[236] The history of Castilian litigation in the eighteenth century is virtually uncharted. In the decades following the end of the War of Succession in 1714, the kingdom gradually revived: population increased; the economy expanded; and the new Bourbon monarchy, inspired by French principles of government, initiated a new era of centralized administration and control. For law, this meant a wave of new legislation, new magistracies, new courts, a new dynamism. Business at the chancillería of Valladolid had expanded, and this pattern was apparently repeated in the other tribunals of the king. Responding to the increased demand for their services, the legal profession acquired new life. The number of legal practitioners increased, in Madrid as well as the provinces, new colegios de abogados were established in Seville, Granada, Valencia, and other cities, and the universities' law faculties, buoyed by new interest in Castilian law, attracted new students year by year. ⁽¹⁾ The Bourbons responded to the growing demand among lawyers and jurists for legal reforms by sponsoring the publication of the Novísima recopilación de las leyes de España (1805), the first such compilation since the reign of Philip II.

Expanding interest in juridical studies, legal reform, growth in the [237] legal profession, new courts: the parallels between the sixteenth and eighteenth centuries are many. In the sixteenth century, however, such conditions had produced a veritable wave of litigation, an unprecedented harvest of lawsuits that sparked continual complaints. In theory, the eighteenth century ought also to have produced a new wave of litigation, but apparently it did not. Writing in 1779, for example, José Covarrubias, a prominent advocate in Madrid, doubted that the number of lawsuits recorded in royal tribunals was very much greater than it had been in the previous century. Although he produced no statistics to support his assertions, ⁽²⁾ Covarrubias's idea that litigation in this century was stagnant or growing only marginally deserves serious attention. It suggests that Castile's legal culture had changed in such a way that litigation, though still important, was no longer the force it had been two centuries before. Although it is far from clear what happened, the following pages present a possible explanation for the apparent decline in the nature and volume of litigation brought to Castile's courts.

At the outset of our story, one must remember that Castile was a quarrelsome, "hair-trigger" society although one that, owing partly to the spread of education among the upper and middle classes, partly to a monarchy determined to eradicate private violence and feud, was gradually learning to sublimate its penchant for violence and channel conflict into the courts. Castilians' reliance upon lawsuits, however, did not reflect any willingness to resolve conflicts peacefully. A lawsuit was popularly considered to be a highly unsatisfactory way of obtaining justice, and most of the cases brought to the courts during this epoch had the distinct markings of a fight. They were passionate, frequently reckless and spontaneous, and generally conducted without reference to rules of gentlemanly conduct and fair play. Litigation was untamed, subject to only a minimum of rules and restraints.

The distinct lack of restraint exhibited in litigation in the sixteenth century reflected the relative flexibility of Castile's legal culture, which [238] was only on the verge of establishing a fixed set of rules, procedures, and behavioral norms. Despite efforts at systemization, legal texts were frequently ambiguous and ill-defined, rules variable and changing. The law courts of this era, particularly those at the local level, were equally unstructured. Most were open, administrative forums performing a variety of tasks and services that in later centuries would be handled by nonjudicial agencies, both in and out of government. In addition to serving as a tribunal in which disputes could be adjudicated, arbitrated, or in some other way resolved, every law court doubled as a commercial clearing house, family counselor, land bureau, and watchdog of public morals and behavior.

The broad spectrum across which courts of this epoch operated was matched by a judicial marketplace that was strictly laissez-faire, despite efforts by the monarchy to impose some regulation. Jurisdictional limitations were generally ill-defined, and even when they existed they were usually ignored by tribunals, which actively competed with one another for business, each aiming to improve its share of the judicial market. Rules governing this competition were practically unknown, and few of the kingdom's law courts hesitated to interfere in cases that legitimately belonged to another, steal cases, or even entice litigants away from other tribunals by offering preferential costs or by rearranging their dockets in such a way as to speed up or delay judgment. The magistrates, as company managers, rarely involved themselves directly in these activities, most of which were handled by lesser judicial officers, whose livelihood, like that of modem salesmen, depended upon a steady if not growing supply of lawsuits. And, given the fact that these officials had invested heavily in the tribunals to which they were attached, they should be considered as some of Castile's most successful and dynamic entrepreneurs because they were especially skillful in developing administrative shortcuts aimed at increasing their output and other techniques -- oversized handwriting, for example -- designed to maximize their profits and increase the market value of the charges they had bought.

