Around 1475, an enterprising German printer named Paul Huras, from Constance, set up business operations in Zaragoza, Spain. For the next twenty years, Huras and various partners produced a steady stream of literary and religious texts, including newly commissioned Latin translations of Hebrew bibles from Castile.Footnote 1 One of the first books to emerge from his press, though, was an edition of Aragon's entire code of public and civil law. On 22 October 1476, Huras and his partner, Heinrich Botel of Saxony, signed a notarized contract to produce, within six months, a printed edition of the Fueros de Aragón.Footnote 2 The volume that Huras ultimately produced contains 300 folios and includes fueros that were approved and promulgated by various monarchs in conjunction with Aragonese parliamentary assemblies from the thirteenth through the fifteenth centuries. The first eight books of the volume comprise fueros that were first codified by King Jaime I around 1247. Known as the Código de Huesca (hereafter, Código), this body of fueros would become the nucleus of the Fueros de Aragón as they were expanded and reissued through the early eighteenth century. Included at the end of the Huras edition is a thematically organized collection of observancias, or judicial interpretations, that were in wide use by judges and other officials who were empowered to issue rulings.Footnote 3 For the most part, we do not have explanations of the ways in which groupings of laws were formally considered, adopted, and promulgated in major Aragonese assemblies throughout the Middle Ages. An exception is the detailed prologue from King Jaime's Código that offers a narrative for the process of codification. This essay is concerned with that narrative.
The prologue of the Huras edition explains how Jaime set out to regularize the law and the administration of justice and how he did so in collaboration with a general assembly held at Huesca in early 1247. During Jaime's lifetime, the norms for meetings of the estates of the kingdom (i.e., the barons, prelates, knights, and town representatives) were not yet fixed as the Cortes, and this would not happen until well after his lifetime. King Jaime frequently summoned assemblies in Aragon, Catalonia, and Valencia as an outgrowth of the royal curia or court, thus sources from his lifetime use terms such as general court, plenary court, or general curia to describe large meetings. They were convened by the king to give counsel and consent for matters of great importance, such as extraordinary taxation or the issuing of territorial legislation. Even though Jaime suffered a number of Aragonese rebellions, the historical record suggests that, save during a turbulent period in 1264 and 1265, Jaime's major assemblies in Aragon tended to unfold in his favor.Footnote 4 Specifically, Jaime bolstered his authority to govern, penalized those who defied him, and imposed taxes or revalued the coinage. Moreover, he centralized a number of local government functions and sharply curtailed the practice of law by foristas, who acted as legal experts and judges but had no formal training in the law. The end result was gradually to weaken local administration and expand royal oversight. The prologue to the Huras edition reflects the mostly harmonious dynamic between Jaime and his Aragonese subjects in the context of general assemblies and their willingness to tolerate his expanding authority, but it obscures a more complex picture of what certainly happened when the fueros were codified. Later political developments have shaped interpretations of Aragon's constitutional beginnings in Huesca in 1247, and the Huras text has played an important role in those interpretations.
Historically, the Fueros de Aragón have been regarded as far more than a collection of indigenous legal norms. They are also understood to be an entire juridical system rooted in a pact that balances power between a ruler and subjects, or a government and its citizens.Footnote 5 This concept, known as pactismo (pactism), frames law not as an imposition but as a negotiated construct, and it is an enduring characteristic of Aragonese political and cultural identity.Footnote 6 The Huras prologue affirms the manifestation of pactism in the codification of the Fueros de Aragón because the narrative confines all of the work of debating and producing a text to a brief meeting in which the king's pretensions could be checked by his subjects. However, the explanation that it offers is implausible. By limiting the complex work of codification to the span of an assembly, the prologue masks King Jaime's exercise of his prerogative in radically transforming both written law and the administration of justice to his advantage with a code largely of his own making and that he promulgated.Footnote 7 This essay proposes to scrutinize the broader textual tradition that has more to tell us about King Jaime's effort to codify the fueros, including his agency throughout the process, the involvement of the assembly in approving the contents of the code, and time to completion. Given the outsized influence of the Huras edition, though, I begin with a brief discussion of its limitations.
Narrowing the Tradition
The Huras edition is important for having preserved and transmitted the medieval Fueros de Aragón. However, both the prologue and the incipit to King Jaime's Código as found in the Huras edition offer up some influential misdirection regarding the origins of Aragon's constitutional tradition. Huras's printed text is based on a single source: a paper manuscript of the Fueros de Aragón that was completed less than a decade before he and Botel signed their contract to print in 1476.Footnote 8 However, given that Huras used a single exemplar for his edition, none of the variants from a number of other manuscript traditions, Latin or romance, were captured in the printed text. The manuscript that Huras reproduced offered only one iteration of the evolution of the Fueros de Aragón over centuries, and that one iteration became the officially sanctioned version of the kingdom's entire corpus of derecho foral. Even though Huras's work was the result of a private contract that had no imprimatur from the Aragonese Cortes, the contents of the 1476 incunabulum subsequently became the basis for official versions of the Fueros de Aragón that would be expanded, rearranged, and reprinted many times up through 1667.
