Abstract
During the sixteenth and seventeenth centuries the European kings consolidated th eir constitutional positions as the supreme authorities within their kingdoms. Firstly, this was because they had become independent from emperors and popes, a fact that required a new secular justification of their power: the prevention of chaos and anarchy. Secondly, monarchs reigned supreme because they abandoned medieval, pact-based law and were able to impose their authority upon cities and the nobility, and therefore, upon the assemblies of the estates. Their growing power enabled them to expand royal jurisdiction and to legislate, thereby becoming “rois legislateurs”, in principle above the law (legibus solutus). Absolute power, however, did not necessarily mean autocracy. Despite the fact that kings could create law, their authority was bound by legal limits: monarchs were constrained by divine, natural law, the “fundamental laws of the realm”, respect for traditional customs, and the authority of judges. Even so, during the Modern Age even within these limits Europe’s absolutist regimes became very powerful states, as absolutism proved a tool capable of altering feudally structured society, and the growing power of kings made possible an extraordinary expansion of government administration. As each kingdom exploited its resources much more efficiently, absolute monarchs tended to compete with other kings on the international stage. After the Treaties of Westphalia (1648) the idea of a universal Christian empire was definitively supplanted by the existence of different “national monarchies” that would jockey for hegemony in successive wars over the following three centuries.
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Notes
- 1.
In a 1393 Royal Charter. Y porque esto sea firme y sin alguna duda, a mayor firmeza, de mi cierta ciencia y poderío Real absoluto, cualesquier ley o leyes de fueros y derechos y ordenanzas, o estatutos, y qualesquier costumbre o costumbres, estilo o estilos, o otra cosa cualesquier que contra esto que dicho es fuesen o pudiesen ser en manera alguna, por vos contrallar o embargar esta merced que vos Yo fago, en todo o en parte, quiero que non valgan ni vos puedan empecer Henry III (1830) (González 1830, V, 427).
- 2.
The early period of modern history is generally identified as following the late Middle Ages. Although the period’s chronological boundaries are somewhat imprecise, the timeframe runs from the period after the late stage of the Middle Ages (c. 1500), until the beginning of the Age of Revolutions (c. 1800), and is traditionally identified by historians as beginning with the conquest of Constantinople by the Ottoman Empire in 1453 ad.
- 3.
The only problem is that the Sun King never said it. The day after Mazarin died, when asked who would handle state affairs henceforth, he limited himself to stating that he himself would take charge, and that he would do so in a manner different from that of the deceased cardinal (Wolf 1968, 145–161). Louis XIV, in fact, was fully conscious of the fact that the king was not the State, stating before his death: “I shall go, but the state will always remain” (“Je m’en vais mais l’État demeurera toujours”) (de Dangeau and de Courcillon 1859, XVI, 128).
- 4.
According to Luther, God created two kingdoms: the earthly kingdom, which is the realm of creation, of natural and civil life, where people operate primarily based on reason and law; and the heavenly kingdom, the realm of redemption, of spiritual and eternal life, where people operate essentially based on faith and love. Both kingdoms interact as they embrace parallel heavenly and earthly, spiritual and secular forms of righteousness and justice, government and order (Witte 2002, 5).
- 5.
