person who violates this law must pay to the owner of said cattle the amount of the loss or depreciation in value which they sustain by reason of being confined in this manner.

LAW V. Concerning Damage Committed by Men Under the Control of Others by Order of Their Superiors, and Which They Are Not Obliged to Pay For. A son, while under the control of his father, or a vassal or a slave, while under control of his lord, or a person under twenty-five years of age who has a guardian; or a friar, a monk, or any other member of a religious order who owes ohedience to his superior, shall, none of them, be bound to make reparation for injury caused by him to the property of another, by order of the party to whose authority he is subject, but he, by whose command the damage was

1396

LAS SIETE PARTIDAS

committed, must pay for the same. If, however, one of these persons should wound, or kill another, by the order of him under whose control he was at the time, he cannot escape punishment, for the reason that he is not bound to obey him in matters of this kind; and if he does obey him, and commits homicide or any of the aforesaid offences, he must suffer the penalty just as the other party who ordered him to commit the act. We also decree that if anyone commits injury or wrong against another by order of the judge of the district, the judge who ordered him to do this must make reparation, and not the party who committed the act; but where any other person whosoever commits wrong or injury against another by order of some one who had no authority or jurisdiction over him, then, not only the party who committed the act, but also he who ordered it to be committed, are bound to make reparation for the injury. If, however, any of the persons aforesaid, while under the control of another, should commit wrong or injury against anyone without the order of the party in whose charge he was at the time, then everyone of those who committed the act and not the parties who have charge of them, shall be bound to make reparation therefor; with the exception of a master who is obliged to make reparation for his slave, or relinquish him to the party who was injured hy him in lieu of such reparation. LAW VI. A Party Who, Through His Own Fault, Injures Another Is Bound to Make Reparation for It. Where two men are fighting together, and one of them, while attempting to strike his adversary, wounds a third party, although he did not. do so designedly, he is bound to make reparation, for the reason that even if he did not injure the other intentionally, it happened through his fault. But where a man is riding a race-horse, or a cart-horse; or is practicing with a lance; or is pursuing anyone in a place where others are accustomed to do this, and while proceeding along the course some one should cross and he should strike him, he shall then not be bound to make reparation for the injury he caused under such circumstances, because the other party was at fault, and not he who was riding the animal; 1 but where the rider saw the man, and has power to stop his horse, or turn him aside so as not to strike him and does not attempt to do so; or where he does any of these things where persons are passing, and which it is not the custom to do there; he is then to blame, and will be bound to make reparation, because it would appear that he committed the injury intentionally. We decree that the same rule shall be observed in the case of those who shoot with the cross-bow in a place where persons are passing, if they injure anyone. Moreover, we decree that when any person is building a house or any other edifice, or cutting down a tree which stands over the street, or by a road along which people are accustomed to pass, he must call out in loud tones to passers-by to take care of themselves; and if he does not, or speaks in such a way, or at such a time that those who are passing cannot protect themselves; and something falls from the building on which he is working, or from the tree which he is cptting down so as to injure anyone; the superintendent or the workmen who are building said edifice, or cutting down said tree, shall he obliged to pay him for any damage which he sustained, for the reason that it happened through their fault. 2 If whatever fell injured a freeman, the party shall then he bound to pay him all the expenses incurred by him in being cured of said injury, as well as • This, it will be seen, is an example of the doctrine of contributory neglijrence releasing tbe author of an injury from liability; a princiJ,le whose acceptance and aJlJllillation are eVIdently of high antiquity. h ill: on the other hand, an ancient rule that he who engages in a dAugerous 81>0I·t is J'espoDsilJle tur dawar.. reBulting therefrom. ..L........ quoq .... nO:lOiu. in c1lI,,4 .d."-Ed. 2 'l'he doctrine of the "'ust clear chance." C. S. J••

PART.

VII, TIT. XV

139i

the loss which the wounded person sustained on account of the labor which he might have performed, in case he is an artisan; and if he should die of the injury, the party through whose fault it occurred shalI be banished to some island for the term of five years, as we stated in the Title concerning Homicide.

