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The Imperative Mandate in the Spanish Cortes of the Middle Ages

Published online by Cambridge University Press:  01 August 2014

Alice M. Holden
Alice M. Holden*
Affiliation:
Smith College
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Extract

A study of the beginnings of national representation inevitably brings to the surface details which in their time were part or parcel of mediæval practices. One cannot expect that these usages, even as connected with representative institutions, can be of concern in our more complex modern circumstances, since the Middle Ages had comparatively few and simple problems for legislative solution. In those days the questions of relationship between the administrative and the legislative, and between the local and the central or national, had not emerged clearly. Nevertheless, such details and questions are interesting as examples of mediæval theory and efficiency, and, moreover, some of them are not entirely devoid of connection with present-day difficulties.

The custom of making in advance a decision which was imposed by the electors upon their chosen representative, a custom known as the imperative mandate, was an important factor in early representative government. It was sound in legal theory, and some of its practice will be seen in the pages which follow. Also, its connection is with that early stage in popular government in which the development of representative institutions corresponded somewhat to one phase of the present. I refer to what is apparently a need to ask from the electors themselves their opinion on large, general questions of principle—for example, in our time, the referendum in Germany on the adoption of the Young Plan.

Type
Research Article
Information
American Political Science Review , Volume 24 , Issue 4 , November 1930 , pp. 886 - 912
Copyright
Copyright © American Political Science Association 1930

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References

1 According to ancient law, with its formalist character, judicial acts had to be performed by the interested person himself; but later the influence of certain cases in which it was possible to get away from strict formalism (for example, consensual contracts, such as marriage by proxy) made representation possible in law, and everyone could make his will known not only by a letter or a nuncius (a speaking letter), but also by a mandatory furnished with powers and instructions ample enough to qualify him as more that a simple porte-parole. By fiction, the mandatory was likened to a mere messenger, and his acts were regarded as those of the mandated person. The practice of representation, however, made its way slowly, and it was not unusual to doubt the validity of the act of the representative and to insist upon its being confirmed by the person represented. The necessity for this fiction was always likely to be present, and a remedy had to be found. When this principle was applied to a deputy to the assembly, he was regarded only as a porte-parole of his electors, with no powers of his own and under strict obligation to conform to the will of his constituents. Brissaud, J., Manuel d'histoire de droit français, 803, 1442–1443 (1903)Google Scholar.

2 This study has been made from secondary materials and neither unprinted documents nor archives generally have been examined. Nevertheless, it is offered in the hope that the collection and presentation of its subject-matter in English may be not without value.

3 Block, M., Dictionnaire général de la politique, II, 255 (1867)Google Scholar.

4 Works (London, 1823), III, 18 ff.Google Scholar

5 James the Conqueror's words in founding the royal city of Figueras were: “Quien quiera que entrare a establecerse en Figueras sea libre y no deba redimirse del domino feudal.” Cited by Pella, J. y Forgas, , Historia del Ampurdán (1883), 630Google Scholar.

6 Briefly defined, the fuero was a general or a municipal charter, usually based on custom or common law.

7 Some of the lay and ecclesiastical seigneurs also gave charters to populations on their lands which freed the people concerned from their feudal dominion. The royal cities were far more numerous and tended to have a unifying effect, whereas the seigneurial cities were diverse, as emanating from many lords.

8 The third estate was at first of slight importance in Catalonia, but through the extraordinary development of commerce and industry it came to have preponderating influence. Barcelona very early was a sort of democratic republic which, from its geographical position, naturally turned to commerce, navigation, and industry, and its influence over the rest of Catalonia was great. Hence it led and guided all the other cities in matters of government as well as of economics, and this leadership made for unity and centralization in Catalonia. Pella, y Forgas, , Historia del Ampurdán, 634Google Scholar.

9 I shall limit the explanation of terms to the municipality of Castile, but that will sufficiently make clear also the universidad of Aragon and of Catalonia. The word concejo is of very old use in Spain, and occurs synonymously and indiscriminately with the other words, villa and ciudad, but more for personifying the city, as comprised of its territory and inhabitants. The individuals forming the concejo, in turn, became the vecinos (inhabitants) of the city or town. In explaining the homage due to the king, the Second Partida stated that each villa should assemble its concejo “á pregon ferido” to choose men to swear for all, great and small, “varones et mujeres, nacidos y por nacer.” For the text, see Las Siete Partidas (Madrid, 1807)Google Scholar, pt. 2, tit. xv, ley 5 (37). From this, Señor Gregorio Lopez, the editor, concluded that those who formed this assembly of inhabitants were only the varones mayores, fourteen years of age. Hence, the concejo at the end of the thirteenth century would comprise all the inhabitants fourteen years old who had full civil rights. So constituted, the concejo had a single entity of its own (sola entitad); it was a corporation aggregate. de Hinojosa, Eduardo, Estudios sobre la historia del derecho español, passim, especially pp. 65–70 (1903)Google Scholar.

