Towards the Shared Exercise of Power

In the previous chapter, we saw how feudalism radically altered relationships of power as kings became bound to their vassals through a contractual relationship, the feudal pact, which placed them on a plane of equality.

8.5.1 The Rise of State Assemblies

Though the “parliamentary system” in the strictest sense emerged in eighteenth century England (as we shall see below), it is clear that the principle according to

which the sovereign was expected to make decisions by reaching a consensus with the representatives of his kingdom had already appeared by the Late Middle Ages. To this end assemblies of the estates were constituted, so termed because in them the most important social groups (the estates) convened—usually nobles, clergy and representatives of the cities.^[322] The assemblies of the estates received various names in the different European kingdoms. In the Iberian Peninsula, they were called the Cortes; in England, Parliament; in France and the Netherlands, the “Estates General;” and in Poland or the Empire, the “Diet” (Desrayaud 1996, 419).^[323]

Even if the origin of these medieval assemblies is obscure (Fedou 1977, 197), their precedent may be traced back to the “feudal court”, composed of the king’s most important vassals—essentially nobles and bishops—who owed him consilium (Desrayaud 1996, 185), as the kingdoms emerging from the feudal experience found it essential to secure the support of the propertied classes for many acts of government (Strayer 1965, 72).

Following the flourishing of cities in the late medieval period, this restricted body was expanded through the integration of representatives from the burgeoning urban bourgeoisie. The kings would seek to offset the nobility’s considerable influence by simply admitting representatives from the cities into the royal curia, in accordance with the Roman legal principle that “what concerns all should be approved by all” (quod omnes tangit, ab omnibus approbetur) (Post 2008, 163­219), taken from the Justinian Code (C. 5, 59, 5, 3) (Ullmann 2009, 21-26).^[325]

This marked a revolution. As there were so many city dwellers, not all could attend the meeting with the king, so they elected representatives. Thus did the “representative principle” appear for the first time, constituting a major contribution to western political organization (Post 1973, 92-102). It was not democracy, as the appointments were usually controlled by urban oligarchies, but it was a very important step towards it.

8.5.2 The Origins of the Representative Principle

This crucial initiative of admitting city representatives into the royal curiae, was adopted for the first time in European history in Spain, specifically in the Kingdom of Leon.

As shall be further discussed in Chap. 10, representatives from English cities came to form the Parliament of Westminster as of the late thirteenth century, while in France those from the cities made up the Estates General beginning in 1302, when Philip IV the Fair summoned them to ensure his political supremacy over and independence from the authority of Pope Boniface VIII.^[329] In this way, little by little, the old royal curiae in the different European kingdoms gradually evolved into feudal assemblies, which approved the special outlays requested of them by the monarchs, as well as the most important legislation. This incorporation of the citizenry into the old royal curiae was crucial because members of the urban class were appointed or elected and, therefore, served as representatives, by virtue of which they were declared deputies. This constituted another essential advance, as subjects came to exercise control over royal power.^[330]

One must keep in mind that among the contingent or “estate” of citizens there were “jurists” who had been educated at European universities (noblesse de robe), mostly proceeding from the lesser nobility or the urban bourgeoisie, in the tradition of Roman law, where they studied the texts compiled by Justinian, which served to bolster royal power from a legal point of view (Post 1943, 211-232).

Medieval assemblies, however, were not democratic, at least not by any modern standard. They generally presented a tripartite structure, ideally featuring late medieval society’s three estates: the nobility, the clergy, and a third group, usually composed of representatives of the cities. This structure favored the privileged classes, as the clergy and nobility tended to vote in unison, united against the urban representatives. Nevertheless, the tripartite structure could vary. Some assemblies featured a fourth division through which the peasants had their own set of repre­sentatives, or in which the nobles were divided into two distinct feudal bodies, as occurred in Spain in the Cortes del Reino de Aragon.^[331]

The English Parliament was special, though, as it was composed of only two assemblies: the House of Lords and the House of Commons, which from the outset meant that the privileged classes only controlled half the body. The House of Lords was the prolongation of the old curia regis, and in it the great lords and high- ranking prelates continued to meet. The House of Commons was formed during the last third of the thirteenth century when representatives elected by small land­owners and the urban bourgeoisie began to enter Parliament. As a consequence of the outbreak of the Hundred Years War, the kings of England required large sums of money and, to this end, more frequently convened Parliament. Thus, by the mid-fourteenth century the structure of the English Parliament—which came to be permanently headquartered not in London, but in the neighboring city of Westminster—was consolidated with its characteristic bipartite structure and its full political power (Edward 1968, 141-154).

