Spain Three

The History Of Spain To The Conquest Of Granada
Author: Hallam, Henry

Part III

The contributions granted by cortes were assessed and collected by
respectable individuals (hombres buenos) of the several towns and villages. ^u
This repartition, as the French call it, of direct taxes is a matter of the
highest importance in those countries where they are imposed by means of a
gross assessment on a district. The produce was paid to the royal council.
It could not be applied to any other purpose than that to which the tax had
been appropriated. Thus the cortes of Segovia, in 1407, granted a subsidy for
the war against Granada, on condition "that if should not be laid out on any
other service except this war;" which they requested the queen and Ferdinand,
both regents in John II.'s minority, to confirm by oath. Part, however, of
the money remaining unexpended, Ferdinand wished to apply it to his own object
of procuring the crown of Aragon; but the queen first obtained not only a
release from her oath by the pope, but the consent of the cortes. They
continued to insist upon this appropriation, though ineffectually, under the
reign of Charles I. ^v

[Footnote u: Ibid., t. ii. p. 398.]

[Footnote v: Marina, p. 412.]

The cortes did not consider it beyond the line of their duty,
notwithstanding the respectful manner in which they always addressed the
sovereign, to remonstrate against profuse expenditure even in his own
household. They told Alfonso X. in 1258, in the homely style of that age,
that they thought it fitting that the king and his wife should eat at the rate
of a hundred and fifty maravedis ^* a day, and no more; and that the king
should order his attendants to eat more moderately than they did. ^w They
remonstrated more forcibly against the prodigality of John II. Even in 1559
they spoke with an undaunted Castilian spirit to Philip II.:" - "Sir, the
expenses of your royal establishment and household are much increased; and we
conceive it would much redound to the good of these kingdoms that your majesty
should direct them to be lowered, both as a relief to your wants, and that all
great men and other subjects of your majesty may take example therefrom to
restrain the great disorder and excess they commit in that respect." ^x

[Footnote *: A maravedi weighed 60 grains of gold.]

[Footnote w: Ibid., p. 417.]

[Footnote x: Senhor, los gastos de vuestro real estado y mesa son muy
crescidos, y entendemos que convernia mucho al bien de estos reinos que v. m.
los mandasse moderar, asi para algun remedio de sus necessidades, como para
que de v. m. tomen egemplo totos los grandes y caballeros y otros sub litos de
v. m. en la gran desorden y excessos que hacen en las cosas sobredichas. p.

The forms of a Castilian cortes were analogous to those of an English
parliament in the fourteenth century. They were summoned by a writ almost
exactly coincident in expression with that in use among us. ^y The session was
opened by a speech from the chancellor or other chief officer of the court.
The deputies were invited to consider certain special business, and commonly
to grant money. After the principal affairs were despatched they conferred
together, and, having examined the instructions of their respective
constituents, drew up a schedule of petitions. ^z These were duly answered one
by one; and from the petition and answer, if favorable, laws were afterwards
drawn up where the matter required a new law, or promises of redress were
given if the petition related to an abuse or grievance. In the struggling
condition of Spanish liberty under Charles I., the crown began to neglect
answering the petitions of cortes, or to use unsatisfactory generalities of
expression. This gave rise to many remonstrances. The deputies insisted in
1523 on having answers before they granted money. They repeated the same
contention in 1525, and obtained a general law inserted in the Recopilacion
enacting that the king should answer all their petitions before he dissolved
the assembly. ^a This, however, was disregarded as before; but the cortes,
whose intrepid honesty under Philip II. so often attracts our admiration,
continued as late as 1586 to appeal to the written statute and lament its
violation. ^b

[Footnote y: Marina, t. i. p. 175; t. iii. p. 103.]

[Footnote z: t. i. p. 278.]

[Footnote a: p. 301.]

[Footnote b: pp. 288-304.]

