[31] This, however, so contrary to the analogy of other European governments, is expressly contradicted by the declaration of the nobles, at the cortes of Toledo, in 1538. "Oida esta respuesta se dijo, que pues S. M. habia dicho que no eran Córtes ni habia Brazos, no podian tratar cosa alguna, que ellos sin procuradores, y los procuradores sin ellos, no seria válido lo que hicieren." Relacion del Conde de Coruña, apud Capmany, Práctica y Estilo, p. 247.
[32] This omission of the privileged orders was almost uniform under Charles V. and his successors. But it would be unfair to seek for constitutional precedent in the usages of a government, whose avowed policy was altogether subversive of the constitution.
[33] During the famous war of the Comunidades, under Charles V. For the preceding paragraph consult Marina, (Teoría, part. 1, cap. 10, 20, 26, 29,) and Capmany. (Práctica y Estilo, pp. 220-250.) The municipalities of Castile seem to have reposed but a very limited confidence in their delegates, whom they furnished with instructions, to which they were bound to conform themselves literally. See Marina, Teoría, part. 1, cap. 23.
[34] The term "fundamental principle" is fully authorized by the existence of repeated enactments to this effect. Sempere, who admits the "usage," objects to the phrase "fundamental law," on the ground that these acts were specific, not general, in their character. Histoire des Cortès, p. 254.
[35] "Los Reyes en nuestros Reynos progenitores establecieron por leyes, y ordenanças fechas en Cortes, que no se echassen, ni repartiessen ningunos pechos, seruicios, pedidos, ni monedas, ni otros tributes nueuos, especial, ni generalmente en todos nuestros Reynos, sin que primeramente sean llamados à Cortes los procuradores de todas las Ciudades, y villas de nuestros Reynos, y sean otorgados por los dichos procuradores que á las Cortes vinieren." (Recopilacion de las Leyes, (Madrid, 1640,) tom. ii. fol. 124.) This law, passed under Alfonso XI., was confirmed by John II., Henry III., and Charles V.
[36] In 1258, they presented a variety of petitions to the king, in relation to his own personal expenditure, as well as that of his courtiers; requiring him to diminish the charges of his table, attire, etc., and, bluntly, to "bring his appetite within a more reasonable compass;" to all which he readily gave his assent. (Sempere y Guarinos, Historia del Luxo, y de las Leyes Suntuarias de España, (Madrid, 1788,) tom. i. pp. 91, 92.) The English reader is reminded of a very different result, which attended a similar interposition of the commons in the time of Richard II., more than a century later.
[37] Marina claims also the right of the cortes to be consulted on questions of war and peace, of which he adduces several precedents. (Teoría, part. 2, cap. 19, 20.) Their interference in what is so generally held the peculiar province of the executive, was perhaps encouraged by the sovereign, with the politic design of relieving himself of the responsibility of measures whose success must depend eventually on their support. Hallam notices a similar policy of the crown, under Edward III., in his view of the English constitution during the Middle Ages. View of the State of Europe during the Middle Ages, (London, 1819,) vol. iii. chap. 8.
[38] The recognition of the title of the heir apparent, by a cortes convoked for that purpose, has continued to be observed in Castile down to the present time. Práctica y Estilo, p. 229.
[39] For the preceding notice of the cortes, see Marina, Teoría, part. 2, cap. 13, 19, 20, 21, 31, 35, 37, 38.
[40] So at least they are styled by Marina. See his account of these institutions; (Teoría, part. 2, cap. 39;) also Salazar de Mendoza, (Monarquía, lib. 3, cap. 15, 16,) and Sempere, (Histoire des Cortès, chap. 12, 13.) One hundred cities associated in the Hermandad of 1315. In that of 1295, were thirty-four. The knights and inferior nobility frequently made part of the association. The articles of confederation are given by Risco, in his continuation of Florez. (España Sagrada, (Madrid, 1775- 1826,) tom. xxxvi. p. 162.) In one of these articles it is declared, that, if any noble shall deprive a member of the association of his property, and refuse restitution, his house shall be razed to the ground. (Art. 4.) In another, that if any one, by command of the king, shall attempt to collect an unlawful tax, he shall be put to death on the spot. Art. 9.