The substance of the fueros themselves is not at issue, for the Huras edition, its exemplar, and medieval manuscripts of the Código reveal a collection of about 350 individual fueros from King Jaime's lifetime that are relatively consistent from one text to another.Footnote 9 What is not consistent at all among the texts, though, are the prologues, and it is the prologues that explain King Jaime's efforts to codify the law. The various prologues offer multiple explanations for his legislative impetus and the process by which he and others considered old fueros or made new ones for Aragon's first code. Although thousands of individual documents and letters survive from King Jaime's reign, as yet no other source has emerged to shed light on the emergence of the Código: no summons to the meeting, no letters of promulgation to accompany a text of the fueros, and no correspondence among the king, his chancellor Bishop Vidal de Canellas, and any local experts in derecho foral, known as foristas, concerning their labors. In fact, outside of the evidence offered by the prologues themselves, we cannot otherwise confirm the king's whereabouts for a five-week period from 23 December 1246 to 1 February 1247.Footnote 10
Beyond printing the fueros that had been adopted from the thirteenth through fifteenth centuries, Huras also reproduced, and thereby codified, a minor editorial element that had made its way into a handful of manuscripts including his exemplar. He printed the formulaic incipits that were devised to provide a very brief context for each monarch's contribution to the Fueros de Aragón. The oldest manuscript known to have contained a detailed incipit for King Jaime I is Madrid4, from circa 1335, but the incipit to that prologue is now lost; the others are from the fourteenth and fifteenth centuries.Footnote 11 The incipits name the ruler who was responsible for promulgating each grouping of fueros, along with the place and date of the meeting of the Cortes that issued them. As such, the incipits are very helpful for demarcating sections within texts of the Fueros de Aragón, but I argue that they paved the way for a persistent misinterpretation of what likely happened when the fueros were codified in 1247 because they came to stand in for the longer explanation found in the prologues. The Huras incipit reads as follows: “Here begin the fueros edited by Lord Jaime, king of Aragon etc., in the Aragonese curia celebrated in the city of Huesca, which were made public 6 January 1247.”Footnote 12 This incipit only offers 6 January as the day on which the Fueros de Aragón were made public, but it effectively — and incorrectly — collapses the story of the broader effort that must have led to the “bringing forth” of the fueros.
Although the incipits appear to have been intended only as editorial devices, they came to serve as abbreviated explanations of the genesis of each grouping of fueros. In King Jaime's case, the Huras incipit would be borrowed by generations of future writers without apparent reference to the prologue itself. That borrowing perpetuated a mistaken assumption about what happened at the assembly: namely, that all of the activity of considering and approving the fueros, crafting a complete written volume, and promulgating the text as Aragon's fundamental law, was condensed into a few weeks at most or even a single day. This scenario is simply not plausible, but it was nevertheless taken at face value. In the mid-sixteenth century, the Aragonese historian Jerónimo Zurita repeated and recast the Huras incipit in two highly influential works.Footnote 13 Less than two decades later, Jerónimo Blancas y Tomás, Zurita's successor as official Crown historian, followed in his footsteps.Footnote 14 Scholars from that time forward have continued to repeat or rephrase the incipit that Huras first printed and that Zurita and Blancas disseminated, most often when they were simply trying to summarize King Jaime's efforts to codify the fueros. Turning back to the complete prologues that reflect the broader manuscript tradition can offer a way forward for understanding the nuances of codification.
This essay analyzes a total of seventeen prologues of King Jaime's Código that are found in a heterogeneous collection of medieval manuscripts and two printed texts. Very few manuscripts have survived relative to the number that must have been in circulation throughout the medieval and early modern periods, given that working copies or handbooks would have been in use by judges and other officials all across Aragon from 1247 onward.Footnote 15 The goal is to consider the range of evidence offered by all of the prologues that speak to the creation of the Código. The prologues to the Latin and Aragonese versions of Bishop Vidal's commentary on the Fueros de Aragón are included because the Latin original, known by its incipit In excelsis Dei thesauris, was created in tandem with the Código.Footnote 16 The only manuscripts that were omitted from consideration for this essay are those known to be exact copies of others or that are of such poor quality as not to be useful.Footnote 17
Antonio Pérez Martín's edition of the Fueros de Aragón uses the first printed version of 1476 as the reference text for Latin versions of the Código and compares it to medieval manuscripts and early printed texts in order to identify the most likely body of fueros as they existed prior to 1301.Footnote 18 This essay, however, privileges a romance codex, Miravete1, and utilizes it as the reference text for analyzing the prologues, primarily because it is the oldest-known complete manuscript of King Jaime's code. The prologue to Miravete1 is also the most comprehensive in terms of describing the process by which the volume was conceived and created, and it includes important details that are not found elsewhere. The appendix contains a translation of that complete prologue.
Unlike most other medieval codices that include versions of the Fueros de Aragón, Miravete1 is a self-contained manuscript of King Jaime's Código. No additional materials, such as legal commentaries or charters, are bound in the manuscript, and nothing has been appended to the text of the code as it likely first appeared, around 1247. The text comprises a prologue, a list of all the rubrics or titles, and a total of 363 fueros themselves. Not among the laws found in Miravete1, though, are the fueros that King Jaime promulgated at Ejea in 1265 and that were included at the end of all later versions of the Código. This suggests a likely composition date for the text, if not the creation of the manuscript itself, between 1247 and early 1265. The script, which appears to be the work of a single hand, is consistent with other Aragonese sources from the same period.Footnote 19 The terminus ad quem for the text is 1301, when King Jaime II approved new fueros. Jaime II collapsed Jaime I's original volume of nine books into eight (combining Books 2 and 3), and then made the ninth book his own. Miravete1, however, retains Jaime I's original structure of nine books. By its date of composition alone, then, Miravete1 is probably the oldest source to capture what actually transpired at King Jaime's plenary assembly in 1247 or, perhaps importantly, what was accepted as having transpired at that gathering.Footnote 20 As to the fueros that make up the body of the text, Miravete1 is the only manuscript of the Código to capture the novelty of King Jaime I's legislative creation, which, again, argues for a completion date relatively soon after the Huesca assembly. The text designates some fueros as new and others as old, a distinction that does not appear in manuscripts from the fourteenth century and later. Close to the time of King Jaime's assembly, though, we should assume that those distinctions mattered very much. Their presence in Miravete1 is important.