Señor Colmeiro denned the ayuntamiento as “la junta de vecinos presidios por el estado de la justicia para ordenar el gobierno de la cuidad;” that is, the governing body. It made the municipal ordinances, based on custom and on the privileges granted to the concejo by the fueros and charters, and it usually named the officers of the regimiento, or administrative board, whose individual members were the regidores. The disorganizing change in these communities thus took place through the gradual dislocation in the regimiento of the proportion of persons not of their own choice. In general, see Colmeiro, M., De la constitución y del gobierno de los reinos de Leon y Castilla (1855)Google Scholar, and particularly II, 164-171, for a statement of the usual municipal officers in Castile.

10 It was at least customary that the Cortes should assemble at the death of one monarch to swear fidelity to the new ruler and for his coronation, to concur in the guardianship of a minor, and to consult in all serious and difficult circumstances of the kingdom. Colmeiro stated that the only legal limit to the absence of the Cortes in Castile was the need of paying every seven years the moneda forera, so that no more than five years could elapse before the voting of the necessary funds was required (Curso, I, 349Google Scholar). The Cortes of Palencia in 1313 imposed during the minority of Alfonso XI the obligation to call a Cortes at least once in two years. A. Sacristan, y Martinez, , Municipalidades de Castilla y Leon, 305 (1877)Google Scholar.

11 It is probable that before 1283 there was no fixed rule as to periodicity. The provision for annual meetings in the General Privilege of 1283 and in the Privileges of the Union was modified in 1307 for biennial meetings, and again renewed in 1348 and 1381. de Bofarull, M. y Romaña, , Las antiguas Cortes, 46 (1912)Google Scholar. In Catalonia was granted in 1283 the right of regular assembling of the Cortes every year at whatever time seemed best, provided no just reason prevented it. This was reiterated in 1292, and in 1300 a definite day for assembling was appointed, the first Sunday in Lent. The following year, however, the rule was again changed, to provide for meetings only every three years, except in case of emergency. Belaguer, V., Estudios historicos y politicos, 284–285 (1876)Google Scholar; Coroleu, J. y Pella, J.Forgas, y, Las Cortes Catalanas, 35 (1876)Google Scholar, Los Fueros de Cataluña, 524, 529 (1876)Google Scholar.

12 See, for example, Piskorskii, V., Kastil' skie Kortes …. 34–35 (1897)Google Scholar; Bofarull y Romaña, 37; Marina, T., Teoría de las cortes ó grandes juntas nacionales de los reinos de Leon y Castilla, I, 197 (1813)Google Scholar.

13 Although there was variation in the number of procurators sent by each community, two was the usual number; but in no case did a city have more than one vote. Zaragoza in Aragon and Barcelona in Catalonia always sent larger delegations. In Catalonia, moreover, the votes were weighed and not counted. See Piskorskii, 38-39; Colmeiro, , Curso de derecho politico, I, 325 (1873)Google Scholar; Coroleu, y Pella, y Forgas, , Las Cortes catalanas, 61Google Scholar; Marichalar, A. y Manrique, C., Historia de la legislación y recitationes del derecho civil in España, VII, 200–201 (1862)Google Scholar.

14 Mariéjol, J. H., L'Espagne sous Ferdinand et Isabelle, 137 (1892)Google Scholar; Sacristan y Martinez, 307.

15 Mariéjol, 142; Piskorskii, 39.

16 Colmeiro, , Cortes, I, 37Google Scholar.

17 See the instructions given to the procurators of Toledo at the Cortes of Madrid, 1551, as quoted by Marina, I, 223-230.

18 Colmeiro, , Cortes, I, 29, II, 104–108Google Scholar; Piskorskii, 40.

19 de Paredes, V. Santamaria, Curso de derecho politico, 512 (1887)Google Scholar; Sacristan y Martinez, 307; Bofarull y Romaña, 37-38; Piskorskii, 39.