LAW VII. Persons Who Dig Pitfalls or Holes, or Set Traps on the Road for Game, Are Bound to Make Reparation for Their Acts. Persons who prepare pitfalls, holes, traps, or other contrivances to capture wild animals should do this in desert places and not on the roads where men arc constantly passing and are accustomed to travel. And if anyone should act otherwise, and a man or a domestic animal, or any other property should falI into said holes, and be injured thereby, the party who dug them in a place of this kind is bound to make reparation for the injury. But where he digs the hole in some desert place, and an animal belonging to some other person falls into it, the party who dug the hole in a place of this kind, will not be bound to make reparation for the injury resulting from his act. We also decree, that if any man should drive hulls, cows, or any other dangerous animals from one place to another, he must conduct and take care of them so that they will commit no damage; and if he should not do so, and the said animals do any damage, the party who was driving them shall he to blame, and mllst make reparation for any injury which they cause.

LAW VIII. A Party Who Liberates the Slave of Another from Prison Must Pay for Him, if He Runs Away. Where a man has his slave in prison, in the stocks, in chains, bound with ropes, or confined in any way whatsoever like this; and another party, through pity for the slave, or dislike which he entertains toward his master, releases him, or removes him from prison; and the slave runs away or· his master loses him; he who released him shall be obliged to pay for him, and make reparation to his master for the injury which he sustained on this account.

LAW IX. A Physician, a Surgeon, or a Farrier, Are Bound to Pay for Any Damage Sustained by Any One Through Their Fault. Where a physician, a surgeon, or a farrier, has under his care a slave or an animal belonging to some man and cuts, burns, or doses it, so that by reason of the treatment which he gives, the said slave or animal dies or is crippled; either of said parties will be bound to make reparation to the owner for the injury which he sustained in his slave or animal, for a reason of this kind. The same rule shall apply when a physician, a surgeon, or a farrier, after beginning to treat the slave or the animal abandons it, for then he will be bound to pay for any damage which may result on this account. If, however, the man who died through the neglect of the physician or surgeon was free, then the party through whose fault he died must be punished, according to the discretion of the judge.

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LAW X. A Party Who, in Windy Weather, Kindles a Fire Near Straw, Wood, or Growing Grain, or in Any Other Place of This Kind, Is Bound to Pay for Any Damage Resulting Therefrom. \Vhena man kindles fires in his stubble-ground to burn the stubble in order to improve the land by this means; or burns a forest ill order to clear it, and cultivate the soil; or starts a fire in some field to improve the grass; or where he does this in any other way whatsoever which may be necessary, he must be careful to do so when there is not a high wind, and not to kindle it near any straw, lumber, or olive plantation, in order that no one else may be injured. If he should not observe this, and the fire causes damage, he is bound to make reparation for the same to the parties who sustained it, and he cannot excuse himself by saying that he did not act with a bad intention, and that he did not think when he kindled the fire that any damage would result. LAW XI. The Injury Sustained by a Party Through the Fault of Another Who Has Charge of a Bake-Oven, or a Kiln of Lime or Plaster, Is Bound to Pay for the Same. \Vhere a man is baking bread in an oven; or burning lime, tiles, or brick in a kiln; or melting metal, and goes to sleep while doing so, and the fire gains such headway that what was in the kiln is lost or depreciated in value, he wiII be obliged to make reparation for the damage or loss resulting therefrom; for the reason that he was to blame for not taking care of the fire, so that it would not cause any injury to whatever he was burning. The same rule shall apply if any damage results through his fault in any other way, by his not attending to the kiln as he should have done. LAW XII. A Party Who Tears Down the House of His Neighbor for Fear That His Own Will Take Fire, Shall Not be Bound to Pay for Any Damage Which He May Commit for This Reason. Fire which is started in cities, towns, and other places sometimes obtains such headway in the house where it originates that it cannot he extinguished without destroying others which are near it. For which reason we decree that if anyone tears down the house of one of his neighbors which is situated between the one that is burning and his own, in order to arrest the fire, and prevent his property from being destroyed, he does not, for this reason, become liable to any penalty, nor is he bound to make reparation for injury of this description. This is the case because the party who demolishes a house under such circumstances does not do so merely for his own benefit, but also for that of the whole city, for it might happen that if the fire was not arrested in this way it would obtain such headway that it would burn the entire town, or a great portion of the same; and, therefore, since he does this with a good intention he should not be punished for it. LAW XIII. A Party Who Cuts a Hole in a Ship Must Pay for the Damage Sustained by It and the Merchandise Contained Therein. Where a man intentionally cuts a hole in a ship, so that hy this means water enters and causes damage to the merchandise or the property contained therein, he will be bound to make reparation for all the damage which he