The legal profession in the sixteenth century displayed similar traits. As suggested in chapter 2, its membership was open, constraints upon its members relatively few in spite of the crown's attempts to establish guidelines for "professional" behavior, and its practitioners, taking advantage of a situation in which the demand for legal services probably outstripped the supply of available lawyers, [239] reaped great profits without having to worry much about reputation, qualifications for practice, or ethical rules. Castile's lawyers, therefore, can also be likened to entrepreneurs, especially the solicitadores, who were singularly successful in carving out a profitable niche within the orbit of Castile's courts.

The laissez-faire spirit characteristic of Castile's judicial culture typified litigation in this epoch as well. Rules governing lawsuits were fuzzy, proper conduct still undefined, and the absence of checks helps to explain why long-standing taboos against fighting openly with members of one's lineage were forgotten as lawsuits erupted regularly between cousins, siblings, even fathers and sons. The open, unrestrained character of litigation in the sixteenth century also helps us understand why a litigant, in the middle of a lawsuit, could realistically ask the court to have his opponent provide him with the wherewithal needed to pursue his "justice." ⁽³⁾ Furthermore, owing perhaps to the lack of other kinds of suitable investment, litigation served the interests of those seeking outlets for surplus cash. Many lawsuits of the era were purely speculative ventures, and the lack of consensus about what was permissible and right only exacerbated this practice.

But whatever the motives behind individual lawsuits, it is apparent that litigation was a device from which relatively few Castilians, even unschooled members of the peasantry, shied away. Ease of access to legal tribunals encouraged it, and the monarchy's interest in providing justicia for all of its subjects fostered endless appeals, much to the annoyance of legal reformers, who aimed at streamlining the judiciary and curbing the flood of "minor lawsuits" into the king's major courts. But the monarchy thought otherwise. An abundance of cases in royal courts was essential to its effort to expand its judicial prerogatives and, simultaneously, to reduce those of courts and tribunals outside its immediate control. Indirectly, therefore, both Charles V and Philip II were responsible for the lack of restraint typical of litigation during their rule.

The result was a litigious society in which law courts served multiple [240] functions and lawsuits were widely employed to satisfy a vast range of interests and ends. The courts' basic fodder consisted of disputes over contracts, inheritances, questions of jurisdiction and ownership, together with various matters concerning the limitations of seigneurial law but they were also expected to rule on hazy areas of personal conduct and private behavior. Virginity, for example, was a highly prized asset for girls seeking a suitable marriage, yet court records of the Habsburg era indicate that countless young women, often under the "promise of marriage," surrendered "their flower and virginity" to some insistent male. Such promises, then as now, were easily broken; the difference is that it was customary in the sixteenth century for the dishonored girl, through the offices of her father, brother, or guardian, to bring the man responsible into court. The aim of such lawsuits was straightforward: the restoration of the dishonored family's dignity and worth, although in most instances the accused was given the alternative of either marrying the girl or providing her with a dowry sufficiently large as to render her attractive to other prospective mates. Damage suits over alleged insults, libels, and other "crimes" involving an affront to one's honor also figured prominently in both lesser and appellate courts. One reason for the recurrence of such legal actions was the monarchy's strong stand against dueling, yet the courts of this epoch were responsive to cases of precisely this sort despite the hearsay quality of much of the evidence presented and the difficulties of separating fiction from fact. Little wonder that Castilians, to borrow a phrase applied to English tribunals of this same epoch, used their courts as a "cockpit of revenge." ⁽⁴⁾

Lawsuits involving libels, insults, and related matters are, of course, common to all ages, and the absence of comparative studies in litigation makes it impossible to know whether Castilians living in the sixteenth century were any more or less prone to litigation than Englishmen, Frenchmen, Catalans, or Italians. One fact appears certain -- litigation normally accounts for only a small fraction of the disputes and tensions to which a society gives rise. In this regard, Castile was no exception. Yet, given the laissez-faire spirit of its judicial culture, it is likely that the size of this fraction was, albeit by some unknown quantity, sharply increased.

