«Exceptis militibus et sanctis»: Restrictions upon Ecclesiastical Ownership of Land in the Foral Legislation of Medieval Castile and Valencia
By James W. Brodman
En la España Medieval, No.15 (1992)
Introduction: The late twelfth-century fuero of Cuenca, in discussing family relationships, states that, as matter of principle, “no one may disinherit his sons”. If someone, for example, should decide to enter te religious life, he may retain only a fifth of his personal property. The remainder, and all of his real property, must as a matter of equity andjustice be turned over to his heirs.
While in general, Cuencas municipal law code guarantees to property owners full powerover theirholdings, including the right of its disposal, the fuero specifically forbids the granting of any real property to monks or to those who have renounced the world. The rationale is that, because eccíesiastical persons cannot sell property, they should not be permitted to acquire it.
Later on, in the section dealing with buying and selling, the fuero stipulates that sales and exchanges of property within the city are permitted, except when monks are involved. These seemingly minor provisions in medieval property law are significant because they helpus to understand the place that the Church occupied in the society of frontier Spain.
On the one hand, and as numerous privileges demonstrate, priests and communities of religious were welcomed into frontier municipalities as settlers, and endowed with lands in the hope that these, by establishing a Christian presence in lands formerly Muslim, would assist in planting durable Christian societies.
But, on the other hand, care had to be taken lest the Church gain too much property and thus reduce the amount of land available to lay settlers or the revenues from that land accruing to kings or municipal concejos. The existence of these two competing concerns produced a period of experimentation in which the law, foral and ultimately royal, attempted to balance the legitimate interests of clerics and settlers. This study, through an examination of this law and of the anecdotal charter evidence, will trace the evolution of that effort.