* * * * *

Notwithstanding the general diligence of the Spanish historians, they have done little towards the investigation of the constitutional antiquities of Castile, until the present century. Dr. Geddes's meagre notice of the cortes preceded probably, by a long interval, any native work upon that subject. Robertson frequently complains of the total deficiency of authentic sources of information respecting the laws and government of Castile; a circumstance, that suggests to a candid mind an obvious explanation of several errors, into which he has fallen. Capmany, in the preface to a work, compiled by order of the central junta in Seville, in 1809, on the ancient organization of the cortes in the different states of the Peninsula, remarks, that "no author has appeared, down to the present day, to instruct us in regard to the origin, constitution, and celebration of the Castilian cortes, on all which topics there remains the most profound ignorance." The melancholy results to which such an investigation must necessarily lead, from the contrast it suggests of existing institutions to the freer forms of antiquity, might well have deterred the modern Spaniard from these inquiries; which, moreover, it can hardly be supposed, would have received the countenance of government. The brief interval, however, in the early part of the present century, when the nation so ineffectually struggled to resume its ancient liberties, gave birth to two productions, which have gone far to supply the desiderata in this department. I allude to the valuable works of Marina, on the early legislation, and on the cortes, of Castile, to which repeated reference has been made in this section. The latter, especially, presents us with a full exposition of the appropriate functions assigned to the several departments of government, and with the parliamentary history of Castile deduced from original unpublished records.

It is unfortunate that his copious illustrations are arranged in so unskilful a manner as to give a dry and repulsive air to the whole work. The original documents, on which it is established, instead of being reserved for an appendix, and their import only conveyed in the text, stare at the reader in every page, arrayed in all the technicalities, periphrases, and repetitions incident to legal enactments. The course of the investigation is, moreover, frequently interrupted by impertinent dissertations on the constitution of 1812, in which the author has fallen into abundance of crudities, which he would have escaped, had he but witnessed the practical operation of those liberal forms of government, which he so justly admires. The sanguine temper of Marina has also betrayed him into the error of putting, too uniformly, a favorable construction on the proceedings of the commons, and of frequently deriving a constitutional precedent from what can only be regarded as an accidental and transient exertion of power in a season of popular excitement.

The student of this department of Spanish history may consult, in conjunction with Marina, Sempere's little treatise, often quoted, on the History of the Castilian Cortes. It is, indeed, too limited and desultory in its plan to afford anything like a complete view of the subject. But, as a sensible commentary, by one well skilled in the topics that he discusses, it is of undoubted value. Since the political principles and bias of the author were of an opposite character to Marina's, they frequently lead him to opposite conclusions in the investigation of the same facts. Making all allowance for obvious prejudices, Sempere's work, therefore, may be of much use in correcting the erroneous impressions made by the former writer, whose fabric of liberty too often rests, as exemplified more than once in the preceding pages, on an ideal basis.

But, with every deduction, Marina's publications must be considered an important contribution to political science. They exhibit an able analysis of a constitution, which becomes singularly interesting, from its having furnished, together with that of the sister kingdom of Aragon, the earliest example of representative government, as well as from the liberal principles on which that government was long administered.

FOOTNOTES

[1] Aragon was formally released from this homage in 1177, and Portugal in 1264. (Mariana, Historia General de Espana, (Madrid, 1780,) lib. 11, cap. 14; lib. 13, cap. 20.) The king of Granada, Aben Alahmar, swore fealty to St. Ferdinand, in 1245, binding himself to the payment of an annual rent, to serve under him with a stipulated number of his knights in war, and personally attend cortes when summoned;—a whimsical stipulation this for a Mahometan prince. Conde, Historia de la Dominacion de los Arabes en Espana, (Madrid, 1820, 1821,) tom. iii. cap. 30.

[2] Navarre was too inconsiderable, and bore too near a resemblance in its government to the other Peninsular kingdoms, to require a separate notice; for which, indeed, the national writers afford but very scanty materials. The Moorish empire of Granada, so interesting in itself, and so dissimilar, in all respects, to Christian Spain, merits particular attention. I have deferred the consideration of it, however, to that period of the history which is occupied with its subversion. See Part I., Chapter 8.

[3] See the Canons of the fifth Council of Toledo. Florez, Espana Sagrada, (Madrid, 1747-1776,) tom. vi. p. 168.

[4] Recesvinto, in order more effectually to bring about the consolidation of his Gothic and Roman subjects into one nation, abrogated the law prohibiting their intermarriage. The terms in which his enactment is conceived disclose a far more enlightened policy than that pursued either by the Franks or Lombards. (See the Fuero Juzgo, (ed. de la Acad., Madrid, 1815,) lib. 3, tit. 1, ley 1.)—The Visigothic code, Fuero Juzgo, (Forum Judicum,) originally compiled in Latin, was translated into Spanish under St. Ferdinand; a copy of which version was first printed in 1600, at Madrid. (Los Doctores Asso y Manuel, Instituciones del Derecho Civil de Castilla, (Madrid, 1792,) pp. 6, 7.) A second edition, under the supervision of the Royal Spanish Academy, was published in 1815. This compilation, notwithstanding the apparent rudeness and even ferocity of some of its features, may be said to have formed the basis of all the subsequent legislation of Castile. It was, doubtless, the exclusive contemplation of these features, which brought upon these laws the sweeping condemnation of Montesquieu, as "pueriles, gauches, idiotes,— frivoles dans le fond et gigantesques dans le style." Espirit des Loix, liv. 28, chap. 1.

[5] Some of the local usages, afterwards incorporated in the fueros, or charters, of the Castilian communities, may probably be derived from the time of the Visigoths. The English reader may form a good idea of the tenor of the legal institutions of this people and their immediate descendants, from an article in the sixty-first Number of the Edinburgh Review, written with equal learning and vivacity.

[6] The Christians, in all matters exclusively relating to themselves, were governed by their own laws, (See the Fuero Juzgo, Introd. p. 40,) administered by their own judges, subject only in capital cases to an appeal to the Moorish tribunals. Their churches and monasteries (rosae inter spinas, says the historian) were scattered over the principal towns, Cordova retaining seven, Toledo six, etc.; and their clergy were allowed to display the costume, and celebrate the pompous ceremonial, of the Romish communion. Florez, Espana Sagrada, tom. x. trat. 33, cap, 7.— Morales, Coronica General de Espana, (Obras, Madrid, 1791-1793,) lib. 12, cap. 78.—Conde, Domination de los Arabes, part 1, cap. 15, 22.

[7] Morales, Coronica, lib. 12, cap. 77.—Yet the names of several nobles resident among the Moors appear in the record of those times. (See Salazar de Mendoza, Monarquia de Espana, (Madrid, 1770,) tom. i. p. 34, note.) If we could rely on a singular fact, quoted by Zurita, we might infer that a large proportion of the Goths were content to reside among their Saracen conquerors. The intermarriages among the two nations had been so frequent, that, in 1311, the ambassador of James II., of Aragon, stated to his Holiness, Pope Clement V., that of 200.000 persons composing the population of Granada, not more than 500 were of pure Moorish descent! (Anales de la Corona de Aragon, (Zaragoza, 1610,) lib. 5, cap. 93.) As the object of the statement was to obtain certain ecclesiastical aids from the pontiff, in the prosecution of the Moorish war, it appears very suspicious, notwithstanding the emphasis laid on it by the historian.

[8] Bleda, Coronica de los Moros de Espana, (Valencia, 1618,) p. 171.— This author states, that in his time there were several families in Ireland, whose patronymics bore testimony to their descent from these Spanish exiles. That careful antiquarian, Morales, considers the regions of the Pyrenees lying betwixt Aragon and Navarre, together with the Asturias, Biscay, Guipuscoa, the northern portion of Galicia and the Alpuxarras, (the last retreat, too, of the Moors, under the Christian domination,) to have been untouched by the Saracen invaders. See lib. 12, cap. 76.

[9] The lot of the Visigothic slave was sufficiently hard. The oppressions, which this unhappy race endured, were such as to lead Mr. Southey, in his excellent Introduction to the "Chronicle of the Cid," to impute to their co-operation, in part, the easy conquest of the country by the Arabs. But, although the laws, in relation to them, seem to be taken up with determining their incapacities rather than their privileges, it is probable that they secured to them, on the whole, quite as great a degree of civil consequence, as was enjoyed by similar classes in the rest of Europe. By the Fuero Juzgo, the slave was allowed to acquire property for himself, and with it to purchase his own redemption. (Lib. 5, tit. 4, ley 16.) A certain proportion of every man's slaves were also required to bear arms, and to accompany their master to the field. (Lib. 9, tit 2, ley 8.) But their relative rank is better ascertained by the amount of composition (that accurate measurement of civil rights with all the barbarians of the north) prescribed for any personal violence inflicted on them. Thus, by the Salic law, the life of a free Roman was estimated at only one-fifth of that of a Frank, (Lex Salica, tit. 43, sec. 1, 8;) while, by the law of the Visigoths, the life of a slave was valued at half of that of a freeman, (lib. 6, tit. 4, ley 1.) In the latter code, moreover, the master was prohibited, under the severe penalties of banishment and sequestration of property, from either maiming or murdering his own slave, (lib. 6, tit. 5, leyes 12, 13;) while, in other codes of the barbarians, the penalty was confined to similar trespasses on the slaves of another; and, by the Salic law, no higher mulct was imposed for killing, than for kidnapping a slave. (Lex Salica, tit. 11, sec. 1, 3.) The legislation of the Visigoths, in those particulars, seems to have regarded this unhappy race as not merely a distinct species of property. It provided for their personal security, instead of limiting itself to the indemnification of their masters.