[241] A century later, Castilians were still litigious, but the spirit, indeed the character of litigation had changed. For reasons outlined in the previous chapter, royal justice had become increasingly inaccessible and, thanks to the expanding appetite of the Royal Council of Castile, centered primarily in Madrid. This development may have suited the interests of the aristocracy, only a few of whom could afford to maintain a retinue of lawyers stationed in strategic but geographically scattered courts. For the majority of Castilians, however, centralized justice was remote justice, difficult and expensive to obtain. Municipal and seigneurial jurisdictions expanded to fill in some of the gaps, but these local tribunals proved vulnerable to intimidation by powerful landlords, the poderosos about whom so many municipalities in the seventeenth century complained. ⁽⁵⁾ Tied to the interests of a narrow socioeconomic elite and frequently utilized as instruments of harassment and coercion, local courts diminished in authority and effectiveness and may even have served as a damper for litigation. Furthermore, the state of the Castilian economy in the seventeenth century was such that less money was available for litigation, even among the nobility. Simply put, fewer persons were in a position to invest in a lawsuit the costs of which, owing to runaway corruption, had risen sharply. Consequently, the flood of minor lawsuits that had choked royal tribunals in the sixteenth century receded, leaving behind a plethora of underutilized courts whose magistrates were underemployed. This was certainly true, for example, in the Montes, whose population in the sixteenth century had demonstrated remarkable skill in their ability to make use of the courts. Admittedly, this region by the late seventeenth century was probably more impoverished than most, but whether for reasons of poverty, the cost of a lawsuit, or a growing suspicion of the efficacy and honesty of institutionalized justice, the records of Toledo's fiel del juzgado suggest that after 1660 the peasants of Montes rarely entered into civil litigation. ⁽⁶⁾

Accompanying this loss of legal business, and in some respects a cause of it, was a change in the character of litigation. If litigation in the sixteenth century had been unrestrained and the legal culture strictly laissez-faire, by the end of the seventeenth century both could only be described as professional. By this I mean that litigation had [242] lost much of its passion and spontaneity and instead had become cool and calculated in tone; it was less of a speculative or even a vindictive venture than a legal stratagem launched after considerable forethought and preparation and then only in certain, specified disputes. To be sure, this changeover did not proceed evenly and may in fact have been limited to the higher tribunals, the audiencias and councils, which by the end of the century dealt only with cases of major importance and worth. Presumably, in lesser jurisdictions, older ways persisted, but in higher tribunals and, above all, in Madrid, a lawsuit was no longer a free-for-all but a carefully controlled contest conducted according to a recognized set of rules.

Although difficult to document, one cause of this changeover was economic; the high cost of litigating in major tribunals ruled out frivolous, speculative, and purely spiteful lawsuits. Another cause was the gradual crystallization of procedural law and the development of a fixed body of rules governing litigation in all parts of the kingdom. Credit for this development must go to the practicos such as Juan de Hevia Bolaños, whose Curia philipica set a standard for all courts to follow. This enormously successful work, which dealt with a wide variety of procedural questions, effectively served as Castile's legal bible until well into the nineteenth century.

The emergence of a royal judiciary united in its attitudes toward law and legal procedure also served to keep litigation under some form of controls. As suggested earlier, the magistrates who served in the king's audiencias during the seventeenth century were increasingly homogeneous in terms of social background, education, career, style of life, and experience. Unfortunately, little is known about what these judges thought, but as members of an elite legal caste, with close ties to the aristocracy, they appeared as defenders of order, property, and especially the institutions, such as the Colegios Mayores, to which they were closely attached. In the sixteenth century, the independence of royal magistrates from the dominant groups in society had served to encourage litigation, especially that of peasants against their lords. Presumably, the close identification of the judiciary with the aristocracy had the opposite effect. These judges also endeavored to impose order on law and litigation, doing away with "captious delays" together with the "men who impede justice and its execution either by means of their pleas . . . or by other evil [243] roads which disturb the peace and good government." ⁽⁷⁾ And, finally, they sought to create a world in which their privileges and those of the aristocracy would be guaranteed.