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caused to the ship and for any other injury and loss resulting to the property contained in it bv reason of the hole which he made. vVe also decree that where anyone knowingly puts something into the wine or oil of another party, or into any other substance of this kind which are called fluids, so that they are destroyed, or diminished in value, or deteriorated for this reason; or where a man breaks or cuts holes in vessels in which the aforesaid fluids are contained so that they escape or are destroyed, he shall be obliged to make reparation for the injury or loss which resulted frol11 whatever he put into said fluids, or from any other act which he performed. The samc rule shall apply where this is done to grain, or to other articles of the kind; for if anything should be thrown into it by means of which it will becomc deteriorated or depreciated in value, the party who committed this wicked act, shall make reparation for the damage resulting from whatever he threw into the grain.

LAW XIV. Where One Ship Strikes Another Through the Force of the Wind, Its Owners Are Not Bound to Pay for the Damage Resulting Therefrom. Whcre a ship is at anchor in port or on the shore of the sea, or is driven by oars or sails, and on account of a tempest or a very high wind, the master of the ship loses control of it, and it collides with another; although it may injure it, the owner of the former ship will not be bound to make reparation for the injury because it did not happen through his fault. The same rule shall be observed \vith regard to other accidents of this kind which happen in rivers and other places. LAW XV. When Several Men Are Present When an Injury Is Committed and a Slave or an Animal Is Killed, Reparation Can Be Demanded of Each One of Them. \Vhcn several men take part in killing a slave or an animal in such a way that all strike it, and it is not certainly known from which blow it died, then all of them together, or cach one, as the owner may desire, can be required to make him reparation hy paying the estimated value of whatever they killed; but if he receives reparation from one of them, he cannot, after that, demand it of the others. If it can be positively ascertained fro III what hlow the slave or the animal died, and who the party was who struck it, he can then demand of the party who killed it that he alone make reparation for the death. and all the others shall make reparation for the wounds inflicted. LAW XVI. Where a Party Denies the Injury Which It Is Said That He Caused and He Is Convicted of Producing It, He Shall Pay Double the Amount of the Same. V"here one man sues another in court for damage whi.ch he has committed, and the defendant denies that he did so. and the other party proves afterwards by witnesses that he did; then he who makes the denial must pay double damages. But where the plaintiff does not prove the injury by witnesses but by his O\yn oath. or by the admission of the defendant subsequently made. then the latter shall not be obliged to pay double the amount, but simply to make reparation for the damage which he committed. If, hovvever. the party who denies the injury is only twenty-five years of age, or is a woman, and he who l11akf's said demand is her husband, or where a wife makes a demand of this kind of her hushand, then neither of them shall be ohliged to pay double damages, even though the party may afterwards be convicted of having C01l1mitted the injury; but the latter shall only make reparation for what damage was actually sustained.

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LAW XVII. A Party Who Admits in Court That He Committed an Injury Against Another Is Bound to Pay for It, Although Some Other Party May Have Committed It. When a man admits in court that he caused damage to property belonging to another, he is bound to make reparation for the same, although another party may have committed the damage and not he; but where the damage that he admits that he committed was not caused by himself or by anyone else, and he can prove this, an admission of this kind shall not be to his prejudice.

LAW XVIII. What Difference Exists Between Property Which Is Damaged, and the Appraisement of the Same. 'Vhere a' man makes a complaint before a judge of damage which he sustained by reason of some slave, horse, cart-horse, mule, ass, mare, elephant, cow, unbroken bullock, ox, hog, sheep, ram, ewe, goat, or any of the young of said animals having heen killed; the judge shall then order reparation to be made for each one of them, so that the party who committed the damage shall pay as much for it as said property was worth, within a year from the llay on which it was killed. And where the injury done to any of said animals did not result in death, but was caused by a wound on account of which it was depreciated in value; or where other animals, not included in those aforesaid, are killed or wounded; or where any other property whatsoever is burned. demolished, or destroyed; then said deterioration, death, or injury affecting any of the property of the party aforesaid, shall he appraised hy the judge, and he shall order the said property, which was damaged to he paid for according to its value, within thirty days from the time such deterioration or damage took place. Reparation for injuries of this kind is of such a character that it always takes into consideration what the property was worth formerly, as aforesaid. The law which directs damages to be determined in this way is called, in Latin, Le.'!: Aqwilia; and the appraisement should he sworn to hy the party who demands reparation for the injury, as soon as it has heen proved in court.