According to the ancient fundamental constitution of Castile, the king
did not legislate for his subjects without their consent. The code of the
Visigoths, called in Spain the Fuero Jusgo, was enacted in public councils, as
were also the laws of the early kings of Leon, which appears by the reciting
words of their preambles. ^c This consent was originally given only by the
higher estates, who might be considered, in a large sense, as representing the
nation, though not chosen by it; but from the end of the twelfth century by
the elected deputies of the commons in cortes. The laws of Alfonso X. in
1258, those of the same prince in 1274, and many others in subsequent times,
are declared to be made with the consent (con acuerdo) of the several orders
of the kingdom. More commonly, indeed, the preamble of the Castilian statutes
only recites their advice (consejo); but I do not know that any stress is to
be laid on this circumstance. The laws of the Siete Partidas, compiled by
Alfonso X., did not obtain any direct sanction till the famous cortes of
Alcala, in 1348, when they were confirmed along with several others, forming
altogether the basis of the statute-law of Spain. ^d Whether they were in fact
received before that time has been a matter controverted among Spanish
antiquaries, and upon the question of their legal validity at the time of
their promulgation depends an important point in Castilian history, the
disputed right of succession between Sancho IV. and the infants of la Cerda;
the former claiming under the ancient customary law, the latter under the new
dispositions of the Siete Partidas. If the king could not legally change the
established laws without consent of his cortes, as seems most probable, the
right of representative succession did not exist in favor of his
grandchildren, and Sancho IV. cannot be considered as an usurper.

[Footnote c: t. ii. p. 202. The acts of the cortes of Leon in 1020 run thus:
Omnes pontifices et abbates et optimates regni Hispaniae jussu ipsius regis
talia decreta decrevimus quae firmiter teneantur futuris temporibus. So those
of Salamanca, in 1178: Ego rex Fernandus inter caetera quae cum episcopis et
abbatibus regni nostri et quamplurimis aliis religiosis, cum comitibus
terrarum et principibus et rectoribus provinciarum, toto posse tenenda
statuimus apud Salamancam.]

[Footnote d: Ensayo Hist.-Crit. p. 353; Teoria de las Cortes, t. ii. p. 77.
Marina seems to have changed his opinion between the publication of these two
works, in the former of which he contends for the previous authority of the
Siete Partidas, and in favor of the infants of la Cerda.]

It appears, upon the whole, to have been a constitutional principle, that
laws could neither be made nor annulled except in cortes. In 1506 this is
claimed by the deputies as an established right. ^e John I. had long before
admitted that what was done by cortes and general assemblies could not be
undone by letters missive, but by such cortes and assemblies alone. ^f For the
kings of Castile had adopted the English practice of dispensing with statutes
by a non obstante clause in their grants. But the cortes demonstrated more
steadily against this abuse than the English parliament, who suffered it to
remain in a certain degree till the Revolution. It was several times enacted
upon their petition, especially by an explicit statute of Henry II., that
grants and letters-patent dispensing with statutes should not be obeyed. ^g
Nevertheless, John II., trusting to force or the servility of the judges, had
the assurance to dispense explicitly with this very law. ^h The cortes of
Valladolid, in 1442, obtained fresh promises and enactments against such an
abuse. Philip I. and Charles I. began to legislate without asking the consent
of cortes; this grew much worse under Philip II., and reached its height under
his successors, who entirely abolished all constitutional privileges. ^i In
1555 we find a petition that laws made in cortes should be revoked nowhere
else. The reply was such as became that age: "To this we answer, that we
shall do what best suits our government." But even in 1619, and still
afterwards, the patriot representatives of Castile continued to lift an
unavailing voice against illegal ordinances, though in the form of very humble
petition; perhaps the latest testimonies to the expiring liberties of their
country. ^j The denial of exclusive legislative authority to the crown must,
however, be understood to admit the legality of particular ordinances designed
to strengthen the king's executive government. ^k These, no doubt, like the
royal proclamations in England, extended sometimes very far, and subjected the
people to a sort of arbitrary coercion much beyond what our enlightened
notions of freedom would consider as reconcilable to it. But in the middle
ages such temporary commands and prohibitions were not reckoned strictly
legislative, and passed, perhaps rightly, for inevitable consequences of a
scanty code and short sessions of the national council.

[Footnote e: Los reyes establicieron que cuando hubiesen de hacer leyes, para
que fuesen provechosas a sus reynos y cada provincias fuesen proveidas, se
llamasen cortes y procuradores que entendiesen en alles, y pro esto se
establecio lei que no se hiciesen ni renovasen leyes sino en cortes. Teoria
de las Cortes, t. ii. p. 218.]

[Footnote f: Lo que es fecho por cortes e por ayuntamientos que non se pueda
disfacer por las tales cartas, salvo por ayuntamientos e cortes. Teoria de las
Cortes, t. ii. p. 215.]

[Footnote g: Teoria de las Cortes, 215.]

[Footnote h: p. 216; t. iii. p. 40.]

