2. Mechanisms: Notary and Sōfer

Even in the underdeveloped earlier Middle Ages some Catalan Christians had drawn wills. Antoni Udina i Abelló has been able to find 137 wills in Catalonia for the period 840–1025, and he has studied them for their echoes of Visigothic law.^[1] But the ever-ascending trajectory of population, urbanization, and commercial prosperity in the twelfth and thirteenth centuries produced Christian testators in record numbers and caught them up in the sophisticated testamentary procedures and guarantees of Roman law. When Alfonso X the Learned amassed his idealized code of Roman law, the Siete partidas, in thirteenth-century Castile, he devoted the entire sixth part, a small book or encyclopedia, to succession and testaments. Under nineteen “titles” it comprises 288 essays or “laws,” including each drafting step in model form.^[2]

Alfonso’s contemporary in the Arago-Catalan realms, Jaume the Conqueror, imposed on conquered Valencia a Romanized law of less detail but more practical effect, covering all the essentials of wills, witnesses, heirs, executors, and every probable convolution of process. His code even set the fee per charter. Drafting a will cost the client a serious 2 sous, whereas other contracts cost only a fourth of that at 6 pence (but 12 pence, a sou, if “sworn”). At Puigcerdá in the Catalan Pyrenees a lifetime later, the crown set an official schedule of fees to control overcharging; this 1304 reform had little effect, even after a stern restoration in 1323, and had to be changed again in 1327. That last schedule presented a complex of many separate fees. Some fifteen categories of document cost 12 pence; declarations of deposit, partnership, and guarantee 3 to 4 pence; an appeal or protest 18 pence (6 more with a response); and a copy of a royal privilege 16 pence. At 12 pence to the sou, here the somewhat less stable Barcelona money rather than the sou of Valencia, such prices were relatively expensive even for artisans. A will, like a nuptial contract, cost 5 sous, with 2 more for any later codicil and 2½ sous for every copy of the will. At Puigcerdá the notary was to pocket a fourth, sending the rest (minus royal taxes) to the city government.^[3] These prices were for the “act” as scribbled in an abbreviated way in the notary’s codex, which validated and authenticated its content under penalties of law. No copies onto parchment needed to be made, the act itself being an original. If a parchment copy was desired, the original act might be canceled by pen strokes through the text.

Muslim Scribes

In practice, the making of a will lay in the hands of a licensed notary or his Jewish or Muslim scribal counterpart. Each of the religio-ethnic societies in the Arago-Catalan realms, locked away in its own exclusivist administration, contained an official secretariat or scribal component. For Muslims in the subject Mudejar communities, the traditional ṣāḥib al-wathā’iq appears under the Christian title scriba in his scribania.^[4] Crown appointments to the office survive from the thirteenth-century realms, and two fine exemplars of their work survive from thirteenth-century Valencia. This was not the kātib, or secretary, who served in a ruler’s or subgovernor’s kitāba and corresponded to the notarial scribe of a Christian ruler or other authority. Ibn ‘Abdūn in twelfth-century Seville described the more general ṣāḥib al-wathā’iq as requiring some literary talent, beautiful penmanship, and “great” legal knowledge as well as integrity and piety in order to redact marriage and other contracts. Angel Canellas López remarks that this office of general scribe “curiously attained a singular diffusion” in Islamic Spain. Francesc Carreras i Candi, in his study of thirteenth-century Catalonia’s notariate, gave his opinion that the notarial-style infrastructure for the conquered Muslims remaining as Mudejar communities was “almost always” in the hands of Jews; this involves a confusion with the special commission to one or another Jew to prepare Arabic documents for Muslims or others trading abroad and with the Arabic department or function of the crown chancery.^[5]

The several exemplars surviving to appoint a ṣāḥib al-wathā’iq or “scribe” for a town and district in the realms of Aragon suggest that the office was combined with other high offices, the incumbent presumably farming the actual work to mere professionals. Thus in 1271 King Jaume conferred on Muḥammad, the son of Ismā‘il, lifetime tenure as faqīh,amīn, and “scribe” for the Mudejars of Borgia, an arrangement previously set up for his father by the crown. Similarly King Pere in 1278 confirmed to Ḥasān b. Faraj (“Foçan filio de Pharach”) the previous appointment by King Jaume to the offices of qāḍī and scribe “of the Saracens of Zaragoza and all the districts of Zaragoza,” and “for making all Arabic [sarracenica] documents.”^[6] That same year the king ordered his bailiff at Huesca to restore to Ibrāhīm b. ‘Abd Allāh the lifetime scribal office previously held by his father and also by his brother.^[7] In 1280 King Pere appointed Muḥamad of Salā “of our household” as qā’id “and scribe of the Saracens of the Moorish quarter of Valencia city” with the same conditions enjoyed by “other incumbents” of such posts. Muḥamad the Moroccan in 1269 got the post of “amīn and scribe of the Saracens” at the small town of Chelva in Valencia.^[8]

