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Otra prueba de que la civilización moderna nació en España, aunque la de hoy es bastarda.
MAGNA CARTA AND SPANISH MEDIÆVAL JURISPRUDENCE.↩
By Prof. Rafael Altamira.
(tras*lated by F. A. Kirkpatrick, M.A., F.R.Hist.S.)
To an historian of Spanish Constitutional Law, Magna Carta may offer two fundamental and extremely interesting questions. One is concerned with the analogy between the rights—political and civil—which are defined in Magna Carta, and rights of the same kind which are formulated in contemporary or earlier Spanish legislation; the two pictures may be compared as the results of a process common to all the nations of Europe in the Middle Ages, results produced in two distinct communities which were making their way towards the same end. The other question has to do with the possibility that certain liberties and customs, belonging to Spain and the adjoining lands, may have had some influence in the formation of the programme which was imposed upon King John by the English barons.
This second question has been raised by an English writer, Mr. Wentworth Webster, in his essay on “The Influence of the Pyrenaic fueros upon the British Constitution”. Mr. Webster believed that such an influence may have been brought to bear through Simon de Montfort, who, during his government of Gascony, not only saw, in actual political working, many of the privileges recognized by Magna Carta, but was also [228] himself obliged to use them and prove their efficacy. It is natural that the continual observation of institutions, tried and proved by use, should impress one closely concerned therein, should guide the direction of his thoughts, and lead him to introduce these institutions into another country when occasion should arise. Thus the suggestion concerning de Montfort is probable enough, although it would still remain to be proved that, in English constitutional experiments, the particular views of Simon de Montfort were actually predominant in guiding the thoughts of the other barons who had not shared his suggestive experiences. In the case of Magna Carta it is permissible to examine the question concerning the influence of the Pyrenaic fueros upon that document, through the agency of such men of that generation as might be acquainted with them.
Long before Webster, the Spanish historians Señores Mariehalar and Manrique,1 put forward the hypothesis of such an influence, not through the agency of a particular person, but through possible knowledge of Spanish twelfth century legislative documents on the part of the English barons. But they did not support [229] this supposition by any historical proof that Spanish precedents were used by those who drew up Magna Carta.
But in fact this question, interesting though it be, depends upon the first question stated above. For it is first necessary to know exactly whether there is a true analogy between the two sets of liberties and privileges in favour of certain groups of the population, and in limitation of royal power. In proportion, as the analogy proves stronger or weaker, the case becomes stronger or weaker for the possibility of the supposed Spanish influence. Or the solution may be simply a resemblance in the results of two independent movements directed towards the same object.
This investigation will naturally examine several historical problems which form part of the general question. These problems may be thus stated: (1) analogy in respect of the number and amplitude of the rights granted in each case, (2) analogy in respect of their social scope, that is to say the classes or groups to which they extended, (3) their chronological relation.
The analysis of these three points should be completed by a comparative study of the two movements, which in England and in Spain led to the results under examination, or at least a study of their chief antiestéticatures and particularly the main point of Magna Carta, namely the limitation of the absolute power of the monarchy, and the safeguard of the rights and privileges (not always just, it must be admitted) of the people. Such would be the plan of a complete study of the proposed thesis. But the limits of this chapter admit only of a brief summary of each point.
Magna Carta contains some points which specially concern the political situation of England, points which have no parallel in Spain. A priori this was to be expected. Feudal organization was not alike in the two [230] countries, even if the most feudal regions of Spain be considered. Social elements were not alike nor the relations between classes. In England there were also certain circumstances purely connected with the person of King John, abuses committed by that particular King which had to be abolished or restricted in the Charter. We shall not touch these points, since there is nothing corresponding to them in Spanish jurisprudence; and we shall only examine those matters which are in their essence common to both countries.
Here also Señores Mariehalar and Manrique have shown the way. They examine, one by one, most of the chapters of Magna Carta,1 in order to prove, by comparison with Castilian precedents and especially with the dispositions laid down in the Cortes of León in 1188, the priority and in some matters the greater amplitude of Spanish jurisprudence in the points of highest political and civil importance.