20 Colmeiro, , Cortes, I, 38, 430–431Google Scholar.

21 Ibid., I, 29; Mellado, F., Tratado elemental de derecho político, 548 (1891)Google Scholar.

22 From the convocation: “eligades e nonbredes doss buenos personas de vosotros, quales entenderieredes cumple a nuestro seruicio e al bien e pró comun desa dicha çibdad por procuradores della, á lo cuales vos mandamos que dedes e ortorguedes vuestro poder vastante e conplido para hablar, e platicar, e tratar con ellos juntamente con los procuradores de las otras çibdades, villas e lugares dellos, las cosas que entendemos e entendiéremos de probeer e dexar probeydas que conçiernan al seruicio de Dios …. El qual dicho poder vos mandamos que dedes e otorguedes a los procuradores que asy elegierdes al tenor desta presente, como vos enbiamos ordenado, firmado de Antonyo Villegas, nuestro secretario, para que venga en conformidad con los poderes de las otras çibdades, …” Cortes de Leon y Castilla, III, 287Google Scholar.

From the Traslado del poder de los procuradores que han venyr a las Cortes: “… Por ende, en voz e en nonbre de la dicha ciudad e de todos los vezinos e moradores della, otorgamos e conosçemos que damos e otorgamos todo nuestro poder conplido, segund que lo nos avemos e tenemos e segund que mejor e mas conplidamente lo podemos e devemos dar e otorgar de derecho a vos, fulano e fulano, para que en nonbre de esta ciudad, como procuradores de Cortes de ella, podays yr e vayais a las dichas Cortes que sus Majestades agora mandan Ilamar … ante la qual os presenteys como procuradores della, e para asy presentados podays en nonbre desta dicha ciudad . . juntamente con los otros procuradores dellos, ver, e platicar, e conferir, e tratar sobre todas e qualesquier cosas concurryentes al sericio de Dios.…

nos, desde agora lo consentimos e aprobamos, loamos, e ratificamos, e otorgamos, e lo avemos e tenemos por bueno, e nos obligamos de lo tener, guardar, complir e pagar, e aver por firme, rato, e grato, estable e valedero para agora e para sienpre jamas, como sy nos mismos lo hiciesemos e otorgasemos e a ello presentes fuesemos, e de no yr ny venyr contra ello ny parte dello en nyngun tienpo lo obligacion de nuestras personas, e bienes, e de todos los vecinos e moradores desta dicha çibdad, en firmeza de lo qual firmamos en esta carta de poder nuestros nonbres, e la otorgamos antel escriuano de nuestro cavildo, e la sellamos con el sello desta dicha çibdad …” Cortes, III, 288–290Google Scholar.

23 Piskorskii, 40-42.

24 Marina, I, 231-232. Marina adds the reply to Pedro Laso, procurator of Toledo, to the emperor that he would consent rather to be quartered or to have his head cut off before he would go outside the limits of the instruction and power given him by his community or submit to anything prejudicial to Toledo and the kingdom. His virtue, and that of the other patriots, was rewarded by banishment from the Cortes.

25 Colmeiro, , Cortes, II, 104–105Google Scholar.

26 Bofarull y Romaña, 38; Colmeiro, , Constitución, I, 336–337Google Scholar, Cortes, II, 108. The procurators of Zamora, who had fled from the city, were dragged through the streets in effigy, since they could not be secured otherwise; and in Valladolid the house of one deputy was burned while its owner escaped death through his own diligence in avoiding it. By 1632 the procurators had to swear that they would not divulge to their cities what had gone on in the Cortes. de Castro, A. Nuñez, De las Cortes en . . Castilla, 223 (1821)Google Scholar; Marina, I, 273.

27 Marina, I, 235–236.

28 Colmeiro, , Curso, 318–319Google Scholar.

29 Ibid., Cortes, I, 38, 499-500; Cortes de Leon y Castilla, III, 407–408Google Scholar. The cuaderno of the Cortes, Article 12, contains the request of the cities and the king's answer.

30 Colmeiro, , Constitución, I, 337–338Google Scholar, Cortes, II, 104–108Google Scholar.

31 Ibid., Constitución, I, 339, Cortes, I, 39.

32 Marina, I, 236.

33 See note 22.

34 Colmeiro, , Cortes, I, 39Google Scholar.

35 Ibid., Constitución, I, 338; Marina, I, 239; Nuñez de Castro, 219. This practice was kept in the Cortes of Madrid, 1789.