The prologue to Miravete1, and all the other texts of the Código, follow a diplomatic formula — albeit an abbreviated one — that indicates that the prefatory material had an important rhetorical function and was not a simple recitation of events.Footnote 21 The use of a formula, however, does not mean that the historical details should be discounted.Footnote 22 Similar formats and diplomatic formulae that are found in the prologues to the Código are also found in many other documents from Jaime's reign, including his numerous Peace and Truce constitutions. A consistent format for territorial legislation allowed the king to describe the outcomes of major assemblies in a uniform way, almost always with an emphasis on deliberation and consent.Footnote 23
Not all of the key diplomatic elements are found in each prologue, but the general schema is as follows. Some of the prologues bear an incipit that precedes the true opening words of the text, followed by an arenga that explains King Jaime's impetus for codifying the fueros. The narratio describes the work of codification, including the composition of the assembly that took part, consideration of the fueros (e.g., reading them aloud, eliminating duplicates, or correcting errors), and the creation of a single volume or book of fueros. The dispositio acts as the promulgation decree, whereby King Jaime declares the new book of fueros to be the law for the entire kingdom of Aragon. A clausula offers a qualifier as to how cases were to be decided in the event that the Código should be found to lack a solution for a particular case. Finally, some versions contain a sanctio in which the king warns of punishment for anyone who fails to use the new book of laws. This essay considers all of the diplomatic elements in each iteration of the prologue to the Código but focuses on the details most closely related to the king's agency, the involvement of the members of the assembly, and the time to completion of the code itself.
As noted above, Miravete1 is an Aragonese-language manuscript that was probably completed within two decades of the assembly at Huesca in 1247. Its prologue favors the king's agency throughout the entire process of codifying and promulgating the fueros. It also emphasizes that there was ample opportunity for consultation and approval by representatives from the kingdom at different stages of the codification but does not collapse all the action into an impossibly short time. The text opens with a brief incipit: “Here begins the prologue of the Fueros de Aragón.”Footnote 24 The arenga immediately follows with three complaints that lament the poor state of justice in Aragon. First, there is “neither a certain nor authentic text of the Fueros de Aragón [to] be found in the entire kingdom.”Footnote 25 Second, many people are deceived by foristas who pretend to know the law but really do not. And third, “many poor people lose their rights” at the hands of foristas who are swayed by love, money, or pleading.Footnote 26 With the conclusion of the arenga, the king assumes the role of narrator for the remainder of the prologue. Significantly, Jaime's retelling of events looks back from a time at least two months after the meeting at Huesca.Footnote 27
The narratio offers Jaime's description of his plenary court held in Huesca in January of 1247. Therein the king details the composition of the assembly, offering the names of many prelates, officials, and magnates of Aragon. Other participants are identified by their group affiliation, such as “many other knights and infanzones of Aragon” or “citizens of Tarazona,” or simply by a title, such as the justicia of Zaragoza or Calatayud. Twelve towns or cities are named as having sent representatives, as did many other villas and castles in Aragon. By far, Miravete1 provides the most extensive participant list of any manuscript.
Although there are no sources that corroborate any of the pre-assembly activities that took place ahead of the meeting at Huesca, the narratio in Miravete1 speaks to a special directive that the royal chancery may have sent out ahead of the meeting. Jaime says that he had had all the old books of fueros brought to Huesca, “as many as We could possess and find in the entire kingdom.” All of those books were read and discussed, and then, with the “counsel and will” of the entire assembly, all of the fueros contained in those books were considered.Footnote 28 The good fueros were retained, those that seemed neither good nor reasonable were eliminated, and many new ones were made. All the good fueros, old and new, were subsequently handed over to the king's chancellor, who was ordered to make a book from that collection of fueros. But the king did not expect Vidal to work alone. Instead, he was to collaborate with some of Aragon's respected foristas. When Vidal's task was finished, the entire book was presented in public once again so that it could be “inspected and amended in front of everyone in Ejea, in a plenary court.” At that assembly, the king reports, the book was found “to be good and authentic.”Footnote 29 The narratio then shifts from a retelling of past events to present concerns about the administration of justice. In the dispositio, Jaime mandates that the new book of fueros alone must be used for the administration of justice by all royal officials. In two separate clausulae, Jaime permits limited deviations from the normal course of justice as offered by a local justice using the new book of fueros. In the first clausula, Jaime declares that “if by chance” the new book of fueros should lack a particular solution to a case, the case may be judged “with the counsel and natural reason of good men.”Footnote 30 In the second clausula, the king describes the process by which a plaintiff can appeal a judgment. Miravete1 is the only manuscript in which a procedure for a series of appeals is described. Finally, unlike most of the other manuscripts of the Código, Miravete1 has no concluding sanctio.
Overall, Miravete1 offers a plausible explanation for the timing and scope of the activities connected to the crafting of King Jaime's code, with one caveat: there is no way to know how many “old books of fueros” were in circulation, and thus it is unclear how long it would have taken to read aloud or even take stock of all of those old books, compilations, and charters.Footnote 31 We can speculate, however, that if someone were to solicit feedback after such an extended meeting, participants certainly would rate the activity as falling on the spectrum between miserable and mind-numbing. Surely most of the participants would have fled before the public reading of the kingdom's entire body of fueros was complete. But the bigger problem is this. Given that Jaime was only in Huesca for a few weeks at most, the meeting necessarily would have been brief. There simply would not have been enough time to consider all of the written fueros and collections that had accumulated over at least two centuries. As a matter of practicality, Bishop Vidal and other jurists or foristas probably culled the fueros ahead of time. This is important, for it serves as a reminder that much of the work of codification must have happened outside of the bounds of the assembly.
The rhetorical point of this part of the prologue seems to be twofold. First, by suggesting that every old book of fueros was consulted, Miravete1 underscores the notion that the king's new compilation was rooted in old, well-established, written legal norms. Jaime's code was the continuation of a sanctioned legal tradition, not entirely an innovation.Footnote 32 And second, the narrative emphasizes harmonious consultation and approval. It stresses the involvement of a very large and representative group of subjects, who debated both old and new fueros. For example, the citizens of Zaragoza are described as being present “for the entire city.”Footnote 33 All of the assembly's participants were there for the very purpose of taking part in a legislative initiative. According to the text, with the consent of those participants, the approved fueros were all given over to Bishop Vidal at the end of the meeting to allow him to produce a book. Vidal was then set to work carrying out the king's orders to produce the code.