The observations of Mariehalar and Manrique, being merely a kind of digression in their book, are brief, and also suffer from the deficiency of concrete studies, from which Spanish constitutional history suffered at that time (1862) in most of the topics which it embraced. Moreover their whole work is marred by a want of organic perception. Nevertheless most of their comparisons are accurate in the main. To avoid repetition, these comparisons may be summarized here: The two authors prove the priority of Leónese and [231] Castilian jurisprudence (in part also of Visigothic jurisprudence, as defined in the “Liber Judiciorum,” which during the age of the Reconquest was still in force in Spain) in respect of the rights of widows (Magna Carta, ch. 8), the establishment of a royal tribunal in a fixed place (ch. 17), the provisions concerning judicial process (ch. 39), the judgment of peers (ch. 21), the vote of subsidies demanded by the King (ch. 12) and other provisions.1 They also indicate certain rights which are set forth in the record of the Cortes of León of 1188, and of other earlier Cortes, and which are not mentioned at all in Magna Carta; for example the right of declaring war and making peace, and the inviolability of the home. On the other hand they recognize that Magna Carta contains some provisions—namely the right of trade and of ingress into the kingdom and egress therefrom—which have no parallel in mediæval Spain.2
But the observations of Mariehalar and Manrique do not embrace all the points of similarity between Magna Carta and Spanish jurisprudence, nor do they touch the principal topic. For the chief topic, in my opinion, is the general system of limitations imposed upon the Crown. On the other hand some of the points mentioned by these authors require further study, which should take into account both the whole body of provisions concerning these points and also the differences of circumstances surrounding these questions in England and in Spain. Thus, with regard to the provisions concerning administration of [232] justice1 (chs. 17, 24, 40, 45), in order to comprehend the true relation between English and Spanish jurisprudence in the thirteenth century, it would be necessary to treat separately some details which form part of the general subject. Thus two jurisdictions expressly mentioned in Magna Carta, that of the King and that of the barons, should be compared with three jurisdictions existing in Spain, that of the King, that of the “concejos” or municipalities (these two working side by side in a relation not yet thoroughly elucidated), and that of the feudal lords, which last had shrunk very much in Castile and León in the thirteenth century. Again the establishment in England of a fixed or stationary Court of Common Pleas and the exclusion of pleas of the Crown from the local courts should be compared with the special cases of royal jurisdiction in León and Castile, the royal power of calling up cases from inferior courts, and the double process—clearly marked in Spain from early mediaeval times—of absorption by the King’s Court of seigneurial jurisdiction on the one hand, and the penetration of royal authority into municipal jurisdiction on the other hand.2 In Spain municipal jurisdiction, which was gradually won also by the inhabitants of places subject to feudal lords, subjected to the “fuero” (or local custom) all men of whatsoever social condition, even nobles and ecclesiastics, within the limits of the municipality. This institution, a knowledge of which is necessary to a clear perception of the democratic [233] scope of our jurisprudence, carries the question into a region unknown to English jurisprudence, at the beginning of the thirteenth century. The provisions established by Magna Carta concerning municipalities already existed in Spain; and the existence of municipal jurisdiction in that country represents a distinct element of extraordinary importance.
The subject of guarantees concerning legal process (39) has two parts, first prohibition to arrest, condemn, etc., any “free man”1 contrary to the law of the land, secondly the judgment of peers. As to the first, the Cortes of 1188 establish some provisions either identical with those contained in the text of Magna Carta or else resembling them,2 besides others which are not mentioned in Magna Carta. But the main point, namely freedom from arrest except by competent authority, and freedom from condemnation except according to law and after trial, must be sought in the texts of our municipal “fueros” and in statements to be found “passim” in ordinances of a more general character. With regard to the promise in chapter 40 which so scandalizes Mariehalar and Manrique who exclaim: “In none of our codes or ancient documents do we find the shameful declaration ’nulli vendemus,’” it should be said that the same abuses are implicitly indicated in Arts. 19, 20, 21, and 29 of the Ordinance of León. The malpractices of administrators of justice in those times were very frequent in all countries. Monarchs continually strove to check these abuses, and Spanish jurisprudence, both before and after 1215, contains very many provisions of this kind.
[234]
But apart from the matters studied by Mariehalar and Manrique, matters which, as we see, demand further investigation, there are other points of relation between English practice and the jurisprudence of the various Spanish states. Webster observed particularly the intervention of the popular element and the form of election favoured by de Montfort. As to the first point, two chapters of the Charter demand our attention, the 13th, which affirms municipal liberties, and the 14th which deals with the composition and functions of the “consilium regni”.
As to both these points, Spain was far ahead of England. Independent municipalities were numerous in Asturias, León, Galicia, Castile, Aragon, Catalonia, and also Navarre at the beginning of the thirteenth century; whereas London was not a municipality till 1189; and in several of these countries the towns constituted a considerable political and social force. Their “fueros” were confirmed by every king, and the royal oath in the Cortes embraced the whole body of these “fueros” and of the privileges possessed by every class.1 It seems needless to dwell on this point, since it is recognized by all historians. For the same reason it is not necessary to trace in detail the priority and the greater amplitude of Spanish municipal rights by examining the true significance of the second part of chapter 13—“præterea volumus et concedimus” and the scope of the “liberties” of London at that time.2
As to the composition of the Royal Council, Spain—that is to say León and Castile—shows a decided advance as compared with England. Our Royal Council [235] (Consejo Real) was already in the thirteenth century an organism, precarious indeed and irregular in its functions, yet sufficiently developed and possessing a far wider competence than the baronial system to which the Council seems to be reduced in Magna Carta.1 The Castilian Council included not only the nobles (whose right to be summoned in England is confirmed and defined for the first time by Magna Carta) but also representatives of boroughs and cities, that is to say, a plebeian element, which in the English system had no part whatever in such functions. Their inclusion in the Castilian Council possibly dates from the reign of Alfonso VIII (1158–1214). Moreover, the chief kingdoms of Spain possessed, before 1215, another organism of much greater political and representative significance than the Council, namely the Cortes, which everywhere included representatives of the various classes of the community. The Cortes of León came into being in 1188, and the Cortes of Aragon probably in 1163. Catalonia had Cortes a little later, in 1218. In Castile, 1250 is the latest date assigned to their origin. Nor should it be forgotten that, before the introduction of the popular element, the assembly (“concilium”) which aided the King in legislative functions, was in normal and frequent action from the early ages of the Reconquest. This “concilium” possessed not indeed the power to pass laws, but the right to propose laws, like the Councils of the Visigothic period. The decisive intervention of the Cortes in voting taxation—in which matter they hold distinct authority—constitutes, in those Spanish countries which possessed Cortes before 1215, a superiority over the limited guarantees provided upon this point in chapter 12 of Magna Carta.