At Calatayud in 1278 the local faqīh, or jurist, named simply ‘Alī, who held a court “for adjudicating quarrels and cases that are or will be brought by Christians and Jews against Saracens of your jurisdiction [alfaquimatus],” received also the office “of making all Arabic documents [cartas sarracenicas],” a monopoly not to be entered by “any other amīn or ṣāḥib al-salāt, throughout all the land of your alaminate” or amīn jurisdiction.^[9] King Jaume I issued clarifying legislation for the Muslim community at Lérida in 1274, couched as a privilege and therefore responding to Muslim sensibilities; if a Muslim died “without an heir,” the crown was to seize half of the estate and the Lérida Muslim community the other half. This applied to both men and women.^[10] At fourteenth-century Huesca in Aragon proper, M. B. Basañez Villaluenga finds that the combined offices of amīn (a principal administrative overseer), ṣāḥib al-ahkām or ḥākim ( a secondary judge, the zabalaquén to Christians), and scribe all went to the same person, with some exceptions. The recent study by Basañez traces the careers of fifteen Muslims who exercised the triple office at Huesca from 1259 to 1391 as well as a number of other Muslims to whom these luminaries subleased the scribal office. Nearly all, at both levels, were local men, and the holder of all three offices in 1383 complained that qualified scribes were hard to find and keep at lease in that town. Under Jaume II the triple office there was often reassigned on a yearly basis. A typical tax or fee to the crown was 54 Alfonsine gold morabatins, 30 of them for the scribal office itself.

Huesca’s scribe, the ṣāḥib al-wathā’iq, turns up in a complaint in 1301 by the Muslim community to the king when the Christian officials at Zaragoza passed an ordinance reserving to Christian notaries all contracts or instruments between Muslim and Christian or between Jew and Christian. King Jaume II set up an inquiry. Huesca’s scribe becomes visible in the crown registers again in 1340, when a Christian official cut the scribe’s salary, provoking a suit by the Muslim community; King Pere the Ceremonious voided the official’s act and removed him. In 1361 an individual held the office alone, though the mechanics of distribution make even this case seem to show one original holder for all three functions. Later in the century the crown addressed complaints by Huesca’s Muslim community that some of their members avoided making a contract with its fee or else had a document drawn for them by a nonscribe. In either case, the crown decreed in 1370 and 1371, this fee-avoidance was to incur the huge fine each time of a hundred gold morabatins.

For the Valencian kingdom M. C. Barceló Torres has described the stream of official documentation generated by the qāḍī office of each region, with Arabic as the “official and public language.” For Lérida Josefa Mutgé has transcribed royal charters of 1263 and 1370 appointing Muslims to the conjoined offices of qāḍī and scribe. For Navarre Mercedes García Arenal has found that the scribal office tended to be held for life, to run in certain families, and as “a position of extraordinary importance” to be both prestigious and profitable. In contrast, John Boswell felt that he had found evidence of extensive Christian and even Jewish incumbency in Aragon. Though the Fueros of Aragon insisted on Muslims holding the office, Boswell argued that the community scribe “was generally not a Muslim before 1360.” He cited a Christian notary for Muslims at Calatayud in 1356, at Teruel and Daroca in 1354, and a Jew and then a Christian at Crevillente in 1358. By 1400, he concluded, “most aljamas [Mudejar communities] could choose their own scriptor” (a development Mutgé denies for Lérida) and “he was always a Muslim.” This seems a misreading of the evidence. Such situations were probably neither anomalous nor normal but reflected one of three occasions: a Christian or Jewish scribe licensed for non-aljama and especially commercial contracts, analogous to the Liber Iudeorum phenomenon; the translator-scribe for crown tax or other extra-aljama transference “en chrestianesch”; or the reward or sale of an office to an unqualified holder of the revenues who then subleased to a Muslim, as could happen with any crown revenue source. An abusive intrusion was possible but rare, as in the cases transcribed for southern Valencia by M. T. Ferrer i Mallol with the Muslims protesting.^[11]

The researches of Asunción Blasco Martínez are particularly pertinent here. Confining herself to the upland kingdom of Aragon proper and to the fourteenth and fifteenth centuries, she has assiduously gathered archival information. “The results are hardly spectacular,” she confesses, with documentation “very scarce,” so that “there is hardly any data.” Despite this modest disclaimer, she has accumulated a database of eighty-eight notables of the faqīh stratum, each with his Aragonese place and chronology within those two centuries. At that time and place the title faqīh suffered from imprecision, designating not necessarily a jurist but any Muslim of some learning in rhetoric, theology, jurisprudence, or the like. Even when only a local rich man, pedagogue, or cult leader, however, he enjoyed a relatively elevated status. Blasco Martínez finds that “the majority of scribes, if not all,” appointed by the king also held that higher title. Whether most or many of the eighty-eight so titled and surviving in the records, conversely, could function as scribes even in the more backward rural setting of Aragon, is problematic. As for the scribal procedures, she adds, “practically nothing is known.” Blasco Martínez transcribes several documents that may contribute toward clarifying the function. And she particularly discusses the reform of 1360, by which the Cortes canceled at least in theory Aragon’s law that forced Muslims to use a Muslim rather than a Christian notary; the following year King Pere IV considerably restricted the new freedom by decreeing that “the Saracen alfaquini and scriptores appointed by Us” in royal places must be used for documents between Muslims. Presumably all such instruments were still redacted in Arabic there.^[12]

