[21] The history of the Castilian lawsuit, the pleito or proceso, begins in the thirteenth century. Its precise origins are unknown, but when first defined in Book III of the Siete Partidas (1248), it appears as a mixture of procedures borrowed from Roman law and others adapted from the usage of ecclesiastical courts. ⁽¹⁾ Subsequent changes and refinements were incorporated in the Leyes de Estilo, a fourteenth-century collection of procedural law, and then in the Leyes hechas . . . por la brevedad y orden de pleitos, promulgated by Ferdinand and Isabella in1499. ⁽²⁾ By this date, the pleito was an extraordinarily complex legal instrument; a litigant seeking a civil judgment was required to file a battery of briefs, testimonials, and notarized proofs before a magistrate could even consider his case. The preparation of these and other documents inevitably called for the help of experts as well as a substantial [22] investment of both money and time. Increasingly, therefore, justice seemed to be the work of men, not God, and in all probability this was the underlying cause of contemporary criticism about the lawsuit and its associated evils. These included ambiguities in the law by which lawsuits were judged; overlapping jurisdictions that allowed many litigants to frustrate their opponents' cases; courts notorious for their inefficiency, corruption, and greed; and, finally, a legal profession whose aims and ambitions were highly suspect. This chapter will examine each of these topics and in doing so illustrate what going to court in the sixteenth century may have been like.

By definition, the Castilian pleito was a juicio or civil judgment that required the presiding magistrate to render a decision strictly according to law. The pleito differed radically from an older, medieval tradition of dispute settlement that allowed a magistrate to base his decision, not upon law, but upon his own estimation of what was right and proper, ex aequo et bono. ⁽³⁾ In the older tradition, a magistrate's decision was judgment by albedrio, a procedure roughly similar to that employed in England's early equity courts and employed in village courts until modern times. Proceedings were predominantly oral; the use of lawyers was sporadic; and recourse to written law was infrequent since judgments were based mostly upon traditional usages and customs. The entire procedure was informal; the alcalde ( or mayor) of the village of Frias, for example, was reported in 1629 to have settled disputes among local residents over glasses of wine and games of cards in the village tavern. ⁽⁴⁾

Judgment by pleito, in contrast, aimed at curtailing the freedom, independence, and possibly arbitrariness of the judge by requiring disputants to submit formal proofs to support their claims and by [23] requiring the judge to consider only those proofs in rendering his decision. In judgment by albedrio, the judge had the power to make law by establishing a binding precedent or fazaña, but in the pleito, the judge was himself subject to the higher authority of the law, which only the monarch, as the servant of God, could make. The judge was not asked to decide between right and wrong, but merely to determine which of the parties had been able to prove his case with arguments drawn from the law. Knowledge of the law was therefore an essential ingredient in winning a lawsuit, but, according to most contemporaries, Castilian law in the sixteenth century was so ambiguous, confused, and misleading that it did little to promote just and equitable decisions.

The modern history of written law in Castile begins with the Forum Iudiocorum, a code promulgated by the Visigoths in the sixth century. Popularly known as the Fuero Juzgo, the code survived the Moslem conquest but by the ninth century was effective only in the small Christian kingdom of León. ⁽⁵⁾ Subsequently, special juridical privileges known as fueros that were granted by successive rulers to various municipalities and social groups weakened the Fuero Juzgo until it ceased to have any practical meaning. Castile in the eleventh and twelfth centuries was governed instead by approximately one hundred local and regional fueros, the most important of which were those of Nájera, Cuenca, Sahagún, and León. ⁽⁶⁾ These fueros constituted the basis of Castilian customary law which, despite the growing effectiveness of national or royal law, continued to be utilized in a variety of local and municipal tribunals almost to modern times. As late as 1612, Francisco Bermúdez de Pedraza wrote that "these old laws were the source and model for the modern laws of Spain, and by them one can still judge today." ⁽⁷⁾ More important, the fueros served political interests and were used during the Comunero revolt of 1520 to rally popular support against Charles V and again in the 1620s to unite cities opposed to the increasingly absolutist and arbitrary actions of Philip IV. Mateo Lisón y Viedma, representative of the city of [24] Granada in Madrid, circulated several tracts among the cities with votes in the interest in the Castilian Cortes in which he suggested that Philip IV's plan to sell jurisdiction over twenty thousand of the crown's vassals was "against the fueros [of Castile]." ⁽⁸⁾
 

The first ruler to challenge the hegemony of Castile's fueros was Ferdinand III (1217-52), conqueror of much of New Castile and Andalusia . During the early thirteenth century, Spanish scholars first took serious interest in the "discovered" civil law of Imperial Rome, and Ferdinand himself sponsored the establishment of a civil law faculty at the new University of Salamanca. Roman law, with its emphasis on judicial centralization, was ideally suited to Ferdinand's attempt to increase his own authority vis à vis that of the municipalities, and it may have been jurists from Salamanca who persuaded this ruler to introduce the Fuero Juzgo as the only fuero of his newly conquered territories. Ferdinand thus imposed upon Andalusia a high degree of legal uniformity that did not exist in other parts of his kingdom. ⁽⁹⁾

His son, Alfonso X (1251-84), went even further. The "wise" king, who surrounded himself with jurists skilled in the civil law, envisioned a single, uniform law code for his entire realm. Under his auspices, a number of important legal treatises and theoretical law codes were composed, the most important of which was the famous Siete Partidas, a huge compendium modeled after Justinian's Corpus Juris Civilis. But when Alfonso attempted to persuade the Castilian Cortes to accept the Partidas as law, he met with stiff opposition, particularly from the cities, which viewed the Partidas as a threat to their own autonomy. ⁽¹⁰⁾ The battle over the Partidas continued until the middle of the fourteenth century, when a compromise was finally struck. The Ordenamiento de Alcalá de Henares (1348) stipulated that the Partidas would take effect in royal courts, whereas fueros would remain in force in the kingdom's local and municipal courts. ⁽¹¹⁾ Gradually, however, the laws of the Partidas gained in importance. As [25] the economy grew, the Partidas, which were far more precise in matters concerning commercial contracts, banking, and finance than the fueros, gained the support of merchants monasteries, noblemen, and cathedral chapters, many of whom were directly involved in Castile's expanding wool trade as well as in exploration and trade in the Atlantic. The Partidas had the additional advantage of providing for entails and primogeniture, both of which were attractive to noblemen seeking to safeguard the integrity of their landed inheritances.

The next major development in the history of Castilian law occurred late in the fifteenth century, when the monarchy embarked on a series of compilations designed to edit and reform the existing corpus of royal law. Pressure to do so had begun in 1415, when the Cortes complained that royal edicts issued in the course of the previous century altered and in some cases contradicted or revoked those found in the Partidas. ⁽¹²⁾ They therefore requested a new, up-to-date recopilación or collection of royal law, but nothing was done on this project until the accession of Ferdinand and Isabella in 1479. Eager to curry the support of the Cortes, these rulers sponsored a number of independent efforts by prominent jurists to edit, revise, and publish definitive editions of existing royal law. The first to appear was Ordenanzas Reales de Castilla (1485), the work of the royal councillor Alfonso Díaz de Montalvo. ⁽¹³⁾ This influential work was supplemented by the Libro de las Bulas y Pragmáticas (1503), ⁽¹⁴⁾ a compilation of laws designed to restrict the powers of ecclesiastical courts, and then by the Leyes de Toro (1505) a collection of eighty laws, many dealing with important matters of property and inheritance. ⁽¹⁵⁾ Ambiguities remained however, and the Cortes continued to press for further reform. Charles V promised at the outset of his reign a new and definitive collection of royal law, but little progress was made until Philip II named two jurists, Lic. Pedro López de Arrieta and Lic. Diego de Atienza, to complete what later became known as the Nueva Recopilación de todas las leyes de Castilla. ⁽¹⁶⁾

[26] Published originally in 1569, this work assembled in two huge volumes over four thousand royal laws, edicts, pragmatics, and provisions, some of which dated back to the time of the Visigoths. Encyclopedic in scale, even this great work was not exhaustive, and because its editors did not organize the laws into rational categories it failed to meet contemporary standards of jurisprudence.⁽¹⁷⁾ Two subsequent editions, which appeared in 1592 and 1598, included laws issued since 1569, but did nothing to revise the original work. ⁽¹⁸⁾ Other difficulties stemmed from Philip's refusal to promulgate the Recopilación as law, which meant that laws not included in the collection were not abrogated. This omission implied that every cédula, ley, or pragmática issued by a Castilian monarch, regardless of date, remained in force unless it had been expressly revoked by a subsequent ruling. In theory, courts acted on the principle that the most recent law dealing with a specific issue was to take precedence over earlier ones, but this still left considerable doubt as to which law should apply in a particular case.

Modern legal scholars have argued that this flexibility allowed Castilian law to survive, unreformed, for centuries, but contemporaries were virtually unanimous in decrying the evils of allowing magistrates so much room to pick and choose what law to apply. ⁽¹⁹⁾ Castilian judges already enjoyed a remarkable degree of power. Inquisitorial procedures gave them the right to play an active role in [27] both civil and criminal cases. Furthermore in announcing their decisions in civil cases, judges had only to state that one party "proved his case" while the opposing party "did not"; no further explanation or justification was required . It is not surprising, then, to find cases in which judges were accused of basing their decisions "not upon law but arbitrary will." ⁽²⁰⁾ And in 1581, Tomás Cerdan de Tallada candidly admitted that "the law is so broad and so extended by the decision of so many cases that there is not a single issue or case that cannot be interpreted in two contradictory ways." ⁽²¹⁾ Sancho de Moncada, a professor of theology in Toledo, said as much in 1619, when he suggested that over five thousand different laws led to continual injustice "because they leave the door open to judges to harass those whom they wish, stating that the laws in question are still valid; and conversely, to aid those whom they like, stating that the laws in question are no longer in use." ⁽²²⁾

Much of this criticism came from jurists for whom Castile's laws were still only a pale imitation of those of Justinian. Others mainly ecclesiastics, regarded human law as wholly inadequate as compared to that of God. Law was not the problem, but men. Fray Antonio de Valencia stated that laws "should be few, simple, and clear" and attributed the injustices caused by the laws to judges whose "ambition has reached the point where their judgment is so arbitrary and capricious that no one is able to buy, sell, or possess anything with security nor can anyone bring charges against the injustices of a judge although he knows and feels the offense because of the caviling and complexity of the law." ⁽²³⁾

It is difficult to know how much of this criticism was justified. That levied by the lawyers was partly motivated by their jealousy of the powers and prerogatives vested in the king's magistrates and may have represented a deliberate attempt to rally support for legal reforms designed to give lawyers a greater say in the actual administration of the law. On the other hand, serious shortcomings in the [28] corpus of Castilian law did exist. One important source of ambiguity and confusion was the continuing vitality of local and regional fueros, many of which directly contradicted the dictates of royal law. In 1598, the noted jurist Jerónimo Castillo de Bobadilla attested to the strength of this foral tradition when he wrote that "customs defeat the statute and have more force than law." ⁽²⁴⁾ Lawsuits centering upon the validity of such customs were frequent, and it was never certain whether the king's law or the fueros would prevail. In the north of the kingdom, particularly in the valleys of Asturias, la Montaña, and Rioja, fueros concerning dowry and inheritance contrasted sharply with the laws of the monarchy that were derived from Roman precedents. Some valleys stipulated that, upon the dissolution of a marriage, a dowry should return to the wife's lineage (al tronco), whereas royal law dictated that it should go to her designated heirs. ⁽²⁵⁾ Similarly, many of these northern valleys continued to practice partible inheritance and refused to permit primogeniture, which was, as we have seen, sanctioned by royal law. Issues such as these were constant sources of friction and dispute, especially since there were no clear-cut precedents for the king's magistrates to follow. On some occasions, the king's law prevailed; on others, magistrates ruled in favor of the "law of Soria," "the fuero of Segovia," "the ancient custom of this valley," and other local usages. ⁽²⁶⁾ For many litigants, of course, the failure of the magistrates to rule consistently either for or against local usages provided room for maneuver and opportunities to delay the process of justice itself, but such ambiguity was condemned by those who believed justice was too expensive and too slow. Furthermore, the continued vitality of the fueros reminds us that in spite of widespread acceptance of the laws of the Nueva Recopilación, Castile in the sixteenth and seventeenth centuries was not a unified legal entity with a single, territorial, or common law. The patchwork quality of the fueros was fading, but the quilt was still intact.