[10] Coronica General, part. 3, fol. 54.

[11] According to Morales, (Coronica, lib. 13, cap. 57,) this took place about 850.

[12] Toledo was not reconquered until 1085; Lisbon, in 1147.

[13] The archbishops of Toledo, whose revenues and retinues far exceeded those of the other ecclesiastics, were particularly conspicuous in these holy wars. Mariana, speaking of one of these belligerent prelates, considers it worthy of encomium, that "it is not easy to decide whether he was most conspicuous for his good government in peace, or his conduct and valor in war." Hist. de Espana, tom. ii. p. 14.

[14] The first occasion, on which the military apostle condescended to reveal himself to the Leonese, was the memorable day of Clavijo, A. D. 844, when 70,000 infidels fell on the field. From that time, the name of St. Jago became the battle-cry of the Spaniards. The truth of the story is attested by a contemporary charter of Ramiro I. to the church of the saint, granting it an annual tribute of corn and wine from the towns in his dominions, and a knight's portion of the spoils of every victory over the Mussulmans. The privilegio del voto, as it is called, is given at length by Florez in his Collection, (Espana Sagrada, tom. xix. p. 329,) and is unhesitatingly cited by most of the Spanish historians, as Garibay, Mariana, Morales, and others.—More sharp-sighted critics discover, in its anachronisms, and other palpable blunders, ample evidence of its forgery. (Mondejar, Advertencies &, la Historia de Mariana (Valencia, 1746,) no. 157,—Masdeu, Historia Critica de Espana, y de la Cultura Espanola, (Madrid, 1783-1805,) tom. xvi. supl. 18.) The canons of Compostella, however, seem to have found their account in it, as the tribute of good cheer, which it imposed, continued to be paid by some of the Castilian towns, according to Mariana, in his day. Hist. de Espana, tom. i. p. 416.

[15] French, Flemish, Italian, and English volunteers, led by men of distinguished rank, are recorded by the Spanish writers to have been present at the sieges of Toledo, Lisbon, Algeziras, and various others. More than sixty, or, as some accounts state, a hundred thousand, joined the army before the battle of Navas de Tolosa; a round exaggeration, which, however, implies the great number of such auxiliaries. (Garibay, Compendio Historial de las Chronicas de Espana, (Barcelona, 1628,) lib. 12, cap. 33.) The crusades in Spain were as rational enterprises, as those in the East were vain and chimerical. Pope Pascal II. acted like a man of sense, when he sent back certain Spanish adventurers, who had embarked in the wars of Palestine, telling them that "the cause of religion could be much better served by them at home."

[16] See Heeren, Politics of Ancient Greece, translated by Bancroft, chap. 7.

[17] The oldest manuscript extant of this poem, (still preserved at Bivar, the hero's birth-place,) bears the date of 1207, or at latest 1307, for there is some obscurity in the writing. Its learned editor, Sanchez, has been led by the peculiarities of its orthography, metre, and idiom, to refer its composition to as early a date as 1153. (Coleccion de Poesias Castellanas anteriores al Siglo XV. (Madrid 1779-90,) tom. i. p. 223.)

Some of the late Spanish antiquaries have manifested a skepticism in relation to the "Cid," truly alarming. A volume was published at Madrid, in 1792, by Risco, under the title of "Castilla, o Historia de Rodrigo Diaz," etc., which the worthy father ushered into the world with much solemnity, as a transcript of an original manuscript coeval with the time of the "Cid," and fortunately discovered by him in an obscure corner of some Leonese monastery. (Prologo). Masdeu, in an analysis of this precious document, has been led to scrutinize the grounds on which the reputed achievements of the "Cid" have rested from time immemorial, and concludes with the startling assertion, that "of Rodrigo Diaz, el Campeador, we absolutely know nothing with any degree of probability, not even his existence!" (Hist. Critica, tom. xx. p. 370.) There are probably few of his countrymen, that will thus coolly acquiesce in the annihilation of their favorite hero, whose exploits have been the burden of chronicle, as well as romance, from the twelfth century down to the present day.

They may find a warrant for their fond credulity, in the dispassionate judgment of one of the greatest of modern historians, John Muller, who, so far from doubting the existence of the Campeador, has succeeded, in his own opinion at least, in clearing from his history the "mists of fable and extravagance," in which it has been shrouded. See his Life of the Cid, appended to Escobar's "Romancero," edited by the learned and estimable Dr. Julius, of Berlin. Frankfort, 1828.

[18] A modern minstrel inveighs loudly against this charity of his ancestors, who devoted their "cantos de cigarra," to the glorification of this "Moorish rabble," instead of celebrating the prowess of the Cid, Bernardo, and other worthies of their own nation. His discourtesy, however, is well rebuked by a more generous brother of the craft.

"No es culpa si de los Moros los valientes hechos cantan, pues tanto mas resplandecen nuestras celebres hazanas; que el encarecer los hechos del vencido en la batalla, engrandece al vencedor, aunque no hablen de el palabra."

Duran, Romancero de Romances Moriscos, (Madrid, 1828.) p. 227.

[19] When the empress queen of Alfonso VII. was besieged in the castle of Azeca, in 1139, she reproached the Moslem cavaliers for their want of courtesy and courage in attacking a fortress defended by a female. They acknowledged the justice of the rebuke, and only requested that she would condescend to show herself to them from her palace; when the Moorish chivalry, after paying their obeisance to her in the most respectful manner, instantly raised the siege, and departed. (Ferreras, Histoire Generale d'Espagne, traduite par d'Hermilly, (Paris, 1742-51.) tom. in. p. 410.) It was a frequent occurrence to restore a noble captive to liberty without ransom, and even with costly presents. Thus Alfonso XI. sent back to their father two daughters of a Moorish prince, who formed part of the spoils of the battle of Tarifa. (Mariana, Hist. die Espana, tom. ii. p. 32.) When this same Castilian sovereign, after a career of almost uninterrupted victory over the Moslems, died of the plague before Gibraltar, in 1350, the knights of Granada put on mourning for him, saying, that "he was a noble prince, and one that knew how to honor his enemies as well as his friends." Conde, Domination de los Arabes, tom. iii. p. 149.

[20] One of the most extraordinary achievements, in this way, was that of the grand master of Alcantara, in 1394, who, after ineffectually challenging the king of Granada to meet him in single combat, or with a force double that of his own, marched boldly up to the gates of his capital, where he was assailed by such an overwhelming host, that he with all his little band perished on the field. (Mariana, Hist. de Espana, lib. 19, cap. 3.) It was over this worthy compeer of Don Quixote that the epitaph was inscribed, "Here lies one who never knew fear," which led Charles V. to remark to one of his courtiers, that "the good knight could never have tried to snuff a candle with his fingers."

[21] This singular fact, of the existence of an Arabic military order, is recorded by Conde. (Dominacion de los Arabes, tom. i. p. 619, note.) The brethren were distinguished for the simplicity of their attire, and their austere and frugal habits. They were stationed on the Moorish marches, and were bound by a vow of perpetual war against the Christian infidel. As their existence is traced as far back as 1030, they may possibly have suggested the organization of similar institutions in Christendom, which they preceded by a century at least. The loyal historians of the Spanish military orders, it is true, would carry that of St. Jago as far back as the time of Ramiro I., in the ninth century; (Caro de Torres, Historia de las Ordenes Militares de Santiago, Calatrava, y Alcantara, (Madrid, 1629,) fol. 2.—Rades y Andrada, Chronica de las Tres Ordenes y Cavallerias, (Toledo, 1572,) fol. 4,) but less prejudiced critics, as Zurita and Mariana, are content with dating it from the papal bull of Alexander III., 1175.

[22] In one of the Paston letters, we find the notice of a Spanish knight appearing at the court of Henry VI., "wyth a Kercheff of Plesaunce iwrapped aboute hys arme, the gwych Knight," says the writer, "wyl renne a cours wyth a sharpe spere for his sou'eyn lady sake." (Fenn, Original Letters, (1787,) vol. i. p. 6.) The practice of using sharp spears, instead of the guarded and blunted weapons usual in the tournament, seems to have been affected by the chivalrous nobles of Castile; many of whom, says the chronicle of Juan II., lost their lives from this circumstance, in the splendid tourney given in honor of the nuptials of Blanche of Navarre and Henry, son of John II. (Cronica de D. Juan II., (Valencia, 1779,) p. 411.) Monstrelet records the adventures of a Spanish cavalier, who "travelled all the way to the court of Burgundy to seek honor and reverence" by his feats of arms. His antagonist was the Lord of Chargny; on the second day they fought with battle-axes, and "the Castilian attracted general admiration, by his uncommon daring in fighting with his visor up." Chroniques, (Paris, 1595,) tom. ii. p. 109.