As with the Jews, Muslims did not know “the Roman and modern idea of a unilateral testament” but did have a common and widespread practice of terminal dispositions. In fact, Islam had a testamentary “science of the shares” so complex, with sophisticated mathematical formulas so predominant, that the great Ibn Khaldūn characterized it as “noble” and “a discipline in its own right.” Its theory designated primary heirs who had to receive a minimum of two-thirds of the estate, as against secondary heirs or legatees who shared a maximum of one-third. Compulsory entitlements dictated the fractional shares that could come to each member of the family as well as the inheritance lines for males with priority claims on the residue. A recent juridical analysis of the origins of this theoretical structure began from the study of “intergenerational transmission of property in medieval Islamic Spain and North Africa,” which revealed “the wide range of legal fictions to circumvent” the effect of the rules so as to leave property to whomever one wished and in any proportion. That this clash of theory and practice is visible in the genre of the fatwā, or authoritative moral decision, rather than in a corpus of Spanish or Andalusī wills suggests that the general testator may have remained more orthodox in actual inheritance strategies. The complexities and local variations of properly Mudejar testaments, precisely in the Catalan lands, can now be examined in The Book of the Sunna and Sharī‘a of the Moors just discovered, done in Catalan and Catalan translation from Arabic in 1408, apparently by a Valencian qāḍī.^[13]

From the moment of conquest, King Jaume I had not hesitated to intrude as a court of appeals for his Muslim subjects. A celebrated trial over water rights between the towns of Eslida and Uxó, which had been adjudicated by Muslim courts under two previous Muslim rulers, found its resolution under Jaume, acting precisely as successor to those rulers. The registers do have cases of Muslim criminal activity against other Muslims finally reaching the king’s court. And Muslim officials did appeal to the crown in intractable situations or when they felt aggrieved. No Muslim testamentary records exist in the crown registers, however, and there are no Muslim Latinate wills in notarial codices.

Several reasons converged to block such testamentary activity by the king’s Muslims. The traditional populations of Mudejars in the realms had been rural and craft people in the Aragonese highlands or at the Aragonese border (Lérida) or on the Valencian frontier (Tortosa). The highly urban and commercial society of Islamic Valencia was too recently conquered and incorporated, its city notables often gone away to Granada or North Africa, with rebellions echoing through the thirteenth century and into the fourteenth. Islamic and Christian societies faced each other in too raw a state, with no customs yet evolved to soften the outrageous rule by the infidel, a situation seen by Muslims as perhaps transitory. As large an obstacle was Islam’s science of inheritance, with its own rigid rules and the need for a skilled mathematical interpreter. In the sophisticated Valencian kingdom too, where Muslim wills might reasonably be expected in quantity, the language barrier was formidable and the cultural divide consequently wider.

The Jewish population in the realms, however, had long been reconciled to gentile sovereignty in both theoretical and practical ways. The Jewish communities constituted full societies with their notables, financiers, and other high strata intact; they lived in mercantile-contractual patterns that mirrored and meshed with the Christian society around them, had immemorial experience in adjusting to that society while conserving their own, and above all spoke and dwelt in the same language with all the subtle acculturation that implied. Particularly in the matter of wills, Jews had more options. Under Islamic rule Jews found Muslim testamentary regulations confining and sought to avoid getting caught in them. On wills “Jewish law was more liberal than Islamic law,” Goitein notes, and the Koran “contains a far more detailed legislation on inheritance than the Hebrew Bible,” so that “freedom of disposition was limited by a written law to a far higher degree in Islam than in Judaism.” In this Islamic context too Goitein repeats his caution that “testator” and “will” are technically incorrect terms, “since there are no ‘testaments’ in Islamic and Jewish laws.” The terms are appropriate only as analogous.^[14]

The Notarial Culture

Christians had governmental scribes in their chanceries and bureaucracies (many apparently hired for ad hoc work), general public scribes for the population at large, and scribes with a monopoly on some public utility. Their training, examination, and procedures were strictly regulated by law, and their title of notary was proudly borne. The documents in their registers followed set legal and rhetorical formulas and enjoyed full validity as juridical items “in court and outside,” enforceable at law. Though there was no limitation on the number of notaries, their professional guild or college in effect tended to regulate their increase. Each municipality could certify or license its own, as could ecclesiastical corporations, but the crown could license notaries both for local and municipal regions or else for general jurisdiction. Jurisdiction granted might be general, regional, or local; it might attach to some place such as a monastery, to some administrative office such as that of judge or bailiff, or to some official business such as a saltworks or a royal galley. In an earlier period some jurisdictions had been offered by parish and lay or ecclesiastical seigniory. By the reign of Jaume the Conqueror at mid-thirteenth century, there was little or no difference in the realms between notariate and scribeship as licensed and publicly authoritative offices.^[15]

In many ways the urban-commercial society of the western Mediterranean world was built around these notaries. They were not university-trained jurists, but their function was not unlike that of many American lawyers, and they were nearly as ubiquitous. Though we still lack statistical studies of the profession for the realms of Aragon, the more complete records for thirteenth-century Italian cities reveal huge notarial populations. Genoa had some 200 in the late thirteenth century, a ratio of 1 to 500 residents. This compares to the current national average in the United States of one lawyer for every 319 citizens, as reported by the Census Bureau and the American Bar Association. Bologna had 2,000 notaries, Milan 1,500, Padua 500, and Pisa 230. So numerous were notaries that many must have also pursued an alternative occupation. They filled the growing municipal and other bureaucracies and helped staff guilds and the many corporations of church and state. In Italy, Daniel Waley notes, notaries held “a quite disproportionate share of offices,” had extensive influence in politics, and were among the readiest speakers in public affairs.