A related problem, although one that applied primarily to criminal [29] law, was the existence of fueros that granted exemptions from the ordinary jurisdiction (jurisdicción ordinaria) of the king to members of specific communities and groups. Under the fuero of Vizcaya, for example, natives of this region, even those living in the New World, claimed that cases against them had first to be brought to the juez mayor of Vizcaya, a magistrate resident only in Valladolid. ⁽²⁷⁾ Similarly, ecclesiastics claimed the protection of the fuero eclesiástico, which freed them from prosecution in secular courts. ⁽²⁸⁾ University students were also covered by this fuero, whereas soldiers, veterans, members of the militia, and others who belonged to the military had the protection of the fuero militar, which granted them certain immunities from the ordinary jurisdiction of the king. ⁽²⁹⁾ An agreement of 1553 also granted familiars and other officials of Spanish Inquisition exemption from secular justice. ⁽³⁰⁾ And even in the seventeenth century, at a time when royal absolutism in Castile was supposedly triumphant, new exemptions from the ordinary jurisdiction of king's magistrates were granted. In 1600, Philip III ordered that criminal cases involving knights belonging to one of Spain's Military Orders should be tried in the first instance by the members of the Council of the Military Orders and in the second instance by a special panel of four judges, two from the Council of the Military Orders, two from the Royal Council of Castile. In 1608, however, the king, under pressure from the Military Orders, ordered that the two councillors of Castile represented on this panel had also to be members of one of the Military Orders. The fiscal of the Royal Council was opposed to this "weakening of the [30] royal jurisdiction,"and execution of the king's order was delayed pending further discussion. Finally, two years later, a special commission organized to resolve this disputes the Junta de la Casa de Condestable, twisting traditional definitions of justices argued that the special fueros of the Military Orders be retained "because it is right that each person should enjoy what is his, especially in matters of justice." ⁽³¹⁾

Special fueros thus created within Castile a web of jurisdictional refuges which many used to escape prosecution and to delay proceedings in the king's courts. An example of how such fueros were exploited occurred in 1640, when Alonso Fernández de Quiros, a resident of the valle de Alfoz de Laredo, brought suit against Juan de Villegas after the latter had allegedly threatened his wife, publicly asserted that his claim to nobility was false, and, finally, insulted him by hanging the hindquarters of a dead pig in the doorway to his house. Quiros cited Villegas in the court of the royal corregidor of Reinosa, but Villegas, a captain in the infantry, insisted that this lawsuit could be heard only in Madrid before the Council of War "to whose fuero he belongs." ⁽³²⁾ Similarly, in 1630, the alcaldes de casa y corte, the royal magistrates charged with the policing of Madrid, claimed that their effort to eradicate gambling houses in the capital was frustrated by "knights of the Military Orders, ministers of the Inquisition and military men," each of whom claimed to be outside their jurisdiction. On this occasion, Philip IV, who was concerned that tolerance of "public sins" was contributing to his kingdom's decline, ordered the alcaldes to forget the legalities and to close the gambling houses. Philip recognized however, that the councils charged with the protection of the fueros concerned would protest. ⁽³³⁾

Many observers thought the continued existence of these special fueros was out of step with the times. Jurists trained in civil law considered the fueros incompatible with an ordered, unified system of law. Ecclesiastics, many of whom were concerned about the proliferation of "public sins," advocated an end to special jurisdictions [31] that exempted certain classes of individuals from prosecution. ⁽³⁴⁾ The Cortes agreed, and in 1650 it complained to the king that "the multiplication of jurisdictions, judges, and other officials is so great that the execution of justice in this kingdom is weakened." ⁽³⁵⁾ Avowed regalists regarded these fueros as unnecessary and unwarranted checks upon the absolute power of the crown. Particularly outspoken on this issue was Juan Chumacero y Carrillo, president of the Royal Council of Castile. In 1645, he attempted to crack down on the special legal privileges enjoyed by several of the king's councils and was especially critical of the Inquisition, whose officials he alleged, were "disturbing ordinary judges with fines, imprisonments, and excommunications, thus impeding the administration of justice and disrupting the peace and tranquility of the towns." ⁽³⁶⁾ Three years later, he prepared a special memorandum for Philip IV describing the many difficulties caused by the existence of these private jurisdictions. The special fueros, he wrote, were a threat to the "peace of the Republic" because they bred "insolent, villainous men" who were exempt from ordinary prosecution. He warned that if the fueros were not revoked, these men would continue to commit countless crimes and atrocities that would endanger the lives and property of the king's subjects. Chumacero ended his report by reminding the monarch that the limitations on royal authority posed by the fueros, together with the crimes and injustices to which they invariably led, were the principal reasons why "empires collapse." ⁽³⁷⁾

Together, ambiguous laws, conflicting fueros, and special juridical privileges helped to fashion a legal order which one historian has compared to the Cretan labyrinth. ⁽³⁸⁾ The image is apt. Castilian justice in the sixteenth and seventeenth centuries was a hodgepodge of confused laws and competing jurisdictions that crafty litigants exploited to their own advantage. According to long-established juridical principles, law was supposed to promote justice, but, as many saw it, [32] Castile's law was so confused that it allowed "many unscrupulous and empassioned individuals to instigate unjust cases and to weaken their opponents." ⁽³⁹⁾ Mindful of the shortcomings of the law, Philip IV attempted at the outset of his reign to rationalize the legal system and created for this purpose a special commission known as the Junta de Competencias. ⁽⁴⁰⁾ One of the tasks of this junta was to strengthen the king's jurisdiction at the fueros' expenses but entrenched interests were too strong and the monarchy too weak to accomplish wholesale reform. The Cretan labyrinth remained intact.

The labyrinthine state of Castilian law had its institutional analogue: an array of law courts and legal tribunals so bewildering that lawsuits regularly became lost in a confused jurisdictional morass. Royal justice, for example, was organized on three distinct hierarchical levels. At the bottom were the courts of the king's corregidores officials who, along with a number of miscellaneous judges, administered the equivalent of today's trial courts. The next tier consisted of five regional audiencias, each empowered to hear appeals from the courts of the corregidores as well as various municipal and seigneurial judges. The third and highest tier was the Royal Council of Castile, the kingdom's superior court. The law guaranteed access to these higher tribunals as a matter of right although appeals from lesser to higher jurisdictions were supposed to be graduated, advancing regularly, step by step.

By modem standards, therefore, the principles governing the administration of royal justice were quite advanced, but in practice this neatly organized judicial hierarchy broke down. Each tribunal did [33] what it could to aggrandize its own jurisdiction at the others' expense, and such competition meant that many cases were heard in tribunals where they did not belong. Particularly fierce was the rivalry between the Royal Council and the Royal Chancillería of Valladolid, each of which attempted to increase its own prestige by claiming exclusive jurisdiction over important cases involving cathedral chapters, major cities, and members of the titled nobility. In disputes over taxation, the chancillería had to contend with competition from the Contaduría Mayor de Hacienda, a special tax court whose jurisdiction was somewhat ill-defined. Equally tempestuous was the borderline between the king's regular magistrates and those with a limited charge such as the jueces de comisión and juecespesquisidores, who were special investigatory judges with powers that generally cut across those of the regular bench. Skilled lawyers and litigants exploited these divisions and, by playing one court against another, successfully managed to frustrate or defeat their opponents by switching tribunals or by initiating a subsidiary lawsuit in another court. Such, for example, was the intention of the duke of Fernandina in a lawsuit with his son over 1.5 million mrs. in living allowances which the son claimed his father owed him. In 1622, the suit was pending in the Royal Council, but to delay the case, the duke initiated a pleito de acreedores, a type of bankruptcy proceeding, in the chancillería of Valladolid. The son protested, because his claim had now to be considered along with those of his father's other creditors, but the wily duke eventually got his way. ⁽⁴¹⁾

Litigants also played roughshod with the hazy lines separating royal justice from courts and tribunals that were only nominally under the king's control. Merchants, for example, brought cases that legitimately belonged to the consulado of Burgos to the chancillería of Valladolid, in violation of guild regulations that enjoined merchants not to initiate lawsuits against other merchants. Persons covered by the fuero eclesiástico were equally adept at using the jurisdiction of ecclesiastical courts to forestall their opponents. Little is known about these tribunals, but their powers were extensive and included all matters pertaining to "orders, benefits, patronages, tithes, first fruits, oblations, burials, marriages, and legitimations, as well as cases involving the sacraments, papal bulls, apostolic letters, and criminal [34] charges against clerics." ⁽⁴²⁾ On the other hand, it was never clear whether lawsuits involving the payment and restitution of dowries belonged to ecclesiastical or secular courts. The fuero eclesiástico stipulated that such disputes belonged to the church, but widows attempting to recover dowries from their husbands' estates generally sought secular justice. This particular conflict was never resolved; accordingly, many cases involving dowries flip-flopped between the two sets of courts. ⁽⁴³⁾ Furthermore, by means of a procedure known as the via de fuerza, the decisions of ecclesiastical judges could be appealed to a royal court, but this provision was abused by litigants who used it to bring cases involving benefices, tithes, and other issues that legitimately belonged to ecclesiastical tribunals directly to secular justice. ⁽⁴⁴⁾ The notorious corruption of church courts was one reason for these actions, but it is also likely that litigants purposely eschewed ecclesiastical tribunals as part of a strategy designed to complicate their opponent's case. ⁽⁴⁵⁾

Municipal justice was exploited in a similar fashion, especially in large cities that boasted a variety of courts and tribunals among which litigants were virtually free to pick and choose. Litigants in Seville, for example, benefitted from continuous competition among the alcaldes mayores appointed by the city government, the royal corregidor (or asistente), and the royal audiencia, all of whom sought [35] to expand their jurisdiction at the others' expense. The resulting confusion was such that the administration of justice in Seville was widely regarded as the most chaotic in the entire kingdom. ⁽⁴⁶⁾ Both Charles V and Philip II attempted to sort out these disputes, but neither had much success. ⁽⁴⁷⁾ Thus the future Saint Teresa of Avila was probably right when, writing from Seville in 1576, she told a friend that "the injustices that are tolerated in the city area are extraordinary . . . I tell you that it rightly deserves its reputation." ⁽⁴⁸⁾

Seville's juridical problems were acute, but they were by no means unique. In most cities, the administration of justice was plagued by a bewildering array of lesser courts and tribunals, the jurisdiction of which were often poorly defined. Magistrates vied with one another for power and prestige, and matters were complicated by the fact that the livelihood of the scribes, notaries, and other officials attached to these tribunals depended largely upon fees paid directly to them by litigants. Competition for control of the local judicial market was therefore intense, encouraging litigants to shop among the various tribunals for the best deal. ⁽⁴⁹⁾ In 1640, for example, the city of Toledo had a population of no more than twenty-five or thirty thousand people, but, according to one report, it was served by no less than twenty-two different courts and tribunals. ⁽⁵⁰⁾ These included that of the royal corregidor, the city's alcalde de alzadas (an appellate judge), the archbishop's vicar, the Inquisition the Santa Hermandad and a number of financial officials such as the administrador de alcabalas. Litigants, consequently had considerable freedom in determining [36] their cases would be heard. In civil matters, for example, there was a choice of going to the corregidor or to the alcalde de alzadas, and, if a cleric or some church property was involved, the vicar's court was yet another possibility.