Chapters 28, 29, and 30 find their equivalent in our [236] municipal and general laws concerning protection of private property. There are numerous provisions which check the abuses committed in seizing goods by way of penal or legal process, protect from seizure the instruments of labour and both the objects and the quantities to be assigned to the “yantar y conducho” or feeding and lodging of the King and his suite and of certain other officials. Since these points of our mediæval jurisprudence have not yet been specially elucidated, it is impossible to get a clear and succinct view of all these details, scattered through many constitutional documents. But the complete and organic expression which was soon afterwards given to these points in the “Partidas” (1265) in the “Leyes de los Adelantados,” and in other legal texts of Alfonso the Tenth’s time, which in great part form a collection of earlier jurisprudence, prove the development which these matters had previously reached.
Finally—to avoid a too lengthy comparison between the chapters of Magna Carta and Spanish jurisprudence—I will indicate the provisions concerning the Jews. Chapters 10 and 11 contain nothing favourable to them; rather, they aim at protecting widows and minors against Jewish usury. Manifestly, the legal position of the Jews in England was inferior to that which they enjoyed at that time in Spain and particularly in Castile. It may be said that the period from the eleventh century to the middle of the thirteenth is the golden age of the Jews in Spain. It is true that social opposition to them takes distinct form towards the end of the twelfth century; but persecution started much later, and even then royal protection was not wanting to them.1 The petitions of the Cortes against [237] usury, throughout this period, curiously resemble these two chapters of Magna Carta.
The limited social scope of most of the declarations of Magna Carta must be remembered throughout. The provisions of the Charter do not extend to all Englishmen, but, in most of the chapters, to the nobles only. Those of inferior status have little share in these advantages or—to be more accurate—in the limitations imposed on the royal power. The Charter, even when it does mention “villans,” frees them only from some obligations towards the King, not from obligations towards the lords, to whom villans continued to be like chattels. The status which was obtained by the citizens of London cannot be compared with that which was obtained by the barons. Even if we should accept the “democratic” interpretation of chapter 60,1 there still remain many other chapters in which the royal concessions lie out of reach of the mass of the people.
In Spain on the other hand, and chiefly in León and Castile, even the servile classes of earlier ages had attained a great improvement of condition in 1215, and the liberties which were gradually being won, chiefly benefited the people in general, not an oligarchy of nobles. Even in Aragon, where later times were to bring a retrograde movement in respect of some inferior classes, the advantages actually attained were more widely diffused than in England; and we find the position of the lower classes better protected by a legislation in which they were regarded as important factors.
II.↩
Let us now pass to the most important point of comparison between Magna Carta and Spanish Juris [238] prudence in the thirteenth century, the point which most clearly marks the tendency of political evolution in Europe and which, for that reason, produced most results in the direction of constitutional control. That point is the attitude of the barons towards the despotism of John Lackland and the guarantees with which they surrounded the concessions obtained, lest the King should evade those concessions. In fact, the whole scheme of declarations and promises contained in Magna Carta is valueless apart from security for their accomplishment. Many Spanish kings made identical or similar promises, and the same thing occurred in other European countries which were passing through the same movement. But the real practical problem does not lie in declarations on the part of one section of the community, or of several sections, or of the whole people (whether represented in Cortes or not) that they propose to limit and censure the King’s exercise of authority. The point is the possession of power to accomplish that object. One method of doing this was to bind the King with a series of guarantees constituting for him a danger or a considerable difficulty in the ordinary working of his authority and his administration.
In Spain, from the Visigothic period onwards, efforts are clearly visible to check the natural propensity of kings towards abuse of power—a propensity which is found in all authority. But the means chosen are either merely jovenlandesal definitions—such as maxims declaring the King to be the first subject of the laws—or else legal declarations of guarantees which rest solely on the monarch’s good faith, such as limitations of the confiscation of private property. The sole effective counterpoise lies in the King’s perpetual apprehension about breaking his formal and legal undertakings, in view of the powerful forces concerned in [239] their enforcement. At a later time, the Cortes constitute a systematized guarantee by means of which the people hold the King in subjection through the power of refusing what the King may require, that is to say supplies; but in all other respects, equilibrium—which was seldom really secured—is produced or attempted through the free play of the two counterbalancing forces. And this is why in Castile the power of the municipalities and the whole body of privileges represented by the municipal “fueros” are so valuable, while in Aragon the social weight of the nobility possesses a similar value.
Magna Carta treats the question in quite another manner. The creation of the committee of twenty-five barons (ch. 61) as a kind of tribunal to judge infringements of privilege and the functions assigned to this committee in chapters 52 and 55, as well as the recognition of the right of insurrection in case of breach of faith on the King’s part, constitute guarantees which already assume an almost constitutional form.