The fact that Spain became the spearhead of the Counterreformation meant that the Spanish Monarchy, in the religious sphere, was to constitute an oasis of peace amidst all the chaos, though at the price of exhibiting a manifest intolerance towards anything not in strict accord with Catholic orthodoxy. This was achieved through the Inquisition, La Sagrada Congregación de la Romana y Universal Inquisición (it would not become the Santo Oficio until 1908), established in 1184 by virtue of Pope Lucius III’s bull Ad abolendam, as an instrument to combat the heresy of Catharism. The Inquisition would give rise to the Tribunal de la Santa Inquisición y del Santo Oficio. On November 1, 1478, Pope Sixtus IV issued the bull Exigit Sinceras Devotionis Affectus, which instituted the Inquisition for the Crown of Castile, according to which the appointment of inquisitors fell under the exclusive purview of the monarchs. For a long time, the Crown and Inquisition were the only two institutions common to all Spanish territories, and it is true that one of the few areas in which all the Spanish Monarchy’s Peninsular territories were of one mind was in that of their religion, which to a great extent explains why there was no significant opposition to royal supremacy until the major crisis of the War of Independence in the nineteenth century. The price Spain paid for its religious unity was great, as it aggravated the isolation of Catholic Spain from the rest of Europe. This traditional vision, however, has been questioned by recent historiography, which has rejected the idea of a dominant, monolithic Spanish Catholic Church, paralyzed by dogmatism during this period, contending that the supposed dichotomy between progressive Erasmianism and regressive Scholasticism described by an earlier generation of scholars, is overly simplistic. In fact, the Spanish Catholic Church during the Counter-Reformation was, according to many, a multifaceted, often disorganized institution with varying and conflicting priorities (Poska 2008, 295).
- 6.
Classic French historiography identifies up to eight religious wars during the period from 1562 to 1593, which culminated with the killing of Protestants in Paris on August 22, 1572 in an event which came to be known as the St. Bartholomew’s Day Massacre. The clash between Protestants and Catholics was on the verge of costing France its independence, as defending the League Spain’s famed tercios, under the command of Alejandro Farnesio, occupied Paris in 1590, and Philip II’s daughter, Isabel Clara Eugenia, almost became the Queen of France (Holt 2007, 138–149). With the arrival of Henry IV and the proclamation of the Edict of Nantes (1598), the violence subsided, though French Protestants continued to represent a kind of state within the French state, at least until 1628, when Richelieu took the French Protestant capital, La Rochelle, after a long siege. Later, Louis XIV concluded that the consolidation of the French monarchy required the suppression of religious freedom, prompting him to revoke the Edict of Nantes in 1685, which led to a massive exodus of Huguenots from France, one of its most industrious and productive groups. The Huguenots would emigrate to points throughout the world, including South Africa (Baird 2010). The failure of reform in France had important consequences as far as Public Law is concerned, as it made possible the consolidation of a highly centralized royal administration and the reinforcement of a solid and powerful French state (Ertman 1999, 91–109).
- 7.
The mass influx of businessmen, bankers and industrialists into England and northern European countries, like Holland and Prussia, would bolster these regions’ economic growth and create a special idiosyncrasy in Protestant countries, which differed notably from those states that remained essentially Catholic. The influence of the Reformation on economic expansion was analyzed by Max Weber in his classic work The Protestant Ethic and the Spirit of Capitalism, initially published in two articles in 1904 and 1906 (Weber 2003) and later by Richard Henry Tawney in his most famous work Religion and the Rise of Capitalism, initially published in 1926 (Tawney 2008).
- 8.
As Witte (2002, 6 and 12) brings up, the primacy of states was developed from a theoretical point of view by Lutheran jurists such as Philip Melanchton, Johannes Eiserman, and Johann Oldendorp. The most influential of them was the second, who argued that the precise form and function of every Christian commonwealth differs, as each community strikes its own balance between “nature, custom and reason” in the determination of its laws, and has its own, unique interpretation of the Commandments of Scripture and tradition. This perspective broke with the view that God’s creation was hierarchically structured, a vast chain if being that emanated from God and descended through various levels and layers of reality, a chain in which each creature found its place and its purpose, and each human society found its natural order and hierarchy. It was simply the nature of things that some people and institutions were higher or lower on this chain of being. Protestant jurists rejected the Catholic approach to society and polity that justified traditional Catholic arguments of the superiority of the pope to the emperor, or of the clergy to the laity, of the spiritual sword to the secular sword, of canon law to civil law, of the Church to the State.
- 9.