Overlapping jurisdictions in the countryside gave inhabitants of rural areas similar choices, and many peasants used this freedom to frustrate their opponents by having their cases adjudicated at a distant court. Notorious in this regard were the residents of the valley of Cabezón in the Rioja. Disputes over the method of electing the local magistrate had created two factions among the residents, each of which had sued the other on several occasions and in a variety of courts. Eventually, the matter was brought to the attention of the president of the Royal Council in Madrid, who was told that one of the parties in this dispute would take his case to the chancillería of Valladolid, the other to the Royal Council, "solely with the purpose of taking vengeance upon the other and consuming his property." ⁽⁵¹⁾

Inhabitants of seigneurial estates behaved in much the same way, although these peasants had another reason for avoiding the local judge. Seigneurial courts in this epoch were not known for their impartiality, and it was almost impossible to obtain a judgment that ran contrary to the interests of the seigneur. Consequently, many of those who lived in seigneurial estates bypassed the local magistrate and went directly to royal justice in the hope of obtaining an impartial hearing. In 1621, for example, the residents of Tudela de Duero, a town that belonged to the duke of Medinaceli, clashed with some local ecclesiastics in an incident that left behind several dead. The duke claimed the case for his own, but the local residents, afraid that they would not be judged fairly, protested. According to one report, "many inhabitants went about the town shouting for justice at the royal chancillería of Valladolid," a service this tribunal was pleased to supply. ⁽⁵²⁾ Other seigneurs were obliged to contend with similar behavior, and at one point late in the sixteenth century some of the kingdom's most important nobles complained to the king about the unwarranted interference of royal magistrates in the judicial administration of their estates. ⁽⁵³⁾

Castilian justice, therefore, was far less structured than it appeared, [37] and this difference is best explained by the way courts in the sixteenth and seventeenth centuries were organized and run. Royal magistrates were never allowed to purchase their offices, but most other court officials, including accountants assessors constables porters, receivers, and scribes did. A small village court had only a handful of such officials, but a tribunal as busy and important as the chancillería of Valladolid incorporated nearly two hundred each of whom had made a substantial investment in his position and expected a sizable return. ⁽⁵⁴⁾ Such officials were necessary because lawsuits, as the Partidas proclaimed, were to be in scripto in order to provide a permanent legal record of every stage of a dispute, from the initial demanda (citation) to the final sentencia (decision) of the judges. ⁽⁵⁵⁾ Insistence on written procedures meant also that most lawsuits consumed reams of paper, or as one royal visitor to the chancillería of Valladolid put it: "There are pleitos of ten thousand and twenty thousand pages whereas three thousand to four thousand pages are the rule; more is written in a single lawsuit than in all of the histories of Spain, France, and Italy and in those of the nations of the Greek and Roman world." ⁽⁵⁶⁾ Nor was he exaggerating. The duke of Béjar's lawsuit in the chancillería of Granada with Vincente Zapata and his wife over title to the estate of Burgillos was worth 1.5 million mrs., which made it a case of major importance The duke, obviously awed by the lawsuits complexity commented, "The suit has sixteen thousand pages, and the memorial alone, two thousand." ⁽⁵⁷⁾ An extremely complex and time-consuming case, such as that between the city of Toledo and the counts of Belalcázar over the rights to the county from which this nobleman drew his name, consumed even more paper. This case lasted well over a century and, according to one estimate, generated at least thirty-four thousand pages of transcript, or enough to fill forty-five bundles of documents in Toledo's municipal archives. ⁽⁵⁸⁾

Much of this paperwork was unavoidable, but an additional reason [38] for such gargantuan lawsuits was the corruption and greed of the court officials responsible for the copying and transcribing of legal documents. Having purchased their charges, these officials were entitled to collect fees for their services . To prevent gouging, the crown published an official tariff, or arancel, that spelled out in great detail the amount to be collected for drawing up a petition, copying a document, or filing a lawsuit. ⁽⁵⁹⁾ Fees were deliberately kept low to protect litigants and to provide for easy access to the courts, but the crown's interest in keeping court costs at a minimum conflicted directly with that of court officials, all of whom considered their offices as a form of investment rather than a public trust. They consequently badgered the monarchy to revise the fee schedules upward, using their own "poverty," Castile's galloping inflation, and the "high cost of living" as justification for the increase. ⁽⁶⁰⁾ But the crown was adamant. Neither Charles V nor Philip II granted the officials what they had asked, and the latter, not surprisingly, found ways to cheat.

Especially inventive in this regard were the escribanos, or scribes, the officials whom Miguel de Cervantes described as "satraps of the pen." ⁽⁶¹⁾ In the course of the sixteenth century, the script in which these officials wrote grew larger and larger and the number of lines to a page and words to a line diminished so that writing covered barely one-half and in some cases no more than one-quarter of each sheet of paper. Because they were paid by the page, such ploys automatically raised their incomes and, in the process, allowed some lawsuits to grow to the proportions described above. In 1590, it was said that such handwriting practices meant that lawsuits that previously called for one hundred pages required fifteen hundred or more. ⁽⁶²⁾ It was also reported in one visitation to the chancillería of Valladolid that "the receivers and scribes write more than is necessary for a lawsuit because, by doing so, they earn more. Consequently, it appears that lawsuits are not made for the officials but officials for the lawsuits." ⁽⁶³⁾

[39] As a result, the cost of litigating, especially in a major tribunal, was substantial. In the 1570s the officially recorded fees for lawsuits settled at the chancillería of Valladolid ran between 2,000 and 5,000 mrs. ⁽⁶⁴⁾ Closer to the truth was the estimate of the royal visitor that the actual cost of a lawsuit at this tribunal was approximately 24,000 mrs., a sum so large that he called it a "great universal robbery." ⁽⁶⁵⁾ Case-by-case figures for the cost of litigation in the sixteenth century are not available, but in one of its lawsuits the city of Seville paid 3,200 mrs. in fees to the court receiver, over 2,000 mrs. for the carta ejecutoria or final writ, and at least 1,100 mrs. to the court reporter. ⁽⁶⁶⁾ Additional fees to porters, court accountants scribes, and other officials probably raised the cost of a lawsuit closer to that proposed by the visitor to the chancillería.

To these "official" costs must be added the bribes, gifts, and other clandestine payments that court officials expected and without which a lawsuit had little chance of success. The city of Toledo regularly gave substantial Christmas gifts to the porters in the tribunals in which it had lawsuits pending, and, presumably private individuals did much the same. ⁽⁶⁷⁾ The city of Seville gave its chief attorney in Madrid carte blanche to distribute up to 1 ,000 mrs. to court officials whenever he wished "because it is sometimes necessary to give money to the helpers and servants of the relatores, scribes, and other court officials for the good and expeditious dispatch of business." ⁽⁶⁸⁾

The importance of these donations cannot be underestimated. Money given to the court constable could postpone the enforcement of a judge's decision for weeks, even months, whereas a gift to the repartitador, the official in charge of arranging the court's docket, might result in a hearing being set at a time when one's opponents were certain to be out of town. ⁽⁶⁹⁾ Even higher officials were frequently [40] on the take. Court reporters (relatores) had the important job of summarizing the arguments submitted by opposing parties to the court, which required them to have been formally schooled in the law. ⁽⁷⁰⁾ Such training, coupled with the fact that they did not purchase their offices but were appointed after a competitive oposición, set them apart from most other "men of the law." Nevertheless, like most of the subaltern officials attached to Castile's courts, relatores were expected to live off fees paid directly to them by the litigants. In practice, however, relatores could expect to be paid only by the winning party, and they did not earn any fees at all when the parties managed at the last minute to settle out of court. ⁽⁷¹⁾ Consequently, many relatores found other ways to augment what they alleged to be incomes upon which they could not afford to live. In 1554, for example, Lic. Aleman, a relator at the chancillería of Valladolid, was fined 15,000 mrs. and suspended from office for six months after having gone to a litigant's house and informed him how much a favorable relación (reading) of his case would cost. ⁽⁷²⁾ That same year, three of the other relatores attached to this tribunal were suspended for similar activities, and a few years later a relator at the chancillería of Granada was permanently dismissed because "on one occasion he related the case in such a manner that he influenced the magistrates' judgment; afterward, in the second hearing [revista], he read the entire case and the judgment had to be amended to conform with the actual facts of the case." ⁽⁷³⁾ The abuses of relatores were so many that a visitor to one [41] of the chancillerías recommended that these officials each receive a salary of 150,000 mrs. a year in lieu of fees "because, by not having sufficient remuneration, they relate cases poorly, and the litigants, in order to avoid this eventuality, pay them." ⁽⁷⁴⁾

In addition to taking bribes, most court officials engaged in numerous illegal, but lucrative, activities only tangentially related to their everyday work. It was common knowledge, for example, that the registrador (registrar) of the chancillería of Valladolid, Juan Alvarez de Alarcon, would provide litigants with a fake document of any sort for only 12 mrs. a page. ⁽⁷⁵⁾ Others arranged for "false witnesses," a trade that was particularly profitable in the sala de hidalguía attached to the royal chancillerías of Granada and Valladolid in which individuals who claimed nobility had to present witnesses who could certify that fact. For a fee, court officials arranged for "drunks and poor beggars" to testify in these cases, and, as a result, as one visitor lamented, "many persons are declared to be nobles although in truth they are not." ⁽⁷⁶⁾ Visitors to the royal audiencias also condemned court officials who were willing to withhold essential evidence from important lawsuits together with those who acted as intermediaries for litigants seeking to bribe a judge.

The small army of officials surrounding every court and tribunal thus constituted obstacles to every litigant, rich or poor. Because they sold justice, failure to pay them or to provide a solicited gift could wreck even the best-prepared case, while providing an advantage for the wealthy litigants who could afford what the officials asked. For this reason Melchor de Macanaz, writing in the eighteenth century, was probably right when he blamed what he termed the "ministers of the lawsuit" for "the annihilation of Castile's litigants." ⁽⁷⁷⁾ On the other hand, the propensity of these "ministers" to manipulate lawsuits for their own advantage helps to explain why it was so easy for litigants of this epoch to manipulate court jurisdictions as they saw fit. Every court was expected to provide its officials a profitable return on their investments; only rarely, therefore, did it reject an opportunity [42] to hear a new case, even if the case was beyond its jurisdiction. In this respect, each of Castile's law courts was a kind of interest group actively soliciting new clients and new business from which it hoped to profit and to augment its prestige. The successful litigant was one who knew how to exploit this competition, shopping around among the various tribunals until he found officials willing to expedite his case.