Both these provisions are known to Spanish jurisprudence, but they only attain a similar constitutional force considerably later than the date of Magna Carta. The first device, that of the committee of barons, as a tribunal to watch over the fulfilment of the “peace and liberties” granted and confirmed in the Charter, in Aragon takes the form of the “Justicia Mayor,” in so far as that dignitary, forced upon the King by the nobles, becomes mediating judge or judge of “contrafuero,” that is to say, examiner of infringements of law committed by the King or his officials. This guarantee was initiated in the Cortes of Egea in 1265. Its complete development is found in the “Privilegio General” won from Pedro III in 1283 and is still more marked in the “Privilegio de la [240] Unión” (1287) which forbade the King to take proceedings against any adherent of the Union, whether nobleman or municipality, without the intervention of a judicial sentence by the “Justicia” and the consent of the Cortes. Something in the same direction, but less effective, is to be found in the privilege of the Aragonese and also the Catalonian Cortes that examination should first be made of any grievances against the King.
In Castile there was nothing resembling the committee of twenty-five barons before the Pact (“pacto”) of the Hermandad of the nobles and municipalities (“concejos”) of Castile, León, and Galicia with the infante Don Sancho, son of Alfonso X (1282). This Pact established the right of the Hermandad to judge the royal officials and even the judges themselves and to inflict upon them punishments, including the penalty of death. This privilege or means of security against the King and his officials finds its culmination in the “Concordia de Medina,” which was forced upon Henry IV in 1463: but this latter agreement was short-lived.
The second device, that of insurrection, is more fully represented in Castile. The earliest document which we know concerning this is the above-mentioned Pact of 1282, which assigns to the towns the right of insurrection against royal infringements of the law. The same thing occurs in what may be called political programmes of other Hermandades of the thirteenth century, such as the Hermandades which united the towns of Castile, León, and Galicia in 1295, and which were confirmed by Ferdinand IV. A similar provision is found in the above-mentioned “Concordia de Medina,” which establishes the right of making war on the King without incurring penalty, in case the King should proceed against nobles or [241] ecclesiastics in any other form than that formulated in that document. It would be out of place here to discuss the doctrinal development of this right of insurrection in the hands of theologians and political theorists of the sixteenth and seventeenth centuries: this important topic has given rise to an abundant critical literature in recent times.
In Aragon, assertions of the right of insurrection were at least as definite as in Castile, and had wider results in the sequence of political events. The “Privilegio de la Unión” declared that, in case the King infringed its provisions, the leagued nobles and municipalities were free to refuse him obedience and choose another sovereign without being guilty of treason. Notwithstanding the astute government of James II, this privilege was ratified in 1347, when the new King, Pedro IV, was obliged to recognize the power, claimed by the Union, of deposing, banishing, and depriving the King, if he should inflict punishment without the judicial sentence of the “Justicia” and the advice of the “ricos-hombres”. But this “Privilegio” was not valid for long in Aragon, since Pedro IV himself annulled it in 1348.
To conclude, it is interesting to compare the very wide character of these securities—that of insurrection and that of a tribunal or judge to examine royal infringements of law—in most of the Castilian and Aragonese documents concerning them, with the very special and limited character which they bear in Magna Carta. The competence of the tribunal of twenty-five barons and the right of insurrection refer explicitly to the “peace and liberties” granted and defined in Magna Carta, whereas the similar securities embodied in contemporary or slightly later Spanish jurisprudence embrace every possible case of infringement of privilege on the part of the King or of his [242] officials, although these documents sometimes particularly mention irregularities of legal procedure. The greater amplitude which in Spain from the beginning marks the guarantees won by nobles and by the people, may arise either from a natural propensity of the Spanish mind to generalize without giving much importance to the generalization, or else from a complete view of the problem and a desire to solve it entirely once for all. Whichever be the explanation, it is a characteristic trait of our history.
Another characteristic is the constant mixture of noble and of popular elements in these acts of resistance to royal despotism and to arbitrary administration. The joint action of both classes signifies that in Spain the liberties obtained had a very wide social reach, especially in Castile, where popular action had a large share in the movement. But it should not be forgotten that in many cases—especially in Aragon, but also in Castile during the reign of Henry IV—the pressure put upon the King had an oligarchical character, a condition of things which is in fact not less dangerous than royal despotism to public rights. The conflict arises, not always between a despot and a people suffering under his despotism, but sometimes between a despot and other despots who resist a check upon their despotism. That is to say, class privileges are asserted against the authority of one man’s will; and this fact should be well weighed—as it has been weighed by modern writers on Magna Carta—in order not to attribute to political development a much more democratic tendency than it really possessed. What did happen was that those who strove to limit the royal will in their own interests were unwittingly furthering constitutional progress on behalf of all. For they were preparing both the minds of men and the machinery of government in such a way that, [243] when the royal power, representing the unity of the State, should rise above the diversity of aristocratic and local authorities, this single power should not be in a position to injure the fundamental rights of the subject.
The dates at which this point was reached and the roads which led to its attainment have varied in all the countries of Europe. Every country has also differed from its neighbours in the vicissitudes of advance and retrogression. In England, apart from some episodes of fluctuating movement, the tendency of national liberties becomes continually more marked from 1215, and soon takes a decisive and progressive direction. In Spain, notwithstanding her priority in this kind of political activity, privileges are lost without any compensating gain to the common rights of subjects; for the absolute power of the King dominates all privileges, and destroys that which had been attained in the Middle Ages; nor is the loss replaced by any analogous guarantees of equal extent. The process is interrupted and is renewed long afterwards, in the nineteenth century, without the attainment of positive advantages until near the end of that century. But the true history of absolute power in Spain, in order to elucidate how far it penetrated civil and political jurisprudence, still remains to be studied; and any generalization would be, at the present time, premature.
