No More Learning

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? CHAP. III. ] THEORY OF THE ABSOLUTE MONARCHY. 461
It is no doubt true and important that we can see in the
work, especially of the Huguenot pamphleteers and of Bodin,
the development of a conception that there must be in every
community an authority behind the positive law, and greater
than that law; and we may ask how far this was related to
the theory of an absolute monarchy. It is obvious that,
properly speaking, it has nothing to do with it. The
"Maiestas " might in theory belong either to the whole com-
munity, or a few, or to one; there is no necessary relation
between the conception of an ultimate supreme power and
that of an absolute monarch, nor indeed does Bodin pretend
that there is; but that there may have been in some men's
minds a confused impression that there was such a relation,
is possible.
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? 462
CHAPTER IV.
REPRESENTATIVE INSTITUTIONS IN PRACTICE.
We have dealt with these in the fourteenth and fifteenth
centuries, and have seen their importance as illustrating the
general conceptions of men in Central and Western Europe
about political authority; we must now inquire what place
they occupied in the sixteenth century, in fact and in political
theory. In this chapter we shall consider briefly what we
know about the meetings of these representative bodies,
especially in Castile and in France, and the part they played
in public affairs, while in the next chapter we shall put together
some of the contemporary theories of their powers and
importance.
When we examine the proceedings of the Cortes of Castile
we find that they were meeting frequently, and that they
were occupied not only with questions of taxation, but with
a variety of important public affairs. The first and most
important of these, however, was legislation, and we have a
very important statement with regard to this in the prologue
to the proceedings of the Cortes at Toledo in 1480. In this
year Ferdinand and Isabella, in calling together the repre-
sentatives of the town, said that they did this because the
conditions of the time required the provision of new laws,
and they describe the process of legislation, as being carried
out with the consent of their Council, but on the petition of
the Cortes. 1 It is deserving of notice, too, that Ferdinand and
1 'Cortes,' vol. iv. Toledo. 1480.
Preface: "E nos conosciendo que estos
casos occurrian al presente in que esce
nocessario y provechoso proveer de
remedio por leyes nuevamente fee has,
ansi para eseoutar las pasadas, como
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 463
Isabella declared that all royal "mercedes e facultades " con-
trary to "desta ley" were to be treated as null and void,
and that it was provided that royal Briefs using the phrases
"proprio motu e certa sciencia" or containing a "non-
obstante clause " were to be treated in the same way. 1
We may compare the terms in which the Cortes at Valla-
dolid in 1506 promised obedience and fealty to the Queen
Joanna, and her husband Philip; that is according to the
laws and "fueros " and the ancient custom of the country.
In another clause they declared that the kings (i. e. , the former
kings) had laid it down that when it was necessary to make
laws, the Cortes should be summoned, and that it was estab-
lished that no laws should be made or revoked except in Cortes;
they petitioned that from henceforth this procedure should
be followed. 2
para proveer e remediar los nuevos
caeos, accordamos de enbiar mandar a
les cibdades e villas de nuestros
Reynos que suelen enbiar procuradores
de Cortes en nombre de todos nuestros
Reynos, que enbiasen los dichos procu-
radores de Cortes asi para jurar al
principe nuestro fijo primogenito here-
dero destos Reynos, como para entender
con ellos e platicar e proveer en las
otras cosas que sean nescessarias de se
proveer por leyes para la buena
gouernacion destos dichos Reynos.
Los quales dichos procuradores . . .
