Abstract
In the Late Middle Ages universalism, imposed by popes and emperors, and the feudal model were gradually abandoned as patterns for the political and legal organization of Western societies, as a result of fundamental changes resulting from the multiplication of trade links (Commercial Revolution) and a rising cultural level spawned by the emergence of the first European universities. The rigid tripartite structure into which feudal society was organized, featuring a landed nobility, peasants, and the clergy, was to fundamentally shift as a result of commercial expansion, the growth of cities, and the emergence of a new social class: the bourgeoisie, which would amass considerable wealth and gradually upset traditional relationships of power. Kingdoms such as Castile, England and France became the new reference points on the European political and legal landscape as their kings became hereditary “monarchs” who ruled over expanding territories which they controlled through solid administrative networks. Though late medieval kings grew gradually independent from the popes and emperors, they were not absolute rulers, as their power was limited by the rise of state assemblies, where members of the privileged orders (nobility and clergy) sat together with representatives of the cities, whose inhabitants finally won political representation. Moreover, late medieval kings were subject to the law and saw their authority limited by a series of proto-constitutional documents, solemnly agreed to with their most influential subjects, a development which would pave the way for the establishment of the rule of law in Europe.
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Notes
- 1.
Literally: “He who knows all and is ignorant of nothing”, in Navarro Valls and Palomino (2003, 108–109).
- 2.
Specifically, in his Historia Gloriosi regis Ludovici (Suger 1992), in which he argues that the French king was the suzerain, or “lord of lords” (Lemarignier 1965, 167–176). According to Lewis (1987, 51–52), Suger’s articulation of at least an inchoate theory of suzerainty and his conception of kingship makes him an authoritative spokesman for royalist ideas, essential for understanding Capetian ideology in his time. For an overview of Suger’s writings, see Grant (1998, 32–49). France is not the only case. In the Iberian Peninsula, the same situation appeared in “Catalonia” as we saw in the previous chapter—the only territory where feudalism fully triumphed in medieval Spain. The Catalonian feudalistic pyramid was described by a thirteenth-century Catalonian jurist, Pere Albert, in his work Les Commemoracions (Albert 2002), in which he defended the preeminence of royal law and privileges (Kagay 2007, 693–703). In Catalonia there was no king, per se, but the Count of Barcelona appeared at the top of the pyramid, as the first (princeps) among all Catalonians (Ferran i Planas 2006, 145–68).
- 3.
It is noteworthy, for example, that historian Gregory of Tours (Riom, near Clermont-Ferrand, 538-Tours, 594) in his Historia Francorum spoke of the morbus gothicus—detestabilis consuetudo—to explain why so many Gothic kings died violently in disputes over successions (Wolfram 1990, 245). Also, in the principal and, often the only, source for Frankish history after the end of the work of Gregory of Tours in 591: the Chronicle of Fredegar, a compilation—38 manuscripts, in 4 books—of events in Frankish Gaul from 584 to around 641, that begins with the last years of the Queen Brunhilde, daughter of the Visigothic king of Spain, Athanagild. The Chronicle accuses to the Queen of import the gothic disease: she ordered the death of ten kings of the Franks and many churchmen between 570 and 613 year of her execution (Goffart 1963, 206, and Frassetto 2003, 81–83 and 166–167). To prevent clashes over succession, the IV Visigothic Council at Toledo, expressly approved a rule instituting the election of kings: “Let nobody orchestrate the death of kings. Rather, when the king dies, in peace, the nobility of the entire people, along with the bishops, shall designate of common accord the successor to the throne, so that we might preserve a concord of unity, and there be not any division of our country and people born of violence and ambition” (…nemo meditetur interitus regum, sed defuncto in pace príncipe primatus totius gentis cum sacerdotibus succesorem regni concilio communi constituant, ut dum unitatis concordia a nobis retinetur, nullum patriae gentisque discidium per vim atque ambitium oriatur). Canon LXXV, IV Council at Toledo (633) (Vives 1963, 218). As Stocking (2000, 152) points out, Canon LXXV did not only establish obedience to the duly elected Visigothic kings, but also expressed the bishop’s insistence on the necessity of establishing and maintaining a Christian consensus regarding the inviolability of oaths taken in the name of God, as they were essential to the stability of kingship.