Notarial culture transformed Catalan lands at a much slower pace than in Italy, but it was in full flower in the second half of the thirteenth century. Stephen Bensch notes how the number of notaries in Catalonia “multiplied with breathtaking speed” in the reign of Jaume I, so that “by the 1280s more than forty public notaries were active in Barcelona.” The population of Barcelona at its maximum pre-plague growth some sixty years later was about 40,000 souls of both sexes and all ages (smaller than many university populations in the United States), and 35,000 might be a fairer conjecture for the 1280s. If one envisions some 10,000 of these, male and often enough female adults, as constituting the regular client pool in commerce, crafts, and corporations, the ratio of active notaries to potential clients would have been 1 to 250, or for the entire population 1 to 875.^[16]

The notaries’ combination of rhetorical skills and Roman law erudition, while as superficial as the technical knowledge of many modern American lawyers, was quite adequate to their mechanical or formulaic tasks and to their consultative positions. Their services were in demand for the most varied occasions, from marriage and dowry agreements to legal procuration, to partnerships, to contracts of every sort. Commercial transactions required their authoritative instruments—leases, loans, deeds, payments, sales, transfers, authentic copies, bills of lading aboard ship, or bills of exchange. In government notaries functioned at the several layers of tax collection and customs duties, for statutes, records of legal action, inventories, administrative minutiae, army lists, licenses, notices of appointment, treatises, and treaties. Last testaments constituted only one of myriad services, distinguished perhaps by the frequency with which the moribund condition of the testator called the notary away from his public shop to home or hospital. The notarial career and its products consequently constitute an essential element in the history of law, government, rhetoric, finance, urbanism, religion, and that ill-defined but comprehensive field called social history. The notary was omnipresent in this society, not only as one of its active creators but also as its product. He helped shape the merchant society and culture as he represented and mirrored it.

The crown organized and centralized this busy scribbling scene, insisting that only crown-authorized notaries could act validly. A decree to this effect went out on 29 January 1279 from Prince Alfons in separate charters to the royal vicariates of Barcelona, Berga, Cervera, Lérida, Manresa, Montblanch, Ribagorza, Pallars, Tarragona, Vich, and Villafranca del Panadés. The form letter for Barcelona, the model for the others, ordered the vicar “that you cause to be publicly heralded, through the entire vicariate you hold for Us, that no scribe may dare use the office of notary [tabellio], except for testaments and dowry charters, besides those who hold authority from the lord king Our father or from Us, under penalty of 100 morabatins.” After the public criers had so “heralded” the order abroad, any future documents by unauthorized notaries would automatically be “null and void.” The exception for wills and dowries is significant, since these were the least commercial of possible contracts and also may well have touched the lives of more persons than did the larger mass of commercial or real estate documents.^[17] In other notices to various communities the crown was careful not to inhibit the limited notarial activities of clerics and others in testamentary and matrimonial charters. As late as 1280 the king wrote that the rector of the church at Cambrils could continue to draft “wills and marriage documents” for those who asked, despite any royal documents seeming to forbid this.^[18]

Theoretically neither a cleric nor a Jew could be a notary, and a “testament before a priest” was authentic but non-notarial. Real life proved more variable. A pertinent example of the special notariate was the post awarded in 1264 to “Astruc Azarel, a Jew of Lérida,” for life in the scribania of Lérida’s municipal office of weights.^[19] The unusual assignment of a Jew suggests that Arabic/Latin bilingual skills were needed there. A pool of such bilingual Jews supplied the Arabic section of the crown chancery as well as envoys to Muslim powers and translators for the king’s surrender negotiations and for rendering Arabic scientific treatises into Latin or Romance. Another example of a Jewish scribe in a general public office was the appointment of “Mossé el Neyto, a Jew of Jaca,” in 1272 for life, to “the secretariat of the public granary of the town of Jaca and the office of measuring at the same granary.” Mossé’s identification here seems to be either as grandchild (Aragonese net, Catalan nét, Castilian nieto) or as clean and pure (Aragonese neto, Catalan net, Castilian neto), the Arago- Castilian suggestions posed because of his identity as from Jaca in Aragon.^[20]

A special and very profitable notariate went to Jahudà, the son of the Barcelona patrician and courtier Astruc Bonsenyor. Acknowledging that Jahudà was “suitable and competent at understanding and drafting debt-documents done in Arabic by Saracens, namely, for those who go abroad to Saracen lands, or who obligate themselves to pay certain amounts to some persons in those lands, and that those documents will be better written and understood among the said Saracens if they were written in Arabic rather than in Latin,” Jaume II conferred on Jahudà a monopoly “of such debt documents done in Arabic in the city of Barcelona and its territory,” documents that thus “gain validity as done by public authority” as long as they are “written by your hand and you have put your signature to them.”^[21] This last proviso was diametrically opposed to the common permission, or sometimes understanding, that a notarial post could be subfranchised by the holder or that assistants could expand its activity. Doubtless the need for exactness here, and the danger of assistants less able, prevailed.^[22]

