Muslims in Christian Courts: Judicial Procedure

Despite the more than occasional jurisdictional disputes, Muslim plaintiffs undauntedly continued to appear before Christian courts to plead their suits against both Muslims and Christians. Such disputes, which originated more in the magistrates' acquisitiveness than in a widespread disrespect for the law, were probably far more vexing for the contending judges than for Muslim plaintiffs and defendants. Once bailiffs, governors, and justices settled their differences and the legal machinery of the court was set in motion, Mudejars could be confident that the due process of law would be respected and justice done. Relative to the bulk of litigation found in the documentation Mudejar complaints of immoderate or illegal procedure by the Christian courts are very few. To some degree the propensity of rival judges to stray beyond their proper jurisdictions and their willingness, for fiscal reasons, to hear the cases of most anyone served as a crude system of checks and balances. The governor's or the seigneurial justice's knowledge that Muslims could always have recourse to the bailiff general, or, conversely, the local bailiff's awareness that the governor or municipal justice would avail themselves of any opportunity to intervene must have curbed excesses in court and encouraged fairness on all sides simply as a means of avoiding the interference of rival courts. More important, neither the king nor the lords were prepared to permit their appointed judges to abuse their vassals in court. In the competition between the Crown and the nobility for Muslim vassals it was perhaps as important to guarantee the Mudejars fair treatment in court as to offer them tax breaks. The prevailing conditions, which were so conducive to this rivalry, afforded the Mudejars room to maneuver, manifested in their change of vassalage and their judicial appeals to higher or rival courts. Since royal authority and the subjects' contentment were largely predicated on the ability of the king

to provide justice, blatant injustice to Mudejars in the courts, both royal and seigneurial, was usually corrected by the king and his bailiff general.

The legal mechanisms for the handling of the cases of Muslims in Christian courts were well established by the reign of Fernando. Muslims appeared in court as both plaintiffs and defendants in litigations with Christians, and it was not unusual for them and Christians to file suit as coplaintiffs or to be arraigned as codefendants.^[92] Once in court and removed from jurisdictional controversy, cases concerning Muslims presented few procedural dilemmas. Christian magistrates were not perplexed by the prospect of having to hear the pleas of Muslim plaintiffs or receive the testimonies of Muslim witnesses. Nor did the Mudejars find the chamber of a Christian tribunal to be unfamiliar or intimidating territory. On the contrary, the conduct of Mudejars in the various trials often reflects a familiarity with the legal system and a facility in skirting its pitfalls. Far from being victimized by coteries of Christian judges and lawyers, the Muslims were sometimes able to manipulate the system to their own advantage. This was a necessary and positive form of acculturation.

In Christian courts Muslims and Jews took oaths proper to their own religions. While Christians swore on the Gospels, and the Jews, according to the Furs, on the Ten Commandments, the Muslims swore on the Qur'an^[*] .^[93] In the trial records the Muslims are usually described as having "made an oath ... to our Lord God and to the qiblah of Muhammad, turning the face toward midday and saying the words that Moors are accustomed to swear."^[94]

Trials followed a standard procedure, the length of which varied according to the complexity of the case and the gravity of the crime. (For instance, cases of homicide usually required the laborious interrogation of witnesses, which was often unnecessary in many minor civil suits.) In their most extended format, usually in criminal cases, trials were conducted as follows: (1) the prosecutor presented the accusations, which were sometimes followed by further and more detailed accusations of the plaintiff; (2) the court received any confessions the defendant wished to make; (3) the defense counsel and/or the defendant responded to the specifics of the prosecution's accusations; (4) the testimonies of the witnesses for the prosecution were presented; (5) the testimonies of the witnesses for the defense were presented; (6) the above witnesses were cross-examined by the defense and the prosecution, which sometimes included the depositions of new witnesses intended to impugn the testimonies of previous witnesses; and (7) the presiding judge rendered judgment and passed sentence.^[95] Even in cases of what were deemed the most execrable of crimes, restraint was exercised and due process scrupulously observed. When word reached the bailiff

general that a Muslim had forced a Christian boy of Sueca to commit sodomy with him, he sent a notary to Sueca to receive "information of the said case and detestable crime and judicial confessions from the said Moor and ... the account of the said boy."^[96]