- 4.
On the crucial succession of Philip Augustus, see Lewis (1981, 64–77).
- 5.
The essential role as an arbiter played by the king, appears even today in the current Spanish Constitution, dating from 1978, whose Article 56.1 states that: “The King is the head of state, symbol of its unity and permanence; he arbitrates and moderates the regular functioning of the institutions and is charged with the highest representation of the Spanish State in international relations…” To guarantee this role as an intermediary, which allows him to remain above the political fray, the order of succession to the throne continues to be one of the pillars upon which the monarchy’s constitutional viability is based. Thus, Article 57.1 of the Spanish Constitution states that “The Spanish Crown is hereditary: (inherited by) the successors of H.M. Juan Carlos I de Borbón, legitimate heir of the historic dynasty (…)”.
- 6.
The monarchy of León was the heir to the Asturian monarchy. García I of León, in the early tenth century, transferred the capital from Oviedo to the city of León as a result of advances made during the Reconquest. Likewise, King Alfonso II of Asturias (759–842), stood as the heir to the legendary Don Pelayo. Alfonso II was the founder of the Kingdom of Asturias, as according to the Crónica Abeldense (881), “he instituted in Oviedo, in everything, both in the Church and at the palace, the order which the Goths had had in Toledo” (Omnemque gotorum ordinem sicuti Toletu fuerat, tam in ecclesia quam palatio in Ovieto cuncta statuit). That is, he revived the dynastic tradition of the Visigoth kings and came to consider himself a descendent of them. Thus, the kings of Asturias-León were, initially, Christian Spain’s only legitimate monarchs. This explains why it was within this first medieval Spanish monarchy of Asturias-León where the principle of hereditary succession was consolidated, as demonstrated by the “regencies” indicated (Aguilera-Barchet 1998, 15–21).
- 7.
In a document by the Leonese monarch Ramiro III in the year 978, after the names of the king, queen and bishops, appears, Virmundus, Serenissimus Princeps [confirmat] (Flórez and Risco 1793, Volume XXXVIII. Trat. LXXVI. Appendix IV, pp. 276–277.) Bermudo was not the son of Ramiro II, but rather his uncle, and would come to occupy the Leonese throne in 984, with the name Bermudo II the Gouty (+999). See text in Flórez and Risco (1793, 276–277). The trend towards the legal designation of a successor was consolidated throughout Europe with the appearance of specific titles granted to crown princes: in the case of England, it was the “Prince of Wales”, a title created by Edward I (1272–1307), for the future Edward II; in France Philip VI of Valois (1328–1350), did the same when he created the title “Dauphin of France;” in the Crown of Aragon, Peter IV linked the title “Duke of Gerona” to the crown prince as of 1349; in Castile and León, the title “Prince of Asturias” appeared in 1388 to designate the heir to the throne; and in Navarra, the heir to the throne came to be called the “Prince of Viana”, when the title was created in 1423 by Charles III the Noble.
- 8.
The expression “The king reigns but does not govern” is not of English but Polish origin. It comes from the doctrine summed up by Chancellor Jan Zamoyski (1542–1605), the first to use the expression Rex regnat et non gubernat to describe the peculiar political system of Golden Liberty in which the nobility (szlachta in Polish) dominated the king and all the social estates. The king was obliged to respect the citizens’ rights, as approved in King Henry’s Articles (1573), in accordance with the “pact-based” conception of power discussed in the previous chapter. On the governmental machine, the correlation between auctoritas and potestas, the articulation between power as government and effective management, and power as a ceremonial and liturgical regality, see Agamben (2011, 71–72 and 84).
- 9.
Significantly, in 1804, Napoleon declared himself “Emperor of the French” (Empereur des Français) instead of “Emperor of France”, a distinction intended to convey that he respected Revolutionary principles and had been nominated by the people through a popular plebiscite (Huet 1999, 55).
- 10.
On the emergence of royal ideology under the reign of Philip Augustus, see Baldwin (1991, 362–366). It is interesting to note that the use of the words “of France” originated with the common people (Lewis 1981, 185), and was only later taken up by the royal chancery for use in formal texts, becoming widespread over the course of the fourteenth century.
- 11.