Otra prueba de que la civilización moderna nació en España, aunque la de hoy es bastarda.
MAGNA CARTA AND SPANISH MEDIÆVAL JURISPRUDENCE.↩
By Prof. Rafael Altamira.
(tras*lated by F. A. Kirkpatrick, M.A., F.R.Hist.S.)
To an historian of Spanish Constitutional Law, Magna Carta may offer two fundamental and extremely interesting questions. One is concerned with the analogy between the rights—political and civil—which are defined in Magna Carta, and rights of the same kind which are formulated in contemporary or earlier Spanish legislation; the two pictures may be compared as the results of a process common to all the nations of Europe in the Middle Ages, results produced in two distinct communities which were making their way towards the same end. The other question has to do with the possibility that certain liberties and customs, belonging to Spain and the adjoining lands, may have had some influence in the formation of the programme which was imposed upon King John by the English barons.
This second question has been raised by an English writer, Mr. Wentworth Webster, in his essay on “The Influence of the Pyrenaic fueros upon the British Constitution”. Mr. Webster believed that such an influence may have been brought to bear through Simon de Montfort, who, during his government of Gascony, not only saw, in actual political working, many of the privileges recognized by Magna Carta, but was also [228] himself obliged to use them and prove their efficacy. It is natural that the continual observation of institutions, tried and proved by use, should impress one closely concerned therein, should guide the direction of his thoughts, and lead him to introduce these institutions into another country when occasion should arise. Thus the suggestion concerning de Montfort is probable enough, although it would still remain to be proved that, in English constitutional experiments, the particular views of Simon de Montfort were actually predominant in guiding the thoughts of the other barons who had not shared his suggestive experiences. In the case of Magna Carta it is permissible to examine the question concerning the influence of the Pyrenaic fueros upon that document, through the agency of such men of that generation as might be acquainted with them.
Long before Webster, the Spanish historians Señores Mariehalar and Manrique,1 put forward the hypothesis of such an influence, not through the agency of a particular person, but through possible knowledge of Spanish twelfth century legislative documents on the part of the English barons. But they did not support [229] this supposition by any historical proof that Spanish precedents were used by those who drew up Magna Carta.
But in fact this question, interesting though it be, depends upon the first question stated above. For it is first necessary to know exactly whether there is a true analogy between the two sets of liberties and privileges in favour of certain groups of the population, and in limitation of royal power. In proportion, as the analogy proves stronger or weaker, the case becomes stronger or weaker for the possibility of the supposed Spanish influence. Or the solution may be simply a resemblance in the results of two independent movements directed towards the same object.
This investigation will naturally examine several historical problems which form part of the general question. These problems may be thus stated: (1) analogy in respect of the number and amplitude of the rights granted in each case, (2) analogy in respect of their social scope, that is to say the classes or groups to which they extended, (3) their chronological relation.
The analysis of these three points should be completed by a comparative study of the two movements, which in England and in Spain led to the results under examination, or at least a study of their chief antiestéticatures and particularly the main point of Magna Carta, namely the limitation of the absolute power of the monarchy, and the safeguard of the rights and privileges (not always just, it must be admitted) of the people. Such would be the plan of a complete study of the proposed thesis. But the limits of this chapter admit only of a brief summary of each point.
Magna Carta contains some points which specially concern the political situation of England, points which have no parallel in Spain. A priori this was to be expected. Feudal organization was not alike in the two [230] countries, even if the most feudal regions of Spain be considered. Social elements were not alike nor the relations between classes. In England there were also certain circumstances purely connected with the person of King John, abuses committed by that particular King which had to be abolished or restricted in the Charter. We shall not touch these points, since there is nothing corresponding to them in Spanish jurisprudence; and we shall only examine those matters which are in their essence common to both countries.
Here also Señores Mariehalar and Manrique have shown the way. They examine, one by one, most of the chapters of Magna Carta,1 in order to prove, by comparison with Castilian precedents and especially with the dispositions laid down in the Cortes of León in 1188, the priority and in some matters the greater amplitude of Spanish jurisprudence in the points of highest political and civil importance.