A common form of special notariate was a local monopoly on Latin charters involving Jews with Christians; these appear in a number of appointments and account for the Liber Iudeorum often found in municipal archives.^[23] Like all monopolies, this one was resented, challenged, and often forced back into the general competition. In 1257 King Jaume had to reassure the Jews of the Catalan tax collectory of Barcelona-Tarragona that “all your documents made or to be made at the hands of priests or any other ecclesiastical persons licensed for the office of scribe” would have “full validity in every respect whether in law or outside law, as though they were made at the hands of public notaries [tabelliones] in our courts of jurates.”^[24] Eight months later he specifically revoked the monopoly appointment “of a special Jewish notariate to Pere de Colomer.” Described elsewhere as “a scribe of the lord king,” Pere had apparently won this monopoly as a perquisite of royal service. From now on, as part of its “pristine liberties,” the Barcelona “community of Christians and Jews” could “freely draft charters and whatever other writing you want with whatever scriveners or notaries of Barcelona you want, despite any concession of a special notariate made by Us to anyone.” The linking of Colomer’s revocation with the “pristine liberties” of the wider community marks this document as concerning business between Jews and Christians. The king further revoked “any other grant We made of a special notariate at Barcelona for charters or other writings of Christians or also Jews, firmly decreeing that We or Our successors may never confer or concede to anyone a special notariate in Barcelona.”^[25]

The privilege was not general in the realms. In mid-1260 King Jaume presented a charter to the Aragonese Pero, son of Poncio Guillermo of Jaca, “that he is the notary public of the Jews of Jaca.”^[26] At Egea in December 1263 the king gave Simó (Aragonese Simón) Gil of Egea “the notariate of the Jews of Egea all the days of your life, in such wise that you or your delegate may draft and make all instruments of debt and other contracts which will be made or drafted between Christians both of Egea and other places and the Jews of Egea.” The monopoly warned that “no one besides you or your delegate may dare from now on to make or draft the said documents, which if drafted have no validity.” The crown fee was 20 sous annually, half on the feast of John the Baptist and half at Easter; the fee for his clients was set at “whatever other notaries are accustomed to receive and have.” Christians and Jews, present and future, had to respect this monopoly.^[27]

The arrangement lasted over ten years. Then in 1275 Jaume granted “to each and every notary of the town of Egea, present and future, that the Jews of Egea present and future can draft their charters of debt, and whatsoever other charters they shall make with any person, with whatever public notary of Egea they wish.” This was repeated in negative form: no one could compel these Jews to work “with one notary alone or with whatsoever public notary or notaries of the town,” despite any contrary grant. The notaries themselves seem to have sought this antimonopolistic privilege, and as a body they now had to pay the crown annually on the feast of Saint Michael 30 sueldos of Jaca.^[28]

Special notariates for Jewish-Christian business continued to function in other towns, however, and it is hard to say which pattern prevailed in Jaume’s reign. Barbastro had its own pattern, as small towns probably did. In 1272 the king appointed one man only, Bartolomé Tomàs, to “the notariate of the town of Barbastro, both of Christians and Jews, in such wise that you or whoever you want in your place may draft and write acts, testaments, and any other public instruments that Christians or Jews will have to make in the town of Barbastro.” He and he alone is to be accepted as the town’s public scribe, paying the crown a fee of 4 gold Alfonsine morabatins every Christmas. As indicated, the notary could hire or train his staff of subnotaries.^[29]

Jewish Scribes

Besides this combination of Christian scribes who handled Jewish-Christian business, or indeed any affair between Jews alone that came before them, the Jewish community itself had a special scribal office for documents in Hebrew. This office would also have written documents in Aramaic, then still surviving in legal literature and documents. David Abulafia particularly calls attention to “the use of Hebrew script for Aramaic ketubot or marriage contracts.” Any language in the Jewish communities of Spain could also be written in Hebrew letters, the phenomenon called aljamiat, Castilian aljamiado. Arabic, Castilian, and Catalan could appear in this writing system, and in fact a will survives in Hebrew-script Catalan by one Auro (doubtless Judeo-Catalan Aaró) at Monzón near the end of the fifteenth century. Hebrew was the common language for official documents in the Jewish communities of the realms of Aragon at this time, however, and our one surviving but partial will from such a Catalan community is in Hebrew. Christian authorities probably did not bother, and may often have been unable, to distinguish between documents in Hebrew script. Yet Christian authorities did not employ “Hebrew” or “Jewish” as an umbrella term for all writings by or about Jews. Their descriptive terms are linguistic in this context, as with the corresponding Arabic carta moresca or escrites en sarrïnesc. In my own documents I have not noticed any distinction between instrumentum iudaicum, hebraicum, or even Iudeorum; all three seem synonyms, usually as rhetorical couplets, for whatever mixture of language and Hebrew script. Whether in the Hebrew or Hebrew-script sense, such “Hebraic” items can justly be translated here as Hebrew and in most cases were probably in that language as well as script.^[30]