On the pivotal debate as to whether the state preceded the nation or the nation preceded the state, see Fedou (1977, 185–192).
- 12.
“Officials” because they held “offices”, or public posts. Today, the equivalent term would be “civil servants”. For an overview of the decisive transition from feudal private service to late medieval public service in European monarchies during the Late Middle Ages, see Fedou (1977, 158–164).
- 13.
The creation of a permanent army (initially approved in Orleans at the Estates General of September 1439, and consolidated through the creation of the Compagnies d’ordonnance—20 compagnies of 100 lances each—by the royal order of Louppy-le-Châtel of May 26, 1445), justified by the need to defend the kingdom from English armies (Minois 2005, 495–501), allowed Charles VII to create a set of stable taxes (taille, gabelle) without any need for the Estates General to renew them annually. This tax system would last until the French Revolution. As Vale (1974, 231) points out, under Charles VII taxation was heavy, and got heavier with each successive war. The contemporary historian Philippe de Commynes (1447–1511), has calculated that by the end of his reign Charles was collecting the equivalent to some 1,800,000 francs a year, while his son Louis XI (1461–1483), was raising 4,700,000 by the time of his death. The result was that the French were among the most heavily taxed people in Renaissance Europe.
- 14.
For an overview of the late medieval monarchies’ territorial integration processes, see Ladero Quesada (1997, 19–68).
- 15.
As Guenée points out (1985, 120–121), in the Early Middle Ages the court was not specialized, as kings received assistance in administrating their lands from vassals, friends and companions, who filled all kinds of roles in temporary and imprecise ways.
- 16.
As Pollock and Maitland underscore, the new court “was no longer to be a special tribunal, a court for great men, for great causes, for matters that concerned the King; but was to become an ordinary tribunal for the whole realm”. It started in 1178, when Henry II chose five men, two clerks and two laymen, “who are not to depart from the king’s court, but are to hear all the complaints of the kingdom” (Pollock and Maitland 2010, I, 153–154).
- 17.
In France, the term parlement does not refer to the estate-based assembly (as in England’s Parliament), which was known as the Estates General. Rather, France’s parlements were its high courts of justice in a given region, guarantors of the application of the customs of each. They did not only play a judicial role, however, but also were of significant political importance because they were charged with registering royal edicts—an action without which royal legislation did not go into effect, save in special cases in which a lit de justice was resorted to. Thus, the French parlements became symbols of opposition to the absolute power of the French kings of the Ancien Regime. On the technical mechanism of legislative control exercised by the French parlements, see Saint-Bonnet (2010, 1–6).
- 18.
The kingdom of Castile had no laws before the reign of Alfonso X the Wise (1252–1284). Rather, local judges—generally laymen with no legal education—decided judicial conflicts based on their sense of equity and free will (equidad y libre albedrío), and created law through their decisions (case law). Alfonso X changed all this, creating, on the basis of the Roman and canon law traditions studied at European universities, complex legal texts such as the Fuero Real (Royal Law), El Espéculo, and, best known of all, Las Partidas. The Castilians, however did not care for the new law proceeding from the ius commune (common law) universities, preferring their traditional customs, and rebelled against the king, who was forced to reestablish traditional legal customs. Though Alfonso X was unable to create new laws, he was successful in extending royal jurisdiction to a series of penal cases, which were to be heard only in royal courts (casos de corte), pursuant to an agreement reached between the Cortes de Zamora and the Castilian cities in 1274 (Iglesia Ferreiros 1971). He transformed the old Curia regis into a royal court (Tribunal de la Corte), staffed by royal judges (alcaldes de corte). Finally, these royal judges applied the Fuero Real, which became the law of the royal courts (Pérez De La Canal 1975). Due to opposition by the Castilian nobility, however, the system of royal courts was only consolidated in the Cortes de Toro in 1371, where Henry II of Castile, in an important Act on the Administration of Justice (Ordenamiento sobre Administración de Justicia), created the first audiencia as an appellate court—so named because the judges were oidores (from the verb oir, to hear), who heard its cases. If an audiencia received a royal seal of justice, issued by the chancellor (canciller) it became a chancillería. By the end of the fourteenth century, the Audiencia ended up forming part of the royal Chancillería (Garriga 1994, 101–102).
- 19.