[Footnote i: t. ii. p. 218.]

[Footnote j: Ha suplicado el reino a v. m. no se promulguen nuevas leyes, ni
en todo ni en parte las antiguas se alteren, sin que sea por cortes . .
. . y por ser de tanta importancia vuelve el reino a suplicarle humilmente
a v. m. p. 220.]

[Footnote k: p. 207.]

The kings were obliged to swear to the observance of laws enacted in
cortes, besides their general coronation oath to keep the laws and preserve
the liberties of their people. Of this we find several instances from the
middle of the thirteenth century, and the practice continued till the time of
John II., who, in 1433, on being requested to swear to the laws then enacted,
answered that he intended to maintain them, and consequently no oath was
necessary; an evasion in which the cortes seem unaccountably to have
acquiesced. ^l The guardians of Alfonso XI. not only swore to observe all that
had been agreed on at Burgos in 1315, but consented that, if any one of them
did not keep his oath, the people should no longer be obliged to regard or
obey him as regent. ^m

[Footnote l: Teoria de las Cortes, t. i. p. 306.]

[Footnote m: t. iii. p. 62.]

It was customary to assemble the cortes of Castile for many purposes
besides those of granting money and concurring in legislation. They were
summoned in every reign to acknowledge and confirm the succession of the heir
apparent; and upon his accession to swear allegiance. ^n These acts were,
however, little more than formal, and accordingly have been preserved for the
sake of parade after all the real dignity of the cortes was annihilated. In
the fourteenth and fifteenth centuries they claimed and exercised very ample
powers. They assumed the right, when questions of regency occurred, to limit
the prerogative, as well as to designate the persons who were to use it. ^o
And the frequent minorities of Castilian kings, which were unfavorable enough
to tranquillity and subordination, served to confirm these parliamentary
privileges. The cortes were usually consulted upon all material business. A
law of Alfonso XI. in 1328, printed in the Recopilacion or code published by
Philip II., declares, "Since in the arduous affairs of our kingdom the counsel
of our natural subjects is necessary, especially of the deputies from our
cities and towns, therefore we ordain and command that on such great occasions
the cortes shall be assembled, and counsel shall be taken of the three estates
of our kingdoms, as the kings our forefathers have been used to do." ^p A
cortes of John II., in 1419, claimed this right of being consulted in all
matters of importance, with a warm remonstrance against the alleged violation
of so wholesome a law by the reigning prince; who answered, that in weighty
matters he had acted, and would continue to act, in conformity to it. ^q What
should be intended by great and weighty affairs might be not at all agreed
upon by the two parties; to each of whose interpretations these words gave
pretty full scope. However, the current usage of the monarchy certainly
permitted much authority in public deliberations to the cortes. Among other
instances, which indeed will continually be found in the common civil
histories, the cortes of Ocana, in 1469, remonstrate with Henry IV. for
allying himself with England rather than France, and give, as the first reason
of complaint, that, "according to the laws of your kingdom, when the kings
have anything of great importance in hand, they ought not to undertake it
without advice and knowledge of the chief towns and cities of your kingdom."
^r This privilege of general interference was asserted, like other ancient
rights, under Charles, whom they strongly urged, in 1548, not to permit his
son Philip to depart out of the realm. ^s It is hardly necessary to observe
that, in such times, they had little chance of being regarded.

[Footnote n: t. i. p. 33; t. ii. p. 24.]

[Footnote o: p. 230.]

[Footnote p: t. i. p. 31.]

[Footnote q: p. 34.]

[Footnote r: Porque, segunt leyes de nuestros reynos, cuando los reyes han de
facer alguna cosa de gran importancia, non lo leben facer sin consejo e
sabiduria de las cibdades e villas principales de vuestros reynos. Teoria de
las Cortes, t. ii. p. 241.]

[Footnote s: t. iii. p. 183.]

The kings of Leon and Castile acted, during the interval of the cortes,
by the advice of a smaller council, answering, as it seems, almost exactly to
the king's ordinary council in England. In early ages, before the
introduction of the commons, it is sometimes difficult to distinguish this
body from the general council of the nation; being composed, in fact, of the
same class of persons, though in smaller numbers. A similar difficulty
applies to the English history. The nature of their proceedings seems best to
ascertain the distinction. All executive acts, including those ordinances
which may appear rather of a legislative nature, all grants and charters, are
declared to be with the assent of the court (curia), or of the magnats of the
palace, or of the chiefs or nobles. ^t This privy council was an essential
part of all European monarchies; and, though the sovereign might be considered
as free to call in the advice of whomsoever he pleased, yet, in fact, the
princes of the blood and most powerful nobility had anciently a constitutional
right to be members of such a council, so that it formed a very material check
upon his personal authority.