nos preguntaron e dieren certas peti-
ciones, e nes suplicaran que sobrellas
mandamos proveer e remediar como
viesemos que complia a servicio de
Dios e nuestro, a bien de la republica,
e pacifico estado destos dichos nuestros
reynos , sobre las quales dichas peti-
ciones, y sobre las otras cosas que nos
entendimos ser complideras, con aocu-
erdo de las perlados e caualleros e
doctores del nuestro Conseio, proueimes
e ordanamos, e statuimoe los leyes que
se siguen. "
1 Id. id. , Toledo, 1480, 84 (p. 164):
''E queremos e ordinamo. '* que todos
e quales quior mercedes e facultades
que de aqui adelante fueron fechas o
dadas contra al tenor desta ley, o
contra lo ennella contenido, sean en si
ningunas e de ningund valor, aunque
contenen en si quales quier clausulas
derogatorias e no obstancias. "
95: Clause abolishing offices
created since 1440, on the death of
the present occupant, and even if
they were renewed by Briefs " proprio
motu e certa sciencia" and containing
a "non-obstanto" clause, these were to
be treated as "ningunas o de ningund
valer. "
1 Id. id. , Valladolid, 1506, Preface:
"Y prometen que les seran buenos e
leales vasalles e suditos naturales, . . .
segund las leyes e fueros e antigua
costumbre destos Reynos lo dis-
pone. . .
(p. 225) 6: "Y por esto los rreys
establecieron que, quando obiesen de
hazer leys, para que fuesen probechosas
? ? a sus rreynos, e cada provincia fuese
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? 464
THE LATER SIXTEENTH CENTURY. [PABT IV.
Again at Valladolid in 1518 and in 1523 the Cortes petitioned
Charles (the Emperor Charles V. ) that the "Cartas e Cednlas
de suspensyones" which had been given by him and his
predecessors should be revoked, and Charles assented. 1 At
the Cortes in Madrid in 1534, in response to a petition to the
same effect, Charles said he did not intend to issue any such
Briefs. 2
In the proceedings of the Cortes at Valladolid in 1523
we have a formal declaration by the king, that the answers
given by him to their petitions and "capitulos" were to
be enrolled and carried out as laws and pragmatic sanctions
made and promulgated by him in Cortes. 3 The Cortes at
Madrid in 1534 petitioned the king that all the "capitulos
proveydos" in past and present Cortes should be recorded
in one volume, with the laws of the "Ordinamiento," as
amended and corrected, and that every city and "villa"
should have a copy of the book; the king replied that he was
providing for this. *
Towards the end of the century we find in the proceedings
of the Cortes of Madrid of 1579-82 an important petition and
reply with respect to the laws of the kingdom. The Cortes
petitioned Philip II. that no law or pragmatic was henceforth
to be made or published until it had been before them (sin
darle primero parte della). The king replied that it was
just that the kingdom should receive satisfaction on this
point. 5
e fags asy, e quando leys se obieren de
hazer, manden llamar sus rreynos e
procuradores dellos, por que para
las tales leys seran dellos muy mas
entera mente ynformadas, y vuestros
rreynos juste e derechamente provey-
dos: e porque fuera desta horden, se
an fecho muchas prematicas, de que
estor vuestros rreynos se syenten por
agrabiados, mande que aquellos ssean
rrebistos, e probo an e rremedian los
agrabios quelas tales prematicos tienen.
R. (Royal reply) que quando fuere
nescesario, su alteza lo mandara? proveer
de manera que se de? cuenta dello. "
1 Id. id. , Valladolid, 1518, 23;
1523, 62.
>> Id. id. , Madrid, 1534, 42.
? Id. id. , Valladolid, 1523 (p. 402).
? Id. id. , Madrid, 1534 (1).
? Cortes of Castile. 1563 to 1598
(od. Madrid, 1877, 4c. ); vol. vi. ,
Madrid, 1579-1582, III. (p. 8-10):
"Por tanto: suplicamos humilde-
mente a vuestra Majestad, sea servido
de mandar que de aqui adelante, es-
tando el Rey no junto, no se haga ley,
ni pragmatica, sin darle primero parte
dolla, y que antea no se publique;
porque dema? s de ser esto lo mas con-
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 465
It appears to us that it is perfectly clear that the Cortes
throughout maintained that the only normal method of
legislation was by the king in the Cortes, and that they
vigorously protested against any attempt on the part of
the crown to override this legislation by any royal Brief,
as they had done in earlier centuries.