This explains the historical origin of common law, as most cases were presented in royal courts, far more reliable than local judges. In any case it made possible the unification of procedures all over England and, since the time of Henry II (1154–1189), the law tended to be common throughout the realm because the king had devised expedients by which trials could be decentralized in an ingenious system of itinerant justice that helped greatly to promote the popularity and effectiveness of the new royal remedies, preserving, at the same time, uniformity in their administration and making it possible for the law built around the new remedies to become a truly national law (Dawson 1968, 1–2). For an overview of this fascinating process, see Baker (1990, 14–43).
- 20.
For an overview of the decline of Imperial influence was especially evident in France in the late medieval centuries Jones (2007).
- 21.
The relationship between the Portuguese kings and the papacy had been constant since the very inception of the Portuguese kingdom, specifically since Alfonso I Henriques defeated the Moors in Ourique in 1139, a military triumph which led him to drop his title of comites portugalensium (Portuguese Count), and adopt that of rex portugalensium (King of the Portuguese). To do so legitimately, however, he had to submit to the pope, declare himself miles beati Petri et Romani pontificis (a soldier of Saint Peter and of the Roman pontiff), and agree to pay an annual tribute to the Holy See. Pope Lucius II expressly accepted the offer in 1144, but only recognized his title of Portugalensium dux (Portuguese Duke). It would be Alexander III, who would expressly recognize Alfonso I Henriques as king via a bull dated May 23, 1179 (O’Callaghan 2013, 241).
- 22.
Though John of Avis was more than interested in receiving the papal blessing as well (Olivera Serrano 2005, 95–96).
- 23.
After Columbus returned from his first voyage of discovery, the Catholic Kings reached agreements with Pope Alexander VI (born in Valencia) in 1493, calling for a Castilian monopoly on journeys to the newly-discovered lands in the form of 4 legal documents: a papal brief called the Inter caetera; the bull Eximiae devotionis, of May 3; the bull Inter caetera of May 4; and the bull Dudum siquidem of September 26. In these documents the pope drew a longitudinal line running around the globe, and forbade anyone from venturing “to the west and south to be distant one hundred leagues from any of the Azores or Cape Verdes” without the express consent of the Catholic Kings, under pain of excommunication. On the Alexandrine Bulls, see Vander Linden (1916, 1–20).
- 24.
The treaty was created on June 7, 1494; ratified on July 2 by the Crowns of Castile and Aragon; and on September 5 by the King of Portugal, pushing the Papal Line of 1493 to a meridian situated 370 leagues west of the Cape Verde islands, thanks to which Portugal could include among its domains Brazil, discovered by Pedro Alvares Cabral on April 22, 1500. On the Treaty of Tordesillas, see Bown (2012, 155–157).
- 25.
French judicial historiography draws an institutional distinction between the era during which the king was, above all, a judge (roi justicier) from that during which he began to create law (roi législateur). This pivotal change in the king’s role came about in different eras: in Castile it occurred in the first half of the fifteenth century, while in France it did not transpire until the reign of King Louis XIV (1643–1715). For an overview of the figure of the king as fountain of justice, and largely, on the relations between justice and royal power, see Menegaldo and Ribémont (2012).
- 26.
In the previous chapter, we saw how the Church managed to stem the anarchy resulting from the feudal structure of European society during the Early Middle Ages, as oaths taken on the Bible were a judicial instrument used by the Church in to maintain control by appealing to consciences. Perjury was a crime and, above all, a sin sanctioned with eternal damnation. This is why the oath became a legal check on the kings’ sovereignty (David 1951). On the medieval origins of the coronation oaths, see Palacios Martin (1975, 133–141); on the meaning of the coronation oaths in France’s medieval monarchy, see Jackson (1984, 57–59).
- 27.
Some legal historians believe that we can even speak of “contractual kingship” (royauté contractuelle) in reference to the late medieval monarchs ruling during the eleventh to fifteenth centuries (Desrayaud 1996, 197).
- 28.
Also, in Scotland, The Declaration of Arbroath, a Latin letter that was drafted on the April 6, 1320, is one of the first expressions of the idea of a contractual monarchy and a prototype of contractual kingship in Europe. The document received the seals of several Scottish barons and was sent to Pope John XXII at Avignon in France, attempting to abate papal hostility. See Cowan (2002). About contractual kingship in Catalonia, Earenfight (2010, p. 134).