Goitein has described the Jewish scribal function in the early medieval Mediterranean. Besides the salaried community bureaucrats for official records and correspondence as well as the professional copyists, the sōfer was an “all-around Hebrew scribe” able to serve in the first two categories but especially available for a fee to draft marriage, dowry, divorce, commercial, power-of-attorney, testamentary, commercial, promissory, or other documents and contracts. Goitein does not see these men as appointed or even exclusive; the will of al-Wusḥa from Fustat (or Old Cairo) which he describes at length, for example, was written by the cantor and court clerk Hillel b. Eli. Though all male Jews read some Hebrew, not all wrote, particularly in the calligraphy and legalese proper to a witnessed public or semipublic statement. In King Jaume’s Arago-Catalonia it is not clear to what degree the average Jew could compose and write in Hebrew or Aramaic. Even in an Islamic world relatively more advanced and affluent, the art of writing in the Jewish community was rather for “future government officials, physicians, scholars, and merchants.” As against the “far more widespread” reading, writing “was the distinctive mark of a person belonging to the professional or higher classes.” While “women were for the most part illiterate,” for men the “cursive used in documents and letters required unusual exertion,” for those “capable of mastering it at all.” Even those who had mastered the art might prefer to employ the skills of an amanuensis or a clerk.^[31]

The scribal function within a Jewish community of Arago-Catalonia was assimilated in Christian records to the notariate (scribania) in name and within that local Jewish community theoretically in juridical effect. The office was more stringently organized and official than in Goitein’s times and places. The Hebrew scribe for common documents for any local Jewish public in Arago-Catalonia was a salaried bureaucrat in charge of both communal and private legal documents; he was a secretary to the community, presumably able to hire assistant scribes. The responsa^[32] of the celebrated Barcelonan rabbi of the thirteenth century, Solomon (Catalan Salomó) Ibn Adret, contain a clear picture of this dignitary. Many places saw the cantor assume the role. Some places had two scribes. At Lérida Jewish communal ordinances had to bear the scribe’s signature plus that of a witness. Another community would not recognize any communal or private document as valid unless the scribe had drafted it. Private documents might require both his signature and those of two witnesses actually present. Since Christian authorities at one place accepted the Hebrew document on the scribe’s authority alone, the community wished to follow suit and dispense with the usual witnesses; Ibn Adret approved this course, though the Lérida community did not accept the practice.

The Hebrew scribe kept a record book like the Christian notary.^[33] He would of course have followed the Jewish calendar.^[34] If the general pattern of Jewish scribes elsewhere had an echo in the realms, then each of the Jewish administrative offices in larger communities might have had its scribe (particularly a scribe as court secretary and recording clerk), and an affluent family might have supported one at least as a copyist. Ordinary or private copyists would have filled a function very different from the central public figure the king’s registers depict. The three Jews who respectively signed Christian debt instruments at Barcelona as scriptor in 1248, 1280, and 1282 may have been private scribes rather than the public functionaries.^[35] Conversely, the scribes who wrote up the “books of administration of past” governance, within the community, were probably officials.^[36]

We know little of the external testamentary context for Jew or Christian. Josep Pons i Guri tells us that the general custom in Catalan lands was to insert a will in the register only after the testator was defunct.^[37] The monumental work on the Spanish notariate by José Bono describes the will post mortem scribendum as oral before death, with witnesses, the written document coming later; this procedure of Visigothic origin, however, may have been rather a local behavior, as at Lérida.^[38] The Valencian Furs, which provides so much testamentary detail, treats both a dying person dictating a will in the presence of a notary and three or four witnesses (not the seven prescribed by Roman law) who can see and hear all the proceedings as well as the case of an oral declaration without a notary but with three male witnesses. In the second case the witnesses were to record the declaration in front of a judge and more witnesses within three months, a version of the testament sacramental seen in chapter 1.^[39] The testament thus scribbled (and which we have today in the notary’s codex) would have been drafted as a charter and presented to the executors and heirs on the third day after death. The most suitable and worthy of heirs received this copy; but co-heirs and legatees could acquire extra copies “when they wish,” presumably at the same stiff fee of 2 sous apiece. Sometimes the notary had two books: one for the nota, or abbreviated draft, and one for his fuller copy.^[40] No one under fifteen could make a will, and no one under twenty could administer his own estate. It is hard to say how many such rules bound a Jewish testator making a Latinate will. Perhaps Jewish law and custom took precedence in substantials, but the mechanics of drafting and all the practical matters must have applied equally to Jew and Christian.