As Croxton (2013, 3) points out, the Peace of Westphalia was the first peace treaty established by sovereign states in pursuit of security though the balance of power, which explains why it has been compared in importance to the founding of the United Nations, which, curiously, also took place on October 24. Westphalia was, in fact, far more important, as the United Nations Charter has been in effect for less than a century, while the Peace of Westphalia endured for well over 350. Scholars have only recently begun to suggest that we are moving into a “post-Westphalia” international system.
- 10.
By virtue of his union with his first wife, Catherine of Aragon (1485–1536), the youngest daughter of the Spanish Catholic Kings. For an overview of this Roman Catholic interlude, see Haig (2012, 219–234).
- 11.
Beginning with his rule, however, the Catholics were gradually marginalized for obeying the pope, who Henry VIII and the burgeoning English gentry considered a chief of state who wished to meddle in their internal affairs. For an overview of how the Crown and the Anglican Church dealt with Catholics and Puritans, see Dickens (1993, 362–377).
- 12.
As Holt (2007, 9) observes, Gallicanism was rooted in the sacred nature of French kingship, which entailed a special relationship between the French monarch and God. As the General Assembly of the Clergy declared in 1625, French kings were not only ordained by God, but “they themselves were gods”. This is why, though the popes recognized other monarchs for their services, such as Ferdinand and Isabella, who were dubbed the “Catholic Kings”, and Henry VIII, termed the “defender of the faith”, French kings had earned the much older and more grander title of “most Christian king” (Rex christianissimus).
- 13.
Henry IV was killed by a Catholic fanatic, François Ravaillac, in Paris May 14, 1610. It is not unlikely that the assassin of the House of Bourbon’s first monarch was financed by Catholic Spain. In any case, it was justified by the Spanish Jesuit Juan de Mariana who in his treatise De rege et regis institutione (1599), considered it lawful to overthrow a tyrant, and defended papal supremacy, in accordance with the doctrine of the pope’s “indirect power”, which maintained that the pontiff could intervene politically in France should the king’s behavior place the souls of French Catholics in danger. In the Wars of Religion, the members of the Catholic Party (The League), headed by Henry of Guise, accepted the Spanish Jesuits’ doctrine and were steadfast allies of the Spanish Monarchy. The book of Mariana was declared subversive by the magistrates of the Parlement of Paris (as most of the French jurists were fervent Gallicanists), condemned, and publicly burned (Nelson 2005, 159–170). With another two works, written by members of the Society. This fact potentially placed the Society of Jesus squarely back at the centre of the debate over regicide in France (Nelson 2005, 158).
- 14.
As Bellomo (1995, 158) affirms, the paradigm of the legal culture during this period, the supreme model, was the universal legal system represented by the Holy Roman Empire and the Church, headed by the emperor and the pope.
- 15.
It is interesting to note, as Canning (2011, 149) points out, that Baldus de Ubaldis (1327–1400), the great Italian commentator, also applied the language of sovereignty found in Roman and Canon law not only to kings and signori but also to city republics, which he considered to be equivalent to small empires, entitled to their own rulers (civitas sibi princeps).
- 16.
Guillaume de Nogaret, one of the main advisors to Philip the Fair, for instance, had studied Law at the University of Montpellier, where, after receiving a doctorate, in 1287 he became a member of its Faculty of Law, before becoming a judge. By 1299 he sat in the Parlement of Paris and on the King’s Council. Nogaret took charge of the propaganda war against Boniface VIII and led the attack on the pope at Anagni (September 7, 1303). For an overview of this key figure under Philip IV’s reign, see Strayer (1980, 52–55).
- 17.
As Padoa-Schioppa (2007, 98) points out, the Glossators were convinced that every legal case could be resolved by referring to the texts of the Justinian compilation. Francesco di Accursio (1188–1260), the author of the Glossa magna (Great Gloss), who labored from 1220 to 1250 organizing more than 96,000 annotations to the Corpus Iuris, believed that it included everything: “Omnia in corpora iuris inveniuntur”. Carpintero (1977, 177) points out that glossators and commentators were convinced that “civilis scientia est vera philosophia”, and did not require any contributions from other sciences, as it was complete in itself.