The same respect for proper procedure was displayed in cases of Muslim violence against Christians. Mahomat Ayub, accused of the murder of a Christian of Teruel, was able to have removed from the panel of judges treating the case a lawyer whom he thought to be prejudiced against him.^[97] Ali Ubequer, who had wounded a Christian of Murviedro, delayed the bailiff's procedure against him through clever legal maneuvering.^[98] When Alfonso Mendo dropped the assault charges he had leveled at Çahat Salamo, all legal action was duly ceased.^[99]

Christian procurators (procuradors ), usually notaries given power of attorney, frequently represented Muslims in court. The Christian procurator might also act as a Muslim's defense counsel, and some notaries seem to have been court-appointed public defenders. There is no evidence suggesting that the procurators were in any way negligent in the causes of their Muslim clients. For the notaries such dereliction of duty probably would have resulted in an undesired loss of clientele.^[100]

Muslims were in no way restricted from bringing charges against Christians. Thus, when the widow Axa Christelli was unable to appear in court to make the requisite formal accusations against the knight Gaspar de Monsorin and his squire for the murder of her son, the viceroy obliged her by sending an official to Algimia to record her accusations and to seize the accused for trial.^[101]

A somewhat thornier issue was that concerning witnesses in cases between Muslims and Christians. The Furs had originally provided that in such cases witnesses from the religious group of the defendant were required to prove the defendant's guilt. In other words, a Christian filing suit against a Muslim needed the testimony of at least one Muslim as proof. In 1301 Jaime II significantly modified the law to the detriment of the Mudejars by admitting the testimonies of two reputable Christians as sufficient proof against a Muslim.^[102] It is difficult to perceive how the law was translated into practice on this question. In some cases when witnesses are mentioned their faith is not identified, or when witnesses are identified there are enough Muslim and Christian witnesses produced by both sides to preclude any quibbling on the grounds of the specific question treated by the Furs . Perhaps most telling is the notable absence of any queries concerning the admissability of witnesses, Muslim or Christian. Muslims do not seem to have been in any way limited as to the witnesses they might produce in their own behalf, as long as the witnesses were reputable and honest persons. Indeed, at a Muslim's request court notaries were sent out to record the testimonies of the wit-

nesses specified. When Seydi Melvix, acting as procurator for other Granadan Muslims (new settlers in Valencia?) in a litigation with the bailiff general beyond the Jijona River, wished to bring forth witnesses "to prove certain clauses," a notary of Orihuela was dispatched to examine the witnesses and record their depositions.^[103] Muslims could also use Arabic documents as legitimate evidence in Valencia's courts.^[104] Suits between Muslims and Jews did not create any special problems.^[105] Even in cases in which Muslims were not implicated, their testimonies as witnesses were acceptable. In order to defend himself and his town of Ondara against the royal prosecutor, Don Joan de Cardona produced a long list of Muslim and Christian witnesses who were to be duly interrogated.^[106]

Another potential source of problems in cases between Muslims and Christians was the question of by which law, Christian or Islamic, a Christian judge should sentence a guilty Muslim. Jaime II quashed any possible Christian complaints that convicted Muslims were being punished too leniently when sentenced according to the Shariah by ruling that, for any crimes committed by Muslims against Christians, the Muslims were to be sentenced by the law that demanded the heaviest penalty.^[107] This was to the manifest disadvantage of the Mudejars. However, it seems that during Fernando's reign all Muslims culpable for crimes against Christians were penalized in accordance with the Furs .^[108]

Occasionally Muslims were pardoned for their crimes, although this was by no means a frequent occurrence.^[109] Far more usual was the Crown's granting of safe-conducts (guiatges ) against prosecution and arrest to accused or convicted Muslims. The king or the bailiff general determined the length of time during which such safe-conducts were valid. The safe-conducts protected Muslim debtors who needed more time to settle accounts with their creditors. Procedure against Muslims for more serious crimes, such as theft or homicide, was likewise halted until they could gather the funds necessary for the payment of fines and settlements.^[110] Also, the courts sometimes released Muslims on bail. Those who posted bail were called caplleuators . Both Muslims and Christians acted as caplleuators for Muslim defendants. It was understood that the Muslim would return to court for trial when the presiding magistrate requested. Failure to appear resulted in execution against the property of the caplleuators, who were held responsible for the defendant's absence.^[111]