In addition to skill in manipulating court officials, a successful litigant in a Castilian court had to be able to wait. Civil justice normally moved at a slow, lethargic pace, and complaints about the "length of the lawsuits" and "immortal lawsuits" cropped up repeatedly in the Cortes, in private correspondence, and in literature. The famous count-duke de Olivares, favorite of Philip IV, was in a position to exert enormous influence over the administration of royal justice, but even his important lawsuit with the duke of Medina-Sidonia, which was pending in the Royal Council of Castile in 1622, was subject to extraordinary delays. The vista, or initial hearing, had been in his favor, and even though the law stated that the revista (review) was to take place within four months of the first sentence, in December 1623, Olivares wrote to the president of the Royal Council and complained that it was now "more than ten months since my lawsuit was last seen;. ..had I known this before, I would not have continued with the suit . . . even though my children might have died of hunger." ⁽⁷⁸⁾ If Olivares read Lope de Vega's famous burlesque poem, La Gatomaquía, he must have nodded knowingly at the words, "lawsuits are not even good for cats; they shorten one's life and one's patience." ⁽⁷⁹⁾

The actual time required to complete a lawsuit in Castile's courts has been the subject of wild exaggeration. The case of Toledo v. the count of Belalcázar, initiated in 1445 but terminated only in the middle [43] of Philip II's reign, over one hundred years later, was clearly atypical. ⁽⁸⁰⁾ In lesser tribunals, such as those of Castile's municipalities and the courts of the king's corregidores, cases were normally dispatched in less than a year. A sample of lawsuits drawn from the archives of the chancillería of Valladolid for the year 1580 indicates that even in an appellate court 13 percent of the cases, most of which were begun de novo, were concluded in a year's time or less. The average case required between two and three years, although 3 percent, most of them complex inheritance disputes, dragged on for ten years or more (Table 1). Dispatch of cases in the Royal Council of Castile, which was accustomed to hearing cases of major importance, was somewhat slower. Its records contain numerous examples of lawsuits lasting a lifetime, such as that of Juan Baptista de Larrea, who, in 1624, was still awaiting the final judgment in a case initiated by his father in 1584. ⁽⁸¹⁾ Even in this tribunal such lengthy cases were exceptional, although the first statistical evidence about the time required to complete lawsuits in the council begins only in 1700. That year one of the council's scribes handled ninety-three pleitos fenecidos (finished lawsuits), of which over half had been completed in five years or less. ⁽⁸²⁾

Source: ARCV: Reales Ejectorias. The above sample includes only cases that received a carta ejecutoria or final executive writ. Cases settled before a final decision was reached are thus excluded.

Justice moved slowly in the sixteenth and seventeenth centuries for several reasons. First, natural forces played havoc with the work of the courts. The high mortality rates that prevailed during this epoch disrupted the prompt and orderly dispatch of civil suits. The death of a magistrate, for example, could delay proceedings for months, because a new magistrate often needed considerable time to acquaint himself with all the details of a complex case. Similarly, the death of one of the principal litigants was frequently the occasion for subsidiary suits Over the execution of a will or some aspects of the inheritance, each of which had to be completed before the original lawsuit could proceed. Subsequent deaths and more subsidiary suits would complicate matters even further, and the original lawsuit became lost in a sea of endless red tape. Illness also contributed to delays in the [44] administration of justice. Plague disrupted the chancillería of Valladolid on several occasions in the sixteenth century, forcing the court to suspend its proceedings for months at a time. ⁽⁸³⁾ Along with the rest of the population, judges were frequently sick, producing further delays. Slow communications and poor weather proved equally disruptive, delaying vistas de ojos (on-site inspections), which often kept judges away from the chancillería for long periods, just as winter snows that blocked mountain passes north of Valladolid cut off communications between the chancillería and regions along the Cantabrian coast. Nature, therefore, continually worked against the prompt and efficient administration of justice.

[45] Most of the delays in the administration of justice were obviously the work of man, not God. Rules that allowed judges to punish litigants for unjust delays were relatively few, and the complex procedures of Castilian courts allowed normal foot-dragging on the part of one litigant to bring the machinery of justice to a grinding halt. The counts of Belalcázar did this successfully in their lawsuit with Toledo by requesting testimonials from witnesses living in the New World as well as by requesting special vistas de ojos that required presiding magistrates and other court officials to make lengthy and time consuming trips to see land and property in dispute. ⁽⁸⁴⁾The marquis of Mota was equally crafty; he managed to postpone the second hearing of his case with the duchess of Frias for more than twenty months [46] simply by failing to have his lawyers submit the informaciones (or briefs) needed for the case to proceed. Frias complained in 1622 that "he is managing to postpone the decision in this case by many different ways and means." ⁽⁸⁵⁾ Another ploy used to delay a case was to request testimonials from labradores (peasants) busy with the harvest inasmuch as the law exempted peasants from serving as court witnesses during the ferias de pan y de vino, or harvest season. ⁽⁸⁶⁾ But perhaps the most common method of disrupting legal proceedings was simply not to appear in court to contest another's action. Isidro Rapino, resident of Villalobos (León), for example, did this successfully after Gonzalo de Movilla filed suit against him in 1539 in the court of the adelantado mayor of León. Rapino owed a payment of wheat to Movilla, and, when he failed to respond to Movilla's summons, the court agreed to help Movilla collect his debt. At this point, however, Rapino initiated another tactic designed to frustrate his opponent. He appealed this decision to the royal chancillería of Valladolid. A year later, the chancillería confirmed the previous judgment and ordered Rapino not to continue the case, but, in one respect, the loser was also a winner; Rapino had successfully manipulated court procedures and gained additional time to pay off his debts. ⁽⁸⁷⁾

Even more disruptive was the tactic known as a recusación, by which a litigant could challenge or recuse a magistrate or some other court official suspected of bias, favoritism, or working in some other way to damage the "justice" of the case. Such a charge immediately brought proceedings to a halt, and a special trial was begun. If the accusation was proved, the guilty officials would have to be removed from the case, new ones appointed, and a new timetable arranged. Such a procedure often lasted for months, and to keep these time-consuming challenges under control the crown required a deposit of 60,000 mrs. that could be forfeited if a litigant's charges proved to be false. Even so, a visitor to the chancillería of Valladolid in 1580 reported that "recusaciones are growing rapidly in number" and suggested that the best way to prevent them was not to increase the amount of the bond but rather to prevent magistrates from participating in cases [47] that involved any "city, town, or village in which he was born; cases involving his college, church, and the señor of the town in which he lives." He also advised that judges should abstain in cases involving their relatives. ⁽⁸⁸⁾

The best information we have about recusaciones comes from the chancillería of Granada, where, in 1548, fifteen such challenges against the civil judges of this tribunal were successful. Lic. Huarte was recused for allegedly having spoken privately to one of the litigants in Diego de Castro v. Alonso Mexia; Lic. Frias for having called one litigant, the marquis of los Vélez, "a bad Christian and an evil man"; Lic. Lope de León for having presided over a case in which his father-in-law, Juan de Grimaldo, was a party; Dr. Ruíz by the city of Granada because, in the course of Granada v. the count of Tendilla, he apparently visited the count's home and asked for his help in acquiring a certain vacant office; and, finally Lic. Hernan Botello simply because his wife, doña Maria Mexia, was the friend of a friend of one of the litigants in a case in which Botello was the judge. ⁽⁸⁹⁾

Magistrates, however, were not the only court officials to be recused. The duke of Maqueda attempted to halt the proceedings in a case he had with the duke of Nájera by repeatedly recusing the relatores who were involved. Annoyed, Nájera complained to the president of the council, imploring him to help bring this important lawsuit to a speedy conclusion. ⁽⁹⁰⁾

Yet another reason for the many delays that plagued Castilian justice was the widespread use of the judicial appeal. The Siete Partidas had established the principle that each of the king's subjects had the right to appeal the "unjust" and "arbitrary" decisions of local magistrates to a royal court, and in the Ordenamiento de Alcalá de Henares of 1348 this right was written into Castilian law. The actual procedures governing appeals (alzadas) developed slowly, but by the fifteenth century the canonical procedure of gradatium or graduated appeals had been adopted by secular courts. This procedure meant that appeals were to proceed "grade by grade, from minor jurisdictions to major ones," and at each level the magistrate would confirm, revoke, [48] or in some way modify the previous judgment. ⁽⁹¹⁾ To enter an appeal was a relatively simple process; a litigant had only to justify it in terms of natural law, stating that the inherent justice of his case had been ignored or denied by the presiding magistrate. Appeal as a matter of right therefore allowed many lawsuits to pass through as many as four or five different tribunals, a time-consuming procedure, but one that was used successfully by thousands of litigants to keep their opponents at bay. One litigant who did this was Mari López de Medina, a widow from Valladolid. Some of her former in-laws had won a judgment against her from the alcaldes de casa y corte, but she appealed this judgment to the chancillería of Valladolid, at which point her opponents publicly proclaimed that this was a ploy designed "to delay the case." ⁽⁹²⁾ Additional delays resulted from the right of appellants to introduce new evidence to support their case; this freedom led inevitably to new testimonials, on-site inspections, intermediary judgments, subsidiary lawsuits, and recusaciones before another judgment could be issued.

The complexity of courtroom procedures, coupled with the litigants' insistent demands for justice, thus provided an almost infinite number of ways to delay, postpone, and disrupt the settlement of cases for weeks, months, even years. Aggravating matters yet further were certain practices initiated by the monarchy. Ostensibly, it had a stake in the efficient administration of justice, and toward this end Charles V greatly increased the size of his judiciary, adding new tribunals (in the Canary Islands and Seville) and expanding old ones by appointing new magistrates and other personnel. Yet the crown's habit of moving magistrates from one court to another on a regular basis did little to promote efficient administration. The average tenure of a corregidor in any one community was only three or four years, that of a judge in one of the royal audiencias barely five or six. So rapid a turnover led to complaints about the lack of experienced magistrates who knew something about courtroom procedures as well as frequent delays in a court's dispatch. In 1531, for example, the comendador mayor of the Military Order of Alcántara, an important nobleman, complained to Charles V that four of the chancillería [49] judges who had initially reviewed his case with the count of Siruela had been promoted to higher positions, "as a result of which the pleito is stopped." ⁽⁹³⁾ Similar delays resulted from the crown's preference for using its magistrates on special investigatory commissions and in other, extrajudicial capacities that took them away from the law courts for months at a time. The Cortes often complained that such practices led to a shortage of judges, further delays, and a growing backlog of cases, ⁽⁹⁴⁾ but the crown did nothing until 1598, when Philip II, nearing his death, created a corps of twenty judges (jueces de reino) to relieve his regular magistrates of these special tasks. ⁽⁹⁵⁾ The experiment, however, was not long-lived. Subsequent rulers resorted to the appointment of temporary and supernumerary magistrates to fill in for those absent on official business, but even this expedient did little to move the wheels of justice at a faster pace. ⁽⁹⁶⁾

Equally disruptive was the crown's willingness, particularly in the seventeenth century, to grant special cédulas de suspension that immediately halted proceedings in a particular case. In the Middle Ages, such orders were frequently issued to placate powerful individuals whom the crown, mainly for political reasons, could not afford to alienate. Ferdinand and Isabella, for example, seeking to avoid any confrontation with the powerful allies of the count of Belalcázar, intervened on his behalf in his lawsuit with the city of Toledo. ⁽⁹⁷⁾ Nor was their intervention in this particular case unique. The Catholic monarchs issued so many cédulas de suspension, mostly to members of the landed nobility, that royal intervention in the judicial process became an important issue in the Comunero revolt of 1520-21. ⁽⁹⁸⁾

[50] Charles V, in contrast, was sufficiently powerful that he could afford to allow justice to run its course. ⁽⁹⁹⁾ Philip II continued this policy, frequently turning down requests from nobles asking for the suspension of their lawsuits and other judicial favors. ⁽¹⁰⁰⁾

In the following century, however, this policy of noninterference in the judicial process was abandoned, principally by Philip IV. Incessant war and economic weakness made the monarchy increasingly dependent upon the aristocracy for financial and military aid, and, apparently, neither he nor his chief minister, the count-duke of Olivares, saw the necessity of keeping justice on an independent course. Philip, therefore, repeatedly accommodated nobles willing to serve him by granting them special judicial favors of every sort. The duke of Alba, for example, persuaded Philip to suspend proceedings in several of his lawsuits while he was away in the army of Flanders, and the marquis of Tavara received a similar favor while he was viceroy in Valencia. ⁽¹⁰¹⁾ But Philip's willingness to placate the aristocracy in this fashion met with considerable opposition among his own officials and especially among royal magistrates, who warned of the many consequences of such a policy upon the administration of royal justice.

