CHAPTER V

ORIGINS OF THE ALCALDE ENTREGADOR

Itinerant officers in mediaeval Europe. Judicial protectors of migratory flocks in Italy and in Aragon. Sheep protection in mediaeval Castile. Inte.class litigation. Early relations of the entregador with the crown.

"There is no grandee of Spain who has so many judges and sheriffs to defend him as has the sheep."

SORAPÁN, Medicina Española (Granada, 1616), p. 131.

THE administration of justice and the maintenance of order in rural districts involved problems which taxed the ingenuity of the ablest mediaeval monarchs in western Europe. Henry I of England (1100-35) met the difficulty by creating justices in eyre (in itinere), whose intermittent circuits were made more regular by Henry II (1154-89). At about the same time there appeared in France and Normandy various baillis, enquêteurs, and seneschals,1 who served as the more or less itinerant representatives of the crown in outlying towns and country districts. In addition to these officials, who acted as the executive and judicial spokesmen of the sovereign, there were on both sides of the Channel other less conspicuous dignitaries, who kept order in the remote parts of the kingdoms, adjusted disputes between conflicting rural interests, and carried the power of the law down to the lowliest of the population, the herdsmen, the peasants, and the huntsmen. For example, the forest laws of mediaeval England provided for a regarder, who covered a fixed itinerary at regular intervals and settled the conflicting claims of woodsmen, hunters, and others within his jurisdiction.

The available information upon any of these more or less obscure officials is all too meagre. Their work was done remote from the glamour of the court. Their functions offered no field for picturesque and striking episodes to catch the eye of any chronicler. There are no precise and extensive records available upon their contributions to the administrative machinery

1 Haskins, Norman Institutions (Cambridge, 1918), pp. 167–168, 183–186.

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of Henry I of England or to the constructive regime of Philip Augustus of France.

On the other hand the detailed annals of the Castilian entregador, which we are about to examine, reveal the striking possibilities of such itinerant magistracies from the point of view of strong kingships and centralized administration. The history of the entregador suggests pertinent queries on the pastoral and judicial evolution of rural England and France which have yet to be answered. What part did the itinerant officers have in the administration of the sheep industry in those kingdoms? What did their operations mean to royal prestige, to the exchequer, and to the general welfare and agrarian economy of the realm ?

Of the numerous corps of officials around whom the Mesta slowly crystallized as a unified national institution, perhaps the most important, and certainly the most conspicuous, from the very beginning of his office under Alfonso the Learned down to its closing years, was the alcalde entregador, or ' judge of awards.' This itinerant judicial and administrative officer formed the means of contact between the Mesta and the outer world. He was its shield of defence in the earlier centuries of its growth, its sharp weapon of offence and power in the period of its supremacy under the first Hapsburgs, and in the seventeenth and eighteenth centuries the heavy, useless weight which chiefly caused its discredit and decline, leading finally to its extinction.

In order that we may be better able to understand this Castilian office, let us turn to other lands for a brief preliminary consideration of some foreign types of itinerant magistrates for flocks and herds. The pastoral industry in all the Mediterranean peninsulas tended to assume certain common characteristics. This was true largely because of similar conditions of climate and of topography, which brought about the ancient custom of annual migrations between winter pastures in the lowlands and summer encampments in the highlands. Chief among these common customs were the use of fixed routes reserved for the semiannual migrations,' the communal ownership or regulation of 1 See above, p. 18.

pasturage, and the traditional hostility between herdsmen and husbandmen, which resulted in the creation of specially delegated judicial officers for the protection of the former.

The organization of the migratory pastoral industry was older and much more carefully worked out in Italy and Spain than in the eastern peninsula. Among the Romans there was a detailed and well adjusted system for regulating the semiannual sheep migrations during the age of Cicero and Varro, and indeed for some centuries before their time. Provision was made for roadside pasturage and particularly for the use of large tracts of public lands as grazing grounds. What is of importance for us in the present connection, as early as 192 B.C. the practice was observed of assigning a special magistrate to the southern pasturage district to keep order there and to look after the public domain. There was also a praetor to supervise the calles or routes used by the herds. These practices of the migratory sheep industry were not in the least interrupted by the fall of the Roman empire. They were continued during the Middle Ages and in the thirteenth century were, in fact, drawn together by Frederick II into a well regulated, centralized organization. In the later Middle Ages this body came to the attention of the Aragonese rulers of southern Italy, who recodified its laws and gave it the name of Dogana della mena delle pecore di Puglia. It is significant that the chief of this institution, the 'magnificent doganiere,' bore a striking resemblance to the justicia of the Casa de Ganaderos of Saragossa, the 'house of the cattle owners,' which Aragon had known since

1 H. F. Pelham, Essays (Oxford, 1911), p. 303.

• Ibid., pp. 302, 306. References on this topic from Strabo, Varro, Columella, and other classical writers may be found in Pauly-Wissowa, Encyclopädie, iii (Stuttgart, 1895), col. 289.