- 29.
In some cases, one could speak of “constitutional” texts in the modern sense of the term, as certain municipal privileges were to be respected by monarchs. A clear example is the municipal Charter of St. Omer, granted by Thierry of Alsace, Count of Flanders in 1129. Its Article 25 indicated that the Flemish nobles had sworn that, should the count violate certain municipal privileges, thereby doing harm to the people of the city by transgressing the decisions of its judicial authorities, the city would sever relations until legal order was reestablished (Caenegem 1990, 102–107). On the text of the St. Omer Charter, see Espinas (1947, 43–48).
- 30.
For an overview of this privileged local legal system, which prevailed over royal law in Castile and León until the middle of the fourteenth century, see García Gallo (1956, 388–398).
- 31.
This is what happened, for instance, in the Catalonian city of Tortosa in the beginning of the thirteenth century (Font Rius 1985, 146–147). For an overview of this transition, specifically with respect to the relationships between cities and the monarchy in Catalonia, and the markedly pact-oriented territory of the Crown of Aragon, see Marongiu (1973, 653–659) and Sabaté I Curull (2000–2002, 255–282). Also, Corteguera (2002, 24–47).
- 32.
On the political organization of the Italian cities in the medieval period, see Waley and Dean (2010, 141–154).
- 33.
- 34.
The age of estates was a period spanning from the thirteenth to the eighteenth century, during which monarchies ruled over societies dominated by orders, corps and bodies, corporations, colleges and societies, each with important duties and privileges. German historians have called this form of state Ständestaat. This vision of Ancien Regime society was clearly expressed by the avocat du roi Séguier, in a lit de justice (the most solemn session of a French Parlement) held on March 12, 1776, by Louis XVI at the Parlement de Paris: “The clergy, the nobility, the highest courts, the lower tribunals, the officers attached to these tribunals, the universities, the academies, the financial and commercial companies, all present, in all parts of the state, living bodies which one can consider as links in a great chain of which the first link is in the hands of Your Majesty, as head and highest administrator of all that makes up the body of the nation” (Myers 1975, 9 and 11).
- 35.
For a typology of these representative institutions, see Bulst (1996, 44–46).
- 36.
In this period, English did not exist as a unified language. Henry II of England (1154–1189) spoke essentially French, as a descendent of the French Normans who arrived in England in 1066, and Latin, which was the language of learned people and the only one used for writing official documents.
- 37.
What would seem to be the Roman justification of the democratic principle was, in fact, taken out of context, as it does not refer to the organization of the state, but rather to the institution of judicial/private wardship. Its original technical meaning refers to that, for certain acts involving the administration of a minor’s property, the consent of all those responsible for his wardship is required. About the misinterpretation of the phrase, see Hall (1972, 125–145); on the origins of the political use of the formula in medieval times, see Gouron (1989, 277–286); and on its development in Spain, see Maravall (1983, 175–190).
- 38.
Referring to the three courts or royal councils, made up of nobles, prelates and citizens, who met with him to reach decisions on crucial matters facing the kingdom.
- 39.
- 40.
Specifically, the Catalonian, Aragonese and Valencian cortes were consolidated following the decisive episode of the Sicilian Vespers (1282), an anti-French rebellion which allowed Peter III of Aragon to take the island, angering Pope Martin IV, who excommunicated the Aragonese monarch on March 21, 1283 (Runciman 2012, 242–243). This, in turn, spurred France’s Philip III to invade Catalonia. The weakened position which the Aragonese suffered made it possible for parties in Catalonia, Aragon and Valencia to force the king to convene their respective cortes at certain times of year. Thus, for example, at the Cortes de Barcelona in 1283 Peter III was obliged to accept the Catalonians’ right to convene the Cortes del País and not to legislate without the intervention of Catalonia’s estate-based assembly. Aragonians and Valencians immediately followed their example (Bisson 2003a, b, 88 and 98–99).
- 41.
On the origins of the first gatherings of these assemblies during Philip IV’s reign, see Bisson (1972, 537–564).
- 42.
