The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0087/00879.txt

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$Title{History Of Europe During The Middle Ages
Part IV}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book IV: The History Of Spain To The Conquest Of Granada
Author:      Hallam, Henry

Part IV

     No people in a half-civilized state of society have a full practical
security against particular acts of arbitrary power.  They were more common
perhaps in Castile than in any other European monarchy which professed to be
free.  Laws indeed were not wanting to protect men's lives and liberties, as
well as their properties.  Ferdinand IV., in 1299, agreed to a petition that
"justice shall be executed impartially according to law and right; and that no
one shall be put to death or imprisoned, or deprived of his possessions,
without trial, and that this be better observed than heretofore." ^g He
renewed the same law in 1307.  Nevertheless, the most remarkable circumstance
of this monarch's history was a violation of so sacred and apparently so well
established a law.  Two gentlemen having been accused of murder, Ferdinand,
without waiting for any process, ordered them to instant execution.  They
summoned him with their last words to appear before the tribunal of God in
thirty days; and his death within the time, which has given him the surname of
the Summoned, might, we may hope, deter succeeding sovereigns from iniquity so
flagrant.  But from the practice of causing their enemies to be assassinated,
neither law nor conscience could withhold them.  Alfonso XI. was more than
once guilty of this crime.  Yet he too passed an ordinance in 1325 that no
warrant should issue for putting any one to death, or seizing his property,
till he should be duly tried by course of law.  Henry II. repeats the same law
in very explicit language. ^h But the civil history of Spain displays several
violations of it.  An extraordinary prerogative of committing murder appears
to have been admitted in early times by several nations who did not
acknowledge unlimited power in their sovereign. ^i Before any regular police
was established, a powerful criminal might have been secure from all
punishment but for a notion, as barbarous as any which it served to
counteract, that he could be lawfully killed by the personal mandate of the
king.  And the frequent attendance of sovereigns in their courts of judicature
might lead men not accustomed to consider the indispensable necessity of legal
forms to confound an act of assassination with the execution of justice.

[Footnote g: Que mandase facer la justicia en aquellos que la merecen
comunalmente con fuero e. con derecho e los homes que non sean muertos nin
presos nin tomados lo que han sin ser oidos por derecho o por fuero de aquel
logar do acaesciere, e que sea guardado mejor que se guardo fasta aqui.
Marina, Ensayo Hist.-Critico, p. 148.]

[Footnote h: Que non mandemos matar nin prender nin lisiar nin despechar nin
tomar a alguno ninguna cosa de lo suyo, sin ser ante llamado e oido e vencido
por fuero e por derecho, por querella nin por querellas que a nos fuesen
dadas, segunt que esto esta ordenado por el rei don Alonso nuestro padre.
Teoria de las Cortes, t. ii. p. 287.]

[Footnote i: Si quis hominem per jussionem regis vel ducis sui occiderit, non
requiratur ei, nec sit faidosus, quia jussio domini sui fuit, et non potuit
contradicere jussionem.  Leges Bajuvariorum, tit. ii. in Baluz Capitularibus.]

     Though it is very improbable that the nobility were not considered as
essential members of the cortes, they certainly attended in smaller numbers
than we should expect to find from the great legislative and deliberative
authority of that assembly.  This arose chiefly from the lawless spirit of
that martial aristocracy which placed less confidence in the constitutional
methods of resisting arbitrary encroachment than in its own armed
combinations. ^j Such confederacies to obtain redress of grievances by force,
of which there were five or six remarkable instances, were called Hermandad
(brotherhood or union), and, though not so explicitly sanctioned as they were
by the celebrated Privilege of Union in Aragon, found countenance in a law of
Alfonso X., which cannot be deemed so much to have voluntarily emanated from
that prince as to be a record of original rights possessed by the Castilian
nobility.  "The duty of subjects towards their king," he says, "enjoins them
not to permit him knowingly to endanger his salvation, nor to incur dishonor
and inconvenience in his person or family, nor to produce mischief to his
kingdom.  And this may be fulfilled in two ways: one by good advice, showing
him the reason wherefore he ought not to act thus; the other by deeds, seeking
means to prevent his going on to his own ruin, and putting a stop to those who
give him ill counsel, forasmuch as his errors are of worse consequence than
those of other men; it is the bounden duty of subjects to prevent his
committing them." ^k To this law the insurgents appealed in their coalition
against Alvaro de Luna; and indeed we must confess that, however just and
admirable and principles which it breathes, so general a license of rebellion
was not likely to preserve the tranquility of a kingdom.  The deputies of
towns in a cortes of 1445 petitioned the king to declare that no construction
should be put on this law inconsistent with the obedience of subjects towards
their sovereign; a request to which of course he willingly acceded.

[Footnote j: Teoria de las Cortes, t. ii. p. 465.]

[Footnote k: Ensayo Hist.-Critico, p. 312.]

     Castile, it will be apparent, bore a closer analogy to England in its
form of civil polity than France or even Aragon.  But the frequent disorders
of its government and a barbarous state of manners rendered violations of law
much more continual and flagrant than they were in England under the
Plantaganet dynasty.  And besides these practical mischiefs, there were two
essential defects in the constitution of Castile, through which perhaps it was
ultimately subverted.  It wanted those two brilliants in the coronet of
British liberty, the representation of freeholders among the commons, and
trial by jury.  The cortes of Castile became a congress of deputies from a few
cities, public-spirited indeed and intrepid, as we find them in bad times, to
an eminent degree, but too much limited in number, and too unconnected with
the territorial aristocracy, to maintain a just balance against the crown.
Yet, with every disadvantage, that country possessed a liberal form of
government, and was animated with a noble spirit for its defence.  Spain, in
her late memorable though short resuscitation, might well have gone back to
her ancient institutions, and perfected a scheme of policy which the great
example of England would have shown to be well adapted to the security of
freedom.  What she did, or rather attempted, instead, I need not recall.  May
her next effort be more wisely planned, and more happily terminated! ^l

[Footnote l: The first edition of this work was published in 1818.]

     Though the kingdom of Aragon was very inferior in extent to that of
Castile, yet the advantages of a better form of government and wiser
sovereigns, with those of industry and commerce along a line of seacoast,
rendered it almost equal in importance.  Castile rarely intermeddled in the
civil dissensions of Aragon; the kings of Aragon frequently carried their arms
into the heart of Castile.  During the sanguinary outrages of Peter the Cruel,
and the stormy revolutions which ended in establishing the house of
Trastamare, Aragon was not indeed at peace, nor altogether well governed; but
her political consequence rose in the eyes of Europe through the long reign of
the ambitious and wily Peter IV., whose sagacity and good fortune redeemed,
according to the common notions of mankind, the iniquity with whi