The original doc.u.ments, 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 repet.i.tions incident to legal enactments. The course of the investigation is, moreover, frequently interrupted by impertinent dissertations on the const.i.tution 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 const.i.tutional 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 a.n.a.lysis of a const.i.tution, 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, t.i.t. 1, ley 1.)--The Visigothic code, Fuero Juzgo, (Forum Judic.u.m,) 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 a.s.so y Manuel, Inst.i.tuciones 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 inst.i.tutions 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 princ.i.p.al 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 n.o.bles 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 amba.s.sador 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!
(a.n.a.les 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 cla.s.ses 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, t.i.t. 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, t.i.t 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, t.i.t. 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, t.i.t. 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, t.i.t.
5, leyes 12, 13;) while, in other codes of the barbarians, the penalty was confined to similar trespa.s.ses on the slaves of another; and, by the Salic law, no higher mulct was imposed for killing, than for kidnapping a slave.
(Lex Salica, t.i.t. 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 ma.n.u.script 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 t.i.tle 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 ma.n.u.script coeval with the time of the "Cid," and fortunately discovered by him in an obscure corner of some Leonese monastery. (Prologo). Masdeu, in an a.n.a.lysis of this precious doc.u.ment, 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 a.s.sertion, 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 dispa.s.sionate 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 n.o.ble 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 n.o.ble 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 a.s.sailed 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 inst.i.tutions 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 n.o.bles of Castile; many of whom, says the chronicle of Juan II., lost their lives from this circ.u.mstance, 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 amba.s.sador, Navagiero, speaking of the manners of the Castilian n.o.bles, 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 a.s.so 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 munic.i.p.al immunities conceded to, or rather a.s.sumed 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 enfranchis.e.m.e.nt 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 const.i.tutional 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 ill.u.s.tration.
[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 a.s.sembly; 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 a.s.serts, that every great town and community was ent.i.tled to a seat in the legislature, from the time of receiving its munic.i.p.al 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 a.n.a.logy of other European governments, is expressly contradicted by the declaration of the n.o.bles, 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 const.i.tutional precedent in the usages of a government, whose avowed policy was altogether subversive of the const.i.tution.
[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 munic.i.p.alities 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.