The complete timeline for crafting the new book of fueros is not contained in the prologue, but other documents can serve to refine it if we are willing to accept the prologue's mention of January of 1247 as the general period during which the assembly met. At end of the prologue, Jaime refers to a subsequent “plenary court” (“cort plenera”) at Ejea, but the only known plenary assembly that Jaime held at Ejea was in 1265, almost two decades after the meeting at Huesca in 1247.Footnote 34 Other sources, however, attest to Jaime's presence in Ejea in March of 1247.Footnote 35 Some of the same men from the king's retinue who were listed as participants in the assembly at Huesca in January also witnessed charters that the king issued in Ejea in mid-March. In one of those documents, Bishop Vidal acted as a judge. It is very likely that a meeting of some kind was held to reconsider the fueros, even if we have no formal record of a plenary assembly in a document outside of Miravete1. Two months’ time was probably sufficient for Vidal to direct production of a preliminary text from the fueros that had been winnowed down at Huesca in January of 1247, especially if preparatory work had begun in 1246 or even earlier. Most importantly, the prologue declares that the book that Vidal produced was “inspected and amended in front of everyone” and was found “to be good and authentic.”Footnote 36 Such a final approval thus allowed the king to promulgate the Código: “On account of which, We firmly mandate to all justices of the realm [and all other officials] that all shall judge from here forward by this book and not by any other.”Footnote 37 This timeline, though, demands a promulgation date of March of 1247 instead of the long-accepted date of January of 1247.
Madrid3 is an Aragonese-language parchment manuscript that dates from the first third of the fourteenth century.Footnote 38 The text is unusual in that it combines elements from both the Código and Vidal's commentary, indicating that its author had Aragonese versions of both texts at hand when Madrid3 was crafted. As with Miravete1, this version of the prologue stresses the king's central role in initiating the process of codification, but it differs in giving Bishop Vidal much greater prominence in the process of crafting the text and articulating expectations for its use. The effect of this change of emphasis is to curtail the assembly's involvement as a check on royal authority.
Its brief incipit (“This is the prologue of the book of the Fueros de Aragón”) gives way to a narrative that is told from two perspectives.Footnote 39 The first is that of an unknown third-person narrator speaking about events in the past; the second is that of Bishop Vidal, who speaks in the present. Like Miravete1, Madrid3 opens with an arenga that calls out the poor state of jurisprudence in Aragon. It lays the blame on two groups: foristas, for hiding law books and offering judgments “outside of the book,” and judges, for offering justice according to “love or price.”Footnote 40 To rectify this, the narrator says that King Jaime “made and established this book [of fueros], by which book, from today forward, all justices shall judge, as the fuero mandates.”Footnote 41 This statement, which comes early in the prologue, can be seen as a weak dispositio, but the precise timing of the promulgation is not clear. The narratio briefly refers to the book's creation, saying only that it was “made and organized” in the city of Huesca where the king celebrated his entire court in January of 1247.Footnote 42 Neither the start nor the end date for the meeting is provided, and details about the crafting of a volume of fueros are left unspoken. Not one of the participants is singled out by name as in Miravete1 and other manuscripts; there is only the blanket statement that all of the following groups took part: bishops, magnates, knights, members of religious orders, citizens of towns, residents of villages, and many other barons. There is also no mention whatsoever of the process by which the fueros were considered or debated by the assembly, only that, with the “counsel and will of all [assembled],” the king ordered and asked Vidal to make a just compilation of the fueros.Footnote 43
The next passage of the narratio contains Vidal's explanation of his own labors. He says that he organized the book “according to God and with a good conscience” and declares that he is not responsible for any punishments involving bodily harm.Footnote 44 Vidal indicates that his volume of the fueros is organized into books and titles so as to improve jurisprudence in two ways. As to the first, Vidal suggests that regularized legal procedures would aid the poor, “who tend to lose their rights when judgment is delayed.”Footnote 45 As to the second, Vidal anticipates that a well-ordered text would lead to more consistent judgments. Using a uniform book of laws, a literate justice could find and understand the correct fuero that pertains to any claim. The text reads as Vidal's expectation that judges and others will use his new, carefully organized book, but his language does not carry the weight of a formal dispositio or promulgation decree. Although Madrid3 mentions that the book of fueros was “made and organized” in January of 1247, it does not reveal anything about the process by which the king and the assembly considered the fueros that would be included in that book. In this prologue, the assembly is described as having offered its counsel on a single matter: Vidal's task of making a legal compilation. The assembly appears to have approved the plan to create a book of fueros for the kingdom and nothing more. As a result, any evidence of pactism nearly disappears from view.
The details offered by the prologue in Madrid3 do little to clarify the timeline for the crafting of a single volume of the fueros. Madrid3 seems to limit the making of the volume to the meeting in January 1247, which was surely not enough time for such an involved undertaking. Moreover, it suggests that Vidal would have carried out his work under the supervision of the members of the assembly if he worked while they deliberated. Even so, this text is not very desirable politically, for it makes Vidal the protagonist of the Código. The members of the assembly, and even the king, are only background actors. In the end, Madrid3 does not offer a date for the promulgation of the code.