[23] The Venetian ambassador, Navagiero, speaking of the manners of the Castilian nobles, in Charles V.'s time, remarks somewhat bluntly, that, "if their power were equal to their pride, the whole world would not be able to withstand them." Viaggio fatto in Spagna et in Francia, (Vinegia, 1563,) fol. 10.

[24] The most ancient of these regular charters of incorporation, now extant, was granted by Alfonso V., in 1020, to the city of Leon and its territory. (Mariana rejects those of an earlier date, adduced by Asso and Manuel and other writers. Ensayo Historico-Critico, sobre la Antigua Legislation de Castilla, (Madrid, 1808,) pp. 80-82.) It preceded, by a long interval, those granted to the burgesses in other parts of Europe, with the exception, perhaps, of Italy; where several of the cities, as Milan, Pavia, and Pisa, seem early in the eleventh century to have exercised some of the functions of independent states. But the extent of municipal immunities conceded to, or rather assumed by, the Italian cities at this early period, is very equivocal; for their indefatigable antiquarian confesses that all, or nearly all their archives, previous to the time of Frederick I., (the latter part of the twelfth century,) had perished amid their frequent civil convulsions. (See the subject in detail, in Muratori, Dissertazioni sopra le Antichita Italiane, (Napoli, 1752,) dissert. 45.) Acts of enfranchisement became frequent in Spain during the eleventh century; several of which are preserved, and exhibit, with sufficient precision, the nature of the privileges accorded to the inhabitants.—Robertson, who wrote when the constitutional antiquities of Castile had been but slightly investigated, would seem to have little authority, therefore, for deriving the establishment of communities from Italy, and still less for tracing their progress through France and Germany to Spain. See his History of the Reign of the Emperor Charles V, (London, 1796,) vol. i. pp. 29, 30.

[25] For this account of the ancient polity of the Castilian cities, the reader is referred to Sempere, Histoire des Cortes d'Espagne, (Bordeaux, 1815,) and Marina's valuable works, Ensayo Historico-Critico sobre la Antigua Legislacion de Camilla, (Nos. 160-196,) and Teoria de las Cortes, (Madrid, 1813, part. 2, cap. 21-23,) where the meagre outline given above is filled up with copious illustration.

[26] The independence of the Lombard cities had been sacrificed, according to the admission of their enthusiastic historian, about the middle of the thirteenth century. Sismondi, Histoire des Republiques Italiennes du Moyen-Age, (Paris, 1818,) ch. 20.

[27] Or in 1160, according to the Coronica General, (part. 4, fol. 344, 345,) where the fact is mentioned; Mariana refers this celebration of cortes to 1170, (Hist. de Espana, lib. 11, cap. 2;) but Ferreras, who often rectifies the chronological inaccuracies of his predecessor, fixes it in 1169. (Hist. d'Espagne, tom. iii. p. 484) Neither of these authors notices the presence of the commons in this assembly; although the phrase used by the Chronicle, los cibdadanos, is perfectly unequivocal.

[28] Capmany, Practica y Estilo de Celebrar Cortes en Aragon, Cataluna, y Valencia, (Madrid, 1821,) pp. 230, 231.—Whether the convocation of the third estate to the national councils proceeded from politic calculation in the sovereign, or was in a manner forced on him by the growing power and importance of the cities, it is now too late to inquire. It is nearly as difficult to settle on what principles the selection of cities to be represented depended. Marina asserts, that every great town and community was entitled to a seat in the legislature, from the time of receiving its municipal charter from the sovereign, (Teoria, tom. i. p. 138;) and Sempere agrees, that this right became general, from the first, to all who chose to avail themselves of it. (Histoire des Cortes, p. 56.) The right, probably, was not much insisted on by the smaller and poorer places, which, from the charges it involved, felt it often, no doubt, less of a boon than a burden. This, we know, was the case in England.

[29] It was an evil of scarcely less magnitude, that contested elections were settled by the crown. (Capmany, Practica y Estilo, p. 231.) The latter of these practices, and, indeed, the former to a certain extent, are to be met with in English history.

[30] Marina leaves this point in some obscurity. (Teoria, tom. i. cap. 28.) Indeed, there seems to have been some irregularity in the parliamentary usages themselves. From minutes of a meeting of cortes at Toledo, in 1538, too soon for any material innovation on the ancient practice, we find the three estates sitting in separate chambers, from the very commencement to the close of the session. See the account drawn up by the count of Coruna, apud Capmany, Practica y Estilo, pp. 240 et seq.

[31] This, however, so contrary to the analogy of other European governments, is expressly contradicted by the declaration of the nobles, at the cortes of Toledo, in 1538. "Oida esta respuesta se dijo, que pues S. M. habia dicho que no eran Cortes ni habia Brazos, no podian tratar cosa alguna, que ellos sin procuradores, y los procuradores sin ellos, no seria valido lo que hicieren." Relacion del Conde de Coruna, apud Capmany, Practica y Estilo, p. 247.

[32] This omission of the privileged orders was almost uniform under Charles V. and his successors. But it would be unfair to seek for constitutional precedent in the usages of a government, whose avowed policy was altogether subversive of the constitution.

[33] During the famous war of the Comunidades, under Charles V. For the preceding paragraph consult Marina, (Teoria, part. 1, cap. 10, 20, 26, 29,) and Capmany. (Practica y Estilo, pp. 220-250.) The municipalities of Castile seem to have reposed but a very limited confidence in their delegates, whom they furnished with instructions, to which they were bound to conform themselves literally. See Marina, Teoria, part. 1, cap. 23.

[34] The term "fundamental principle" is fully authorized by the existence of repeated enactments to this effect. Sempere, who admits the "usage," objects to the phrase "fundamental law," on the ground that these acts were specific, not general, in their character. Histoire des Cortes, p. 254.

[35] "Los Reyes en nuestros Reynos progenitores establecieron por leyes, y ordenancas fechas en Cortes, que no se echassen, ni repartiessen ningunos pechos, seruicios, pedidos, ni monedas, ni otros tributes nueuos, especial, ni generalmente en todos nuestros Reynos, sin que primeramente sean llamados a Cortes los procuradores de todas las Ciudades, y villas de nuestros Reynos, y sean otorgados por los dichos procuradores que a las Cortes vinieren." (Recopilacion de las Leyes, (Madrid, 1640,) tom. ii. fol. 124.) This law, passed under Alfonso XI., was confirmed by John II., Henry III., and Charles V.

[36] In 1258, they presented a variety of petitions to the king, in relation to his own personal expenditure, as well as that of his courtiers; requiring him to diminish the charges of his table, attire, etc., and, bluntly, to "bring his appetite within a more reasonable compass;" to all which he readily gave his assent. (Sempere y Guarinos, Historia del Luxo, y de las Leyes Suntuarias de Espana, (Madrid, 1788,) tom. i. pp. 91, 92.) The English reader is reminded of a very different result, which attended a similar interposition of the commons in the time of Richard II., more than a century later.

[37] Marina claims also the right of the cortes to be consulted on questions of war and peace, of which he adduces several precedents. (Teoria, part. 2, cap. 19, 20.) Their interference in what is so generally held the peculiar province of the executive, was perhaps encouraged by the sovereign, with the politic design of relieving himself of the responsibility of measures whose success must depend eventually on their support. Hallam notices a similar policy of the crown, under Edward III., in his view of the English constitution during the Middle Ages. View of the State of Europe during the Middle Ages, (London, 1819,) vol. iii. chap. 8.

[38] The recognition of the title of the heir apparent, by a cortes convoked for that purpose, has continued to be observed in Castile down to the present time. Practica y Estilo, p. 229.

[39] For the preceding notice of the cortes, see Marina, Teoria, part. 2, cap. 13, 19, 20, 21, 31, 35, 37, 38.

[40] So at least they are styled by Marina. See his account of these institutions; (Teoria, part. 2, cap. 39;) also Salazar de Mendoza, (Monarquia, lib. 3, cap. 15, 16,) and Sempere, (Histoire des Cortes, chap. 12, 13.) One hundred cities associated in the Hermandad of 1315. In that of 1295, were thirty-four. The knights and inferior nobility frequently made part of the association. The articles of confederation are given by Risco, in his continuation of Florez. (Espana Sagrada, (Madrid, 1775- 1826,) tom. xxxvi. p. 162.) In one of these articles it is declared, that, if any noble shall deprive a member of the association of his property, and refuse restitution, his house shall be razed to the ground. (Art. 4.) In another, that if any one, by command of the king, shall attempt to collect an unlawful tax, he shall be put to death on the spot. Art. 9.