It is no doubt true that if the control of legislation was,
at any rate during the first half of the century, among the
most important of the functions of the Cortes, the control
of taxation was of equal significance, as it had been in the
fourteenth and fifteenth centuries. There can be no doubt
that the constitutional rule in Spain was that the king could
not, except for his ordinary revenues, impose taxation without
the consent of the Cortes, and that this principle was recognised
throughout the century.
In 1515 the Cortes met at Burgos, and the crown laid before
it a statement on the War of the Holy League, and intimated
that the King of France was about to make war on Spain,
and asked for assistance. The Cortes thanked the crown for
its communication, and in view of the situation granted the
same aid as it done at Burgos in 1512. 1 In 1518 the Cortes
in Valladolid petitioned Charles V. to abolish all the new
impositions which had been laid upon the kingdom, against
the law, and Charles replied that if they would give him the
details he would see that the matter should be dealt with
according to justice. 2 At the Cortes held at Santiago and
Corunna in 1520, the Bishop of Badajos reported the election
of Charles to the empire, represented the great expenses
which his coronation would involve, and asked the Cortes
to continue the "servicio," which had been granted at
veniente al servicio de vuestra Majestad,
lo recibira? por ol mayor favor y merced
que se puede significar.
R. (king's reply): A esto vos
respondemos; que tendremos mucha
quenta con mandar que en lo que per
esta vuestra peticion nos suplicais, se
de? al Reyno satisfazion, come es justo. "
1 'Cortes,' vol. iv. , Burgos, 1515
(pp. 247-249).
VOL. VI.
1 'Cortes,' vol. iv. , Valladolid,
1518 (82): "Otro sy, suplicamos a
vuestra Alteza nos haga merced de
mandar quitar todas las nuebas ynposy-
ciones que sean puestas enestos Reynos
contra las leyes e prematicas dellas.
A esto ves rrespandemos que de-
clareys adonde estan puestas, y que
lo mandaremos probeer conforme a
justicia. "
2G
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? 466 THE LATER SIXTEENTH CENTURY. [PA3. T Iv.
Valladolid in 1518, for three years more. This gave rise to a
protracted discussion of the question whether the king's
request for a grant, or the petitions and other business of
the procurators should be considered first. The Cortes
by a large majority agreed that the general business should
be considered first, but the crown steadily refused to sanction
this, as contrary to precedent. The majority still persisted,
but gradually became smaller, and when at last the pro-
curators of Valladolid went over to the minority, the grant
to the crown was made. 1
The conflict was, however, renewed at Valladolid in 1523.
Charles V. again asked for the "servicio," and promised that
if it was granted within twenty days, he would reply to the
petitions of the Cities. The Cortes had demanded that
these should be heard first, and that the "servicio " should
bo considered afterwards, and Charles again refused, saying
that this was contrary to the traditional usage, while the
Cortes contended that they had received written instructions
from their Cities, that they were not to grant the "servicio"
until their petitions had been considered, and suggested that
they should be sent to lay the matter before them. 2 The
dispute about the precedence of petitions and grievances was
continued at Toledo in 1525, and Charles promised that the
petitions should be answered before the Cortes separated. 3
1 Id. id. , 'Santiago y la Cortina,'
1520 (pp. 300-321).
? Id. id. , Valladolid, 1523 (p. 352):
Declaration of the king: "Que
otorgado el servicio dentro de veynte
dicas, que los capitulos que fueren
dados y suplicaciones generales y
particulares que traeys de vuestras
cibdades e villas, los mandare? ver e
rresponder como mas oonvenga. "
(p. 355): Statement of Cortos:
"Fuese el servicio pasado dela Corunna
y que no fueren oydos los procuradores
tan complidamente como quisieran.
Este enfermidad se aria de curar con
medicina contraria, que primeramente
fuesen complidamnte oydos y des-
pachados sus negocies y remediados los
agravios que pretenden, y despues
desto avia de ser pedido el servicio. "
(p. 357). The king refused, and in-
sisted that this was contrary to tho
traditional custom.