The observations of Mariehalar and Manrique, being merely a kind of digression in their book, are brief, and also suffer from the deficiency of concrete studies, from which Spanish constitutional history suffered at that time (1862) in most of the topics which it embraced. Moreover their whole work is marred by a want of organic perception. Nevertheless most of their comparisons are accurate in the main. To avoid repetition, these comparisons may be summarized here: The two authors prove the priority of Leónese and [231] Castilian jurisprudence (in part also of Visigothic jurisprudence, as defined in the “Liber Judiciorum,” which during the age of the Reconquest was still in force in Spain) in respect of the rights of widows (Magna Carta, ch. 8), the establishment of a royal tribunal in a fixed place (ch. 17), the provisions concerning judicial process (ch. 39), the judgment of peers (ch. 21), the vote of subsidies demanded by the King (ch. 12) and other provisions.1 They also indicate certain rights which are set forth in the record of the Cortes of León of 1188, and of other earlier Cortes, and which are not mentioned at all in Magna Carta; for example the right of declaring war and making peace, and the inviolability of the home. On the other hand they recognize that Magna Carta contains some provisions—namely the right of trade and of ingress into the kingdom and egress therefrom—which have no parallel in mediæval Spain.2
But the observations of Mariehalar and Manrique do not embrace all the points of similarity between Magna Carta and Spanish jurisprudence, nor do they touch the principal topic. For the chief topic, in my opinion, is the general system of limitations imposed upon the Crown. On the other hand some of the points mentioned by these authors require further study, which should take into account both the whole body of provisions concerning these points and also the differences of circumstances surrounding these questions in England and in Spain. Thus, with regard to the provisions concerning administration of [232] justice1 (chs. 17, 24, 40, 45), in order to comprehend the true relation between English and Spanish jurisprudence in the thirteenth century, it would be necessary to treat separately some details which form part of the general subject. Thus two jurisdictions expressly mentioned in Magna Carta, that of the King and that of the barons, should be compared with three jurisdictions existing in Spain, that of the King, that of the “concejos” or municipalities (these two working side by side in a relation not yet thoroughly elucidated), and that of the feudal lords, which last had shrunk very much in Castile and León in the thirteenth century. Again the establishment in England of a fixed or stationary Court of Common Pleas and the exclusion of pleas of the Crown from the local courts should be compared with the special cases of royal jurisdiction in León and Castile, the royal power of calling up cases from inferior courts, and the double process—clearly marked in Spain from early mediaeval times—of absorption by the King’s Court of seigneurial jurisdiction on the one hand, and the penetration of royal authority into municipal jurisdiction on the other hand.2 In Spain municipal jurisdiction, which was gradually won also by the inhabitants of places subject to feudal lords, subjected to the “fuero” (or local custom) all men of whatsoever social condition, even nobles and ecclesiastics, within the limits of the municipality. This institution, a knowledge of which is necessary to a clear perception of the democratic [233] scope of our jurisprudence, carries the question into a region unknown to English jurisprudence, at the beginning of the thirteenth century. The provisions established by Magna Carta concerning municipalities already existed in Spain; and the existence of municipal jurisdiction in that country represents a distinct element of extraordinary importance.
The subject of guarantees concerning legal process (39) has two parts, first prohibition to arrest, condemn, etc., any “free man”1 contrary to the law of the land, secondly the judgment of peers. As to the first, the Cortes of 1188 establish some provisions either identical with those contained in the text of Magna Carta or else resembling them,2 besides others which are not mentioned in Magna Carta. But the main point, namely freedom from arrest except by competent authority, and freedom from condemnation except according to law and after trial, must be sought in the texts of our municipal “fueros” and in statements to be found “passim” in ordinances of a more general character. With regard to the promise in chapter 40 which so scandalizes Mariehalar and Manrique who exclaim: “In none of our codes or ancient documents do we find the shameful declaration ’nulli vendemus,’” it should be said that the same abuses are implicitly indicated in Arts. 19, 20, 21, and 29 of the Ordinance of León. The malpractices of administrators of justice in those times were very frequent in all countries. Monarchs continually strove to check these abuses, and Spanish jurisprudence, both before and after 1215, contains very many provisions of this kind.
[234]
But apart from the matters studied by Mariehalar and Manrique, matters which, as we see, demand further investigation, there are other points of relation between English practice and the jurisprudence of the various Spanish states. Webster observed particularly the intervention of the popular element and the form of election favoured by de Montfort. As to the first point, two chapters of the Charter demand our attention, the 13th, which affirms municipal liberties, and the 14th which deals with the composition and functions of the “consilium regni”.
As to both these points, Spain was far ahead of England. Independent municipalities were numerous in Asturias, León, Galicia, Castile, Aragon, Catalonia, and also Navarre at the beginning of the thirteenth century; whereas London was not a municipality till 1189; and in several of these countries the towns constituted a considerable political and social force. Their “fueros” were confirmed by every king, and the royal oath in the Cortes embraced the whole body of these “fueros” and of the privileges possessed by every class.1 It seems needless to dwell on this point, since it is recognized by all historians. For the same reason it is not necessary to trace in detail the priority and the greater amplitude of Spanish municipal rights by examining the true significance of the second part of chapter 13—“præterea volumus et concedimus” and the scope of the “liberties” of London at that time.2
As to the composition of the Royal Council, Spain—that is to say León and Castile—shows a decided advance as compared with England. Our Royal Council [235] (Consejo Real) was already in the thirteenth century an organism, precarious indeed and irregular in its functions, yet sufficiently developed and possessing a far wider competence than the baronial system to which the Council seems to be reduced in Magna Carta.1 The Castilian Council included not only the nobles (whose right to be summoned in England is confirmed and defined for the first time by Magna Carta) but also representatives of boroughs and cities, that is to say, a plebeian element, which in the English system had no part whatever in such functions. Their inclusion in the Castilian Council possibly dates from the reign of Alfonso VIII (1158–1214). Moreover, the chief kingdoms of Spain possessed, before 1215, another organism of much greater political and representative significance than the Council, namely the Cortes, which everywhere included representatives of the various classes of the community. The Cortes of León came into being in 1188, and the Cortes of Aragon probably in 1163. Catalonia had Cortes a little later, in 1218. In Castile, 1250 is the latest date assigned to their origin. Nor should it be forgotten that, before the introduction of the popular element, the assembly (“concilium”) which aided the King in legislative functions, was in normal and frequent action from the early ages of the Reconquest. This “concilium” possessed not indeed the power to pass laws, but the right to propose laws, like the Councils of the Visigothic period. The decisive intervention of the Cortes in voting taxation—in which matter they hold distinct authority—constitutes, in those Spanish countries which possessed Cortes before 1215, a superiority over the limited guarantees provided upon this point in chapter 12 of Magna Carta.