- 18.
Weary of all this conflict, the ever-ingenious Italians came up with the idea of hiring the services of a professional ruler: the podestá, normally a stranger who was not involved in the city’s strife. He was contracted for a time, his contract only extended if he managed to subdue rival clans and establish law and order. There are many cases recorded of a podestá becoming involved in a civil dispute and being thrown out of office before his term had expired (Waley and Dean 2013, 44).
- 19.
Burckhardt (2010, 5) praised the Italian despot: “With his thirst for fame and his passion for monumental works, it was talent, not high birth, which he needed. In the company of the poet and the scholar he felt himself in a new position, almost, indeed, in possession of a new legitimacy”. As Skinner (2008, 4–5) observes, in Florence in 1498, when a 29 year old Machiavelli was recruited as the Republic’s second chancellor there was a well established method of recruitment for its major offices which, in addition to requiring diplomatic skills, also called for aspiring officials to have a solid humanist education, as they believed that this type of training offered the best preparation for political life.
- 20.
“In the actions of all men, and most of all of Princes, where there is no tribunal to which we can appeal, we look to results. Wherefore if a Prince succeeds in establishing and maintaining his authority, the means will always be judged honorable and be approved by every one” (di Machiavelli 2010, p. 133).
- 21.
Bodin’s work Les six livres de la République was published, significantly, in 1576, 4 years after the Saint Bartholomew’s Day Massacre (1572). As Franklin (2009, VII) points out, one consequence of the Massacre was the polarization of French constitutional ideas. On one side, appeared a radicalized version of the French constitutional tradition, backed by Huguenots to justify their resistance to royal power, and on the other side, stood the theory of royal absolutism, systematically advanced by Bodin.
- 22.
Though, as we know, the word “sovereignty” itself had been coined in the second half of the thirteenth century by the jurists of Saint Louis of France (Louis IX).
- 23.
- 24.
For a comparative study of the work of Jean Bodin and that of Hobbes: King (1999).
- 25.
Leviathan, or the Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil was firstly published in English “for Andrew Crooke at the Green Dragon in St. Paul’s Churchyard” in 1651. The work spread throughout Europe once published in Latin (1668). It was published in Dutch in 1678 and in German in 1794.
- 26.
Hobbes (2007, 118). The Leviathan is a great sea creature created by God, appearing in the Old Testament (Genesis 1:21) and also mentioned in Psalm 74 (13–14), Job 41 and Isaiah 27:1. The term alludes to any giant aquatic creature, and in the Bible tends to be associated with Satan. In modern Hebrew, the term (lewyatan) refers simply to a whale.
- 27.
Crossman (1969, 60) points out that the connection between Machiavelli and Hobbes is their “realism”, as they portray man stripped of all theological trappings as a being moved by purely worldly interests. From this point of view Machiavelli differs deeply from the idealized vision that Dante offers of man, as differ the artistic approaches between Michelangelo and the sculptor of the western façade of Chartres: “one sees through the flesh to the anatomy of muscle and bone, the other expresses in human form the supernatural essence of the spirit. Strictly one is no more realistic than the other, but each sees a different reality and calls it man. Each has a different philosophy of life, and in the Leviathan the anatomical outlook of the Renaissance is developed into a full-fledged political system”.
- 28.
See the opening text of this chapter and footnote number 1.
- 29.