[41] See Sempere, Historia del Luxo, tom. i. p. 97.—Masdeu, Hist. Critica, tom. xiii. nos. 90, 91.—Gold and silver, curiously wrought into plate, were exported in considerable quantities from Spain, the tenth and eleventh centuries. They were much used in the churches. The tiara of the pope was so richly encrusted with the precious metals, says Masdeu, as to receive the name of Spanodista. The familiar use of these metals as ornaments of dress is attested by the ancient poem of the "Cid." See, in particular, the costume of the Campeador; vv. 3099 et seq.

[42] Zuniga, Annales Eclesiasticos y Seculares de Sevilla, (Madrid, 1677,) pp. 74, 75.—Sempere, Historia del Luxo, tom. i. p. 80.

[43] The historian of Seville describes that city, about the middle of the fifteenth century, as possessing a flourishing commerce and a degree of opulence unexampled since the conquest. It was filled with an active population, employed in the various mechanic arts. Its domestic fabrics, as well as natural products, of oil, wine, wool, etc., supplied a trade with Prance, Flanders, Italy, and England. (Zuniga, Annales de Sevilla, p. 341.—See also Sempere, Historia del Luxo, p. 81, nota 2.) The ports of Biscay, which belonged to the Castilian crown, were the marts of an extensive trade with the north, during the thirteenth and fourteenth centuries. This province entered into repeated treaties of commerce with France and England; and her factories were established at Bruges, the great emporium of commercial intercourse during this period between the north and south, before those of any other people in Europe, except the Germans. (Diccionario Geografico-Historico de Espana, por la Real Academia de la Historia, (Madrid, 1802,) tom. i. p. 333.)

The institution of the mesta is referred, says Laborde, (Itineraire Descriptif de l'Espagne, (Paris, 1827-1830,) tom. iv. p. 47,) to the middle of the fourteenth century, when the great plague, which devastated the country so sorely, left large depopulated tracts open to pasturage. This popular opinion is erroneous, since it engaged the attention of government, and became the subject of legislation as anciently as 1273, under Alfonso the Wise. (See Asso y Manuel, Instituciones, Introd. p. 56.) Capmany, however, dates the great improvement in the breed of Spanish sheep from the year 1394, when Catharine of Lancaster brought with her, as a part of her dowry to the heir apparent of Castile, a flock of English merinos, distinguished, at that time, above those of every other country, for the beauty and delicacy of their fleece. (Memorias Historicas sobre la Marina, Comercio, y Artes de Barcelona, (Madrid, 1779-1792,) tom. iii. pp. 336, 337.) This acute writer, after a very careful examination of the subject, differing from those already quoted, considers the raw material for manufacture, and the natural productions of the soil, to have constituted almost the only articles of export from Spain, until after the fifteenth century. (Ibid., p. 338.) We will remark, in conclusion of this desultory note, that the term merinos is derived, by Conde, from moedinos, signifying "wandering;" the name of an Arabian tribe, who shifted their place of residence with the season. (Hist. de los Arabes en Espana, tom. i. p. 488, nota.) The derivation might startle any but a professed etymologist.

[44] See the original acts, cited by Sempere. (Historia del Luxo, passim.) The archpriest of Hita indulges his vein freely against the luxury, cupidity, and other fashionable sins of his age. (See Sanchez, Poesias Castellanas, tom. iv.)—The influence of Mammon appears to have been as supreme in the fourteenth century as at any later period.

"Sea un ome nescio, et rudo labrador, Los dineros le fasen fidalgo e sabidor, Quanto mas algo tiene, tanto es mas de valor, El que no ba dineros, non es de si senor." Vv. 465 et seq.

[45] Marina, Ensayo, nos. 199, 297.—Zuniga, Annales de Sevilla, p. 341.

[46] Marina, Teoria, part. 2, cap. 28.—Mariana, Hist. de Espana, lib. 18, cap. 15.—The admission of citizens into the king's council would have formed a most important epoch for the commons, had they not soon been replaced by jurisconsults, whose studies and sentiments inclined them less to the popular side than to that of prerogative.

[47] Ibid., lib. 18, cap. 17.

[48] Castilla. See Salazar de Mendoza, Monarquia, tom. i. p. 108.— Livy mentions the great number of these towers in Spain in his day. "Multas et locis altis positas turres Hispania habet." (Lib. 22, cap. 19.)—A castle was emblazoned on the escutcheon of Castile, as far back as the reign of Urraca, in the beginning of the twelfth century, according to Salazar de Mendoza, (Monarquia, tom. i. p. 142,) although Garibay discerns no vestige of these arms on any instrument of a much older date than the beginning of the thirteenth century. Compendio, lib. 12, cap. 32.

[49] "Hizo guerra a los Moros, Ganando sus fortalezas Y sus villas. Y en las lides que Vencio Caballeros y Caballos Se perdieron, Y en este ofloio gano Las rentas y los vasallos Que le dieron." Coplas de Manrique, copla 31.

[50] Asso and Manuel derive the introduction of fiefs into Castile, from Catalonia. (Instituciones, p. 96.) The twenty-sixth title, part. 4, of Alfonso X.'s code, (Siete Partidas,) treats exclusively of them. (De los Feudos.) The laws 2, 4, 5, are expressly devoted to a brief exposition of the nature of a fief, the ceremonies of investiture, and the reciprocal obligations of lord and vassal. Those of the latter consisted in keeping his lord's counsel, maintaining his interest, and aiding him in war. With all this, there are anomalies in this code, and still more in the usages of the country, not easy to explain on the usual principles of the feudal relation; a circumstance, which has led to much discrepancy of opinion on the subject, in political writers, as well as to some inconsistency. Sempere, who entertains no doubt of the establishment of feudal institutions in Castile, tells us, that "the nobles, after the Conquest, succeeded in obtaining an exemption from military service,"—one of the most conspicuous and essential of all the feudal relations. Histoire des Cortes, pp. 30, 72, 249.

[51] Asso y Manuel, Instituciones, p. 26.—Sempere, Histoire des Cortes, chap. 4.—The incensed nobles quitted the cortes in disgust, and threatened to vindicate their rights by arms, on one such occasion, 1176. Mariana, Hist. de Espana, tom. i. p. 644. See also tom. ii. p. 176.

[52] Idem auctores, ubi supra.—Prieto y Sotelo, Historia del Derecho Real de Espana, (Madrid, 1738,) lib. 2, cap. 23; lib. 3, cap. 8.

[53] Siete Partidas, (ed. de la Real Acad., Madrid, 1807,) part. 4, tit. 25, ley 11. On such occasions they sent him a formal defiance by their king at arms. Mariana, Hist. de Espana, tom. i. pp. 768, 912.

[54] Ibid., tom. i. pp. 707, 713.

[55] The forms of this solemnity may be found in Mariana, Hist. de Espana, tom. i. p. 907.

[56] Marina, Ensayo, p. 128.

[57] John I., in 1390, authorized appeals from the seignorial tribunals to those of the crown. Ibid., tom. ii. p. 179.

[58] The nature of these dignities is explained in Salazar de Mendoza, Monarquia, tom. i. pp. 155, 166, 203.

[59] From the scarcity of these baronial residences, some fanciful etymologists have derived the familiar saying of "Chateaux en Espagne." See Bourgoanne, Travels in Spain, tom. ii. chap. 12.

[60] Mariana, Hist. de Espana, tom. i. p. 910.

[61] Cronica de Don Alvaro de Luna, (ed. de la Acad. Madrid, 1784,) App. p. 465.

[62] Guzman, Generaciones y Semblanzas, (Madrid, 1775,) cap. 84.—His annual revenue is computed by Perez de Guzman, at 100,000 doblas of gold; a sum equivalent to 856,000 dollars at the present day.

[63] The former of these two sums is equivalent to $438,875, or L91,474 sterling; and the latter to $526,650, or L109,716, nearly. I have been guided by a dissertation of Clemencin, in the sixth volume of the Memorias de la Real Academia de la Historia, (Madrid, 1821, pp. 507-566,) in the reduction of sums in this History. That treatise is very elaborate and ample, and brings under view all the different coins of Ferdinand and Isabella's time, settling their specific value with great accuracy. The calculation is attended with considerable difficulty, owing to the depreciation of the value of the precious metals, and the repeated adulteration of the real. In his tables, at the end, he exhibits the commercial value of the different denominations, ascertained by the quantity of wheat (as sure a standard as any), which they would buy at that day. Taking the average of values, which varied considerably in different years of Ferdinand and Isabella, it appears that the ducat, reduced to our own currency, will be equal to about eight dollars and seventy-seven cents, and the dobla to eight dollars and fifty-six cents.

[64] The ample revenues of the Spanish grandee of the present time, instead of being lavished on a band of military retainers, as of yore, are sometimes dispensed in the more peaceful hospitality of supporting an almost equally formidable host of needy relations and dependants. According to Bourgoanne (Travels in Spain, vol. 1. chap. 4), no less than 3000 of these gentry were maintained on the estates of the duke of Arcos, who died in 1780.