Initially, the cities sent representatives to the États Généraux, designated directly by the town council or the mayor. Nevertheless, the situation changed upon the decline of political feudalism, and beginning in 1468 real elections were held, with electors voting to choose their corporative representatives. Henceforth the city representatives elected had an imperative mandate, having to obey the instructions received from their electors (Desrayaud 1996, 425–427). For an overview of medieval parliamentarian practice in England, see Cam (1953, 11–26).
- 43.
As González Antón (1975, 437–438) points out, initially there was only one estate for nobility. Nevertheless, as the kings of Aragon gained power the Aragonese nobles went to the cortes divided into two “arms” (brazos): the high nobility belonged to the one made up of the barons (barones) and “wealthy men” (ricoshombres), while the low nobility joined the group of knights (caballeros), nobles (hidalgos) and gentlemen (infanzones). In this way the Aragonese nobility controlled 50 % of the assembly. As nobles usually voted with the clergy, the representatives of the cities had their political influence reduced to one fourth. More recently VanLandingham (2002, 96–100).
- 44.
For an overview of the role of these representative medieval assemblies in the creation of national taxation systems, see Ertman (1999, 59–73).
- 45.
In England, between 1310 and 1327, the Commons began to present petitions and fashion them into a series of articles. In the following decade presentations of comprehensive sets of articles became frequent (Harris 1975, 118). By 1348 it was said that laws were made by the king with the assent of the peers and commons, but the need for consent by the House of Commons to all legislation was not established beyond doubt until after 1400, as it remained possible for the House of Lords to introduce variations when assenting to petitions from the Commons. In 1407, Henry IV recognized that the proper legislative procedure was for the Lords and Commons to debate propositions as separate houses, and only when they agreed should the matter be submitted to the king for his approval. Ever since Parliamentary legislation requires separate consent by the king, the Lords and the Commons (Baker 1990, 235). Also, Levy (2009, 199–201).
- 46.
The Spanish term ordenamiento conveys two important meanings: laws that were organized (ordenadas) into chapters, and which were also issued by the king. In Castile, during this period, the word referred to important laws, approved by the king and the cortes. These were “normas pactadas” (pact-based laws) established through agreement and consensus, not issued unilaterally by the king. Ordenamientos were in Castile the ordinary way of legislating in the fourteenth century.
- 47.
Royal legislation prevailed officially in Castile over local customs ever since the agreement reached by King Alfonso XI in the Cortes de Alcalá de Henares in 1348, was incorporated into the Ordenamiento de Alcalá, an essential law that became the base of the Castilian legal system and that Otero (1993–1994, 475) considers a “constitutional” change.
- 48.
As Timbal and Castaldo (1985, 292–294) point out, initially it was far more difficult for the king of France to impose his legislation than his justice, as he had lost the power to legislate during the feudal period. The king could not alter the political and social order created by God. Rather, he could only maintain it through the exercise of justice, and the only compulsory rules he could issue were privileges given to individuals or communities, but not general prescripts. At the end of the twelfth century, the kings began to legislate again, but until the reign of Saint Louis (1226–1270), they required the assent of their barons to do so. In the fourteenth century the kings’ legislative power was reinforced as they could enact laws following the deliberations of a king’s council and the involvement of the Estates General was not required to create law. Only the French parlements, as the realm’s superior courts of justice, were engaged in the legislative process; to enact and implement laws the parlements had to register or record them, a powerful function which they wielded.
- 49.
- 50.
Thus, the government of the Autonomous Community of Catalonia continues today to be called the Generalitat de Cataluña. The Diputación del General appeared in Catalonia in the mid fourteenth century. Its original function was to control the use of the taxes agreed to with the king and assure that he complied with everything agreed to in the sessions of the cortes while these were not in session. Over time, however, the Generalitat evolved into the representative body of the people before the king, and soon was able to raise armies and organize fleets for the service of the crown. With the arrival of the new Trastamara Dynasty to the Crown of Aragon, the Generalitat assumed a role as a defender of Catalonian liberties. Fernando I, in the cortes of 1413, recognized it as a body permanently representing the Principality when the cortes were not operating, and their right to enforce the observance of Catalonian laws (O’Callaghan 1975, 591). In 1460, they rebelled against John II, and until a royal victory in 1472, the Generalitat basically governed Catalonia. Since 1978 this tradition of pacts has constituted the basis legitimizing Catalonian autonomy, cited by and inspiring the region’s separatists. For a recent analysis of this “representative” tradition in eastern Spain, focusing on a critical approach to the exaggerated influence of the legacy of pact-making (pactismo) in modern Catalonian separatism, see Hargreaves (2000, 96–112). The Diputación as an institution was introduced in Aragón in 1412, and in Valencia in 1419. In the Kingdom of Navarra it was created in the fifteenth century, but did not became a permanent institution until 1501.