The “patrimonialization” of public offices was a common practice in Europe during the Ancien Régime, as of the end of the fifteenth century. Though there were some attempts to prohibit this practice every form of graft spread across Europe, whether legal or clandestine, with a peak being reached during the era of the Thirty Years War. Following the return of peace in 1648 some successful efforts were undertaken to limit the privatization of public authority. While the practice of selling public offices survived into the eighteenth century it no longer played a dominant role, either in the state’s finances or in society (Descimon 1996, 111). It was, however, very common for a time in Spain (Tomás y Valiente 1980), and also in France, where in 1522, Francis I actually legalized it as an ordinary procedure of the Royal Treasury (Desrayaud 1996, 460). During the reign of Louis XV, the sale of offices was abolished via dispositions promulgated in 1764 and 1765, and an elective system for the determination of local offices was reintroduced. Both dispositions, however, were revoked in 1771.
- 30.
In principle the corregidor was named to control the local authorities (regidores) but this check on the power of the local oligarchies did not always work because, as Thompson (1993, 92) points out, there were many cases of collusion between the corregidor and the regidores, as evidenced by widespread complaints about their graft and their failure to root out malfeasance.
- 31.
The confirmation of local ordinances was one of the functions assigned to the Consejo Real de Castilla (Royal Council of Castile) (Hernández 1995, 19).
- 32.
In Castile, the supremacy of royal law over traditional municipal privileges (fueros) was asserted by the famous set of laws approved by the Cortes of Alcalá de Henares in 1348, the Ordenamiento de Alcalá, which sanctioned the preeminence of the Ordenamiento itself over local custom (XXVIII, 1). See one of the first printed editions by Jordán de Asso and Manuel y Rodríguez (1774, 69–73). Alfonso XI’s Ordinances of Medina del Campo 1328, Villarreal 1346, and Segovia 1347 were not enacted in the cortes, contrary to common opinion. Even so, the Ordinance of Medina del Campo was incorporated into the cuadernos of the cortes of Madrid 1329 and the Ordinances of Villarreal and Segovia into the Ordinance of Alcalá 1348, that established an order of precedence among the different legal systems in the realm, giving first place to the Ordenamiento itself, followed by the fueros of the towns and of the nobility, and then by the Siete Partidas. The ordinances and constitutions of the cortes of the several kingdoms, also contributed to the general body of laws (O’Callaghan 2013, 451).
- 33.
Gonzalo Fernández de Córdoba was one of the founders of modern warfare. As a field commander he, like Napoleon three centuries later, aimed not just to defeat, but to obliterate the enemy’s army, systematically pursuing them after victories. Córdoba helped found the first modern standing army and the nearly invincible Spanish infantry, which would dominate European battlefields for most of the sixteenth and seventeenth centuries.
- 34.
In fact, the Franco-Spanish rivalry dated back to the sinking of imperial ambitions in Italy after the disappearance of the Hohenstaufen Dynasty and the election of the Rudolph of Habsburg in 1273. Then began a struggle for Sicily and Naples between France’s House of Anjou, an ally of the pope’s, and the Crown of Aragon which, after the revolt known as the Sicilian Vespers (1282), would seize the opportunity to occupy the island thanks to the impetus of Peter III of Aragon. Naples would not be conquered by the Aragonian crown until the reign of Alfonso V the Noble in the mid fifteenth century.
- 35.
As Waley (1963, 98) points out, for 150 years of Spanish domination (1559–1713), Spain’s policy was based on the principle of minimum interference, which explains why even in the provinces under the king’s direct rule it was not unpopular.
- 36.
- 37.
As Koenigsberger (2001, 315) indicates, the House of Nassau could not help but become involved in disputes over political power within the republic of the United Provinces, as had been the case in the former princely regimes, to settle the conflicts that arose among the different provinces and their main cities, and between the central government and the representative assembly.
- 38.
Some of these privileges, however, have been maintained. The Queen of England, for example, may not enter the city of London without its Mayor’s consent.
- 39.
The most representative case is that of Jean Baptiste Colbert (1619–1683), who was born into a rich bourgeois family (Bourgeon 1986), and worked first as a banker and a notary before entering the service of Louis XIV in 1661.
- 40.