Obviously the Jewish scribe was a “notary” only in a sense analogous to the Christian, since the juridical and social contexts defined the two so differently. Spain’s Hebrew scribe, as Abraham Neuman notes, “followed earlier forms of talmudic and geonic origin, but also incorporated changes that grew out of the European background and showed more particularly the influence of Spanish development.”^[41] Since a Jew was active also in the Christian world, and contracts or acts there fell under the licensed municipal notaries (even under the special notary for Jewish-Christian instruments, as seen above), the king at times restricted the Hebrew private acts to marriage and testamentary documentation, if they were to be recognized as valid beyond the Jewish community. The limited records make it difficult to say how general was the practice. The varying and fluctuating patterns of medieval Christian administration may help explain why a Jew would record both a Latin and a Hebrew contract, especially a will. Such double documents were not bilingual versions, one a translation of the other, but each was rooted in its own juridical tradition and expression. An opposite form of crossover could occur when a Christian voluntarily preferred the Jewish court and records.^[42]

The sōfer office appears in a crown privilege of 1271 to “all the Jews of Gerona and Besalú and of other places belonging to their [tax] collectory, that in your contracts of marriage or matrimony between any man and woman, you may draft and cause to be drafted Christian [christianica] or Hebraic documents” concerning any phase of promise, dowry, gift, or marriage, according to their customs. They could also make any charters of sale, purchase, or rent “both between a Jew and a Christian as well as between a Jew and a Jew.” The king orders “scribes who draft documents in Hebrew,” as well as all notaries of those places, to respect this arrangement. A waiver attached here suggests that local notaries had resisted this freedom, occasioning a particular statement of a general arrangement.^[43]

Crown letters speak of “the rabbis or scribes of the said local community [aljama], secretaries, tax collectors, as well as leaders” and “the rabbis or writers [scriptores]” who held “the scribal function of the tax collectory or tax chests.” The term rabbi at that time and region could involve a community function (religious leader, judge, shoḥet-butcher, teacher of children) or simply serve as a mildly honorific title; David Nirenberg suggests that rabbi corresponded roughly to the wide range of meanings of the Christian term clericus.^[44] The Jewish communities of Aragon (though not presumably those of Catalonia) received from King Jaume the Conqueror the right of privacy for all their community documents, even against the king: “Never from now forward would he see or cause to be examined the charters or secret documents [secreta] of the said Jews.” When Jaume II in 1300 sought to examine tax records in a case of suspected tax fraud by Zaragozan Jews, community leaders blocked the move by presenting the original charter of 1271 from his grandfather, and they even got the privilege confirmed.^[45]

Another insight into the record-making activities of the communities comes from the city of Valencia. In 1318 Jaume II had given to Jahudà Adarra and his descendants forever the Jewish scribania of Valencia city, at a permanent lease of 2 gold Alfonsine morabatins yearly. By this “hereditary lease” (Catalan enfiteusi) he was “the only scribe and no other, of the said aljama; and you are to write, or cause to be written through a suitable substitute, all the documents and other Hebrew writings of whatsoever kind of contract.” He should “not designate or make anyone overlord [proprietarial landlord for the office] except Us and Ours, although it is permitted to you and yours to sell, assign, or alienate the aforesaid notariate [scribania] to one of your own condition [tuo consimili], thirty days after giving Us or the bailiff-general of the kingdom of Valencia the preemptive option for buying [Catalan fadiga],” thus always respecting the crown’s ownership, rent, and option to repurchase. The contract is instructive, showing that this was a specially authorized scribe serving the general Jewish public, not to be confused with scribes serving administrators of the community or involved in literary or less authoritative copying. Jahudà has a monopoly (“you alone and no other are to be the scribe of the said aljama”). Since the Valencian community was large and busy, the “office” resembled similar grants of public functions in envisioning the establishment of one or more professionals, supervisors over journeymen scribes. The hereditary nature of the office, its odd combination of feudal fief and investment property, and its wholly alienable nature all deserve remark.^[46]

As in many grants of public utilities to Christians, Jews, or Muslims in the realms, the beneficiary was expected to employ or subcontract to professionals who would do the actual work. After receiving the contract, Jahudà therefore “established or substituted in the said scribal office two Jews who drew up this kind of document,” namely, those done “in Hebrew in the Jewry of the said city, between the Jews of the same community, among themselves or with others.” But Jahudà neglected to supervise them properly. During the next decade “these substitutes took excessive fees from those Jews for whom they made the writings.” Even worse, payment of the fee did not necessarily secure a document, “but they have to pay again.” The irate customers had recourse to the crown. In April 1327 Jaume II commissioned the community to set the fee and to take any necessary steps to forestall “any extortion” or excess, as well as to see that documents were prepared “in a short time and without malicious delay.” The community “may vigorously enforce” all this by such penalties as “removal from the said office or from its exercise, and some other added punishment.” Then the king added a proviso that tax records, a special category, “are to be made by a Christian notary and not by a Jew, so that anything decreed or ordered about these can be easily found, and that nothing can be added or subtracted or changed about them.” If the Catalan and Valencian Jews had the privilege of keeping their documents “secret,” as the Aragonese communities did, no record survives of their challenging the king’s intrusion here.^[47]

The community “notary” turns up in a number of contexts in the realms. Sometimes we have little more than his name, as with “Rabbi Jucef ibn Jacob [Joce Avenjacob], scribe of the said aljama of Zaragoza,” or another man appointed at Uncastillo to be both “rabbi of the aljama and also writer of documents between Jew and Jew.” In the case of Lérida, the appointee “can make Jewish charters and writings with legal force within and outside of the aljama.” In another “the Jewish parishioners of the main synagogue” at Zaragoza raised questions about the salaries of “the notary” and the rabbis.^[48] An unusual incident in 1314 involved “Rabbi Azaria, physician [and] writer or notary in the Jewry of the Jews of Zaragoza,” who “of necessity had to attend to visiting the sick and therefore could not attend to the exercise of the aforesaid office of notariate.” Azaria petitioned the crown to have a substitute named, through whom he could continue to provide the notarial service, such a substitute being in accord with general past custom. The king graciously concurred.^[49]