- 51.
Initially, the Justicia Mayorde Aragón was a lord appointed by the Aragonian nobles to defend them in their dealings with the king. Over time it morphed into the institution which guaranteed that the king did not violate laws passed by the Cortes de Aragón, which could nullify royal laws conflicting with agreed (“pactist”) legislation (García de Valdeavellano 1973, 571). In this way, the Justicias Mayores played an essential role in the development of Aragonian law, also featuring a special jurisdiction to which Aragonians who did not wish to be judged under royal jurisdiction could turn, as the sentences (observancias) of the tribunal of the Justicia Mayor had the same validity as laws approved by the Cortes.
- 52.
As Reynolds (2012, XII, 11–12) suggests, there was a common tendency in late medieval Europe to grant liberties to all free men in different kingdoms. The English charters, such as the Magna Carta, certainly contain provisions that protect those outside the nobility, but so do the German charters of 1231–2, Philip IV of France’s reform ordinance of 1303, and his son’s charters of 1315. The fact that the German charters are now considered constitutions in favor of princes, the 1303 document is called an ordinance, and that the charters of 1315 are said to have been granted to leagues of nobles, say more about the difference between national historiographical traditions than about the documents’ contents. All of them, including the Magna Carta, concentrate first on the grievances of important people, but all go on to include others, as kings were supposed to look after the humble as well as the great, and the powerful were supposed to represent and speak up for the humble. For an overview of the constitutional value of medieval law Kern (2012, 149–206).
- 53.
“In the name of God. When I held a cortes at León with the archbishop and the bishops and magnates of my kingdom, and with the citizens chosen from every city, I Alfonso, King of León and Galicia, established and confirmed with an oath that I would preserve for all the inhabitants of my kingdom, whether clergy or laity, the good customs which they enjoy, as established by my predecessors. I promised also that I would not make war or peace or treaties, except with the counsel of the bishops, the nobles and the ‘good men’ by whose counsel I ought to rule”. Cited by Wilkinson (1972, 55). The best study on this essential text in Spanish medieval legal history is that by Fernández Catón (1993).
- 54.
- 55.
In 1225 Henry III confirmed the Magna Carta, though with some substantial changes. This version was confirmed in 1297 by Edward I and became a statute (Linebaugh 2008, 272). According to the English jurist Edward Coke (1552–1634) the Magna Carta was confirmed 32 times. On Coke’s interpretation of this crucial constitutional document, see Pocock (2008, 44–45).
- 56.
Peter III’s excommunication for conquering Sicily in 1282 led to Phillip III the Bold’s invasion of Catalonia, in an attempt to take it with the pope’s blessing. The French occupation was a failure, yet the disorder created was seized upon by Aragonian and Catalonians to rise up and impose severe limitations upon his power, including the obligation to convene the cortes at regular intervals. These limitations were placed in writing in the abovementioned 1288 Privilegios de la Unión.
- 57.
As of the fifteenth century the kings of Castile were empowered to create laws called pragmáticas, which had the same validity as legislation approved by the cortes. The Castilian monarchs were the first kings in Europe able to unilaterally create legislation (Iglesia Ferreiros 1977, 115–198).
- 58.
As VanLandingham (2002, 12) points out, the universal medieval obstacles to centralization were in full force in the Crown of Aragon, as the nobles, particularly in Aragon, were powerful and fractious; the towns, especially in Catalonia and Valencia, were rich and well-endowed with privileges; and representative assemblies were more advanced than nearly anywhere else.
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Aguilera-Barchet, B. (2015). From Kings to Monarchs: The Resurgence of Public Power in Late Medieval Europe. In: A History of Western Public Law. Springer, Cham. https://doi.org/10.1007/978-3-319-11803-1_8
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