Barcelona1, Escorial2, Getty1, Girona1, Madrid1,4,5,6, Paris1, Sevilla1
A version of the prologue that is common to many romance and Latin manuscripts of the Código, as well as to all of the printed editions through the early nineteenth century, is most supportive of the idea of pactism. It limits all of Jaime's actions in codifying the fueros to the span of the meeting where he was under the watchful eye of the assembly and firmly links the act of considering, correcting, and supplementing the fueros with the “counsel and consent” provided by members of the assembly. Presumably, the members of the assembly would have had every opportunity to limit any pretensions on the part of a king who labored for decades, though not always successfully, to assert greater control over legislation and the administration of justice.Footnote 46 This rendition appears with few substantive variations, thus the manuscripts that contain it are treated here together.Footnote 47 It is often referred to by its incipit: Nos Iacobus in Latin or Nos Don Jaime in romance. Hereafter Nos Iacobus is used as shorthand to refer to the prologues in this family of Latin and romance texts. The oldest text is Aragonese, found in Getty1, which dates from the late thirteenth century. The second oldest is Provençal, found in Paris1, which is from the first third of the fourteenth century.Footnote 48 All of the Latin manuscripts containing Nos Iacobus date from the early fourteenth through the late fifteenth centuries; see below for specific details.Footnote 49
Nos Iacobus appears to be a highly abbreviated version of the prologue in Miravete1, although with a different arenga. One possibility is that Miravete1 and all of the manuscripts that include Nos Iacobus were made from an older, and now lost, Latin text, with Miravete1 being a translation into Aragonese. Among these extant manuscripts, Miravete1 is the only one to retain a more complete explanation of the assembly's activities. A second, but much less likely, possibility is that the abbreviated Latin version and Aragonese versions were made from Miravete1 or its parent, suggesting that Nos Iacobus was first composed in romance, not Latin.Footnote 50 Regardless of its origins, we do know this: the Nos Iacobus prologue, in Latin, came to be regarded as the official explanation of the codification of Aragon's fueros, in part because it was long considered (incorrectly) to be the only version of the prologue to have been glossed by Aragonese jurists and scholars from the fourteenth through the seventeenth centuries.Footnote 51 And, because Nos Iacobus is the version of the prologue that was contained in the manuscript that Huras used for the first printed edition and that acquired official status indirectly, it eventually discredited all other versions.Footnote 52
The arenga of Nos Iacobus provides the king's explanation of the occasion for his codification. Having completed his conquests as far as the sea and united those lands to his domains “by the mercy of God,” and having provided for his people in times of war, Jaime wishes to provide for them in times of peace through the Fueros de Aragón.Footnote 53 It is worth noting that this sentiment, even if utterly true for King Jaime, appears to have been lifted from the prologue to Justinian's Institutes. The arenga concludes with a bold political claim: it is “the Fueros de Aragón by which that kingdom is the head of our highness [“alteza”].”Footnote 54 Jaime stresses this connection between Aragonese law and his own status by saying that he launched his endeavor concerning the fueros before an assembly so that he himself could act more wisely. To that end, the narratio explains, the Fueros de Aragón were “acquired and brought and explained and profitably freed from fault” in a plenary assembly at Huesca.Footnote 55 After describing the composition of the assembly, Jaime says that he ordered the many texts of the Fueros de Aragón from his predecessors to be read aloud, in his presence.Footnote 56
After describing the public reading of the fueros, Jaime repeats and slightly expands the means by which the fueros were considered and organized into a “volume and titles,” namely, that the superfluous were eliminated, those not useful were eliminated, and those that were unclear were improved by explanation.Footnote 57 All of this was done with the “counsel and agreement” of the members of the assembly.Footnote 58 Regarding other fueros, the king says, “We moved, corrected, supplemented, and elucidated those that were obscure.”Footnote 59 The narratio concludes with the king's second explanation of the reason for his grand legal renovation, one that is also found in other texts of the prologue: the grave miscarriage of justice by those who were charged with carrying it out. The dispositio declares that all officials throughout the kingdom must use only these fueros for pleas and the deciding thereof. The sanctio specifies that those who do otherwise dishonor the king's “royal majesty” and will be made to suffer the appropriate penalty.Footnote 60
Even though Nos Iacobus has come to be accepted as the official narrative of the genesis of the codified Fueros de Aragón, it has no internal reference whatsoever to the date of King Jaime's plenary assembly at Huesca and no indication of the promulgation date. Moreover, it suggests that all of the activity of crafting a new book of laws unfolded during the short window of the meeting itself, including the discussion of all preexisting fueros and the organization of a new book. Thus, Nos Iacobus, the putative official prologue, offers an explanation of events that is both unrealistic in general and unhelpful in particular for clarifying the timeline for the creation of the Código.