One who opposed the king on this issue was Francisco de Contreras, president of the Royal Council of Castile from 1621 to 1626. In 1626, when Philip granted a second suspension to the count of Salazar in his suit with the count of Lodo over possession of the county of Castilnovo, Contreras wrote the king: "This matter of suspensions is of great prejudice because it impedes the settlement of cases and also because it often happens that one or more of the judges who have already seen the case and are ready to vote their decision die, at which time new judges have to be appointed and they, in order to find out what is going on, need time to study the case at the great expense and cost of the litigants." ⁽¹⁰²⁾ Indeed, throughout his [51] tenure as president of the Royal Council, Contreras was adamantly opposed to granting any judicial favor for any reason. "In the administration of justice," he reminded the king in 1622, "things can be done with greater purity and liberty when the parties involved have less opportunity to ask favors of judicial officials." ⁽¹⁰³⁾ His successor, Gabriel de Trejo, took a similar stand against unwarranted royal interference in the judicial process. In 1627, he warned Philip about granting a cédula de suspension requested by the duke of Maqueda. The case apparently was going badly for Maqueda; Trejo wrote: "He complains about the case because he is worried that the lawsuit is going to end."⁽¹⁰⁴⁾ Thirty years later, another president of the Royal Council, Diego de Riaño y Gamboa, warned Philip against granting a cédula de suspension on behalf of the marquis of La Fuente because, as he reminded the king, "his aim is nothing more than to delay the case so that the case will never end." ⁽¹⁰⁵⁾ But Riaño y Garnboa's advice, like that of Contreras before him, went unheeded. By the middle of the seventeenth century, it was standard practice for the crown to issue cédulas de suspension to grandees who requested them, and in this respect the later Habsburgs contributed directly to the "immortal lawsuits" about which so many of their subjects complained. A wise litigant, therefore, tested the political barometer before initiating a lawsuit against a figure of major importance; otherwise, his case might easily be forgotten if the king elected to intervene. On the other hand, the successful litigant was also one who knew how to exploit both the crown and the procedural complexities of the courts to his own advantage, using them, alternately, either to speed up or delay the hearing of whatever cases in which he happened to be involved.

[52] In light of the knowledge and skill that litigation in the sixteenth and seventeenth centuries entailed, going to court was unthinkable without expert advice, especially if the case was to be decided in an appellate court. For this purpose, three different kinds of lawyers - the abogado or advocate, procurador or attorney, and solicitador or solicitor - were available, and each of these practitioners provided more or less complementary services . The university-trained advocate was the legal expert, whereas the attorney was the procedural expert, helping his client devise the stratagems most likely to succeed. The solicitor served as a kind of legal agent who worked closely with his client to see to it that his lawsuits proceeded as planned. So important was each of these lawyers to the outcome of a case that individuals and institutions accustomed to litigation normally retained the services of each on a permanent, salaried basis.

The history of Spain's legal profession, particularly that of Castile during the Habsburg era, is relatively unexplored. Archival materials relating to lawyers are widely scattered and difficult to find, and this probably explains the lack of any major study of either advocates or attorneys. Even more obscure is the solicitador. One late sixteenth-century document suggests that "solicitors had been introduced as a result of the negligence of attorneys," ⁽¹⁰⁶⁾ but this description is slightly wide of the mark. Attorneys in this epoch were "officers of the court" and, consequently, their numbers were strictly controlled . The rise in legal business, however, created a demand for legal services which the so-called procuradores de número could not meet. In the busy chancillería of Valladolid, for example, there were thirty-five licensed attorneys by the end of the century, but continual complaints about their negligence and lack of concern for their clients' affairs suggests that these practitioners were unable to keep up with demand. A niche [53] was thus created for the solicitors, who set up lucrative independent legal businesses. ⁽¹⁰⁷⁾

The precise duties of these practitioners are unclear. According to one eyewitness, probably a solicitor himself, the office of solicitador was "the most appropriate and useful and important that can be found in the tribunals of the king"; he added that "one cannot have a good lawsuit without a good solicitor because the majority of litigants are ignorant of the small matters and the fine points that a lawsuit ordinarily involves." ⁽¹⁰⁸⁾ The author is vague, perhaps purposefully, because one of the solicitor's jobs was arranging for bribes, payoffs, and other illegal payments designed to further his client's case. Certainly, the disbursement of money was one of the solicitor's jobs, although as one visitor to the chancillería commented, "They steal from the court's officials and then keep all of their client's money for themselves." ⁽¹⁰⁹⁾ Solicitors may have also aided in the preparation of lawsuits although their precise contribution compared to that of the advocate and attorney remains undefined. The anonymous solicitor quoted above attested that "there is no attorney who can do what a successful solicitor does; . . . important and difficult cases are won by briefs prepared by solicitors." ⁽¹¹⁰⁾ He was exaggerating, but, in general, solicitors helped litigants by keeping tabs on their other lawyers, assisting in the preparation of briefs and other legal documents, distributing monies, interviewing witnesses, and otherwise making certain that their clients' cases were developing properly.

A good approximation of the way solicitors worked with their clients is provided by the agents who represented the city of Toledo in Granada, Valladolid, and Madrid. These agents wrote almost daily to the city with news of its lawsuits and other items of possible interest such as court gossip, changes in royal policy, and impending legislation. As its chief solicitor in Madrid, Toledo usually appointed one of its jurados (municipal governors), a practice the city hoped would assure loyalty, good service, and a minimum of corruption. These agents, however, were also extremely well paid . Juan Velluga de [54] Moncada, who had the official title of comisario general en corte, received an annual salary of 400,000 mrs. plus expenses, a sum roughly equivalent to the salary earned by a member of the Royal Council of Castile. ⁽¹¹¹⁾ His successor, Juan Cisneros de Herrera, received only one-half that amount, but judging from the care and attention he gave to the city's lawsuits, Cisneros was worth far more. ⁽¹¹²⁾

Typical of Cisneros's work for the city was the active role he played in an important lawsuit between Toledo and the count of Montalban. On 2 September 1623, Cisneros, worried that the count was about to receive a favorable judgment from the Royal Council, wrote Toledo: "I will attempt to delay the determination of this lawsuit as much as I can; I will do it by asking -- as I will do tomorrow -- for a transcription of the vista de ojos that was done by Gaspar de Vallejo. I will then take it to one of your advocates, and with his advice, I will select the procedure that best suits the case. Does this suit you? Please advise." The city approved this strategy, but it failed, and a week later Cisneros was worried: "I fear that the count is trying to rush the vote in the case; if you have any suggestions as to what to do, please write me, quickly." Five days later, another letter arrived: "The count is in a great hurry, but I am using every means possible to delay." And a week later, now 29 September, Cisneros was extremely pessimistic: "I do not have much faith in a favorable outcome for this case because the vista de ojos and the witnesses were all in his favor." Then, in a last-ditch maneuver designed to forestall what appeared to be inevitable defeat, Cisneros, with the city's approval, recused the relator involved in the case. Unfortunately, the drama ends at this point because Cisneros's subsequent correspondence has been lost. ⁽¹¹³⁾

The Montalban case was certainly the most pressing of several that Toledo had in Madrid, but Cisneros skillfully handled them all. Of almost equal importance was a case with the fiscal of the Council of Finance which Cisneros was attempting to hurry along.⁽¹¹⁴⁾ He was a master of strategy, informing the city of the fiscal's every move and suggesting on 3 September 1626 that the city would do well to cut the length and the number of the briefs its advocates had prepared: "It [55] seems wise to me to reduce them to one short brief so that the arguments can easily be considered together and also because the judges rarely want to see more than one." If left as is, he warned, "it is possible that the judges will get angry or refuse to read them." ⁽¹¹⁵⁾

It is clear from this correspondence that Cisneros served his city well. Although he did not have a university degree in law, he was well versed in procedure and apparently had an adequate command of law. He always made certain, however, to check with the city's advocates on complex matters of legal doctrine . He also worked closely with the attorneys Toledo kept on permanent retainer. Presumably, other solicitors worked in much the same way and thus these practitioners not only complemented the services provided by attorneys and advocates but also served as their clients' major link to the world of the courts.

Whatever the extent of their duties, solicitors were important figures in Castile's courts. In 1540, for example, thirty-eight members of the titled nobility employed eighty such agents at the chancillería of Valladolid. ⁽¹¹⁶⁾ It is also significant that the city of Seville paid its solicitor in Madrid a salary of 25,000 mrs., whereas the two advocates it had on retainer in that city only received 6,000 mrs. apiece. ⁽¹¹⁷⁾ Additional evidence of the importance of solicitors in the dispatch of legal business is provided by the procuradores de número who practiced in Madrid. They wanted the crown to issue a special decree ordering the secretaries attached to the Royal Council of Castile not to accept any legal document unless it was signed by an attorney. ⁽¹¹⁸⁾ Apparently, the solicitors had assumed a variety of duties previously performed by the attorneys.

Who were these solicitors? Theoretically, anyone could become a solicitador because they were not subject to any rules or regulations. A few were magistrates and other court officials working ex officio, using their influence and connections to help influential clients win cases. Thus Lic. Bribiesca, a civil judge on the chancillería of Valladolid, acted as a solicitor for his brother, whose lawsuit was pending in the Council of the Indies, ⁽¹¹⁹⁾ and Lic. Castellano, royal fiscal in the [56] chancillería of Granada, was known to serve various nobles in a similar capacity. ⁽¹²⁰⁾ Other solicitors, as in the case of Juan Cisneros de Herrera, were members of important families working in the interests of their native city. Private individuals generally hired one of the many former law graduates and clerks who clustered around Castile's courts, waiting for legal business to come their way. There are also indications that many solicitors were "amateurs" in that they had never attended university or served as an attorney's apprentice . The official visitor to the chancillería of Valladolid in 1590, for example, noted that among the two to three hundred solicitors then in the city were "inn- and tavern-keepers, lackeys, and other low types who do nothing but steal from the litigants and use up their money;...only twenty or thirty do their job well" ⁽¹²¹⁾ Another eyewitness reported that "a great number of unskilled and impertinent men" were posing as solicitors, much to the harm of the litigants who came to the chancillería, especially those without the means to hire a respectable practitioner. ⁽¹²²⁾

As long as the rest of Valladolid's lawyers were flourishing, these upstarts were tolerated, despite the many complaints circulating about them. But when in the seventeenth century the number of lawsuits and other legal business at the chancillería decreased, opposition to these amateur practitioners increased, much of it spearheaded by the procuradores de número, who had always considered solicitors as interlopers. In Madrid this campaign to curb the influence of solicitors began in the middle years of the sixteenth century. The attorneys wanted to rid themselves of this unwanted competition, but the monarch showed little enthusiasm for their schemes. ⁽¹²³⁾ Instead, Philip IV, who was ever on the lookout for new sources of cash, took advantage of the attorneys' opposition to solicitors to create and sell a new genre of offices. In 1632, in an action possibly engineered by influential attorneys at court, Philip prohibited independent solicitors from practicing in the king's tribunals and replaced them with a limited number of officials known as agentes de negocios. At the chancillería of Valladolid, twenty such positions were created and then sold for 168,750 mrs. apiece, and their buyers were granted exclusive [57] rights to act as legal agents in this important court. ⁽¹²⁴⁾ Henceforward, the independent, entrepreneurial solicitor -- a by-product of a more prosperous age -- disappeared from Castilian courts.