(pp. 358,359). The Cortes deliberated
and reported that the cities had given
them written instructions that they
were not to make a grant until their
petitions had been examined, and they
asked the king--
(p. 361): "Nos mande hazer correos
alas cibdades fuziendoles saber todo lo
sucedicho, y aun presindiendo de los
que se componen con la voluntad de
vuostra alteza. "
? Id. id. , Toledo, 1525-0.
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE.
467
It should be observed that among the petitions presented
at Valladolid in 1523 was one that the king should not ask
for such grants, for the country was poor, and the royal revenue
had increased greatly since the time of the Catholic kings
(Ferdinand and Isabella), and the king replied that he would
not ask for a " sorvicio," except for a just cause, and in Cortes,
and according to the laws of the kingdom. 1 It is clear that
Charles recognised that the power of imposing such taxa-
tion did not belong to the crown, except in and with the
Cortes.
When we come to the later part of the century it is clear
that the authority to grant a subsidy (servicio) still belonged
to the Cortes; the king (Philip II. ) asked for it, and the Cortes
granted it. 2 We find also that the dispute about the pre-
cedence of subsidies and petitions was again renewed in
1563 and 1566,3 and that the king again promised that he
would answer the petitioners before the Cortes terminated. *
But we also find a new and protracted dispute about certain
other forms of the royal revenue. At the Cortes of Madrid
in 1566 the king asked for a subsidy, and the Cortes granted
it, but complained of certain new "rentas, &c," which
had been imposed by the crown, and presented a formal
petition in which they urged that the former kings had ordained
by laws made in the Cortes that no new "rentas, pechos,
derechos, monedas" nor other forms of tribute should be
created or collected without a meeting of the kingdom in
Cortes, and the authorisation of the procurators, as was
established by the law of the Ordinance of King Alfonso. 5
1 Id. id. , Valladolid, 1523, 42
(p. 378) (Reply of king): "Aesto ves
respondemos que no entendemos pedir
servicio, saluo con justa cause y en
Cortes, e quardando las leyes del
rregno. "
* Cf. Cortes of Castile, 1563-1598.
Cortes of Madrid, 1563, 1566; Cordova,
1576; Madrid, 1573, 1579.
>> Id. , Madrid, 1663, 1566.
4 Id. , Madrid, 1563.
* Id. , Madrid, 1566 (p. 414), Petition
IH. ; '' Otresi decimos; que los Reyes
de gloriosa memoria, predocessores de
vuestra majestad, ordinaran y man
daran por leyes fechos en Cortes, no
so creasen ni cobrasen nuevas rentas,
pechos, derechos, monedas, ni otros
tributos, particullos, ni generalmente,
sin junta del Reyno en Cortes, y sin otor-
gamiento de los procuradores de? l, como
consta per la ley del Ordinamiento del
slnor Rey Don Alonso. "
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? 468
THE LATER SIXTEENTH CENTURY. [PART IV.
The king replied apologetically, urging the groat wars in
which he had been involved, and his great need of money;
he said that he would rejoice if he could relieve the country
of these burdens, but did not give any promise. 1 The Cortes
by a majority voted that they did not authorise any new
"rentas " without the assent of the Cortes. 2 The question
was raised again in the Cortes at Cordova in 1570 and at
Madrid in 1576, and the king argued in much the same terms. 3
It should be observed that the king, while contending that
the conditions of the time compelled him to levy them, did
not deny their illegality, and that he made no attempt to
levy the "servicio" without obtaining the consent of the
Cortes.