The purviews of these assemblies of the estates were diverse. Initially, their role was to provide the king with money when the Crown’s traditional revenue was inadequate—a situation that became increasingly common as the monarchy’s regular and non-recurrent expenses grew greater and greater.^[332] Constitutionally this was a great advance, as by the end of the thirteenth century the principle that taxation required the assent of the House of the Commons was established, for instance, in the English Parliament, which sparked protest from the nobles (Harris 1975, 66), jealous or their prerogatives. In 1340, Edward III ended up conceding that no taxation should be imposed without the Commons’ consent. From a historical standpoint we can say that current budget laws represent the most important legislation that national parliaments approve, despite the fact that in modern, contemporary states tax revenues are constantly being collected anyway.

In return for providing their financial support parliaments tended to lodge specific requests with the king, with whose approval they became law.^[333] This was the origin of the legislative function that these assemblies would play as of the late medieval period, a principle that would be defended by the great medieval jurist Bartolus (1313-1357), when he argued that the state was its own prince (civitas sibi princeps) and could legislate “as it pleases” (prous sibi placet) on any matter affecting the public weal, with the crucial consequence that, according to him, legislative sovereignty relied on a “free people” possessing all law-creating capa­bilities through its popular assembly (Ullmann 2010, 284). This doctrine explains why, for instance, in Castile, a kingdom that can be considered the oldest consol­idated European state, in the first half of the fourteenth century the Cortes passed laws (ordenamientos)^[334] which, beginning in 1348, prevailed over local customary local law.^[335]

In some cases, the assemblies of the estates also claimed judicial authorities, as was the case with the English Parliament, which continued to be regarded as a “high court”, with the difference relative to other courts being that its acts were not tied to the course of common law; its judgments were not inter partes, but bound everyone on the medieval principle that, as all the estates were represented in Parliament, everyone was “privy” to its acts.

The exercise of these functions afforded the assemblies of the estates an unde­niable political significance because of the fact that they discussed major domestic and foreign policy issues with the king. Their political clout, however, varied greatly. In England it became decisive in the Late Middle Ages, especially after the defeat of the English monarchy in the Hundred Years War and the debacle for the nobles following the War of the Roses, as the Westminster Parliament played a decisive role in the civil war between the House of York and the House of Lancaster, which led to the crowning of a new King of England. To explain, in 1327 the English Parliament forced Edward II to abdicate in favor of his son, Edward III, thereby imposing its will and effecting a change of monarch. The War of the Roses, by pitting two powerful rival forces against each other vying for the crown, had the effect of bolstering the power and prestige of the English Parlia­ment, which served as the arbiter ending the conflict and ushering in a new royal dynasty: the Tudors, under King Henry VII.

In France, the Estates General, however, would prove anemic compared to the robust English Parliament. It would not meet regularly, but only when the monar­chy found itself in a bind and needed to call upon it. As Strayer (1980, 384) has indicated, the Estates were not convoked by the king with the idea of obtaining formal approval of his initiatives. Rather, these assemblies were “exercises in propaganda, not in constitutionalism”. As long as there were enough people from enough regions to ensure that information about the reasons for the royal decision would be disseminated widely, it did not matter which individuals attended or what communities were represented. This is why the French Estates General did not take part in the legislative process.^[336] Thus, throughout the entire Ancien Regime, it did not become a regular organ of government. To an extent, this fact would lie at the root of the French Revolution centuries later.

On the Iberian Peninsula, the political importance of the cortes varied. In Castile, they only acquired a certain relevance in the fourteenth century. However, during the fifteenth century the cortes suffered a clear decline, growing more pronounced in the following two centuries. In contrast, in the kingdoms of the eastern peninsula, until the late Middle Ages forming part of the Crown of Aragon, the cortes boasted undeniable political power, largely maintained after their inte­gration into the Spanish Monarchy, until their abolition by Philip V at the beginning of the eighteenth century.^[337] Las Cortes de Navarra, in contrast, were not very active during medieval times, but would become extraordinarily important after the conquest of the kingdom by Ferdinand the Catholic in 1512, and its integration into the Spanish Catholic Monarchy.

In these eastern Spanish kingdoms, pact-making would be reinforced by another essential institution, the Diputacion del General, which arose when the cortes, upon being dissolved, named permanent delegates representing the kingdom (el General) before the king.^[338] In the kingdom of Aragon, mention must be made of the

particular institution of the Justicia de Aragon, which became an essential pillar of Aragon pact-based government, as it boasted a function similar to that of today’s constitutional courts).^[339]

8.6