Royal authorities sometimes employed torture as a means of extracting confessions from Muslim criminals. Although Muslims were theoretically exempt from torture in the kingdom of Aragon, such was not the case in Valencia.^[112] Still, the courts resorted to torture only rarely, and almost always in cases of crimes against the state. An amin^[*] of Alcudia

was tortured for having counterfeited money.^[113] Other Mudejars implicated in the crimes of Maghriban Muslims suffered the same fate.^[114] The bailiff general's court tortured a Tunisian Muslim accused of abetting runaway slaves, but he nevertheless remained close-mouthed.^[115] However, the mere threat of torture was sufficient to make Ubaydal Allepus of Bétera confess to the murder of another Muslim.^[116]

In general, Muslims received equitable treatment in the Christian courts. The king and the bailiff general sought to promote fairness in the kingdom's judicial system by correcting the blatant favoritism of magistrates either through replacing them or through balancing their partiality with the opinions of disinterested doctors of law. Also, attempts were made to neutralize the influence of powerful persons on local judges. Owing to the system of appeals, both Muslims and Christians could have their cases reconsidered by superior judges. If this sometimes lengthened the judicial process excessively, it nevertheless guaranteed that in most cases justice was fairly administered.

Muslims relied on the solicitude of the Crown to prevent injustice. When Abrahim Alaxera was involved in a property dispute with the knight Perot Sanç he turned to the viceroy, "inasmuch as the said mossen Perot Sanç is a knight and principal person in that city [Játiva] and the said Moor [Abrahim] is a simple and defenseless person." At Abrahim's request, a doctor of law from Valencia was added to the case to counterbalance Sanç's influence.^[117] In a similar instance, the viceroy ordered another knight of Játiva to appear before the royal audience, so that his suit with a Muslim woman might be decided justly. The knight had employed threats to hinder the woman's procurator from defending her, and had thereby obtained from the justice of Játiva two judgments in his own favor.^[118]

The litigants' expectation that the courts would render judgment impartially, and that the Crown would do its best to ensure that this was so, inspired them to scrutinize closely the motives of the presiding judges and jurists. Consequently, Muslims and Christians often based their appeals to higher courts on the allegation that such and such local magistrate or jurist was "suspect," that is, that he favored the opposing party. Mudejars resorted to this legal ploy many times, but, one suspects, not always with complete sincerity. The king and bailiff general usually obliged them by removing the "suspect" magistrate from the case. When the king appointed Pere Prats of Orihuela to hear a canon's appeal of a sentence passed against him and in favor of his converted slave, Carmesina ("de genere sarracenorum"), the latter impugned the honesty of Prats, arguing that he was a relative of the canon. Prats was replaced forthwith.^[119]

The Crown's willingness to respond to such allegations and to satisfy

the aggrieved parties could lead to the removal of numerous judges and lawyers before justice was finally administered. After Fernando responded to the appeal of a noblewoman, who maintained that the bailiff general's assessor was "suspect," by replacing the assessor with two doctors of law, the opposing party, a Muslim of Murviedro, countered by claiming that the two lawyers were biased. The king was forced to find two more lawyers.^[120] Still more confusing was the litigation between Dona Lorença de Loriz and certain Muslims of Gandía concerning pensions allegedly owed by the latter. After numerous appeals and before a panel of three jurists was finally appointed to render a conclusive judgment on the case, the Muslims had challenged the impartiality of two jurists—one of them the governor's assessor, who, they argued, did not like to revoke judgments he had already pronounced—and Dona Lorença, that of three others.^[121]

After two centuries of being increasingly drawn into the sphere of the Christian legal system, the Mudejars had acquired an essential understanding of how it functioned. They knew what limitations there were on the powers of magistrates, what kind of evidence was decisive for the conclusion of a case, and what channels they had to go through to have their appeals heard by superior courts. Thus, some Muslims of Bechí made an appeal to the bailiff general, maintaining that they had been denounced before the bailiff of Villarreal without legitimate evidence and then needlessly harassed and molested by the same bailiff. The king supported the Muslims, voiding the bailiff of Villarreal's initiatives and ordering the bailiff general to rule on the case.^[122] Abdalla Xax of Castellnou, involved in a litigation with a creditor, a merchant of Valencia, displayed an ability to operate effectively in the Christian courts. He successfully demanded that the merchant's account books be examined as evidence by the court. He also managed to have the justice of Segorbe intervene in the case, although the justice was later removed because, as was alleged, he showed Abdalla excessive favor.^[123]