During the II Civil War and its subsequent Interregnum, the high English nobility suffered a sharp but temporary decline. On the other hand, the status of the gentry as a social group improved considerably during the same period. It is interesting that the number of knights rose sharply during the Stuart Era: there were about 600 at the time of Elisabeth’s death, and James I created over 900 in only his first 4 months in England. This distribution of honors was aimed at curbing the social ascendancy of the high nobility (Fritze and Robinson 1996, 497).
- 41.
She did have the precedent of her father, who in 1532, had prohibited the members of the Westminster Parliament from discussing the question of his divorce.
- 42.
Thanks to this, during King Henry VIII’s reign, 677 statutes were approved, occupying almost as much space as all the legislation produced since the Magna Carta until then (Baker 1990, 237).
- 43.
Among other reasons, thanks to the granting of letters of marque by Elisabeth I to figures such as Francis Drake (1540–1596), who managed to attack numerous Spanish galleons and wrest major amounts of wealth from attacks on Spain’s overseas possessions.
- 44.
“The Tudor epoch was essentially a period of action and of expansion. Men were so busy making the new state that they had no time to speculate about it. Neither Henry nor Elisabeth explicitly claimed Divine Right for their sovereignty or explicitly demanded passive obedience. They ruled as secular autocrats on the model of Machiavelli, and they were prudent enough to placate their supporters and often submit to their wishes” (Crossman 1969, 51).
- 45.
As its name indicates, the décima was a tax consisting of paying 10 % of production, generally agricultural, to the Church.
- 46.
On the Parliament’s sovereignty and its relationship to royal supremacy during the Tudor era, see Elton (1999, 236–240).
- 47.
For an overview of the formation and development of the Estates General from 1302 to 1614, see Harouel et al. (2007, 392–397).
- 48.
In addition to the Estates General there were the Assemblies of Notables which, as they did not convene the representatives of the cities, were more easily manipulated than the former, and which only acquired a certain importance at the end of the Old Regime, after 1787. Also a factor were the Provincial Estates, though these assemblies almost disappeared in the geographical area stretching from the Seine to the Loire, even prior to Richelieu’s death. In other areas of France, they continued to enjoy some importance, specifically the Provincial Estates of Brittany, Languedoc and Burgundy, and those from smaller regions, such as Artois, the French region of Flanders. These assemblies were essentially gatherings of representatives drawn from the local oligarchies, and their essential charge was to negotiate the taxes levied by the authorities in Paris, as well as to secure advantages from the monarchy’s government (van Caenegem 1995, 100). Neither were these other estate-based assemblies successful in terms of limiting the power of France’s monarchs. On this interesting aspect of France’s Old Regime, see Swann (2012, 93–110).
- 49.
Louis XIV continued his policy and at the beginning of the eighteenth century they were only four Provincial Estates left in France: Britanny, Burgundy, Languedoc and Provence (Jones 1995, 35).
- 50.
Such was the case with the Cortes de Toledo of 1480, which resolved the problem of territorial usurpations by the nobles, or the Cortes de Toro of 1505, which made possible the approval of the era’s most complete private, Castilian stipulation of statutory law. Henceforth the monarchs would convene the Castilian Cortes above all to recognize the heir to the throne.
- 51.
In 1660, for instance, the Council of Finance (Consejo de Hacienda) was considering a dossier of information from dozens of towns in Castile, Galicia and Extremadura, submitted in support of demands for fiscal remission (Stradling 2002, 296).
- 52.
In 1599, the Cortes de Barcelona, presided over by Philip III established the legal rank (orden de prelación) of the different orders of Catalonian legislation (Tomás y Valiente 2004, 279).
- 53.
Especially in the last third of the seventeenth century, during the reign of Charles II (Aguilera-Barchet 2007, 37–47).
- 54.
Concretely, by opposing royal laws that went against the rules approved by the cortes (contrafueros) (Guía Marín 1984, 97–103).
- 55.
On the decline of the Landtag, see Myers (1975, 105–110).
- 56.