[65] Mendoza records the circumstance of the head of the family of Ponce de Leon, (a descendant of the celebrated marquis of Cadiz,) carrying his son, then thirteen years old, with him into battle; "an ancient usage," he says, "in that noble house." (Guerra de Granada, (Valencia, 1776,) p. 318.) The only son of Alfonso VI. was slain, fighting manfully in the ranks, at the battle of Ucles, in 1109, when only eleven years of age. Mariana, Hist. de Espana, tom. i. p. 565.

[66] The northern provinces, the theatre of this primitive independence, have always been consecrated by this very circumstance, in the eyes of a Spaniard. "The proudest lord," says Navagiero, "feels it an honor to trace his pedigree to this quarter." (Viaggio, fol. 44.) The same feeling has continued, and the meanest native of Biscay, or the Asturias, at the present day, claims to be noble; a pretension, which often contrasts ridiculously enough with the humble character of his occupation, and has furnished many a pleasant anecdote to travellers.

[67] An elaborate dissertation, by the advocate Don Alonso Carillo, on the pre-eminence and privileges of the Castilian grandee, is appended to Salazar de Mendoza's Origen de las Dignidades Seglares de Castilla, (Madrid, 1794.) The most prized of these appears to be that of keeping the head covered in the presence of the sovereign; "prerogativa tan ilustre," says the writer, "que ella sola imprime el principal caracter de la Grandeza. Y considerada por sus efectos admirables, ocupa dignamente el primero lugar." (Discurso 3.) The sentimental citizen Bourgoanne, finds it necessary to apologize to his republican brethren, for noticing these "important trifles." Travels in Spain, vol. i. chap. 4.

[68] "Los llamaron fijosdalgo, que muestra a tanto como fijos de bien." (Siete Partidas, part. 2, tit. 21.) "Por hidalgos se entienden los hombres escogidos de buenos lugares e con algo." Asso y Manuel, Instituciones, pp. 33, 34.

[69] Recop. de las Leyes, lib. 6, tit. 1, leyes 2, 9; tit. 2, leyes 3, 4, 10; tit. 14, leyes 14, 19.—They were obliged to contribute to the repair of fortifications and public works, although, as the statute expresses it, "tengan privilegios para que sean essentos de todos pechos."

[70] The knight was to array himself in light and cheerful vestments, and, in the cities and public places his person was to be enveloped in a long and flowing mantle, in order to impose greater reverence on the people. His good steed was to be distinguished by the beauty and richness of his caparisons. He was to live abstemiously, indulging himself in none of the effeminate delights of couch or banquet. During his repast, his mind was to be refreshed with the recital, from history, of deeds of ancient heroism; and in the fight he was commanded to invoke the name of his mistress, that it might infuse new ardor into his soul, and preserve him from the commission of unknightly actions. See Siete Partidas, part, 2, tit. 21, which is taken up with defining the obligations of chivalry.

[71] See Fuero Juzgo, lib. 3, which is devoted almost exclusively to the sex. Montesquieu discerns in the jealous surveillance, which the Visigoths maintained over the honor of their women, so close an analogy with oriental usages, as must have greatly facilitated the conquest of the country by the Arabians. Esprit des Loix, liv. 14, chap. 14.

[72] Warton's expression. See vol. i. p. 245, of the late learned edition of his History of English Poetry, (London, 1824.)

[73] See the "Passo Honroso" appended to the Cronica de Alvaro de Luna.

[74] The present narrative will introduce the reader to more than one belligerent prelate, who filled the very highest post in the Spanish, and, I may say, the Christian Church, next the papacy. (See Alvaro Gomez, De Rebus Gestis a Francisco Ximenio Cisnerio, (Compluti, 1569,) fol. 110 et seq.) The practice, indeed, was familiar in other countries, as well as Spain, at this late period. In the bloody battle of Ravenna, in 1512, two cardinal legates, one of them the future Leo X., fought on opposite sides. Paolo Giovo, Vita Leonis X., apud "Vitae Illustrium Virorum," (Basiliae, 1578,) lib. 2.

[75] The contest for supremacy, between the Mozarabic ritual and the Roman, is familiar to the reader, in the curious narrative extracted by Robertson from Mariana, Hist. de Espana, lib. 9, cap. 18.

[76] Siete Partidas, part. 1, tit. 6.—Florez, Espana Sagrada, tom. xx. p. 16.—The Jesuit Mariana appears to grudge this appropriation of the "sacred revenues of the Church" to defray the expenses of the holy war against the Saracen. (Hist. de Espana, tom. i. p. 177.) See also the Ensayo, (nos. 322-364,) where Marina has analyzed and discussed the general import of the first of the Partidas.

[77] Marina, Ensayo, ubi supra, and nos. 220 et seq.

[78] See the original acts quoted by Sempere, in his Historia del Luxo, tom. i. pp. 166 et seq.

[79] Lucio Marineo Siculo, Cosas Memorables de Espana, (Alcala de Henares, 1539,) fol. 16.

[80] Navagiero, Viaggio, fol. 9.—L. Marineo, Cosas Memorables, fol. 12.— Laborde reckons the revenues of this prelate, in his tables, at 12,000,000 reals, or 600,000 dollars. (Itineraire, tom. vi. p. 9.) The estimate is grossly exaggerated for the present day. The rents of this see, like those of every other in the kingdom, have been grievously clipped in the late political troubles. They are stated by the intelligent author of "A Year in Spain," on the authority of the clergy of the diocese, at one-third of the above sum, only; (p. 217, Boston ed. 1829;) an estimate confirmed by Mr. Inglis, who computes them at L40,000. Spain in 1830, vol. i. ch. 11.

[81] Modern travellers, who condemn without reserve the corruption of the inferior clergy, bear uniform testimony to the exemplary piety and munificent charities of the higher dignitaries of the church.

[82] Marina, Teoria, part. 2, cap. 2, 5, 6.—A remarkable instance of this occurred as late as the accession of Charles V.

[83] The earliest example of this permanent committee of the commons, residing at court, and entering into the king's council, was in the minority of Ferdinand IV., in 1295. The subject is involved in some obscurity, which Marina has not succeeded in dispelling. He considers the deputation to have formed a necessary and constituent part of the council, from the time of its first appointment. (Teoria, tom. ii. cap. 27, 28.) Sempere, on the other hand, discerns no warrant for this, after its introduction, till the time of the Austrian dynasty. (Histoire des Cortes, chap. 29.) Marina, who too often mistakes anomaly for practice, is certainly not justified, even by his own showing, in the sweeping conclusions to which he arrives. But, if his prejudices lead him to see more than has happened, on the one hand, those of Sempere, on the other, make him sometimes high gravel blind.

[84] The important functions and history of this body are investigated by Marina. (Teoria, part. 2, cap. 27, 28, 29.) See also Sempere, (Histoire des Cortes, cap. 16,) and the Informe de Don Agustin Riol, (apud Semanario Erudito, tom. iii. pp. 113 et seq.) where, however, its subsequent condition is chiefly considered.

[85] Not so exclusively, however, by any means, as Marina pretends. (Teoria, part. 2, cap. 17, 18.) He borrows a pertinent illustration from the famous code of Alfonso X., which was not received as law of the land till it had been formally published in cortes, in 1348, more than seventy years after its original compilation. In his zeal for popular rights, he omits to notice, however, the power so frequently assumed by the sovereign of granting fueros, or municipal charters; a right, indeed, which the great lords, spiritual and temporal, exercised in common with him, subject to his sanction. See a multitude of these seignorial codes, enumerated by Asso and Manuel. (Instituciones, Introd., pp. 31 et seq.) The monarch claimed, moreover, though not by any means so freely as in later times, the privilege of issuing pragmaticas, ordinances of an executive character, or for the redress of grievances submitted to him by the national legislature. Within certain limits, this was undoubtedly a constitutional prerogative; But the history of Castile, like that of most other countries in Europe, shows how easily it was abused in the hands of an arbitrary prince.

[86] The civil and criminal business of the kingdom was committed, in the last resort, to the very ancient tribunal of alcaldes de casa y corte, until, in 1371, a new one, entitled the royal audience or chancery, was constituted under Henry II., with supreme and ultimate jurisdiction in civil causes. These, in the first instance, however, might be brought before the alcaldes de la corte, which continued, and has since continued, the high court in criminal matters.

The audiencia, or chancery, consisted at first of seven judges, whose number varied a good deal afterwards. They were appointed by the crown, in the manner mentioned in the text. Their salaries were such as to secure their independence, as far as possible, of any undue influence; and this was still further done by the supervision of cortes, whose acts show the deep solicitude with which it watched over the concerns and conduct of this important tribunal. For a notice of the original organization and subsequent modifications of the Castilian courts, consult Marina, (Teoria, part. 2, cap. 21-25,) Riol, (Informe, apud Semanario Erudito, tom. iii. pp. 129 et seq.) and Sempere, (Histoire des Cortes, chap. 15,) whose loose and desultory remarks show perfect familiarity with the subject, and presuppose more than is likely to be found in the reader.