[Footnote t: Cum assensu magnatum palatii: Cum consilio curiae meae: Cum
consilio et beneplacito omnium principum meorum, nulle contradicente nec
reclamente. Teoria de las Cortes, t, iii. p. 325.]

The council underwent several changes in progress of time, which it is
not necessary to enumerate. It was justly deemed an important member of the
constitution, and the cortes showed a laudable anxiety to procure its
composition in such a manner as to form a guarantee for the due execution of
laws after their own dissolution. Several times, especially in minorities,
they even named its members or a part of them, and in the reigns of Henry III.
and John II. they obtained the privilege of adding a permanent deputation,
consisting of four persons elected out of their own body, annexed as it were
to the council, who were to continue at the court during the interval of
cortes and watch over the due observance of the laws. ^u This deputation
continued as an empty formality in the sixteenth century. In the council the
king was bound to sit personally three days in the week. Their business,
which included the whole executive government, was distributed with
considerable accuracy into what might be despatched by the council alone,
under their own seals and signatures, and what required the royal seal. ^v The
consent of this body was necessary for almost every act of the crown: for
pensions or grants of money, ecclesiastical and political promotions, and for
charters of pardon, the easy concession of which was a great encouragement to
the homicides so usual in those ages, and was restrained by some of our own
laws. ^w But the council did not exercise any judicial authority, if we may
believe the well-informed author from whom I have learned these particulars;
unlike in this to the ordinary council of the kings of England. It was not
until the days of Ferdinand and Isabella that this, among other innovations,
was introduced. ^x

[Footnote u: Teoria de las Cortes, t. ii. p. 346.]

[Footnote v: p. 354.]

[Footnote w: pp. 360, 362, 372.]

[Footnote x: t. ii. pp. 375, 379.]

Civil and criminal justice was administered, in the first instance, by
the alcaldes, or municipal judges of towns; elected within themselves,
originally, by the community at large, but, in subsequent times, by the
governing body. In other places a lord possessed the right of jurisdiction by
grant from the crown, not, what we find in countries where the feudal system
was more thoroughly established, as incident to his own territorial
superiority. The kings, however, began in the thirteenth century to appoint
judges of their own, called corregidores, a name which seems to express
concurrent jurisdiction with the regidores, or ordinary magistrates. ^y The
cortes frequently remonstrated against this encroachment. Alfonso XI.
consented to withdraw his judges from all corporations by which he had not
been requested to appoint them. ^z Some attempts to interfere with the
municipal authorities of Toledo produced serious disturbances under Henry III.
and John II. ^a Even where the king appointed magistrates at a city's request,
he was bound to select them from among the citizens. ^b From this immediate
jurisdiction an appeal lay to the adelantado or governor of the province, and
from thence to the tribunal of royal alcaldes. ^c The latter, however, could
not take cognizance of any cause depending before the ordinary judges; a
contrast to the practice of Aragon, where the justiciary's right of evocation
(juris firma) was considered as a principal safeguard of public liberty. ^d As
a court of appeal, the royal alcaldes had the supreme jurisdiction. The king
could only cause their sentence to be revised, but neither alter nor revoke
it. ^e They have continued to the present day as a criminal tribunal; but
civil appeals were transferred by the ordinances of Toro in 1371 to a new
court, styled the king's audience, which, though deprived under Ferdinand and
his successors of part of its jurisdictions, still remains one of the
principal judicatures in Castile. ^f

[Footnote y: Alfonso X. says, Ningun ome sea osado juzgar pleytos, se no fuere
alcalde puesto pol el rey. Id. fol. 27. This seems an encroachment on the
municipal magistrates.]

[Footnote z: Teoria de las Cortes, t. ii. p. 251.]

[Footnote a: p. 255. Mariana, l. xx. c. 13.]

[Footnote b: p. 255.]

[Footnote c: p. 266.]

[Footnote d: p. 260.]

[Footnote e: pp. 287, 304.]

[Footnote f: Teoria de las Cortes, t. ii. pp. 292-302. The use of the present
tense in this and many other passages will not confuse the attentive reader.]

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