The day-to-day performance of judges in the seventeenth and eighteenth centuries, their social attitudes and ideas about litigation are areas about which much remains to be learned, but even more than the king's judges, Castile's lawyers were responsible for the changes in the character of litigation brought to the courts. As illustrated in chapter 2, by the end of the century advocates exhibited numerous signs of professional behavior, especially in Madrid, where the important legal work of the kingdom was increasingly concentrated. The advocates' quest for gentility and recognition by the king had led to the organization of colleges, new rules of ethical conduct and behavior, and even regulations barring practitioners of base and ignoble birth. Attorneys had similar pretensions, and their efforts to achieve higher rank were instrumental in the demise of that symbol of legal entrepreneurship, the solicitor, who was institutionalized by Philip IV and turned into a docile officer of the court. Initially, these changes were limited to Madrid, but by the eighteenth century they spread to other parts of the kingdom as well. The establishment of provincial colegios for both advocates and attorneys in the course of this century suggests that the seeds of a closely knit legal profession had been planted on a national scale. ⁽⁸⁾

It might be going too far to suggest that these efforts on the part of Castile's lawyers to organize themselves, establish new standards of recruitment and discipline, and improve their social standing and prestige resembled modern processes of "professionalization," but whatever we call it, it is certain that the advocates and attorneys together helped to reshape the nature and, indeed, the importance of litigation in Castile. In the sixteenth century, advocates, especially those who worked for the great nobles and municipal corporations, served their clients more in the spirit of loyal servants than independent legal experts solicited for counsel and advice. A century later, in [244] Madrid at least, the opposite was true. Cabrera Núñez de Guzmán even suggested that advocates should not automatically accept a client's case, but rather act as "first judge" and decide whether litigation was desirable or necessary. ⁽⁹⁾ Of course, the so-called "hedge" lawyers, who worked on the basis of contingency fees and deliberately cheated their clients by needlessly fomenting litigation or writing superfluous briefs, still abounded. But in larger cities and especially Madrid, established advocates, who endeavored to create an image of themselves as responsible practitioners worthy of promotion to the royal bench, probably acted as a brake upon litigation, reminding clients of the unnecessary costs and delays a lawsuit would incur. Cabrera Núñez, spokesman for the advocates who belonged to Madrid's elite colegio de abogados, instructed advocates to work independently on a salaried basis and to reject any case in which they had a personal stake. These practitioners were also responsible for perfecting methods of arbitration and other devices designed to ensure their importance to the legal process yet also to keep their clients out of court.

Unfortunately, little is known about Castilian methods of arbitration. The law had allowed for escrituras de compromiso since the Middle Ages, but information about these agreements is scattered and incomplete. Apparently, the procedures involved were relatively simple. The disputants, many of whom were already locked in litigation, designated two or more advocates to serve as jueces arbitros arbitradores y amigables compendidores. The advocates were then given a set period of time (frequently twenty days) in which to develop an equitable solution to the dispute in question. In the case of Maria Guillamas, who had several lawsuits pending with her son, the advocates, one representing either party, were given the power "to look over the lawsuits and competing claims" and then, "either orally or in writing" and "either keeping or not keeping the judicial form" arrange for a compromise settlement. Once the decision of the advocates was reached, the parties agreed to pay a stiff indemnity should either "continue with any of the lawsuits pending or threaten new ones." ⁽¹⁰⁾

[245] It is impossible to keep track of these compromise settlements or even to estimate how many there were. Examples garnered from the notarial archives suggest that relatively humble personages as well as nobles entered into such agreements.⁽¹¹⁾ Naturally, an element of risk was involved; enforcement of the compromise was difficult, and in many cases the compromise led to a new lawsuit. There is little doubt, however, that this procedure provided an alternative to litigation, and, for this reason, compromises were probably promoted by the advocates themselves, particularly in the seventeenth century, when court costs were steadily on the rise. By acting as arbitrators, advocates probably could earn as much as by going to court. Advocates also benefited because the money they earned from arbitration as opposed to litigation was not subject to any limitation arbitrarily imposed by the crown. Advocates, therefore, had every reason to eschew lawsuits since they could offer their clients an alternate yet still legalistic method of terminating disputes.

Much remains to be learned about the relationship of lawyers to litigation in the seventeenth and eighteenth centuries, but I am suggesting here that the legal profession itself was instrumental in subjecting the laissez-faire judicial culture typical of the early Habsburg era to new professional constraints. They established new ground rules concerning litigation, use of the courts, and even limits on the jurisdiction of individual magistrates and courts, regulations that would be written into law in the course of the eighteenth century. In a sense, they provided order where there had been chaos, but they did so less in the name of reason than to augment their own authority, reputation, and prestige.