Escorial1, Getty1, London1, Madrid2
A group of four texts, three of which are Latin and one of which is Aragonese, share yet another version of the prologue. Among the Latin texts, Madrid2 is the longest and oldest, dating to circa 1247–52, and the order of its contents is somewhat different from the others.Footnote 61 London1 dates to the first quarter of the fourteenth century. Escorial1 is much later than the others, dating to the mid-fifteenth century. Getty1 was composed in Aragonese and dates to the second half of the thirteenth century. Only one of these manuscripts, London1, has an incipit of any kind that precedes the prologue: “Here begin the Fueros de Aragón. Rubric.”Footnote 62
The prologue opens with an arenga that concerns the lack of an “authentic or certain” text of the fueros, either Cum de foris in Latin or Como de los fueros in romance.Footnote 63 Hereafter Cum de foris is used as a shorthand to refer to the version found in any of the Latin or romance manuscripts in this group. The arenga also details the problem of foristas who hid “notebooks and decrees” and declined to dispense justice.Footnote 64 For that reason, King Jaime celebrated a general curia comprising the Aragonese bishops, magnates, knights, citizens, and burgesses.Footnote 65 The significance of the date provided by the Cum de foris texts differs slightly, which merits some emphasis. The narratio of the Latin texts (London1, Madrid5, and Escorial1) all describe the month of January as the time when the curia met and when they created the book.Footnote 66 The narratio of Getty1, however, names 6 January 1247 as the day on which, with the counsel and assent of the assembly, the king ordered Bishop Vidal to make a book.Footnote 67 Thus Getty1, the thirteenth-century Aragonese translation of Bishop Vidal's commentary In excelsis, is the only version of any extant prologue to offer a single date for any aspect of the assembly, and that date only marks the beginning of Vidal's labors.Footnote 68
In that book, the narratio continues, the old fueros were corrected, amended, and clarified, and the superfluous ones were eliminated. Some fueros were added and others were replaced. The “completed work [was] thereby established so that by this book all may judge.”Footnote 69 The first part of the prologue thus confines all of the action of considering the fueros and creating the book to the meeting itself. From that point forward, however, the narratio continues from Vidal's perspective, describing how he created the volume of fueros. Vidal says that he received his mandate and the approved fueros from the king. As in other versions of the prologue, Vidal was charged with giving the fueros a coherent organization and with producing an actual book (“hunc librum”). Unlike all other versions of the prologue, though, Cum de foris offers two novel details about Vidal's work methods. First, in the oldest Latin text, Vidal explains that he applied “rhetorical flourish” to fueros he had been given by the king.Footnote 70 And, second, in all of the Latin texts considered here, Vidal is explicit in naming his model for the structure of the text: Justinian's Codex and Digest or Pandects.Footnote 71 Vidal not only organized the fueros into nine books in imitation of the Codex, but also he utilized the rubrics themselves from Justinian's legal texts, borrowing some verbatim and modifying others.Footnote 72 Vidal notes that, at times, there was “dissonance between law and fuero.”Footnote 73 As in other texts, Vidal offers the caveat that he is not responsible for any penalties involving bodily punishment, but his caution offers yet another hint about the way in which the final text of the Fueros de Aragón was crafted. Vidal declares that he neither dictated nor permitted any such penalties. If they appeared, they were inserted by the king's notaries, who were surely unsophisticated in the eyes of Bishop Vidal. He implores “the discrete reader” not to attribute their crudeness to him.Footnote 74 This suggests that even as Vidal directed the composition of the work, others were involved in either the first iteration of the text or subsequent copies that he neither reviewed nor approved. This last detail is important, for it serves as a reminder that an assembly could not possibly have been on hand to review and approve every text of the Fueros de Aragón that was to go out from the king's chancery. However, we have no reason to think that members of the assembly had any such expectation.
Without a doubt, there is a flaw in the internal logic of the text. The Latin texts indicate that the book of fueros was created within the confines of the assembly with Vidal stepping in at the end to organize the text. Getty1, the Aragonese text, reveals that the approved fueros were handed over to Vidal for interpretation and organization, which surely took place outside the meeting. The former description from the Latin texts is implausible, given the impossibility of debating the contents of and finalizing an entire legal code within the short time frame of the assembly at Huesca. The Aragonese text's description of 6 January as the day on which Vidal received his orders from the king makes sense, but it is less palatable politically, for it removes the work of crafting the book from the oversight of the assembly. There is no way that the assembly could have fully considered a book of fueros that had not yet been completed. Moreover, Vidal's caution about the possible addition of text that he neither composed nor authorized argues for a longer process of composition that extended beyond even his reach, given that additional material was probably added by way of notaries who worked under the king's orders.
Only remnants survive of Bishop Vidal's original Latin commentary, including many passages and fragments cited by other jurists and scholars between the fourteenth and seventeenth centuries. The Latin prologue of In excelsis, however, is found in a single manuscript: Madrid2. Told entirely from the king's viewpoint, the narrative of In excelsis is the most distinctive of any version of the prologue, in part because it offers a glimpse of King Jaime's philosophy of law. The arenga is largely a meditation in praise of God and his beneficence. Therein Jaime affirms the significance of human participation in the divine order and confesses his utter reliance on God's mercy to undertake the duties of his office. It is Jaime's God-given responsibility to lead his kingdom that compels the king to rectify the miscarriage of justice now administered at the hands of foristas.Footnote 75 By framing the narrative in this way, the prologue not only favors the king's agency in asserting greater control over the administration of justice but also asserts his authority from God. Such an emphasis on the king's prerogative is the reason why some contemporary scholars have rejected In excelsis as having any legal validity, even though jurists in the medieval and early modern period treated it as an authoritative source of legal interpretation.Footnote 76
Following the arenga is a brief narratio that collapses all of the action of the meeting and the creation of the book into a few lines. Lacking a text or certain knowledge of the fueros, Jaime convened at Huesca an assembly of the bishops, magnates, knights, and townsmen to consider the fueros. No date for meeting is offered. As in most other texts of the prologue, Jaime says that he and the participants curtailed the superfluous fueros, recovered those that had fallen into disuse, and joined together those that were useful. There is no reference to new fueros as is found in some of the prologues. Unlike any other text, Madrid5 offers this line about the imperative for consultation, though it is not clear whence that imperative came: the assembly undertook its labors “with the counsel of all unanimously called for.”Footnote 77 Outside of In excelsis, this expectation of consultation, as opposed to simply a habit of consultation, first makes its appearance in Juan Pérez de Patos's gloss on Nos Iacobus in the 1330s. Its presence here is somewhat of a surprise.Footnote 78
The collected fueros were given over to Bishop Vidal for organization in such a way that the substance of the fueros would be conserved. In the dispositio, King Jaime mandates that the “book and all that it is written in it,” having been “praiseworthily compiled and happily completed” by Bishop Vidal, shall henceforward be used for administering justice throughout the kingdom.Footnote 79 Whereas this version of the prologue stresses the imperative for consultation in debating the fueros, it appears that the consultation ended when the approved fueros were handed over to Vidal. In lieu of a final consultation and approval of the book, as Miravete1 offers, Madrid2 instead stresses Vidal's high moral character and erudition as a kind of imprimatur. There was clearly some latitude needed in crafting the final text, for King Jaime specifies that Vidal took up his work with knowledge of the fueros but was called upon to pass judgment using “the discretion given to him by God.”Footnote 80 In excelsis gives no indication of the time that it took for Vidal to complete the book, nor does it offer an explanation of the timing or circumstances of promulgation. What is clear, however, is that the crafting of the compilation did not take place within the confines of the meeting. Furthermore, the text does not suggest in any way that the new codification of the Fueros de Aragón was promulgated in connection with a major assembly.
