" 3
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth.
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth.
Thomas Carlyle
Est iuris divini potestas
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii. p. 38),
Fortescue in the fifteenth (cf. this vol. p. 143), and Hooker in
the sixteenth; and, as we have seen, the principles of the
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? 460
[PABT IV.
THE LATER SIXTEENTH CENTURY.
political theorists correspond with the constitutional traditions
in Spain as well as in England. It is true that the mediaeval
Civilians were by no means certain or clear in their inter-
pretation of the words "legibus solutus "; such a statement
as that which Jason de Mayno attributes to Baldus, that the
Pope and the prince could do anything " supra ius et contra
ius et extra ius," may have corresponded with Jason's own
opinion (cf. this vol. , p. 83 and p. 149), but it can scarcely
be said to have been asserted by the Civilians generally.
As we have seen, in the sixteenth century Alciatus and the
most important French Civilians from Connon to Cujas frankly
criticised or repudiated the whole conception (cf. this vol. ,
part iii. chap. 5). And even Bude? and Bodin seem clearly
to confirm the judgment that the " Parlement " could protect
private rights against the king.
At the same time, the conception that the king was not
only the source of law, but above it, was apparently present
in the Eoman law, and we see the reflection of it even in such
a prudent and judicious official of the French Court as Michel
L'Hdpital. 1
Bodin clearly held the principle that the king was above
the law, when he maintains that in spite of the rescript of
Emperor Anastasius (Cod. I. 22, 6) the magistrates must obey
the command of the prince even when he knew it to be contrary
to the law ; 2 and Barclay sums up the opinion of the Civilians
as he understood them as being that the Pope and the prince,
who have "plenitudo potestatis," could do anything "supra
ius, contra ius et extra ius," for he was " legibus solutus.
" 3
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth. We
do not, we think, go too far if we say that it is surely the
foundation of any rational system of society that the authority
of the law is greater than that of any individual member of
the community.
? Cf. p. 415 ft. 1 Cf. p. 424. >> Cf. p. 448.
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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.
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii. p. 38),
Fortescue in the fifteenth (cf. this vol. p. 143), and Hooker in
the sixteenth; and, as we have seen, the principles of the
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? 460
[PABT IV.
THE LATER SIXTEENTH CENTURY.
political theorists correspond with the constitutional traditions
in Spain as well as in England. It is true that the mediaeval
Civilians were by no means certain or clear in their inter-
pretation of the words "legibus solutus "; such a statement
as that which Jason de Mayno attributes to Baldus, that the
Pope and the prince could do anything " supra ius et contra
ius et extra ius," may have corresponded with Jason's own
opinion (cf. this vol. , p. 83 and p. 149), but it can scarcely
be said to have been asserted by the Civilians generally.
As we have seen, in the sixteenth century Alciatus and the
most important French Civilians from Connon to Cujas frankly
criticised or repudiated the whole conception (cf. this vol. ,
part iii. chap. 5). And even Bude? and Bodin seem clearly
to confirm the judgment that the " Parlement " could protect
private rights against the king.
At the same time, the conception that the king was not
only the source of law, but above it, was apparently present
in the Eoman law, and we see the reflection of it even in such
a prudent and judicious official of the French Court as Michel
L'Hdpital. 1
Bodin clearly held the principle that the king was above
the law, when he maintains that in spite of the rescript of
Emperor Anastasius (Cod. I. 22, 6) the magistrates must obey
the command of the prince even when he knew it to be contrary
to the law ; 2 and Barclay sums up the opinion of the Civilians
as he understood them as being that the Pope and the prince,
who have "plenitudo potestatis," could do anything "supra
ius, contra ius et extra ius," for he was " legibus solutus.
" 3
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth. We
do not, we think, go too far if we say that it is surely the
foundation of any rational system of society that the authority
of the law is greater than that of any individual member of
the community.
? Cf. p. 415 ft. 1 Cf. p. 424. >> Cf. p. 448.
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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
? ? Generated for (University of Chicago) on 2014-12-19 10:35 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 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.