Chapters 28, 29, and 30 find their equivalent in our [236] municipal and general laws concerning protection of private property. There are numerous provisions which check the abuses committed in seizing goods by way of penal or legal process, protect from seizure the instruments of labour and both the objects and the quantities to be assigned to the “yantar y conducho” or feeding and lodging of the King and his suite and of certain other officials. Since these points of our mediæval jurisprudence have not yet been specially elucidated, it is impossible to get a clear and succinct view of all these details, scattered through many constitutional documents. But the complete and organic expression which was soon afterwards given to these points in the “Partidas” (1265) in the “Leyes de los Adelantados,” and in other legal texts of Alfonso the Tenth’s time, which in great part form a collection of earlier jurisprudence, prove the development which these matters had previously reached.
Finally—to avoid a too lengthy comparison between the chapters of Magna Carta and Spanish jurisprudence—I will indicate the provisions concerning the Jews. Chapters 10 and 11 contain nothing favourable to them; rather, they aim at protecting widows and minors against Jewish usury. Manifestly, the legal position of the Jews in England was inferior to that which they enjoyed at that time in Spain and particularly in Castile. It may be said that the period from the eleventh century to the middle of the thirteenth is the golden age of the Jews in Spain. It is true that social opposition to them takes distinct form towards the end of the twelfth century; but persecution started much later, and even then royal protection was not wanting to them.1 The petitions of the Cortes against [237] usury, throughout this period, curiously resemble these two chapters of Magna Carta.
The limited social scope of most of the declarations of Magna Carta must be remembered throughout. The provisions of the Charter do not extend to all Englishmen, but, in most of the chapters, to the nobles only. Those of inferior status have little share in these advantages or—to be more accurate—in the limitations imposed on the royal power. The Charter, even when it does mention “villans,” frees them only from some obligations towards the King, not from obligations towards the lords, to whom villans continued to be like chattels. The status which was obtained by the citizens of London cannot be compared with that which was obtained by the barons. Even if we should accept the “democratic” interpretation of chapter 60,1 there still remain many other chapters in which the royal concessions lie out of reach of the mass of the people.
In Spain on the other hand, and chiefly in León and Castile, even the servile classes of earlier ages had attained a great improvement of condition in 1215, and the liberties which were gradually being won, chiefly benefited the people in general, not an oligarchy of nobles. Even in Aragon, where later times were to bring a retrograde movement in respect of some inferior classes, the advantages actually attained were more widely diffused than in England; and we find the position of the lower classes better protected by a legislation in which they were regarded as important factors.
II.↩
Let us now pass to the most important point of comparison between Magna Carta and Spanish Juris [238] prudence in the thirteenth century, the point which most clearly marks the tendency of political evolution in Europe and which, for that reason, produced most results in the direction of constitutional control. That point is the attitude of the barons towards the despotism of John Lackland and the guarantees with which they surrounded the concessions obtained, lest the King should evade those concessions. In fact, the whole scheme of declarations and promises contained in Magna Carta is valueless apart from security for their accomplishment. Many Spanish kings made identical or similar promises, and the same thing occurred in other European countries which were passing through the same movement. But the real practical problem does not lie in declarations on the part of one section of the community, or of several sections, or of the whole people (whether represented in Cortes or not) that they propose to limit and censure the King’s exercise of authority. The point is the possession of power to accomplish that object. One method of doing this was to bind the King with a series of guarantees constituting for him a danger or a considerable difficulty in the ordinary working of his authority and his administration.
In Spain, from the Visigothic period onwards, efforts are clearly visible to check the natural propensity of kings towards abuse of power—a propensity which is found in all authority. But the means chosen are either merely jovenlandesal definitions—such as maxims declaring the King to be the first subject of the laws—or else legal declarations of guarantees which rest solely on the monarch’s good faith, such as limitations of the confiscation of private property. The sole effective counterpoise lies in the King’s perpetual apprehension about breaking his formal and legal undertakings, in view of the powerful forces concerned in [239] their enforcement. At a later time, the Cortes constitute a systematized guarantee by means of which the people hold the King in subjection through the power of refusing what the King may require, that is to say supplies; but in all other respects, equilibrium—which was seldom really secured—is produced or attempted through the free play of the two counterbalancing forces. And this is why in Castile the power of the municipalities and the whole body of privileges represented by the municipal “fueros” are so valuable, while in Aragon the social weight of the nobility possesses a similar value.
Magna Carta treats the question in quite another manner. The creation of the committee of twenty-five barons (ch. 61) as a kind of tribunal to judge infringements of privilege and the functions assigned to this committee in chapters 52 and 55, as well as the recognition of the right of insurrection in case of breach of faith on the King’s part, constitute guarantees which already assume an almost constitutional form.