A close examination of numerous manuscript versions of King Jaime's prologue does not eliminate all of the uncertainties associated with Jaime's efforts to codify Aragon's fueros as they likely existed around 1247. Madrid3 and each of the manuscripts that contain the Nos Iacobus/Nos Don Jaime prologue condense all of the action of codifying the fueros into the span of the meeting. We do not know how long the assembly lasted, but a large gathering of more than a week or two is not very likely. Per the prologues, the participants jointly considered all written fueros that existed at the time and that were brought to the meeting in various books. Further, the meeting is described as having produced a manuscript volume containing approximately 350 individual legal norms, which was promulgated then and there as Aragon's fundamental law. This explanation has persisted for centuries as the official narrative of the codification of the Fueros de Aragón, unlikely as it is. The Latin Cum de foris prologues also condense the action to the span of the meeting, but they open the door to a more extended process by detailing Bishop Vidal's labors in crafting an ordered volume of fueros. Only Getty1 and Miravete1 allow for a longer period for preparing a text. The timeline for Getty1 is open-ended, for Vidal's work only begins at the meeting, whereas Miravete1 describes a period of two months (January to March 1247) for producing a volume that was publicly debated and approved.
Setting aside the incipits, the only source to offer a date for any aspect of Jaime's codification is Getty1, the thirteenth-century Aragonese translation of Vidal's commentary In excelsis. Getty1 denotes 6 January 1247 as the day on which Vidal was given his charge to create a book, but that date somehow became the putative promulgation date. If Getty1 is wrong about this and 6 January was indeed the promulgation date for the Código, as has long been accepted, then one of two things must have been true: either a manuscript version of the newly codified Fueros de Aragón had already been completed prior to the meeting, and the assembly's participants were asked to approve a text that they could not have considered in any detail (and most certainly could not have read), or the assembly gave its assent to the promulgation of a code that had not yet been written. Neither scenario is politically palatable, for both make the king the agent of the codification to the complete exclusion of representatives of the realm. Only two texts, Miravete1 and Getty1, contain any suggestion within the body of the texts themselves, that is, beyond the prologue, that the production of the text went well beyond the confines of the meeting itself, but such a scenario ultimately makes the most sense.Footnote 81
The details found in Nos Iacobus and all of the other prologues need to be taken seriously, but we should not expect any particular rhetorical or diplomatic summation to fully explain what certainly would have been a long and complex legislative process. For example, in April of 1702, the Aragonese Cortes approved only eight new fueros, but the prologue to the printed text reveals a delay of more nearly three months before the approved text was publicly issued.Footnote 82 We should not expect that King Jaime's code would have materialized at the conclusion of the assembly. For centuries, the Nos Iacobus prologue and its associated incipit have endured as the official explanation of the process and timeline by which the Fueros de Aragón were codified, but they do not hold up under scrutiny. It is simply not feasible for all of the kingdom's written fueros, which had accumulated in writing over at least two hundred years, to have been discussed, debated, agreed upon, organized, and written down over the course of a single meeting. If we eliminate such an implausible constraint as imposed by the prologues, then we must also reconsider one of their recurring elements: the full participation of the assembly in the process of codification.
Therein lies the historiographical problem. A political assembly of Aragonese representatives has long been understood as the most important limit on monarchs or even elected officials, but the securing of the consent of the governed was neither regularized nor required during King Jaime I's lifetime. In fact, early norms for constitutional procedures, as well as legal theories about pactism, continued to develop well into the sixteenth century, and they did so alongside outright myths about the origins of pactism.Footnote 83 Nonetheless, scholars, jurists, and political leaders have retroactively read full-fledged pactism into the process of King Jaime's codification. Moreover, they have often used the Huras edition, or texts that emanated from it during the sixteenth through twentieth centuries, as the earliest written proof of such pactism. This essay does not challenge the institutionalization of “consilio et convenientia” and how it became the formal basis for pactism throughout the medieval and early modern periods, but it does suggest that the role of pactism in the codification of the Fueros de Aragón is likely much less significant than has long been imagined. King Jaime is often viewed as a great military conqueror but a weak, or even inept, king whose grand ambitions were often checked by the Aragonese nobles. To credit him with reshaping Aragon's entire legal tradition and imposing a new code of his own making on the kingdom is to challenge deeply held ideas about the emergence of representative government in Aragon. To further acknowledge that the crafting of the code and its promulgation were not bounded by a well-developed mechanism for pactism may be even more troubling to some.Footnote 84
As noted above, the Fueros de Aragón, as first codified by King Jaime I, became the basis for law in Aragon until the Decretos de Nueva Planta of the eighteenth century formally dismantled Aragonese legal and political institutions.Footnote 85 Limited elements of Aragonese derecho foral (fuero law) remained in force following the Nueva Planta decrees, especially in the area of family law. However, the absence of the Aragonese Cortes meant that there was no new source for Aragonese law. With the derogation of the Cortes and the Fueros de Aragón came the influence of Castilian jurisprudence that lasted until the end of the Franco era. Finally permitted greater freedoms by Spain's first post-Franco constitution of 1978, Aragon asserted its right to self-governance through a Statute of Autonomy. As independent institutions of governance were developed in Aragon and work eventually began on a new civil code, the Aragonese Cortes refined and reissued the Statute. Whereas derecho foral was only mentioned in passing in the original Statute of 1982, it took center stage in subsequent iterations and was gradually reclaimed as the symbol of Aragon's historical identity. In the preamble to the revised Statute that was approved in 2007, King Jaime's Código is named as one of three manifestations of Aragon's values of “the pact, loyalty, and liberty.”Footnote 86 King Jaime's legal accomplishment was singled out as both a symbol and a historical event: the king and the Cortes, acting in concert, issued Aragon's first territorial code of derecho foral, thereby laying the foundation for Aragon's enduring constitutional and pactista identity.