36 Colmeiro, , Cortes, I, 39–40Google Scholar.

37 Mellado, 556; Bofarull y Romaña, 45.

38 Marichalar y Manrique, VI, 183-184.

40 The king collected the ordinary revenues, “pero las rentas proprias del Estado se cobraban por los diputados del reino y consistían en los derechos de importación y exportación, peages, etc., á que se llamaba Derechos del General.” Marichalar y Manrique, VI, 189. At times of urgent necessity the king appealed directly to the ricoshombres, who gave subsidies in return for additional privileges.

41 Ibid., VI, 187-194.

42 A municipality might send its deputies to the Cortes if it had ever sat there by authentic summons; thus invitation to attend was not entirely dependent upon the king's whim. It was probably more by nature an obligation, based on feudal tradition, than a right, especially in earlier times. See the clause used in charters, “quod teneatis venire ad curiam” (Historia del rey de Aragon, Don Jaime, I, 242Google Scholar). See also Martel, G., Forma de celebrar Cortes en Aragon, 10–11 (1641)Google Scholar; Antequerra, J. M., Historia de la legislatión española, 309n. (4th ed., 1895)Google Scholar.

43 See Marichalar y Manrique, VI, 217-220; Martel, 2; also de Pidal, Marquis, Philippe II, Antonio Perez et le royaume d'Aragon, I, 37 (1867)Google Scholar.

44 Navarre was a Spanish state until 1234, united to the crown of Aragon from 1076 to 1134, and with an independent king after that date. From 1234 to 1513 its affiliation was French, since it belonged successively to the house of Champagne, the French crown, the houses of Evreux, Foix, and Albret. By the marriage of John of Aragon to Blanche of Navarre, John became titular king of Navarre in 1425, but with little or no actual power. While it was not incorporated with the kingdom of Castile until 1520, during the last quarter of the fifteenth century treaty agreements made the kings of Navarre virtually protegées of Spain, and actual possession was taken by Ferdinand the Catholic in 1512 or 1513. R. B. Merriman, Rise of the Spanish Empire, passim.

45 Mariohalar y Manrique, IV, 421-422.

46 Danvila, M. y Collado, , El poder civil in España, I, 220 (1885)Google Scholar; Santamaria de Paredes, 532.

47 Marichalar y Manrique, VII, 206.

48 They also took oath before going to the Cortes that they would not, during the time of the mandate and within five years after its ending, accept any occupations or honors. Belaguer, 287.

49 Coroleu, y Pella, y Forgas, , Cortes catalanas, 84Google Scholar. In 1422 the law stated that the Cortes must be held only in places having two hundred fires or hearths, in order to assure adequate provision of the necessities of life for the deputies even under the unusual circumstances of the great assembly. Ibid., 35, Fueros, 525, 529-531; Pella, y Forgas, , Libertats y antich govern de Catalunya, 136 (1905)Google Scholar; Marichalar y Manrique, VI, 202.

50 Coroleu, y Pella, y Forgas, , Cortes catalanas, 84–86Google Scholar, Fueros, 520-521; Perez, 22.

51 Coroleu, y Pella, y Forgas, , Cortes catalanas, 87Google Scholar.

52 Ibid., 88.

53 Eight were taken from the class of “honored citizens,” which included caballeros and jurats, and no more than three caballeros might be chosen, although none need be (apparently to have some was considered wise); there were six merchants, five artisans, and five mechanics, drawn from the lists of their respective classes. Ibid., 81.

54 A joint commission of eighteen, called the habilitadores, and composed of representatives from all the brazos chosen by both the king and the Cortes, examined the powers and credentials of deputies claiming the right to sit in the Cortes. These they scrutinized to see whether such delegates had been duly elected and were bearing the proper powers, excluding those improperly there, with no right of appeal. They also judged, and severely, in cases of late-comers. So extensive were their duties that, according to Peguera, there were at least thirty-nine rules containing the principles followed by these officials. (See Coroleu, y Pella, y Forgas, , Cortes catalanas, 107Google Scholar; Belaguer, 290.) Like Aragon, Catalonia had an executive body of six, the Deputation, to act during intervals when the Cortes were not in session. The deputation had jurisdiction superior to all tribunals and supervised obedience to the laws; it controlled the collection and spending of the public funds, and, in general, acted in defense of national liberty. It also could serve as a check upon the deputies.

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