[87] Siete Partidas, part. 2, tit. 26, leyes 5, 6, 7.—Mendoza notices this custom as recently as Philip II.'s day. Guerra de Granada, p. 170.

[88] Mariana, Hist. de Espana, lib. 15, cap. 19, 20.

[89] Garibay, Compendio, tom. ii. p. 399.—Mariana, Hist. de Espana, tom. ii. pp. 234, 235.—Pedro Lopez de Ayala, chancellor of Castile and chronicler of the reigns of four of its successive monarchs, terminated his labors abruptly with the sixth year of Henry III., the subsequent period of whose administration is singularly barren of authentic materials for history. The editor of Ayala's Chronicle considers the adventure, quoted in the text, as fictitious, and probably suggested by a stratagem employed by Henry for the seizure of the duke of Benevente, and by his subsequent imprisonment at Burgos. See Ayala, Cronica de Castilla, p. 355, note, (ed. de la Acad., 1780.)



SECTION II.

REVIEW OF THE CONSTITUTION OF ARAGON TO THE MIDDLE OF THE FIFTEENTH CENTURY.

Rise of Aragon.—Ricos Hombres.—Their Immunities.—Their Turbulence.— Privileges of Union.—The Legislature.—Its Forms.—Its Powers.—General Privilege.—Judicial Functions of Cortes.—The Justice.—His Great Authority.—Else and Opulence of Barcelona.—Her Free Institutions.— Intellectual Culture.

The political institutions of Aragon, although bearing a general resemblance to those of Castile, were sufficiently dissimilar to stamp a peculiar physiognomy on the character of the nation, which still continued after it had been incorporated with the great mass of the Spanish monarchy.—It was not until the expiration of nearly five centuries after the Saracen invasion, that the little district of Aragon, growing up under the shelter of the Pyrenees, was expanded into the dimensions of the province which now bears that name. During this period, it was painfully struggling into being, like the other states of the Peninsula, by dint of fierce, unintermitted warfare with the infidel.

Even after this period, it would probably have filled but an insignificant space in the map of history, and, instead of assuming an independent station, have been compelled, like Navarre, to accommodate itself to the politics of the potent monarchies by which it was surrounded, had it not extended its empire by a fortunate union with Catalonia in the twelfth, and the conquest of Valencia in the thirteenth century. [1] These new territories were not only far more productive than its own, but, by their long line of coast and commodious ports, enabled the Aragonese, hitherto pent up within their barren mountains, to open a communication with distant regions.

The ancient county of Barcelona had reached a higher degree of civilization than Aragon, and was distinguished by institutions quite as liberal. The sea-board would seem to be the natural seat of liberty. There is something in the very presence, in the atmosphere of the ocean, which invigorates not only the physical, but the moral energies of man. The adventurous life of the mariner familiarizes him with dangers, and early accustoms him to independence. Intercourse with various climes opens new and more copious sources of knowledge; and increased wealth brings with it an augmentation of power and consequence. It was in the maritime cities scattered along the Mediterranean that the seeds of liberty, both in ancient and modern times, were implanted and brought to maturity. During the Middle Ages, when the people of Europe generally maintained a toilsome and infrequent intercourse with each other, those situated on the margin of this inland ocean found an easy mode of communication across the high road of its waters. They mingled in war too as in peace, and this long period is filled with their international contests, while the other free cities of Christendom were wasting themselves in civil feuds and degrading domestic broils. In this wide and various collision their moral powers were quickened by constant activity; and more enlarged views were formed, with a deeper consciousness of their own strength, than could be obtained by those inhabitants of the interior, who were conversant only with a limited range of objects, and subjected to the influence of the same dull, monotonous circumstances.

Among these maritime republics, those of Catalonia were eminently conspicuous. By the incorporation of this country with the kingdom of Aragon, therefore, the strength of the latter was greatly augmented. The Aragonese princes, well aware of this, liberally fostered institutions to which the country owed its prosperity, and skilfully availed themselves of its resources for the aggrandizement of their own dominions. They paid particular attention to the navy, for the more perfect discipline of which a body of laws was prepared by Peter the Fourth, in 1354, that was designed to render it invincible. No allusion whatever is made in this stern code to the mode of surrendering to, or retreating from the enemy. The commander, who declined attacking any force not exceeding his own by more than one vessel, was punished with death. [2] The Catalan navy successfully disputed the empire of the Mediterranean with the fleets of Pisa, and still more of Genoa. With its aid, the Aragonese monarchs achieved the conquest successively of Sicily, Sardinia, and the Balearic Isles, and annexed them to the empire. [3] It penetrated into the farthest regions of the Levant; and the expedition of the Catalans into Asia, which terminated with the more splendid than useful acquisition of Athens, forms one of the most romantic passages in this stirring and adventurous era. [4]

But, while the princes of Aragon were thus enlarging the bounds of their dominion abroad, there was probably not a sovereign in Europe possessed of such limited authority at home. The three great states with their dependencies, which constituted the Aragonese monarchy, had been declared by a statute of James the Second, in 1319, inalienable and indivisible. [5] Each of them, however, maintained a separate constitution of government, and was administered by distinct laws. As it would be fruitless to investigate the peculiarities of their respective institutions, which bear a very close affinity to one another, we may confine ourselves to those of Aragon, which exhibit a more perfect model than those either of Catalonia or Valencia, and have been far more copiously illustrated by her writers.

The national historians refer the origin of their government to a written constitution of about the middle of the ninth century, fragments of which are still preserved in certain ancient documents and chronicles. On occurrence of a vacancy in the throne, at this epoch, a monarch was elected by the twelve principal nobles, who prescribed a code of laws, to the observance of which he was obliged to swear before assuming the sceptre. The import of these laws was to circumscribe within very narrow limits the authority of the sovereign, distributing the principal functions to a Justicia, or Justice, and these same peers, who, in case of a violation of the compact by the monarch, were authorized to withdraw their allegiance, and, in the bold language of the ordinance, "to substitute any other ruler in his stead, even a pagan, if they listed." [6] The whole of this wears much of a fabulous aspect, and may remind the reader of the government which Ulysses met with in Phaeacia; where King Alcinous is surrounded by his "twelve illustrious peers or archons," subordinate to himself, "who," says he, "rule over the people, I myself being the thirteenth." [7] But, whether true or not, this venerable tradition must be admitted to have been well calculated to repress the arrogance of the Aragonese monarchs, and to exalt the minds of their subjects by the image of ancient liberty which it presented. [8]

The great barons of Aragon were few in number. They affected to derive their descent from the twelve peers above mentioned, and were styled ricos hombres de natura, implying by this epithet, that they were not indebted for their creation to the will of the sovereign. No estate could be legally conferred by the crown, as an honor (the denomination of fiefs in Aragon), on any but one of these high nobles. This, however, was in time evaded by the monarchs, who advanced certain of their own retainers to a level with the ancient peers of the land; a measure which proved a fruitful source of disquietude. [9] No baron could be divested of his fief, unless by public sentence of the Justice and the cortes. The proprietor, however, was required, as usual, to attend the king in council, and to perform military service, when summoned, during two months in the year, at his own charge. [10]

The privileges, both honorary and substantial, enjoyed by the ricos hombres, were very considerable. They filled the highest posts in the state. They originally appointed judges in their domains for the cognizance of certain civil causes, and over a class of their vassals exercised an unlimited criminal jurisdiction. They were excused from taxation except in specified cases; were exempted from all corporal and capital punishment; nor could they be imprisoned, although their estates might be sequestrated for debt. A lower class of nobility styled infanzones, equivalent to the Castilian hidalgos, together with the caballeros, or knights, were also possessed of important though inferior immunities. [11] The king distributed among the great barons the territory reconquered from the Moors, in proportions determined by the amount of their respective services. We find a stipulation to this effect from James the First to his nobles, previous to his invasion of Majorca. [12] On a similar principle they claimed nearly the whole of Valencia. [13] On occupying a city, it was usual to divide it into barrios, or districts, each of which was granted by way of fief to some one of the ricos hombres, from which he was to derive his revenue. What proportion of the conquered territory was reserved for the royal demesne does not appear. [14] We find one of these nobles, Bernard de Cabrera, in the latter part of the fourteenth century, manning a fleet of king's ships on his own credit; another, of the ancient family of Luna, in the fifteenth century, so wealthy that he could travel through an almost unbroken line of his estates all the way from Castile to France. [15] With all this, their incomes in general, in this comparatively poor country, were very inferior to those of the great Castilian lords. [16]

The laws conceded certain powers to the aristocracy of a most dangerous character. They were entitled, like the nobles of the sister kingdom, to defy, and publicly renounce their allegiance to their sovereign, with the whimsical privilege, in addition, of commending their families and estates to his protection, which he was obliged to accord, until they were again reconciled. [17] The mischievous right of private war was repeatedly recognized by statute. It was claimed and exercised in its full extent, and occasionally with circumstances of peculiar atrocity. An instance is recorded by Zurita of a bloody feud between two of these nobles, prosecuted with such inveteracy that the parties bound themselves by solemn oath never to desist from it during their lives, and to resist every effort, even on the part of the crown itself, to effect a pacification between them. [18] This remnant of barbarism lingered longer in Aragon than in any other country in Christendom.