• Sombart, Die römische Campagna (Leipsic, 1888), pp. 43-48, 83-87; HuillardBréholles, Hist. Diplomat. Frid. II, iv, pt. 1, p. 159; and Bertagnolli, Vicende dell' agra in Italia (Florence, 1881), p. 244.

4 Bertaux and Yver, "L'Italie inconnue," in Le tour du monde (1899), FP. 272–. 274. Craven, Excursions in the Abruzzi (1838), i, pp. 266-270. Swinburne, Travels in the Two Sicilies (1783),i, pp. 140-143, deals particularly with the fiscal aspects of the institution in the sixteenth century. According to Dominicus Tassonus, Observationes Jurisdictionales (Naples, 1716), pp. 130-131, the name Dogana and possibly the institution itself had Norman origins. Muratori, Antiquitates Italicae, ii, col. 525, gives a more nearly correct Saracen derivation of the name.

the year 1218, and possibly earlier. In the Italian Dogana the herdsmen were answerable to their officials and judges not only in matters of pastoral concern, but in all offences against civil and criminal law as well. This responsibility, and the form and severity of the penalties imposed, suggest the old institution of the Aragonese conquerors' home country.'

Charles III's long Neapolitan experience with this form of organized pastoral industry—for it was flourishing in the eighteenth century, as indeed it is today in a modified form — was of inestimable assistance to him in his great struggle with the Castilian Mesta. One of the interesting points revealed in the exhaustive investigations of the Mesta by his great minister, Campomanes, was the similarity of the judicial protector of the Italian herdsmen to the Castilian alcalde entregador. Each of these two officers was declared to be a case of “a grant of extraordinary jurisdiction, equivalent to placing a sword in the hands of a madman.” 2

As early as 1129 the citizens of Saragossa had been given the right of unrestricted pasturage through Aragon. This privilege was incorporated in a charter embodying various more or less vague concessions of the kind commonly granted at that time to monasteries, cities, and other contributors toward the expenses of the war of reconquest. Toward the close of the twelfth century a gild or fraternity of sheep owners of Saragossa was organized, and by 1218 it had been formally recognized as the Casa de Ganaderos. Both the name and the organization are in existence today, and the Casa is now as much the head of the sheep and cattle industry of Aragon as it was seven hundred years ago. The justicia of this body is an excellent illustration of that characteristic union of judicial and administrative functions so often met with in Spanish constitutional history. It should be carefully 1 The punishment for trespasses outside of pastures, for example, was the same in both countries: ten years in the galleys.

* Expediente de 1771, pt. 1, fol. 138 v.

Archivo de la Casa de Ganaderos (Saragossa), legajo 139, no. 1. 'There is a carelessly made copy of this document in the Bib. Nac. Madrid, Ms. 8702, fols. 31

• Cf. the corregidor, the local alcalde, the chief of the audiencia, and many others.

noted that this officer is not to be confused with the more widely known national justicia of Aragon, with whom the former had no official connection. The sheep owners' justicia served in the dual capacity of president or director of the gild of cattle owners of Saragossa and as the judge in all cases in which they were involved: a double function in the fullest sense, since neither of the two positions was subordinated to the other. His jurisdiction was recognized by the charter of 1218 in criminal cases "involving all thieves and marauders who molest any herd from Saragossa wherever it might be at the time." This authorization was interpreted by the Casa to be valid in all parts of the kingdom "whether in lands held from the crown, or from any religious body, or from a temporal lord . . . in all things and cases concerning the herds, herdsmen, and cattle owners of Saragossa." In 1391, on the payment of 800 florins in gold to the king, the justicia's jurisdiction was extended to include civil as well as criminal cases - a most important step, which made that official the sole judicial arbiter for one of the largest classes or groups in the population of Aragon. The sweeping claims of these grants, though frequently questioned, were never successfully opposed until well into the eighteenth century. Royal confirmations were given in 1534, 1545, and 1607,1 and in spite of repeated attacks by powerful nobles and ecclesiastical organizations, the justicia's position was not affected.

The office of justicia was always declared to be an indispensable adjunct to the work of the Casa: if deprived of it the gild would have been compelled to maintain agents and attorneys in almost every hamlet to look after the litigation brought against it before the local justices. The peculiarities of the migratory sheep industry made necessary the creation of an unusual type of judicial protector for the flocks; hence the justicia of the Aragonese Casa de Ganaderos and the entregador of the Castilian Mesta. In this connection there is, however, an important difference between the two which should be noted. The Aragonese official's hearings

1 Manifiestase el derecho que tiene el justicia . para exercer jurisdicción (Saragossa, ca. 1680). Bib. Nac. Madrid, Ms. 8702, fols. 85-89, gives the texts of parts of these documents.