In sum, the solicitor remains a somewhat hazy figure in the life of Castile's courts. Much more visible was the procurador or attorney, whose designated task was "to take care of the lawsuits and cases of another by order of the party concerned." ⁽¹²⁵⁾ For this purpose, the litigant was to supply his attorney with a notarized carta de poder (power of attorney) that gave the attorney the right to represent his client, handle his lawsuits, and speak for him in court. Given the importance of this task, attorneys, beginning in the fifteenth century, had been subjected to some form of government control. Seville, for example, limited the number of attorneys allowed to practice in its tribunals to forty, and similar restrictions were placed on the number of attorneys who worked in royal courts. ⁽¹²⁶⁾ The chancillería of Valladolid permitted only thirty procuradores until 1580, when the crown, responding to the increased volume of cases brought to this court, created five new positions over the established attorneys' protests. ⁽¹²⁷⁾ In Madrid, the number of procuradores de número attached to the Royal Council grew even faster. Officially set at thirty-one in 1574, it reached forty by 1584, and forty-eight by 1619, when the colegio de procuradores in that city attempted to hold the line, arguing that this complement "was sufficient for the little business there is." ⁽¹²⁸⁾

To become an attorney one had to be at least twenty-five years of age, a layman, and neither blind nor deaf. In addition, attorneys were to be examined for their knowledge of law and procedure and then [58] licensed by the judges of the court in which they intended to practice. Apparently most acquired this knowledge by serving as clerks in an attorney's office; only a few attorneys boasted university titles in law. But only a few apprentices ever managed to become attorneys, partly because these valued positions were customarily passed on from father to son, generation after generations and partly because of cost. Procuradores de número had to purchase their offices, and the price of these positions, especially those in royal tribunals, was never cheap. In 1596, for example, an office of procurador de número at the chancillería of Valladolid required an outlay of 862,500 mrs., as compared with 187,500 mrs. in 1544, a difference best explained by the increasing profitability of these exclusive practices during an epoch when the volume of legal business was sharply on the rise. ⁽¹²⁹⁾ In cornparison, in 1619, two newly created offices of procurador de número in the Royal Council in Madrid sold for 1,125,000 mrs. apiece. ⁽¹³⁰⁾

How these attorneys exercised this office is not very well known. Much of a procurador's work was routine preparing documents, rounding up witnesses, and seeking an advocate's counsel and advice when necessary. But he also had the important task of developing a strategy for every case, instituting, for example, the procedural steps needed to accelerate or, alternately, to delay proceedings in a way that best suited his client's interests. Acting in this capacity, the city of Toledo's attorneys in Valladolid wrote to their client almost daily, informing it of their actions, the progress of its cases through the court, and the outcome the city could realistically hope to expect in each of its many lawsuits. In 1573, for example, Toledo had at least seven different lawsuits pending simultaneously at the chancillería. One of its attorneys, Diego Argame y Vargas, wrote on 25 October that he was pressuring Lic. Vaca, one of the city's advocates, to hurry the preparation of a case against the village of Mazarambroz. Four days later, this letter was followed by one informing the city that the outcome of another case was "doubtful" because it was being fought against "terrible odds." ⁽¹³¹⁾ In subsequent years, Argame and the city's other attorneys continued to keep Toledo well informed about the state of its lawsuits, and for its part Toledo attempted to make certain that its attorneys managed its cases as if they were their own. There [59] were, of course, occasional slipups, as indicated in a letter from Alonso de Mesa, Toledo's attorney at the chancillería in 1627. He informed the city that it had lost a case against the Convento de la Isla because of the "neglect and carelessness of the persons who had originally prepared the lawsuit." ⁽¹³²⁾ A few days later, however, Mesa told the city not to lose hope because he was developing a new strategy designed to get the case back into court and the previous judgment overturned.

Were all attorneys as conscientious as these? Toledo selected its attorneys after a careful search and then placed them on permanent retainer. Pedro de Monroy, for example, the city's longtime attorney in Valladolid, received an annual salary of 16,000 mrs. plus expenses. ⁽¹³³⁾ Most of Castile's cities, important nobleman, and other individuals and institutions, accustomed to recurrent litigation, did the same and thereby assured themselves of more or less competent representation in court. The vast majority of litigants, however, went to court only on an infrequent and often highly irregular basis . They were forced to hire whichever attorney was available, paying him so many maravedís for each court appearance, so many for each petition, and so forth. Since most attorneys preferred to work on retainer, charges that they neglected the cases of their clients undoubtedly contain a small grain of truth. ⁽¹³⁴⁾

Yet it is also easy to exaggerate the extent to which attorneys openly cheated their clients, particularly those unable to pay them a regular salary. Some attorneys attempted to accommodate such clients by leasing out portions of their practice to their assistants and clerks, presumably reserving their best clients for themselves. But the crown, citing abuses, prohibited this practice in 1589, and in doing so left the attorneys even more vulnerable to those who charged them with carelessness and neglect. ⁽¹³⁵⁾ Certainly, the popular image of attorneys during this epoch is one of corrupt, greedy practitioners interested [60] only in money. The second part of the famous picaresque novel, Lazarillo de Tormes (written ca. 1555), for example, accuses them of "being attracted to money like flies to a honey pot." ⁽¹³⁶⁾ Similar accusations were levied by the Junta de Reformación, a commission created in 1617 to present proposals to right the kingdom's principal ills. The junta charged attorneys together with the other "ministers of the lawsuits" who had purchased their offices of "desiring only to get back the cost of their offices." ⁽¹³⁷⁾ That at least some of this criticism is justified is undeniable, but it also reflects the dilemma of a society in which litigation had become so pervasive that the work of the attorney was essential to everyday life. Attorneys, accordingly, were judged as if they were public officials with broad civic responsibilities rather than private practitioners who had invested considerable sums to obtain the exclusive right to represent litigants in court . The crown provided for the poor by offering the free services of a procurador de pobres, but the contradiction posed by the proper role of the attorney in a litigious society was one that Castile, like most societies, was never able adequately to resolve.

Judged in a similar light were the advocates, despite the fact that these practitioners, in sharp contrast with the attorneys, never purchased their offices or even remotely resembled "officers of the court." As university graduates trained in the law, the abogado had tasks very different from those of the attorney and solicitor. As one author stated, "The advocate will see what a party intends in a given action and will tell him whether he has a case or not." ⁽¹³⁸⁾ At the very outset, therefore, the advocate was expected to provide counsel as to whether a particular dispute merited a lawsuit. His job was then to devise the legal arguments most likely to hold up in court, even for clients whose cases had limited chances of success. The law stipulated that advocates were not to intervene in cases "without justice" and threatened stiff fines for those who did, but this regulation was as widely ignored as it was impossible to enforce. ⁽¹³⁹⁾ Many advocates made a lucrative [61] business specializing in high-risk cases. One of these, a certain Lic. Teruel, advocate in the chancillería of Granada, was singled out in a visita because "he takes on unjust and desperate cases and defends them with cunning and craftiness; he takes pride in this and, as a result, all of the deceitful litigants run after him shouting, 'Teruel, take this one.'" ⁽¹⁴⁰⁾

Regardless of the merits of a particular lawsuit, the central task of an advocate was "to research the law and substantiate the case." ⁽¹⁴¹⁾ He had then to prepare a brief or información enderecho outlining the arguments central to his client's demands. A concise, well-prepared brief was a vital document and in many instances the key to success because presiding magistrates frequently based their own opinions upon the arguments an advocate had previously advanced. Briefs were so important that many litigants had their briefs printed and elaborately bound at considerable expense. ⁽¹⁴²⁾ Conversely, litigants who lost their lawsuits were apt to point to the "negligence" of their advocates in the preparation of these documents as the cause of the defeat.⁽¹⁴³⁾

One other important task entrusted to the advocate was pleading, that is, the oral presentation of legal arguments before a judge. In lesser courts, where advocates were few, attorneys sometimes were allowed to plead, but in higher courts, such as the chancillería of Valladolid or the Royal Council of Castile, advocates appropriated this privilege for themselves. Only advocates, moreover, had the right to speak cubierto -- with their caps on -- when speaking to the magistrate; all other court officials, including the attorneys, had to appear bareheaded. Unfortunately, little is known about the style of pleading in Castile's courts, let alone the kinds of rhetorical devices advocates used. Many took great pride in their eloquence, although they were
[62] warned not to be overly loquacious and verbose lest they cause the judges "trouble and confusion." ⁽¹⁴⁴⁾

In theory, the advocate limited himself to writing briefs and pleading in court, leaving the attorney, as the procedural expert, to do most of the legwork connected to the preparation of a case. In practice, however, their duties overlapped. Many advocates were hustlers, who, rather than wait for attorneys to consult them, sought out clients independently and entered into illegal pacts with attorneys with whom they preferred to work. ⁽¹⁴⁵⁾ On the other hand, in many small cases attorneys were loath to ask for an advocate's counsel, and many resented the fact that, although they had worked closely with the client in preparing the case, only the advocate was entitled to plead before the judge. Such rivalries were probably exacerbated by social prejudice. Advocates, as law graduates (or letrados), occupied a higher rank than attorneys, who were popularly regarded as something akin to legal artisans. Advocates, moreover, were regularly asked to fill in for absent or ailing magistrates and were often appointed to the influential post of fiscal. Attorneys could never expect to be appointed to an official judicial post. It is not surprising therefore to find incidents in which attorneys "attacked" advocates, alleging that "the latter should let them do the talking since they are better informed about the case than the advocates." ⁽¹⁴⁶⁾

The origins of the office of advocate in Castile are not well established. Practitioners known as voceros -- the forerunners of advocates -- were noted in the Fuero Juzgo and in the Fuero Viejo, where they appear as individuals skilled in the fueros that then governed much of Castile, and references to clerics expert in canon law who pleaded in ecclesiastical courts begin to appear in the eleventh century. The first evidence of civil advocates (abogados) appears only at the end of the twelfth century, when Roman law first seeped into the kingdom from Italy. Advocates are noted as such in Book III of the Siete Partidas that also contained laws regulating their work. ⁽¹⁴⁷⁾ Thereafter, this branch of the legal profession developed slowly until the Ordenamiento de Alcalá de Henares (1348), which gave rise to the wider use of the Siete Partidas and arguments drawn from Roman law, paved the way for the development of a large class of practitioners trained in such matters. Certainly, both advocates and attorneys appear with increasing frequency in the documents and literature of the fifteenth century, and by the end of that century the number of legal practitioners, qualified and unqualified, was increasing so rapidly that the crown in 1495 required every new advocate to have studied both canon and civil law at a recognized university for a fixed term of years (later set at five). ⁽¹⁴⁸⁾