The Aragonese sovereigns, who were many of them possessed of singular capacity and vigor, [19] made repeated efforts to reduce the authority of their nobles within more temperate limits. Peter the Second, by a bold stretch of prerogative, stripped them of their most important rights of jurisdiction. [20] James the Conqueror artfully endeavored to counterbalance their weight by that of the commons and the ecclesiastics. [21] But they were too formidable when united, and too easily united, to be successfully assailed. The Moorish wars terminated, in Aragon, with the conquest of Valencia, or rather the invasion of Murcia, by the middle of the thirteenth century. The tumultuous spirits of the aristocracy, therefore, instead of finding a vent, as in Castile, in these foreign expeditions, were turned within, and convulsed their own country with perpetual revolution. Haughty from the consciousness of their exclusive privileges and of the limited number who monopolized them, the Aragonese barons regarded themselves rather as the rivals of their sovereign, than as his inferiors. Intrenched within the mountain fastnesses, which the rugged nature of the country everywhere afforded, they easily bade defiance to his authority. Their small number gave a compactness and concert to their operations, which could not have been obtained in a multitudinous body. Ferdinand the Catholic well discriminated the relative position of the Aragonese and Castilian nobility, by saying, "it was as difficult to divide the one, as to unite the other." [22]

These combinations became still more frequent after formally receiving the approbation of King Alfonso the Third, who, in 1287, signed the two celebrated ordinances entitled the "Privileges of Union," by which his subjects were authorized to resort to arms on an infringement of their liberties. [23] The hermandad of Castile had never been countenanced by legislative sanction; it was chiefly resorted to as a measure of police, and was directed more frequently against the disorders of the nobility, than of the sovereign; it was organized with difficulty, and, compared with the union of Aragon, was cumbrous and languid in its operations. While these privileges continued in force, the nation was delivered over to the most frightful anarchy. The least offensive movement on the part of the monarch, the slightest encroachment on personal right or privilege, was the signal for a general revolt. At the cry of Union, that "last voice," says the enthusiastic historian, "of the expiring republic, full of authority and majesty, and an open indication of the insolence of kings," the nobles and the citizens eagerly rushed to arms. The principal castles belonging to the former were pledged as security for their fidelity, and intrusted to conservators, as they were styled, whose duty it was to direct the operations and watch over the interests of the Union. A common seal was prepared, bearing the device of armed men kneeling before their king, intimating at once their loyalty and their resolution, and a similar device was displayed on the standard and the other military insignia of the confederates. [24]

The power of the monarch was as nothing before this formidable array. The Union appointed a council to control all his movements, and, in fact, during the whole period of its existence, the reigns of four successive monarchs, it may be said to have dictated law to the land. At length Peter the Fourth, a despot in heart, and naturally enough impatient of this eclipse of regal prerogative, brought the matter to an issue, by defeating the army of the Union, at the memorable battle of Epila, in 1348, "the last," says Zurita, "in which it was permitted to the subject to take up arms against the sovereign for the cause of liberty." Then, convoking an assembly of the states at Saragossa, he produced before them the instrument containing the two Privileges, and cut it in pieces with his dagger. In doing this, having wounded himself in the hand, he suffered the blood to trickle upon the parchment, exclaiming, that "a law which had been the occasion of so much blood, should be blotted out by the blood of a king." [25] All copies of it, whether in the public archives, or in the possession of private individuals, were ordered, under a heavy penalty, to be destroyed. The statute passed to that effect carefully omits the date of the detested instrument, that all evidence of its existence might perish with it. [26]

Instead of abusing his victory, as might have been anticipated from his character, Peter adopted a far more magnanimous policy. He confirmed the ancient privileges of the realm, and made in addition other wise and salutary concessions. From this period, therefore, is to be dated the possession of constitutional liberty in Aragon; (for surely the reign of unbridled license, above described, is not deserving that name;) and this not so much from the acquisition of new immunities, as from the more perfect security afforded for the enjoyment of the old. The court of the Justicia, that great barrier interposed by the constitution between despotism on the one hand and popular license on the other, was more strongly protected, and causes hitherto decided by arms were referred for adjudication to this tribunal. [27] From this period, too, the cortes, whose voice was scarcely heard amid the wild uproar of preceding times, was allowed to extend a beneficial and protecting sway over the land. And, although the social history of Aragon, like that of other countries in this rude age, is too often stained with deeds of violence and personal feuds, yet the state at large, under the steady operation of its laws, probably enjoyed a more uninterrupted tranquillity than fell to the lot of any other nation in Europe.

The Aragonese cortes was composed of four branches, or arms; [28] the ricos hombres, or great barons; the lesser nobles, comprehending the knights; the clergy, and the commons. The nobility of every denomination were entitled to a seat in the legislature. The ricos hombres were allowed to appear by proxy, and a similar privilege was enjoyed by baronial heiresses. The number of this body was very limited, twelve of them constituting a quorum. [29]

The arm of the ecclesiastics embraced an ample delegation from the inferior as well as higher clergy. [30] It is affirmed not to have been a component of the national legislature until more than a century and a half after the admission of the commons. [31] Indeed, the influence of the church was much less sensible in Aragon, than in the other kingdoms of the peninsula. Notwithstanding the humiliating concessions of certain of their princes to the papal see, they were never recognized by the nation, who uniformly asserted their independence of the temporal supremacy of Rome; and who, as we shall see hereafter, resisted the introduction of the Inquisition, that last stretch of ecclesiastical usurpation, even to blood. [32]

The commons enjoyed higher consideration and civil privileges than in Castile. For this they were perhaps somewhat indebted to the example of their Catalan neighbors, the influence of whose democratic institutions naturally extended to other parts of the Aragonese monarchy. The charters of certain cities accorded to the inhabitants privileges of nobility, particularly that of immunity from taxation; while the magistrates of others were permitted to take their seats in the order of hidalgos. [33] From a very early period we find them employed in offices of public trust, and on important missions. [34] The epoch of their admission into the national assembly is traced as far back as 1133, several years earlier than the commencement of popular representation in Castile. [35] Each city had the right of sending two or more deputies selected from persons eligible to its magistracy; but with the privilege of only one vote, whatever might be the number of its deputies. Any place, which had been once represented in cortes, might always claim to be so. [36]

By a statute of 1307, the convocation of the states, which had been annual, was declared biennial. The kings, however, paid little regard to this provision, rarely summoning them except for some specific necessity. [37] The great officers of the crown, whatever might be their personal rank, were jealously excluded from their deliberations. The session was opened by an address from the king in person, a point of which they were very tenacious; after which the different arms withdrew to their separate apartments. [38] The greatest scrupulousness was manifested in maintaining the rights and dignity of the body; and their intercourse with one another, and with the king, was regulated by the most precise forms of parliamentary etiquette. [39] The subjects of deliberation were referred to a committee from each order, who, after conferring together, reported to their several departments. Every question, it may be presumed, underwent a careful examination; as the legislature, we are told, was usually divided into two parties, "the one maintaining the rights of the monarch, the other, those of the nation," corresponding nearly enough with those of our day. It was in the power of any member to defeat the passage of a bill, by opposing to it his veto or dissent, formally registered to that effect. He might even interpose his negative on the proceedings of the house, and thus put a stop to the prosecution of all further business during the session. This anomalous privilege, transcending even that claimed in the Polish diet, must have been too invidious in its exercise, and too pernicious in its consequences, to have been often resorted to. This may be inferred from the fact, that it was not formally repealed until the reign of Philip the Second, in 1592. During the interval of the sessions of the legislature, a deputation of eight was appointed, two from each arm, to preside over public affairs, particularly in regard to the revenue, and the security of justice; with authority to convoke a cortes extraordinary, whenever the exigency might demand it. [40]

The cortes exercised the highest functions whether of a deliberative, legislative, or judicial nature. It had a right to be consulted on all matters of importance, especially on those of peace and war. No law was valid, no tax could be imposed, without its consent; and it carefully provided for the application of the revenue to its destined uses. [41] It determined the succession to the crown; removed obnoxious ministers; reformed the household, and domestic expenditure, of the monarch; and exercised the power, in the most unreserved manner, of withholding supplies, as well as of resisting what it regarded as an encroachment on the liberties of the nation. [42]