Even as King Jaime's Código enjoyed new attention in Aragon beginning in the 1980s as a result of Spain's changing political landscape, the context for its origins in the thirteenth century largely escaped scrutiny.Footnote 87 When scholars, jurists, and political leaders finally turned their attention in earnest to the circumstances of codification, they tended to interpret the emergence of the Código through the lens of three contemporary political needs: to distinguish Aragonese pactism from Castilian authoritarianism; to insist on the purity of Aragonese foralidad, untainted by external legal influence — especially Roman law — over the centuries; and to press for greater independence for Aragon within Spain.Footnote 88 As just one example of the last, I offer remarks from the preface to a brief study of Miravete1. The preface was written by Emilio Gastón in his capacity, at that time, as Justicia, Aragon's chief legal authority and third-highest-ranking public official. Therein he celebrates the discovery and publication of Miravete1 as a new occasion “for the recovery of our fueros and a motive for the historical vindication of Aragon's full autonomy.”Footnote 89 As important as the discovery of Miravete1 was in 1988 for Aragon's efforts to reassert self-determination within Spain, we are called upon as scholars to challenge such ahistorical readings of medieval legal sources. The emphasis, for centuries, on the role of pactism in the codification of the Fueros de Aragón has almost entirely obscured what King Jaime clearly set out to do: regularize written law; ensure that his subjects, especially the poor, would not be deprived of their rights; hold officials accountable for administering justice properly; and deliberately displace foristas who informally and incorrectly acted as legal experts. By reengaging the full manuscript tradition for the medieval Fueros de Aragón, we are more likely to gain a more complex understanding of the efforts of King Jaime in transforming written law and the practice of jurisprudence in thirteenth-century Aragon.
The text that follows is a translation from a mid-thirteenth century Aragonese language text as found in the manuscript Miravate1, fol. 2r–v. It seeks to preserve, as closely as possible, the language and phrasing of the original text in order to capture its original style. Brackets  are used sparingly to supply missing words that improve the readability of the translation.
Here begins the prologue of the Fueros de Aragón.
On account of which there was no certain text of the Fueros de Aragón, and no authentic text could be found in all the kingdom, and because many men made themselves foristas and said that they had a book of fueros and had it hidden out of jealousy, and [because] many times they said that something was a fuero that was not a fuero, and because of this many lowly people lost their rights, and the foristas diverted many people from the law for reasons of love or money or for supplications from many people.Footnote 90
We, Don Jaime, by the grace of God King of Aragon and of Majorca and of Valencia, Count of Urgel and of Barcelona, and lord of Montpellier, wishing to correct this great error, for the profit of all of the kingdom and for the respite of bodies and the health of souls, in the year that was the Incarnation of 1246 and of the era 1285, in the month of January, we held our plenary court in Huesca.Footnote 91
In which court were with us the honored Don Rodrigo, Bishop of Zaragoza, and Don Vidal, Bishop of Huesca, and the honored Don Fernan our uncle, procurator of Aragon and abbot of Montearagón, and Don Pedro Cornel and Don Guillem Romeu and Don Artal de Luna and Don Eximén de Foçes and Don Rodrigo Liçana and Don Garcia de Entença and Don Eximen Pérez, the steward, and Don Fertún de Bergua and Don Pedro de las Celas and Don Guillem de Atrosillo and Don Beltrán de Anaya, and many of the other knights and infanzones of Aragon.Footnote 92 And were there Don Guillem de Cardona, master of the Temple and Don Hug de Forcalquier, master of the Hospital. And were there the justicia and the jurados and many citizens of Zaragoza, for all of the city, and all of the council of Huesca and the justicia with all of the citizens of Tarazona, and the justicia with all of the jurados and all of the good men of the towns of Calatayud and Daroca and of Teruel and of Alcaniz and of Borja and of Ejea and of Uncastello and of Jaca and of Barbastro and of many other villages and castles of Aragon.
And in which place we ordered to come and to bring before us, and before the entire court, all the old books of the fueros, which We could have and find in the entire kingdom, that those books were finished. Here they were read and debated with the counsel and the will of all, and confirmed were all those fueros that seemed good to everyone, and we cut out and we excluded those that did not seem good to us or were not reasonable, and we made many new [fueros], those that were needed. Whence, [using] all of the good fueros, new and old, we beseeched and ordered Don Vidal, bishop of Huesca, to make from all of them a good and well-ordered book, and, with the counsel and with the will and with the help of good and ancient foristas, he made that book [to be] good and well ordered and true.
And afterwards, when it had been made and finished, we had it presented and amended before us in Ejea, in a plenary court, and we found, with the counsel and will of everyone, that the book was good and true.
On account of that, we firmly order all of the justicias of the kingdom and the zalmedinas and merinos and town bailiffs, that, from here forward, all may judge by this book and not by giving credit to any other fuero. And if by chance some doubtful cases come to be judged for which there is not a fuero that explicitly relates to the case, we order that [those officials] shall judge with the counsel and the prudence of good men.Footnote 93
And, if that person who receives the first judgment from his or her justicia, if it does not seem good, it can be remitted to Zaragoza or Huesca or Tarazona, according to the place closest to the established jurisdictional limits of the city. Here the person may receive another judgment before the justicia of that city where he or she may be a resident. And if that judgment does not please the person, afterwards it is possible to rise up to our presence or to our justicia mayor of Aragon for passing a third [judgment]. From there forward, [the plea] may not be raised up to any other.