The earliest available data that give some indication of growth in the number of advocates practicing in Castile are the Libros de Acuerdo of the chancillería of Valladolid which list the advocates licensed to plead in this tribunal. In 1497, for example, eight advocates were registered, although these appear to be only those who received fixed salaries from regular clients. ⁽¹⁴⁹⁾ The actual number of advocates was probably higher. The Libros de Acuerdo for the early sixteenth century have been lost, but when the series appears again, in the 1550s, an average of forty to forty-five advocates were present in this court (see Figure 2). Faulty bookkeeping and the exodus of the royal court from Valladolid in 1560 explain why the number of advocates at the chancillera fluctuated so sharply in the 1560s and 1570s, but in the 1580s the number of advocates was increasing once again. In 1589, a record number of fifty-six advocates registered. By this time, the chancillería of Granada, the Andalusian counterpart of Valladolid's tribunal, had at least thirty-five advocates, possibly more, ⁽¹⁵⁰⁾ and Madrid, seat of the Royal Council, as many as one hundred in 1595. ⁽¹⁵¹⁾

Nor were advocates found only in major cities and attached to important tribunals. At least six to eight advocates practiced in each of the sixty-seven courts headed by the royal corregidores, many of which were located in small provincial towns. ⁽¹⁵²⁾ Even villages occasionally [65] boasted someone skilled in the practice of law. Peñalver, for example, a village with only 337 vecinos in 1561, included among its inhabitants one letrado legista. ⁽¹⁵³⁾ It is almost impossible to calculate the total number of advocates practicing in the sixteenth century, and the task of estimating their number is complicated by the fact that many advocates worked only part time, doubling as estate agents, seigneurial judges, and royal commissioners, while others were university professors and magistrates who had obtained permission to abogar (act as an advocate) in a certain case. ⁽¹⁵⁴⁾ Even so, the number of advocates practicing in the kingdom must have easily surpassed a thousand. The evidence suggests that the number of these practitioners was increasing rapidly, possibly at a rate comparable to that of the law faculties, which had more than doubled the number of their graduates in less than a century. ⁽¹⁵⁵⁾

Compared with those in the rest of Europe, Castile's advocates were slow to develop any form of communal or corporate life, despite their rapid numerical expansion. In Florence advocates belonged to the Arte dei Giudici e Notai since the early years of the fourteenth century, and in France lawyers' guilds were evident in a number of cities by the end of the fifteenth century. ⁽¹⁵⁶⁾ Castile's lawyers organized [66] similar institutions only in the second half of the sixteenth century. The first to do so were the attorneys. In 1574, Philip II gave his approval to a "college" established by the procuradores de número attached to the royal councils in Madrid. ⁽¹⁵⁷⁾ Then, in 1592, Valladolid's advocates organized their own colegio, and this was followed, three years later, by a similar institution in Madrid. ⁽¹⁵⁸⁾ Subsequently, colegios de abogados developed in other cities, although the majority of these associations were not given official recognition until the eighteenth century. ⁽¹⁵⁹⁾

The original aims of these "colleges," beyond institutionalizing some form of communal life among advocates, are not entirely clear. One of the purposes of the attorneys' colegio was "the defense and protection of the said profession." ⁽¹⁶⁰⁾ Toward this end, a senior attorney was empowered to look after their interests, set new standards of professional behavior, and discipline attorneys whose conduct endangered the reputation of the rest. Apparently, the colegios de abogados had similar aims. One of their principal purposes also seems to have been to regulate the recruitment of new advocates. In this respect, the advocates' colleges were designed to safeguard the careers of established advocates against a wave of newcomers, and a royal edict of 1605 that reduced by half the number of advocates allowed to practice in the king's tribunals was probably engineered by leading advocates at the royal court. ⁽¹⁶¹⁾

Previous to the emergence of these colleges, the task of setting standards among advocates fell wholly upon the crown. Legislation designed to protect the public from corrupt, self-seeking advocates began, as we have seen, in the Siete Partidas, and new laws regulating the activities of advocates were issued regularly thereafter. John II (1406-54), for example, provided money for abogados de [67] pobres, who were to offer free legal services to the poor, and in 1411 he attempted to regulate the fees advocates could collect. ⁽¹⁶²⁾ The Catholic monarchs initiated similar legislation and established new educational criteria for advocates. These required abogados practicing in royal tribunals to have a baccalaureate and, preferably, the higher degree of licenciado in law. In addition, advocates were required to be examined and licensed by the judges of the tribunal in which they intended to plead. ⁽¹⁶³⁾ It is not certain how well these new regulations were enforced, but most of Castile's advocates, at least those who practiced in royal courts, were licenciados in law, and a few had even stayed on at the university to acquire the largely honorific title of doctor. ⁽¹⁶⁴⁾ To be sure, some charlatans managed to practice, and others with forged or falsified degrees slipped by, but it seems justifiable to suspect that the majority of advocates rightfully deserved to be called letrados, a term that signified the possession of an advanced law degree. ⁽¹⁶⁵⁾

Education, however, was no guarantee of quality, let alone sound counsel and reliable advice. A frequent charge levied at the advocates of Valladolid in the sixteenth century was that they took on so many cases simultaneously that they were unable to devote themselves to any one case. Some were so busy that they were accused of "cheating" their clients since they were unable "to familiarize themselves with the lawsuits or expound the justice of their cases, either orally to the magistrates or written in formal petitions." ⁽¹⁶⁶⁾ A few were even more unscrupulous. Despite laws against the practice, Lic. Aguiar, an advocate in Valladolid, saw nothing wrong with representing the [68] opposing parties (las contrarias) in a single dispute. In Luís de Toledo v. the city of Avila, Aguiar worked for both parties at once because "he had managed to persuade don Luís de Toledo to pay him a salary to help him in his case against Avila, and Avila to pay him in its case against don Luís, making both parties believe that he had rejected offers from the other." ⁽¹⁶⁷⁾

Aguiar, however, was out of the ordinary, and the sharp criticism that he along with other advocates who engaged in patently corrupt practices received attests to a developing sense of professional ethics among leading advocates. Yet the naive or inexperienced litigant had to beware . In 1622, for example, the city of Toledo informed the king about the plight of "poor" litigants "who do not have the money to pay for good advocates and are thus obliged to deal with bad ones who put their cases in jeopardy." ⁽¹⁶⁸⁾ Wealthy nobles, cathedral chapters, municipalities, and others who went to court frequently had better counsel because they were apt to select their advocates carefully and then retain them on a permanent basis, paying a salary that ranged from 6,000 to 20,000 mrs. a year plus expenses. Leading advocates usually worked in this fashion. Lic. Antonio Vaca, for example, one of Valladolid's most prominent advocates, managed to represent no fewer than 167 clients who together paid him retainers totaling more than 750,000 mrs., or more than three times the official salary of a judge in the tribunal to which he was attached. ⁽¹⁶⁹⁾

But Vaca was clearly an exception. Although most of the advocates in the chancillería had at least several clients who paid them annual salaries, the majority of Castile's advocates, especially those working in lesser tribunals, worked primarily on the basis of fees. ⁽¹⁷⁰⁾ These were set by the official tariff or arancel, which stipulated so many maravedís for each page of a legal document, so many for a brief, so many for each court appearances and so forth. ⁽¹⁷¹⁾ Furthermore, in order to prevent gouging, kickbacks, and the like, the crown required [69] that advocates were to receive fees totaling no more than one-twentieth of the value of the case, with a maximum ceiling set at 30,000 mrs. ⁽¹⁷²⁾

These restrictions, as might be expected, were widely ignored, but perhaps with good reason. Many litigants were in the habit of changing advocates whenever they pleased and often failed to pay them fees that were owed. ⁽¹⁷³⁾ Advocates, therefore, had no assurance that they would ever be paid, and this may have persuaded some of them to charge what they pleased. Some advocates, however, were outright cheats who took advantage of unsuspecting litigants by charging them far more than their cases were actually worth. One of these was Lic. Spinosa, an advocate attached to the royal audiencia in the Canary Islands, who was charged with having bilked one of his clients out of 62,050 mrs. in fees even though the lawsuit in which he was engaged was worth only 3,650. ⁽¹⁷⁴⁾ Others, such as Lic. Guardiola, an advocate in Granada, charged clients for briefs, documents, and other superfluous services that, according to one report, "were unnecessary for the lawsuit but serve only to enhance his reputation."⁽¹⁷⁵⁾ Criticism of this last sort was partly an expression of the public's bewilderment at the growing complexity of law and legal procedures, but such accusations were not totally unfounded. As letrados, advocates prided themselves on their learning and detailed knowledge of law, and many were apt to display this expertise publicly in court. Accordingly, many of the briefs they prepared were intentionally padded because they were intended primarily to impress the judges who read them and perhaps earn for the advocate some valued post. Litigants had a point, therefore, when they charged that these "long and superfluous briefs" were only useless pettifoggery designed to make them "pay more." ⁽¹⁷⁶⁾ As early as the late fourteenth century, a popular refrain expressed some of this confusion:

Does the lawsuit reach the hearing stage?
There is Bartholus, Quirinius, the Digest
Joannes Andreas, Baldus, Henricus of whom there are
More opinions than there are grapes in a basket. ⁽¹⁷⁷⁾

An additional reason for much of this criticism was the prosperity so many advocates enjoyed during this epoch of abundant litigation. Ability to offer advice and counseling was lucrative, and many advocates earned additional income by serving as estate managers, interim judges, royal commissioners, and arbitrators for those who did not wish to take their cases to court. ⁽¹⁷⁹⁾ In this fashion, Lic. Antonio Vaca managed to assemble a fortune worth over 15 million mrs., a sum only a handful of grandees could match. ⁽¹⁸⁰⁾ But Vaca was only one among several advocates working at the chancillería of Valladolid who had managed to become rich. Lic. Diego Nuño de Valencia was worth over 19 million mrs. at his death in 1596; ⁽¹⁸¹⁾ Lic. Bernardino established for his son a mayorazgo (entailed estate) worth 6 million mrs.; ⁽¹⁸²⁾ and in 1570, Lic. Francisco de Butrón agreed to pay his son a yearly allowance of 225,000 mrs., or as much as a judge in the chancillería earned. ⁽¹⁸³⁾ Butrón had also purchased some houses that were considered among the finest in Valladolid. ⁽¹⁸⁴⁾ Of course, not all of Valladolid's advocates were as wealthy as they. Lic. Juan Acacio Soriano, for example, claimed in his will that because he had lived with "great prudence . . . I leave behind an estate which is comparably much smaller than those letrados of my quality ordinarily leave." ⁽¹⁸⁵⁾ Nevertheless, judging from the richness of his library, furniture, and other goods, Soriano was no pauper; neither were any of the other advocates attached to this court.