The excellent commentators on the constitution of Aragon have bestowed comparatively little attention on the development of its parliamentary history; confining themselves too exclusively to mere forms of procedure. The defect has been greatly obviated by the copiousness of their general historians. But the statute-book affords the most unequivocal evidence of the fidelity with which the guardians of the realm discharged the high trust reposed in them, in the numerous enactments it exhibits, for the security both of person and property. Almost the first page which meets the eye in this venerable record contains the General Privilege, the Magna Charta, as it has been well denominated, of Aragon. It was granted by Peter the Great to the cortes at Saragossa, in 1283. It embraces a variety of provisions for the fair and open administration of justice; for ascertaining the legitimate powers intrusted to the cortes; for the security of property against exactions of the crown; and for the conservation of their legal immunities to the municipal corporations and the different orders of nobility. In short, the distinguishing excellence of this instrument, like that of Magna Charta, consists in the wise and equitable protection which it affords to all classes of the community. [43] The General Privilege, instead of being wrested, like King John's charter, from a pusillanimous prince, was conceded, reluctantly enough, it is true, in an assembly of the nation, by one of the ablest monarchs who ever sat on the throne of Aragon, at a time when his arms, crowned with repeated victory, had secured to the state the most important of her foreign acquisitions. The Aragonese, who rightly regarded the General Privilege as the broadest basis of their liberties, repeatedly procured its confirmation by succeeding sovereigns. "By so many and such various precautions," says Blancas, "did our ancestors establish that freedom which their posterity have enjoyed; manifesting a wise solicitude, that all orders of men, even kings themselves, confined within their own sphere, should discharge their legitimate functions without jostling or jarring with one another; for in this harmony consists the temperance of our government. Alas!" he adds, "how much of all this has fallen into desuetude from its antiquity, or been effaced by new customs." [44]

The judicial functions of the cortes have not been sufficiently noticed by writers. They were extensive in their operation, and gave it the name of the General Court. They were principally directed to protect the subject from the oppressions of the crown and its officers; over all which cases it possessed original and ultimate jurisdiction. The suit was conducted before the Justice, as president of the cortes, in its judicial capacity, who delivered an opinion conformable to the will of the majority. [45] The authority, indeed, of this magistrate in his own court was fully equal to providing adequate relief in all these cases. [46] But for several reasons this parliamentary tribunal was preferred. The process was both more expeditious and less expensive to the suitor. Indeed, "the most obscure inhabitant of the most obscure village in the kingdom, although a foreigner," might demand redress of this body; and, if he was incapable of bearing the burden himself, the state was bound to maintain his suit, and provide him with counsel at its own charge. But the most important consequence, resulting from this legislative investigation, was the remedial laws frequently attendant on it. "And our ancestors," says Blancas, "deemed it great wisdom patiently to endure contumely and oppression for a season, rather than seek redress before an inferior tribunal, since, by postponing their suit till the meeting of cortes, they would not only obtain a remedy for their own grievance, but one of a universal and permanent application." [47]

The Aragonese cortes maintained a steady control over the operations of government, especially after the dissolution of the Union; and the weight of the commons was more decisive in it, than in other similar assemblies of that period. Its singular distribution into four estates was favorable to this. The knights and hidalgos, an intermediate order between the great nobility and the people, when detached from the former, naturally lent additional support to the latter, with whom, indeed, they had considerable affinity. The representatives of certain cities, as well as a certain class of citizens, were entitled to a seat in this body; [48] so that it approached both in spirit and substance to something like a popular representation. Indeed, this arm of the cortes was so uniformly vigilant in resisting any encroachment on the part of the crown, that it has been said to represent, more than any other, the liberties of the nation. [49] In some other particulars the Aragonese commons possessed an advantage over those of Castile. 1. By postponing their money grants to the conclusion of the session, and regulating them in some degree by the previous dispositions of the crown, they availed themselves of an important lever relinquished by the Castilian cortes. [50] 2. The kingdom of Aragon proper was circumscribed within too narrow limits to allow of such local jealousies and estrangements, growing out of an apparent diversity of interests, as existed in the neighboring monarchy. Their representatives, therefore, were enabled to move with a more hearty concert, and on a more consistent line of policy. 3. Lastly, the acknowledged right to a seat in cortes, possessed by every city which had once been represented there, and this equally whether summoned or not, if we may credit Capmany, [51] must have gone far to preserve the popular branch from the melancholy state of dilapidation to which it was reduced in Castile by the arts of despotic princes. Indeed, the kings of Aragon, notwithstanding occasional excesses, seem never to have attempted any systematic invasion of the constitutional rights of their subjects. They well knew, that the spirit of liberty was too high among them to endure it. When the queen of Alfonso the Fourth urged her husband, by quoting the example of her brother the king of Castile, to punish certain refractory citizens of Valencia, he prudently replied, "My people are free, and not so submissive as the Castilians. They respect me as their prince, and I hold them for good vassals and comrades."[52]

No part of the constitution of Aragon has excited more interest, or more deservedly, than the office of the Justicia, or Justice; [53] whose extraordinary functions were far from being limited to judicial matters, although in these his authority was supreme. The origin of this institution is affirmed to have been coeval with that of the constitution or frame of government itself. [54] If it were so, his authority may be said, in the language of Blancas, "to have slept in the scabbard" until the dissolution of the Union; when the control of a tumultuous aristocracy was exchanged for the mild and uniform operation of the law, administered by this, its supreme interpreter.

His most important duties may be briefly enumerated. He was authorized to pronounce on the validity of all royal letters and ordinances. He possessed, as has been said, concurrent jurisdiction with the cortes over all suits against the crown and its officers. Inferior judges were bound to consult him in all doubtful cases, and to abide by his opinion, as of "equal authority," in the words of an ancient jurist, "with the law itself." [55] An appeal lay to his tribunal from those of the territorial and royal judges. [56] He could even evoke a cause, while pending before them, into his own court, and secure the defendant from molestation on his giving surety for his appearance. By another process, he might remove a person under arrest from the place in which he had been confined by order of an inferior court, to the public prison appropriated to this purpose, there to abide his own examination of the legality of his detention. These two provisions, by which the precipitate and perhaps intemperate proceedings of subordinate judicatures were subjected to the revision of a dignified and dispassionate tribunal, might seem to afford sufficient security for personal liberty and property. [57] In addition to these official functions, the Justice of Aragon was constituted a permanent counsellor of the sovereign, and, as such, was required to accompany him where-ever he might reside. He was to advise the king on all constitutional questions of a doubtful complexion; and finally, on a new accession to the throne, it was his province to administer the coronation oath; this he performed with his head covered, and sitting, while the monarch, kneeling before him bare-headed, solemnly promised to maintain the liberties of the kingdom. A ceremony eminently symbolical of that superiority of law over prerogative, which was so constantly asserted in Aragon. [58]

It was the avowed purpose of the institution of the Justicia to interpose such an authority between the crown and the people, as might suffice for the entire protection of the latter. This is the express import of one of the laws of Soprarbe, which, whatever he thought of their authenticity, are undeniably of very high antiquity. [59] This part of his duties is particularly insisted on by the most eminent juridical writers of the nation. Whatever estimate, therefore, may be formed of the real extent of his powers, as compared with those of similar functionaries in other states of Europe, there can be no doubt that this ostensible object of their creation, thus openly asserted, must have had a great tendency to enforce their practical operation. Accordingly we find repeated examples, in the history of Aragon, of successful interposition on the part of the Justice for the protection of individuals persecuted by the crown, and in defiance of every attempt at intimidation. [60] The kings of Aragon, chafed by this opposition, procured the resignation or deposition, on more than one occasion, of the obnoxious magistrate. [61] But, as such an exercise of prerogative must have been altogether subversive of an independent discharge of the duties of this office, it was provided by a statute of Alfonso the Fifth, in 1442, that the Justice should continue in office during life, removable only, on sufficient cause, by the king and the cortes united. [62]

Several provisions were enacted, in order to secure the nation more effectually against the abuse of the high trust reposed in this officer. He was to be taken from the equestrian order, which, as intermediate between the high nobility and the people, was less likely to be influenced by undue partiality to either. He could not be selected from the ricos hombres, since this class was exempted from corporal punishment, while the Justice was made responsible to the cortes for the faithful discharge of his duties, under penalty of death. [63] As this supervision of the whole legislature was found unwieldy in practice, it was superseded, after various modifications by a commission of members elected from each one of the four estates, empowered to sit every year in Saragossa, with authority to investigate the charges preferred against the Justice, and to pronounce sentence upon him. [64]

The Aragonese writers are prodigal of their encomiums on the pre-eminence and dignity of this functionary, whose office might seem, indeed, but a doubtful expedient for balancing the authority of the sovereign; depending for its success less on any legal powers confided to it, than on the efficient and constant support of public opinion. Fortunately the Justice of Aragon uniformly received such support, and was thus enabled to carry the original design of the institution into effect, to check the usurpations of the crown, as well as to control the license of the nobility and the people. A series of learned and independent magistrates, by the weight of their own character, gave additional dignity to the office. The people, familiarized with the benignant operation of the law, referred to peaceful arbitration those great political questions, which, in other countries at this period, must have been settled by a sanguinary revolution. [65] While, in the rest of Europe, the law seemed only the web to ensnare the weak, the Aragonese historians could exult in the reflection, that the fearless administration of justice in their land "protected the weak equally with the strong, the foreigner with the native." Well might their legislature assert, that the value of their liberties more than counterbalanced "the poverty of the nation, and the sterility of their soil." [66]