Finding that the sōfer in the realms of Arago-Catalonia is “a theme systematically marginalized” by scholars, Asunción Blasco Martínez has gathered some data in an article on that scribe’s role in the upland kingdom of Aragon. With information unavailable there for our thirteenth century, she has focused on the very different fourteenth and fifteenth centuries. In general the second half of the fourteenth century saw major changes in the Aragonese aljamas or Jewish communities, a trend affecting also the scribal function. Earlier in the century the situation had been more free and irregular. Scribal production at a given community and time did not always enjoy quasi-notarial standing in both Jewish and Christian acceptance, and the communities enjoyed more freedom or input in selecting the scribe. As early as 1301 Jaume II had decreed that documents involving a Christian party must go into a Christian notary’s register. (And in 1317 he limited the number of Christian notaries at the capital city of Zaragoza to only forty.) The Cortes of 1360 allowed Jews to choose any Christian notary, however, thus voiding attempts by various cities to confine much Jewish business with Christians to a monopolist Christian notary. A significant change came in 1389 when Joan I limited the doubly recognized sōfer-notary to one per community and reserved his designation to the king. The Hebrew title itself appears now also in Latinate form. In 1424, for example, at the petition of the Calatayud aljama, the king designated Açach (Isaac) “as sōfer [in çoferium] or notary” for all testaments, contracts, or other documents, by him or his assistants for anyone, to be fully recognized also among Christians in and out of court.^[50]

Were the Christian notary and the sōfer rivals for business? Doubtless in some places the two offices went their separate ways, each registering its own Jewish customers. But it was also not uncommon for a Jew to have his testament or sales contract or debt drawn up by both authorities and in both languages, especially in legal transactions between Jews and non-Jews. The double context of such documents had some acculturative effect. Abraham Neuman, citing the celebrated thirteenth-century rabbi Ibn Adret, notes that “it is highly significant that notarial reforms were occasionally introduced in Jewish community practices emulating the example of the gentile courts.”^[51]

Crossover: Jews in Christian Wills

A form of crossover not related to Jewish wills directly but inviting exploration as part of the wider story of Jews and wills is the appearance of Jews within Christian wills. Jews turn up as legatees, witnesses, creditors recovering sums, agents acting for a will’s executor, or simply someone who finds himself enmeshed in the deceased’s unfinished business. These several functions may be sampled in the collection of thirteenth-century wills at the cathedral of Barcelona. For example, “I Bonajeua [Bonyuas in the manuscript], nurse of the deceased [Christian] Bondia Farner,” gave a receipt in August 1273 to Bondia’s heir, Guillem de Banyeres canon of Barcelona, acknowledging the eight pounds in Barcelona money Bondia had left her.^[52]

In a different situation the Christian Romeu de Sabadell and a Jew named Rúben de Castelldàsens, “public and sworn brokers [cursores] of Barcelona city,” acting for the executors of the deceased Jaume Gruny in June 1290, had sold “buildings and a farm” in the suburb of Santa Maria del Mar by public auction, claiming for their brokerage fee 80 Barcelonan sous from the price. The three witnesses to their payment included “Isaac Leví a Jew.”^[53] This sort of intervention must have been common, since Jews as well as Christians were commissioned or licensed as public brokers in purchases and sales. The actual auction and sale apparently took place in 1286, though this receipt for the brokerage fee is dated 1290. An allied operation by the same executors for the same deceased involved a member of an important Barcelona Jewish family. In 1286 this “Abraham Cap, son of the deceased Samuel Cap,” acknowledged receipt of 154 Barcelona sous and 5 pence from those executors, through the bank [tabula campsoris] of Ramon Fiveller, drawn from that previous sale price, as payment toward retiring a debt the deceased and his wife Sança owed to Cap for both “capital and interest.” The Catalan surname Cap stands for Hebrew Rosh.^[54]

A different mingling of Jewish and Christian testamentary business was the loan in 1278 by Salomó, son of the deceased Abraham Adret, to a Christian man and wife “out of the money of the heirs of the deceased Isaac Adret,” amounting to 78 sous “counting capital and interest.”^[55] An adventitious curiosity attaches to this document from Barcelona’s cathedral archives in that the principal is Salomó d’En Abraham d’En Adret or Ibn Adret, one of the greatest Jewish scholars of his generation in Spain, chief rabbi of Barcelona, and a great power at the king’s court. The Christian principals in the 1290 testamentary transaction in the Barcelona suburb, commented on just above, were notable in their own way—the Gruny, or Grony, family were prominent in crown affairs and as wealthy patricians. Such involvements could be multiplied, since there are so many Christian wills surviving as opposed to Jewish.^[56] Their relevance here is the widespread Jewish participation in and familiarity with the ubiquitous Christian testaments. This phenomenon must have been a disposing or reinforcing cause for the multiplication of Jewish Latinate wills.

Notes