Thanks to the lawyers, therefore, as Castile entered the eighteenth [246] century, a new "professionalized" legal culture was gradually taking shape. Courts were becoming specialized institutions, limited in jurisdiction and scope; indeed, by the end of the century many of their administrative and executive duties -- legacies of an earlier epoch -- were stripped away. Litigation was also subject to new restraints and would gradually diminish in importance as more and more of the administration of law and of justice was dispatched without recourse to a formal lawsuit. Lawyers were thus able to appropriate for themselves many of the functions previously performed by magistrates, servants, family, and friends. Acting, alternately, as legal experts, counselors, and arbitrators, they had constructed a new legal order that paralleled that of the courts but was independent of external supervision and government control. The primary aim of this order was to promote harmony and minimize disputes, but in doing so, it increased the dependency of the lay public upon lawyers while ensuring for lawyers a new importance and respect.

For centuries, of course, lawyers throughout Europe had served as the agents of a pragmatic world in which the law would be set free from the overriding concerns of God, church, and state and allowed to develop independently along the lines established by the lawyers themselves. This law, as it emerged in Spain, would be national in character, rooted in custom rather than Rome, and legitimized in terms of the history and traditions of Spain. Not surprisingly, however, this law was also designed to enhance the primacy of lawyers, and in this respect the lawyers of Castile were the architects of their own lasting success. Toward this end, litigation was tamed, courts curtailed, and even the monarchy persuaded that lawyers merited promotion to higher place. Henceforward, the law of the letrados would rule Castile.

1. Richard L. Kagan, Students and Society in Early Modern Spain (Baltimore, 1974), pp. 225-30.

2. Covarrubias wrote, "It is not correct to believe that there is a greater harvest of lawsuits in this century than in the last one; perhaps there are a few more fomented by the multitude of letrados, but these scarcely amount to a third more than in the past." See José Covarrubias, Discurso sobre el estado actual de la abogacía en lose tribunales de la nación (Madrid, 1789), p. 39. Covarrubias's ideas were initially spelled out in a manuscript dated 1779; cf. BNM: 11054, fols. 191 ff.

3. ARCV: RE, caja 981, Aug. 1560, Pedro Arias de Avila y. Conde de Puñonrostro. Arias informed the chancillería that "he had no money to continue the case since he was broke after selling his goods in order to pay for the lawsuit." He asked the court to order Puñonrostro to advance him 750,000 mrs. which he needed to pay his attorneys and solicitors. The court, however, required the count to pay only 225,000 mrs.

4. W. Wilcox, "Lawyers and Litigants in Stuart England," Cornell Law Quarterly 24 (1938-39):541.

5. AHN: Cons., leg. 7253, contains a series of consultas, dating mainly from the 1680s and 1690s, filled with such complaints.

6. AMT: Pleitos, cajas for Ventas con Peña Aguilera, Yebenes, and Navahermosa.

7. Juan Alonso Bustamente. Discurso sobre gobierno eclesiástico (Granada, 1624), p. IV The author was "visitador general of Granada and its archdiocese."

8. By 1797, more than twenty-three colegios de abogados were in existence. See F. García Marroquín, Reseña histórica del ilustre colegio de abogados de Valladolid (Valladolid, 1881), p. 28.

9. Melchor Cabrera Núñez de Guzmán, Idea de un abogado perfecto (Madrid, 1683), chap. 14.

10. AHPV: Prots. , lib 2019, fol. 171.

11. In 1569, Ruy Sanchez Calderon, vecino and alcalde in the village of Saldaña (Valladolid) rented a mule from Francisco de Portillo, vecino of Valladolid. Shortly thereafter, the mule fell sick and died. The ensuing dispute over who was responsible for the loss of the animal resulted in a lawsuit, but the two finally agreed before a notary "to end the lawsuits over this matter and to put it into the hands of Sr. Lic. Cifuentes and Sr. Lic Mañon de Reinos, advocates . . so that they, in accordance with their consciences, will resolve the dispute." See AHPV: Prots , lib. 366, fol. 939. Two nobles who drew up an escritura de compromisa after a protracted inheritance dispute were the duke of Escalona and the marquis of Villena. See AHPM: lib. 13038, 9 Mar. 1700 For other examples of these "compromises" see AHPV: Prots., leg. 2019, agreements of 29 Aug.. 2 Oct., 26 Oct. 1634.