Both these provisions are known to Spanish jurisprudence, but they only attain a similar constitutional force considerably later than the date of Magna Carta. The first device, that of the committee of barons, as a tribunal to watch over the fulfilment of the “peace and liberties” granted and confirmed in the Charter, in Aragon takes the form of the “Justicia Mayor,” in so far as that dignitary, forced upon the King by the nobles, becomes mediating judge or judge of “contrafuero,” that is to say, examiner of infringements of law committed by the King or his officials. This guarantee was initiated in the Cortes of Egea in 1265. Its complete development is found in the “Privilegio General” won from Pedro III in 1283 and is still more marked in the “Privilegio de la [240] Unión” (1287) which forbade the King to take proceedings against any adherent of the Union, whether nobleman or municipality, without the intervention of a judicial sentence by the “Justicia” and the consent of the Cortes. Something in the same direction, but less effective, is to be found in the privilege of the Aragonese and also the Catalonian Cortes that examination should first be made of any grievances against the King.
In Castile there was nothing resembling the committee of twenty-five barons before the Pact (“pacto”) of the Hermandad of the nobles and municipalities (“concejos”) of Castile, León, and Galicia with the infante Don Sancho, son of Alfonso X (1282). This Pact established the right of the Hermandad to judge the royal officials and even the judges themselves and to inflict upon them punishments, including the penalty of death. This privilege or means of security against the King and his officials finds its culmination in the “Concordia de Medina,” which was forced upon Henry IV in 1463: but this latter agreement was short-lived.
The second device, that of insurrection, is more fully represented in Castile. The earliest document which we know concerning this is the above-mentioned Pact of 1282, which assigns to the towns the right of insurrection against royal infringements of the law. The same thing occurs in what may be called political programmes of other Hermandades of the thirteenth century, such as the Hermandades which united the towns of Castile, León, and Galicia in 1295, and which were confirmed by Ferdinand IV. A similar provision is found in the above-mentioned “Concordia de Medina,” which establishes the right of making war on the King without incurring penalty, in case the King should proceed against nobles or [241] ecclesiastics in any other form than that formulated in that document. It would be out of place here to discuss the doctrinal development of this right of insurrection in the hands of theologians and political theorists of the sixteenth and seventeenth centuries: this important topic has given rise to an abundant critical literature in recent times.
In Aragon, assertions of the right of insurrection were at least as definite as in Castile, and had wider results in the sequence of political events. The “Privilegio de la Unión” declared that, in case the King infringed its provisions, the leagued nobles and municipalities were free to refuse him obedience and choose another sovereign without being guilty of treason. Notwithstanding the astute government of James II, this privilege was ratified in 1347, when the new King, Pedro IV, was obliged to recognize the power, claimed by the Union, of deposing, banishing, and depriving the King, if he should inflict punishment without the judicial sentence of the “Justicia” and the advice of the “ricos-hombres”. But this “Privilegio” was not valid for long in Aragon, since Pedro IV himself annulled it in 1348.
To conclude, it is interesting to compare the very wide character of these securities—that of insurrection and that of a tribunal or judge to examine royal infringements of law—in most of the Castilian and Aragonese documents concerning them, with the very special and limited character which they bear in Magna Carta. The competence of the tribunal of twenty-five barons and the right of insurrection refer explicitly to the “peace and liberties” granted and defined in Magna Carta, whereas the similar securities embodied in contemporary or slightly later Spanish jurisprudence embrace every possible case of infringement of privilege on the part of the King or of his [242] officials, although these documents sometimes particularly mention irregularities of legal procedure. The greater amplitude which in Spain from the beginning marks the guarantees won by nobles and by the people, may arise either from a natural propensity of the Spanish mind to generalize without giving much importance to the generalization, or else from a complete view of the problem and a desire to solve it entirely once for all. Whichever be the explanation, it is a characteristic trait of our history.
Another characteristic is the constant mixture of noble and of popular elements in these acts of resistance to royal despotism and to arbitrary administration. The joint action of both classes signifies that in Spain the liberties obtained had a very wide social reach, especially in Castile, where popular action had a large share in the movement. But it should not be forgotten that in many cases—especially in Aragon, but also in Castile during the reign of Henry IV—the pressure put upon the King had an oligarchical character, a condition of things which is in fact not less dangerous than royal despotism to public rights. The conflict arises, not always between a despot and a people suffering under his despotism, but sometimes between a despot and other despots who resist a check upon their despotism. That is to say, class privileges are asserted against the authority of one man’s will; and this fact should be well weighed—as it has been weighed by modern writers on Magna Carta—in order not to attribute to political development a much more democratic tendency than it really possessed. What did happen was that those who strove to limit the royal will in their own interests were unwittingly furthering constitutional progress on behalf of all. For they were preparing both the minds of men and the machinery of government in such a way that, [243] when the royal power, representing the unity of the State, should rise above the diversity of aristocratic and local authorities, this single power should not be in a position to injure the fundamental rights of the subject.
The dates at which this point was reached and the roads which led to its attainment have varied in all the countries of Europe. Every country has also differed from its neighbours in the vicissitudes of advance and retrogression. In England, apart from some episodes of fluctuating movement, the tendency of national liberties becomes continually more marked from 1215, and soon takes a decisive and progressive direction. In Spain, notwithstanding her priority in this kind of political activity, privileges are lost without any compensating gain to the common rights of subjects; for the absolute power of the King dominates all privileges, and destroys that which had been attained in the Middle Ages; nor is the loss replaced by any analogous guarantees of equal extent. The process is interrupted and is renewed long afterwards, in the nineteenth century, without the attainment of positive advantages until near the end of that century. But the true history of absolute power in Spain, in order to elucidate how far it penetrated civil and political jurisprudence, still remains to be studied; and any generalization would be, at the present time, premature.
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