One drawback for the profession, however, was a lack of social status and prestige. Advocates were letrados and were respected as such, but because it was an open profession, many Jewish converts to Catholicism (conversos) were admitted to practice long after the church and the magistracy had debarred New Christians and others accused of not admitting to having Jewish or Moorish blood. ⁽¹⁸⁶⁾ Famous converso advocates in the sixteenth century included Lic. Fernando de Rojas, author of La Celestina; ⁽¹⁸⁷⁾ Lic. Pedro López de Alcocer, noted for his preliminary work on the Nueva Recopilación; ⁽¹⁸⁸⁾ and Lic. Lope de León, who was an acknowledged confeso or convert but managed to become a judge on the chancillería of Granada. ⁽¹⁸⁹⁾

Owing to the profusion of conversos, the profession was considered to be "tainted," and its notorious lack of blood purity only encouraged those who believed that advocates did little more than fleece the public at large. Mounting litigation and the kingdom's increasing dependency on lawyers exacerbated such resentment, and advocates, as the elite of the legal profession, were especially singled out for ridicule and attack. Criticism piled on criticism as they were accused of perverting justice, destroying inheritances dividing families, stealing from the poor, and inciting a variety of conflicts and disputes occasioned by what the Cortes in 1615 described as their "greed and want of moderation." ⁽¹⁹⁰⁾ The Cortes then petitioned Philip III to put an end to such excesses which, they alleged, "have been the cause of growing and intolerable extortions since the advocates force their clients to pay excessive prices for their services." The petition requested the monarch to end "the malevolence and tyranny of the advocates," and Philip III responded in 1617 with a royal letter carrying the force of law which enjoined advocates from preparing more than two briefs per case, "even though the lawsuit consists of many and diverse points, chapters, and articles." Furthermore, no brief was to exceed twenty pages in length. The king also stipulated that every advocate, at regular intervals, was to declare the "premio and precio" he had received from each of his clients. ⁽¹⁹¹⁾

There is no indication that any of these measures were ever effectively enforced, but obviously they reflected a wellspring of hatred toward advocates, some of which was evident in popular proverbs ("Look at the peasant between two advocates, like a fish between two cats"; "Stupidities and arguments make the letrados rich"; "The cloaks of the letrados are lined with the disputes of obstinate litigants"). ⁽¹⁹²⁾ It was also evident in the satirical literature of the early seventeenth century, especially in the work of Francisco Quevedo y Villegas, who described letrados as being responsible for a "multitude of sins":

If there were no letrados, there would be no arguments; and
if there were no arguments, there would be no lawsuits; and if
there were no lawsuits, there would be no attorneys; and if
there were no attorneys, there would be no lies; and if there were
no lies, there would be no crimes; and if there were no crimes,
there would be no constables; and if there were no constables,
there would be no prisons; and if there were no prisons, there
would be no judges; and if there were no judges, there would be
[73] no favoritism; and if there was no favoritism, there would be
no bribery. Look at this display of infernal vermin produced by
a single, young graduate who pretends to have a beard and
whose authority comes only from his lawyer's cap. ⁽¹⁹³⁾

Quevedo wrote from an aristocratic point of view long hostile to lawyers, judges, and clerks, but Quevedo was not alone in his criticism of lawyers. He was joined by the arbitristas, the authors of tracts advocating a variety of economic and political reforms, many of whom viewed lawyers as one of the principal causes of their kingdom's economic decline. Not only did ease of access into the profession drain Castile of necessary artisanal and agricultural manpower, but lawyers, in the view of reforming clerics, were responsible for the "public sins" that many believed to be the ultimate cause of Castile's economic and political decline. ⁽¹⁹⁴⁾ Content to mediate conflict, rather than work to establish a truly just and Christian world, lawyers were moral anarchy personified and said to be one of the major reasons why Castile had lost God's grace.

Admittedly, the corrupt, unscrupulous lawyer was something of a literary topos, the origins of which may be found in the satirical writings of Erasmus that were so popular in sixteenth-century Spain. It could be argued, therefore, that the self-seeking lawyer in Castilian literature was only a caricature with little resemblance to real-life lawyers. Yet Quevedo, the arbitristas, and the other writers wrote for a learned audience presumably well acquainted with lawyers and lawsuits, and the popularity of their works suggests that what these authors said about lawyers is exactly what their readers would have liked to say.

The intensity of this attack upon lawyers, coupled with efforts by Philip III to crack down on the profession's freewheeling quality, sets [74] the stage for a number of advocates who, beginning early in the seventeenth century, came forward to defend their profession. Advocacy, they argued, had to establish a code of professional ethics and, more important, improve its prestige by excluding from membership practitioners of "low and indecent birth." Juan de Hevia Bolaños, author of the best-selling Curia philipica, may have been the first to describe the office of abogado as "noble," that of attorney as "base" (p. 12), but this distinction was not lost to advocates who in a number of treatises outlining the qualities of the "perfect advocate" described the glories of their profession in glowing, aristocratic terms. Jerónimo de Guevara, author of the Discurso legal de un perfecto y cristiano abogado (Madrid, ca. 1620), described his colleagues as "the voice of truth, the hands of justice" (p. 103). And this message was repeated in 1649 by Lic. Tomás Castro y Aguila, an advocate in the Andalusian town of Antequera, who compared advocates to soldiers: "Advocates fight for and defend the state with letters, the soldiers with their arms"; therefore, advocates should have privileges equal to those of the nobility. ⁽¹⁹⁵⁾ Melchor de Cabrera Núñez's Idea de un abogado perfecto (Madrid, 1683) was the epitome of this genre, and in it he first suggested that the "nobility" of advocacy required that it admit only "a respectable individual who is an Old Christian and a hidalgo and whose forefathers had practiced honorable offices and had not been suspect in matters of faith, descendants of a 'tainted' race, and had not followed any low or mechanical trade" (p. 124). He particularly emphasized the importance of requiring limpieza de sangre (purity of blood) for all advocates because, as he put it, "the descendants of Jews are inconstant in matters of faith, of bad customs, overly ambitious, seditious, usurious, and the capital enemies of Christ and of Christianity" (p. 125). This suggestion was opportune. One year later, in 1684, Madrid's colegio de abogados in an unprecedented action required that new entrants had first to meet rigorous tests of lineage and blood purity, a measure clearly designed to curry favor with the monarchy. ⁽¹⁹⁶⁾ Henceforward, this profession, like the rest of Castilian society, was officially closed to the descendants of Jews as well as other "low and indecent" types.

Efforts on the part of established advocates to improve their social standing were coupled with attempts to set for themselves new professional [75] criteria by which they might be recruited and judged. In a bid to rid the profession of external control by the monarchy, for example, the Toledan advocate Alfonso de Villadiego suggested in 1612 that advocates' fees ought not to be regulated but instead urged his colleagues to "moderate" their demands and "to charge only what is just, without asking too much, according to the quality and quantity of the case." ⁽¹⁹⁷⁾ Jerónimo de Guevara went a step further, outlining new rules for admittance into the profession as well as a complete code of ethics for members of what he called "this honorable ministry." ⁽¹⁹⁸⁾ Advocates were advised to be scrupulously honest in their dealings, faithful and attentive to their clients, wary of "unjust" cases, not overly captious in their arguments, and not to engage in unnecessary, affected eloquence in their oral pleadings. Furthermore, as the "hands of justice," advocates were to take especial care of the causes of the poor, for whom they should work free. Guevara and Cabrera Núñez after him urged advocates not to work on a contingent fee basis, but rather to collect a regular stipend from their clients.

Although hardly a workable set of instructions, the principal purpose of this code was propagandistic, an attempt on the part of Guevara, Cabrera Núñez, and other advocates to raise their profession's standing and prestige. It is undoubtedly for this reason that members of Madrid's colegio moved their chapel in 1628 from the Convent of San Felipe to the Jesuits' Colegio Imperial, one of Madrid's newest churches and a favorite among members of the royal court. ⁽¹⁹⁹⁾ Cabrera Núñez's discussion of "advocacy as the compendium of all of the sciences" was expressly aimed at convincing the monarchy that advocates possessed all of the intellectual qualities necessary for government service. ⁽²⁰⁰⁾ His contemporary, Francisco Pinero Ossorio, explained that only advocates had the knowledge, intellectual background, and practical experience to assume important judicial posts, and he was so bold as to suggest that all judges, prior to their appointment, be required to practice four years as an advocate. ⁽²⁰¹⁾

[76] But old opinions and prejudices against lawyers died slowly. Advocates were discriminated against partly because of class, partly because of their converso taint, but also because it was widely believed that those accustomed to manipulating the law for money would not make good judges. A sixteenth-century proverb read: "Advocates do not make good judges because they are accustomed to work for money." ⁽²⁰²⁾ The door was not completely closed to advocates, many of whom were appointed fiscales in royal tribunals and from these positions were eventually promoted to others on the royal bench. ⁽²⁰³⁾ Ordinarily, however, advocates had little chance of becoming royal judges; most of these were recruited directly from the universities. ⁽²⁰⁴⁾ The famous Neapolitan advocate Francesco d'Andrea (1625-98) summed up the existing division between bar and bench when he wrote that "it is a very, very rare occurrence to see an advocate [in Spain] ascend to a position on the royal judiciary." ⁽²⁰⁵⁾ In this respect, the writings of such apologists as Guevara, Cabrera Núñez, and Alvarez Osorio y Redín had only marginal success in improving the public image of advocates or granting them easier access to royal posts. Even in the early eighteenth century, Melchor de Macanaz, a former advocate who eventually became the fiscal of the Royal Council of Castile, could still describe the legal profession as "the plague of the monarchy." ⁽²⁰⁶⁾

Popular suspicion of advocates, attorneys, and other legal practitioners, however, was only the outward manifestation of a society that had entered a prolonged period of economic and political crisis. Castile in the seventeenth century was searching for scapegoats while simultaneously seeking to recapture a glorious age of prosperity and peace. For many, lawyers were the symbol of what had gone wrong [77] because they promoted complex and confusing procedures that the average man saw as serving only to rob the public and make the lawyers, magistrates, and other court officials immensely rich. The society's ambivalent attitude toward the lawsuit can also be understood in this perspective. Ostensibly, the pleito was designed to promote justice, but the justice of the courts seemed only to allow the strong to defeat the weak, the rich to outwit the poor, and the self-serving, rapacious lawyer to outmaneuver the lawyer who defended causes thought to be righteous and good. Castilians viewed their predicament as that of a society whose ideals had been perverted by corruption, greed, and self-interest, and the lawsuit, together with the legal establishment that supported and promoted it, encapsulated each of these various ills.

By all appearances, each of the tribunals in sixteenth-century Castile formed a complex and confusing labyrinth lined with red tape, crooked officials, scheming lawyers, and laws and procedures that were often so vague that they themselves became objects of dispute. Obviously, the risks involved in litigation were considerable, the cost sometimes exorbitant, and the outcome difficult if not impossible to predict. On the other hand, these tribunals, particularly those administered by the king, provided a forum in which Castilians thought they could obtain justice or at least some rough approximation of same. To be sure, no one believed that the courts were perfect; lawsuits took too long, cost too much, and were so complex that recourse to expensive lawyers was impossible to avoid. As a result, many pined for some idealized vision of justice that was swift, easy, and cheap. This same utopian vision of justice lies at the heart of the criticism about lawyers being too expensive, courts too corrupt, and litigation too slow. It would be a mistake, however, to accept all of this criticism at face value. Though litigation in the sixteenth century was half a loaf, it was better, in many cases, than simply resigning oneself to defeat, certainly less dangerous and risky than feud, and, in contrast to arbitrated agreements reached out of court, generally offered at least some assurance that the final settlement would be enforced. A better system might have swept away the tangled labyrinth of confused law, uncertain procedures, and outstretched hands, but if the courts were as corrupt as their critics implied, one suspects that Castilians would not have used them as frequently as they did.

[78] The epoch, after all, was one in which the number of recorded lawsuits was sharply increasing, and this suggests that countless litigants, despite all of the criticism, considered the lawsuit a relatively good way to settle disputes. The motives behind some of these cases, the