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VIII. of France, the Diet declared its resolution not to grant any supply of men or money for the purpose, “till the internal peace of Germany was secured,” and he was obliged to abandon the project. The Treaty of Westphalia formally secured the rights and liberties of the States of the Empire, in all matters of internal and external government; and notably “in resolving upon a war in the name of the whole Empire, imposing taxes, ordering the levying and lodgment of troops, constructing new fortresses, or putting garrisons into old ones, as also the care of making peace or treaties of alliance, and other similar matters. “Nothing of this kind," it was stipulated, “shall be done, unless with the free consent of the States of the Empire assembled in Diet." And this law was not intended to become a dead letter. It was complained of at the Congress that the Emperors Ferdinand II. and Ferdinand III. had seldom convoked Diets, not one, for instance, in the long interval from 1623 to 16 10; but eventually the sitting of the Diet became permanent at Rattisbon, from 1665 till the dissolution of the German Empire in 1806.
Hungary, Bohemia, and Poland, in their early times, had also the full enjoyment of independence, and authority in affairs of state. By the capitulation of Matthias with the Hungarian States in the year 1615, it was stipulated that there should be no peace or war without the consent of the Diet, and this was ratified by Ferdinand and his successors. In Denmark and Sweden the case was the same.
In France the prerogative of the kings was, from
the earliest times, under very stringent restraints from the States of the Kingdom. These, under the Merovingian kings, assembled annually in the month of March, afterwards changed to the month of May. In these assemblies, where the king with his great officers and the nobility assisted, peace and war, and all the affairs of government were discussed, and resolutions taken by a majority of votes. In earlier times the States consisted only of the nobility and clergy, but Philip IV., about the end of the thirteenth century, first commenced summoning the cities to the Diet (under the name of Tiers Etats), his object being “to secure the approbation of the whole people in the warm contests between him and Pope Boniface VIII.” As the kingly power grew, in course of time, progressively with the subjection of the hereditary vassals of the crown, the popular liberties were gradually suppressed, and under Charles VIII. and Louis XI. arbitrary rule may be said to have been inaugurated.
But some idea may be formed of the public spirit prevailing, even in these times, from a passage in the memoirs of Philip de Comines, in which, after denouncing the levying of taxes without the full concession of the people, as an act of tyranny and violence, he went on to say: “It may be objected that in some cases there may not be time to assemble them, and that war will bear no delay; but I say that such haste ought not to be made, and there will be time enough; and I tell you that princes are more powerful and more dreaded by their enemies when they undertake anything with the consent of their subjects.”
Even so late as the commencement of the sixteenth century, it was found convenient by Francis I. to have recourse to the authority of the States of Burgundy, to justify his repudiation of the Treaty of Madrid, whereby he had pretended to cede that province to his conqueror and rival, Charles V. The States declared that he could not do so, and refused to submit.
In Spain we find the original rights of the people as strongly asserted as in other parts of Europe. The Crowns of Castile, Leon, and Aragon, were in early times strictly elective; the election in the lastnamed country being pronounced in these terms :
We, who are as good as you, choose you for our King and Lord, provided that you observe our laws and privileges, but not otherwise.” * In Castile it was not until the eleventh century that the hereditary succession was clearly admitted ; and the form of recognizing the heir apparent's title in the assembly of the Cortes has been continued until our own time.
As regards state affairs, a law of Alphonso XI., in 1328, provides that " in the arduous affairs of our kingdom, the counsel of our natural subjects is necessary, especially of the deputies from
* Mr. Hallam, following a suggestion of Robertson, in his Charles V. (first edition), says that he does not much believe the authenticity of this form of words ; but both of those writers admit that it is “sufficiently agreeable to the spirit of the old government.” Robertson, moreover, in his second edition, says that the words of the author are given by Antonio Perez ; "a most respectable authority.” Brulamaqui quotes it from Puffendorff, and argues upon it, as if he found no reason to question its genuineness.
our cities and towns; therefore we ordain and command that on such great occasions the Cortes shall be assembled, and counsel shall be taken of the three estates of our kingdom, as the kings, our forefathers have been used to do.” When James, son of Peter III., succeeded to the throne of Aragon, he, with a view of making peace with France, took upon him to ratify a renunciation of Sicily, in favour of Charles II. of Anjou, King of Naples (A.D. 1295). But the spirit of the inhabitants revolted against being assigned over like a flock of sheep, by virtue of a slip of parchment; they renounced their allegiance to the King of Aragon, and placed the crown upon the head of his brother Frederick; and, after five years' fighting, maintained their right to do so. Amongst other instances of the interference of the Cortes in such matters, may be mentioned the conduct of the Cortes of Ocana, who, in 1469, remonstrated with Henry IV. for allying himself with England instead of with France, and averred that “according to the laws of your kingdom, when the kings have anything of great importance in hand, they ought not to undertake it without the advice and knowledge of the chief towns and cities of your kingdom.” The following case possesses a peculiar interest at the present day, when the succession to the Crown of Spain is again a matter in dispute. By the Treaty of Utrecht, between the Bourbon King, Philip V. of Spain, and Victor Amadeus, Duke of Savoy (who claimed descent from Katherine, daughter of Philip II., through her union with Charles Emmanuel, Duke of Savoy), it was stipu
lated that the succession to the throne of Spain, on the extinction of the line of the former, should devolve to the latter and his family ; and Totze states that “this arrangement, having been previously agreed to by the States of the Kingdom, is justly accounted amongst the
the fundamental laws of Spain.”
In Portugal the prerogative was in early times limited by the States, consisting of clergy, nobility, and cities—the relative powers of the Crown and States being occasionally fluctuating. “In the beginning of the reign of John IV. (1640-1656),” according to Totze they (the States) had great weight, both in foreign and domestic affairs; and everything of any moment relative to war, peace, and taxes, went through their hands. But under John V. (1706-1750), their consideration totally declined, and no Diet has been held since "—the king's power becoming despotic—"except in determining the succession, and an arbitrary imposition of taxes." Such was the state of things towards the close of the last century.
EARLY PRACTICE IN ENGLAND.
TURNING our attention now to what concerns our own country, it is to be remarked, that not one of the earlier authorities on constitutional law, as Glanville, Fleta, Bracton, Britton, Littleton, Fortescue, Fitzherbert, Coke, etc., when treating of the king's rights and prerogatives, make any mention of matters of peace and war as being included