Legislation and taxation were not, however, the only
public affairs which came before the Cortes. In 1476 the
Cortes complained of the administration of justice, and asked
that for two years they should be allowed to appoint certain
persons who should reside in the royal Court, and the crown
assented. *
In 1525 Charles V. agreed that the Cortes should appoint
two of their number to reside at Court as long as was necessary
to see that what had just been authorised by the Cortes was
carried out. 5 Among other public matters with which the
Cortes dealt, one of the most interesting was the union of the
kingdom of Navarre. At the Cortes of Burgos in 1515 Ferdi-
nand announced his intention of carrying this out, and the
Cortes, in the name of the kingdom of Castile and Leon,
accepted this. 8 Other matters brought before the Cortes
included the alienation of the royal patrimony, 1476 and 1480;
the naturalisation of foreigners, 1476,1523; affairs concerning
1 Id. , Madrid, 1566 (p. 154). diputar dos personas de entre vosotros
* Id. , Madrid, 1566 (pp. 208, 209). que rresydan en nuestra corte por el
>> Id. , Cordova, 1570, Petition HI. ; tiempo que fuere nescessario, como me
Madrid, 1576, Petition I. lo suplicays; y para en lo de adelant<<,
''Cortes,' vol. vi. , Madrigal, 1476, 3. mandamos a los del nuestro consejo
5 Id. id. , Toledo, 1525, 16: "A esto que lo vean y platiquon sobrello, y lo
vos respondemos que nos plaze que provean como vieron que cumple si
para la expedic? ion y esecucion de lo bion destos nostras rreynos. "
otergado en estas Cortes, podays * Id. id. , Burgos, 1515 (p. 249 fl. ).
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 469
the relations of Church and State, 1512, 1525, including the
interference of the Inquisition in matters which did not concern
religion, 1579; and the royal marriage, 1525.
The conception of the nature of legislative authority in
France does not appear to us to have been so clear in France in
the sixteenth century as in Spain; and it is not always easy to
distinguish between administrative and legislative action. In
spite of this, however, it seems to us that from the beginning
to the end of the century, the principle of an absolute power
in the king to override ancient law, or to create new law,
would have been recognised only by a few.
We find a commission appointed by Charles VIII. in 1497
to collect and publish the customs of different parts of the
kingdom, but it must be carefully observed that Charles
authorised this only on the condition that the collection and
record had the approval of the Three Estates of each district,
or at least the larger and wiser part of them. 1 It would appear
that the work had not been completed, and in 1506 Louis XII.
appointed another commission to carry it out, subject to the
same conditions. 2 This recognition of the place of customary
law, and of the principle that it rested primarily upon the
recognition of the country, is obviously of great importance.
The authority of the Provincial Estates in constitutional
matters and in legislation, so far as these concerned particular
provinces, is sometimes very emphatically stated. It was
on the representations and requests of the Three Estates of
Provence that Louis XII. in 1498 united this province to the
French crown, with the promise to maintain all its liberties,
customs, and laws. 3 On the occasion of the marriage of
Louis XII. to Anne of Brittany in 1499 it was provided in the
Letters Patent, issued on the occasion by the king, that no
new laws or constitutions should be made, which might change
the rights and customs of Brittany, except in the manner
which had been observed in the Duchy; that is, that if occasion
1 'Ordonnances,' vol. 21 (p. 18). * Id. , vol. 21 (p. 39).
>> Id. , vol. 21 (p. 332).
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? 470
[PART IV.
THE LATER SIXTEENTH CENTUET.
should arise for some change, it was to be done by the Parle-
ment and Assembly of the Estates of the province. 1
It was with the advice of the Three Estates of Xormandy
that in 1499 Louis XII. transformed the "Exchequer Court"
of Normandy into a " Parlement. " 2 We find in 1532 another
example of the importance of the Provincial Estates in con-
stitutional matters, in the provision for the perpetual union
of Brittany to the French crown. The Estates petitioned
Francis I. that the Dauphin should be recognised as their
duke, and that various things done contrary to their customs
should be revoked and annulled, as having been done without
the knowledge and consent of the Estates; and they also
petitioned that Brittany should be in perpetuity united to
the kingdom of France. The king accepted their request,
and declared his eldest son to be the Duke of Brittany, accord-
ing to the custom that the eldest should succeed to the Duchy,
notwithstanding anything that might have been done before
to the contrary, without the knowledge and consent of the
Three Estates. 3
It is true, however, that in one important case we find that
Louis XII. overrode the Estates of Provence. In 1501 he
issued an Ordinance establishing a " Parlement " in Provence,
and he did this after consultation with some notable persons
of his Great Council, of the "Parlement" and of Provence;
but there is no direct reference to the Estates. * An Ordinance
of 1502 seems to indicate that some representation had been
1 Id. , vol. 21, 1 (p. 149): "C'est a
savoir que en tout que touche de
garder et de conduire le pays de
Bretaigne et les subjets d'ieelui, en
lours droits, libertez, franchises, usaiges,
coustumes et tailles . . . en mamiere
que aucune nouvelle loi ou constitution
n'y soit faite, fora en la maniere accous-
tume par los Roys et Dues predeces-
seurs de nostredite cousine la Duehesse
do Bretaigne. . . .