LAW XIX. How Reparation Shall Be Made to the Master of a Slave Who Knows How to Paint, if He Should Be Killed. Where a slave who is a painter is killed, although during the same year in which. he lost his life he may have lost a thumb of his right hand through disease or accident, the party compelled to make reparation must, nevertheless. pay for him just as if his thumh had heen sound at the time when he was killed. Moreover, we decree that where anyone appoints a slave helonging to another as his heir, and he is killed hefore he enters upon the estate, the party who killed him is hound to make reparation to his master, for the death of saicl slave, and, in addition, he must pay as much of his property as that to which the slave was entitled to as an heir; for the reason that he lost it through the fault of the party who killed him. \Ve also decree that where a person has two slaves who sing well together, and some person kills one of them: he shall not only he hound to make rC'paration for the dead slave, hilt he shall also pay as 1I111ch as it shall he decided that the other has depreciated in value on accollnt of the death of the olle who was killed.

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What we have mentioned above in the cases aforesaid applies to all others similar to them; so that the party who causes an injury to any other property of this kind. is not only hound to make reparation for that which was depreciated in value or killed, but also for the loss sustained by the master resulting from the property being kiIled.

LAW XX. A Party Must Pay Damages for a Slave Whom He Advised to Do Something by Reason of Which He Lost His Life. When a man induces, or compels, the slave of another to climb up a rock, or tree, or perform other dangerous acts, or descend into some well or other deep or underground place, and in ascending or descending, the slave falls and is killed, or receives some injury or wound; he who persuaded or encouraged him to do this shall be obliged to make reparation to the master of the slave for the damage he sustained by reason of said fall. \V c also (lecrec that where the slave of anyone is 011 board a ship, or on the bank of a river and some party punishes him so that he faIls into the water and is drowned; or where he is 011 a tower, house, or other high place, and he throws him down hy pushing him, so that he dies or receives sOllie injury; he who pltshed hil1l shall he ohliged to make reparation to his llIaster for an injury of this kind, whether he did it by way of jest, or frol1l sOllle other motive while he was enraged. LAW XXI. A Person Who Irritates a Dog So That He Bites Anyone, or Who Intentionally Frightens an Animal, Must Pay for the Damage Resulting from His Act. Where a man usually keeps a dog shut up and then intentionally liberates him, suddenly releasing him in order that he may commit injury to the property of another; or if the dog runs at large and some one provokes him and he seizes or bites him, or injures him ill any other way; the party who does any of the things aforesaid shall be compelled to make reparation for the damage caused by said dog. l\loreover, we decree that if a man intentionally frightens an animal in sllch a way that the latter is killed, or depreciated in value; or, if, through the terror which he causes it, it rllns away, and in its flight injures any property; the party who frightened it shall be bound to pay the damage caused by his act. The same rule shall apply where the animal was crossing a bridge, and some one frightened it so that it was killed or injured; or, where, in any of these ways, or others similar to them, another party is damaged on account of some man frightening a mule, a cow, or some other animal, the party who frightened it shall be required to make reparation for the injury resulting from the terror which he caused it. 1 LAW XXII. The Owner of a Horse, or Other Domestic Animal, Is Required to Pay for Any Damage Committed by It. Some animals are naturally domestic in their nature, as, for instance, horses, mules, asses, oxen, camels, elephants, and others of the same description. \Vherefore, if one of said animals should injure another person through 1 It is appnt'ent from We contents of this Title that the principles governing the low of torts hove chnnged lJut little in the lapse of seven hundred years. 'rhe acts which now fix liability nnd give the right to recovpr damages are practicaJJy the sume that they were in the Peninsula during the thirteenth ('entury. ESlJecially is this evident in cases whf'l'e viciouS! or unguarded animals do harm by trespass, or parties in the practice of their daily avocations are guilty of gross negligence, through which personal injury results.Ed.

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being savage, or on account of some bad habit which it had; as where a horse, or other animal of those which men are accustomed to ride kicks al\y