The Mudejars utilized their grasp of the complexities of the legal system not only to defend themselves against the malfeasance of the Christian judiciary but also, through cunning and deceptive legal maneuvers, to evade the magistrates' issuance and execution of sentences against them. In particular, they turned to their own advantage the officials' propensity to trespass on the jurisdictions of others and the slowness, or sometimes lack, of communication between the different levels of the kingdom's judicial hierarchy. This is evinced in the case of Ali Gombau. Ali, a vassal of Joan de Vallterra and tax farmer for his lord in Areñol, had been judicially condemned by his lord for the debts he owed him. Ali then fled from Areñol to the court of the viceroy, who had never heard Vallterra's side of the story. Ali claimed that he was a

royal vassal and prompted the viceroy to proceed against other vassals of Areñol for the rents purportedly owed to him. By means of such chicanery Ali was able for a time to take the legal offensive against Vallterra.^[124]

Other Muslims took advantage of the bailiff general's willingness to hear their appeals in order to escape the punishment of local bailiffs. Through the telling of half-truths, such as the claim that their safe-conducts had been violated, they managed to convince the bailiff general to stay the execution of local bailiffs against them.^[125] Some Muslims actually procured safe-conducts from unwitting or pliant officials in order to delay procedure indefinitely.^[126]

Even the king, having no previous knowledge of a case, could be duped. A Muslim adulteress of Gilet, who had already been sentenced and enslaved by her lord, was able, by concealing the facts of the case, to move the king to appoint the bailiff of Murviedro to consider her appeal. However, when the king learned of the truth of the matter, he revoked the bailiff's commission.^[127]

The Mudejars can hardly be blamed for availing themselves of every possible legal protection, even if at times dishonestly. The protection afforded the Muslims by the king and the nobility, usually self-interested, did not deter townsmen and barons from committing crimes against them. The law was the Mudejars' refuge, a flimsy but sometimes effective barrier of defense necessary for a minority in so many ways at the mercy of the whims of the majority.

The king and his watchdog, the bailiff general, were anxious to guarantee the Mudejars the security of a fair hearing in the kingdom's courts. They were willing to hear almost any Mudejar appeal and were quick to reprimand any magistrate who strayed from the proper judicial procedures. The problem here, as in other cases of abuse of Muslims, was that reprimands and corrections were not followed by penalization of the offending official. For instance, Joan de Vich, an official of the lord of Albalat, hanged a Muslim for certain crimes, even though he had received an order from the governor forbidding such action. Vich, at first sentenced to death in absentia, was later pardoned by the king.^[128] At most, unscrupulous officials were commanded to release the Muslim in question to a superior court and to appear themselves to explain their actions. The lieutenant governor south of the Júcar River was summoned before the viceroy to explain why he had harassed Abrahim Menne and denied to him the right of appeal.^[129] The bailiff general issued similar subpoenas to the officials of Valldigna, who had imprisoned and tortured a Muslim of Simat without having passed a legitimate judgment against him,^[130] and who later illicitly imprisoned a royal vassal for not having paid the tax on wheat to the abbot.^[131]

Still, even though the offending officials were not punished, the Muslims eventually received a fair hearing in court. Moreover, such occurrences were far more the exception than the rule. It must be stressed that, in general, the Muslims were not at a disadvantage in the Christian courts. In the cases between Muslims and Christians for which we know the results (see table 18) it appears that on the whole the Muslims might have fared better than their Christian opponents. Although almost all of these decisions were mentioned by the scribes only because they were in the process of being appealed, the initial decisions of the judges nevertheless provide us with a useful and roughly accurate picture of how the Mudejars fared in the Christian legal system. Of the forty-two cases considered, twenty-three, or 54 percent, were initially decided in favor of the Muslim party. This rough parity of Muslims before the law explains why they were not greatly troubled by the prospect of appearing in Christian courts. The gradual erosion of the Mudejars' judicial autonomy was a largely painless process resulting from the diminution of their demographic weight in Valencia and from their increasing integration, although not assimilation, into the society and economy of the kingdom. It correlated with an acculturative process through which the Mudejars acquired the practical know-how essential for holding their own in the Christian courts while, at the same time, retaining for their own Shariah courts the administration of justice in those matters most meaningful for their religious identity.