7. Item, et en tant que peut
toucher qui s'il advenoit que de bonne
raison il y eust quelque cause de fairc
mutacions, particulierement en aug-
mentant, diminuant on interpretant
lesdits droits, coustumes, constitutions
ou etablissements, que ce soit par le
parlement et assemble? rs des estats
dudit pays, ainsi que de tout tems est
accoustume, et que autrement ne soit
fait, nous voulons et entendons quo
ainsi se fssse, appellez toutes voyee, les
gens des trois estats dudit pays de
Bretaigne. "
1 Id. , vol. 21 (p. 215).
* 'Reoueil des Anciennes Lois,' vol.
12. , No. 191 (p. 375).
4 'Ordonnanees," vol. 21 (p. 280).
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 471
made by the Three Estates of Provence, presumably against
the creation of the " Parlement," and the king had appointed
a commission to inquire into the matter, and had in the mean-
while suspended the operation of the Ordinance of 1501.
Louis XII. , having heard the report of the commission and
the representations of the Estates, now "de nostre plein science,
pleine puissance et authorite? royal et provenc? alle " confirms
the creation of the Parlement. 1
In 1535 we find an Ordinance of Francis I. which appears
to us as though it were intended to impose certain limitations
upon the meetings and proceedings of the Three Estates of
Provence. They are not to meet more than once in the year,
and then under Letters Patent from the king; they were
to be presided over by deputies of the king, and were only
to deal with matters mentioned in the Letters Patent, but
they might make representations to these deputies, who might
deal with them according to the powers which they had
received, or report them to the king. The royal governor
is forbidden to call together the Estates, except on matters
of great urgency or danger. The king forbids the Estates to
make Statutes or Ordinances, or any act of administration of
justice, and declares these null and void if they should do so. 2
>> Id. , vol. 21 (p. 298).
* 'Recueil,' vol. 12, 221, 32 (p. 422)
(1535): "Quant au fait des trois
estats do nosdits paye, Contez et
terres adjacentes (Provence, ete. ) . . .
statuons et ordonnons, qu'il ne
pourront eux assembler, si n'est par nos
lettres patentes, une fois l'anne? e, en
tel temps et lieu qu'il nous plaira
ordonner par nosdites lettres. Esquels
estats pre? sideront ceux qui par nous
seront de? pute? s, et non autres, et y
sera tout seulement traicte? et conclud
des affaires mentionnez en icelles.
Bien pourront les gens desdits estats
de? duire et remonstrer les affaires a
nosdits deputez, pour y estre pourveu
selon le pouvoir que leur sera baille? ,
ou nous en faire le rapport.
33. Defendons audits gouverneur,
grand se? neschal et tous autres d'assem-
blor losdits estats, si ce n'est ou il y
auroit cause urgente et necessaire, ou
pe? ril e? minent, auquel cas s'assembleront
par permission dudit gouverneur qui
est a present, ou sera pour le temps
advenir, ou son lieutenant, l'un desquels
assistera et sera pre? sent a ladicte
assemble? e, en laquelle pourvoyront
audit e? minent pe? ril, et le plutost que
faire se pourra, nous advertiront de ce
qu'aura este? fait. . . .
34. Inhibons et de? fendons aux
gens desdits estats, de ne faire statuts
et ordonnances, n'aucun autre acte
d'administration de justioe. Et si
aucuns en ont fait par cy devant, ou
faisoient par apre`s, les avons de?