The “military revolution” refers to the process whereby small, decentralized, self-equipped feudal powers were dominated by increasingly large, centrally financed and supplied armies wielding ever more sophisticated and expensive weaponry (Parker 1976, 195–214). This led to an exponential growth of public expenses and the consolidation of huge bureaucratic apparatuses reinforcing the power of the state. On the relationship between war and the rise of the state, see Tilly (2002).
- 57.
The lettres de cachet became one of the symbols of arbitrary criminal law under France’s absolute monarchy, and were already criticized by one of its main revolutionary leaders, Le Comte de Mirabeau (1749–1791) on the eve of the French Revolution in a book published in Hamburg in 1782, but written in 1778 (de Mirabeau 1782).
- 58.
The “Star Chamber” was so called because the body’s sessions were held at the Palace of Westminster in a room with gilded stars on the ceiling. The Star Chamber offered the government an effective forum for prosecuting sedition and ecclesiastical offences when juries might not cooperate. The association of the Star Chamber with unpopular prosecutions and vindictive punishments led to its abolition in 1641 (Baker 1990, 136–137).
- 59.
From the French word atteindre (to attain, hit, reach or affect). According to Black’s Legal Dictionary an “attainder” under common law involved the suspension of civil rights and capacities whenever a person who had committed treason or felony received a sentence of death for his crime. The effect of “attainder” upon such a felon was, in general terms, that all his assets were forfeited (Black 2009, 160). Bills of attainder were legislative acts, regardless of their form, that applied either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial (Ibidem, 146 and 188).
- 60.
A bill of attainder, as a legislative act directed against a designated person, pronouncing him guilty of an alleged crime (usually treason), without a trial or conviction according to the recognized rules of procedure, was employed in criminal sentences whose sole justification was for reasons of state and political expediency. The most serious abuse of attainders involved their use against prisoners who were, in principle, within the jurisdiction of the common law courts and, therefore, could have been lawfully tried (Plucknett 1956, 205). This procedure was used for the first time in 1321 against Hugh Despenser the Younger, Earl of Gloucester, and his father, the Duke of Winchester, Hugh Despenser the Elder. Both, paradoxically, were condemned by the barons and feudal lords for supporting the king. The last bill of attainder was issued in 1798, against the leader of Irish rebels Lord Edward Fitzgerald (1774–1798). Bills of attainder are expressly prohibited by the United States Constitution: “No bill of attainder or ex post facto law shall be passed” (Article 1, Section 9, 3rd Clause).
- 61.
Through the original bull of November 1, 1478, Pope Sixtus IV enabled Isabella and Fernando to name three royal inquisitors, but only in the Crown of Castile. In the Crown of Aragon, the medieval Inquisition, depending upon Rome, was still active until the Catholic Kings received papal authorization to extend the royal (or New) Inquisition to their eastern kingdoms (Contreras and Dedieu 1993, 5) in 1481.
- 62.
The problem in the medieval period was that the texts included in the Justinian Corpus Iuris were contradictory. On the one hand in the Digest Ulpian states that princeps legibus solutus est (D. I. IV, 31), and in the Institutes Quod principi placuit legis habet vigorem (Inst. I, II, 6) but on the other an imperial constitutions states the contrary: “It is a word worthy of the majesty of the ruler that the Prince professes himself bound to the Law: so much does our authority depend upon the authority of the Law. And truly, greater than the imperium is the submission of the principate to the laws” (“Digna vox maiestate regnantis legibus alligatum se principem profiteri; adeo de auctoritate iuris nostra pendet auctoritas. Et re vera maius imperio est submittere legisbus principatum” C.1.14.4). As Kantorowicz (1997, 105–106) points out the medieval lawyers could not possibly fail to notice the antinomy prevailing between the maxims princeps legibus solutus and princeps legibus alligatus, and this explains why the emperor Frederic II emphasized that he was legibus solutus, but at the same time, he acknowledged that he was bound to Reason which commands all kings (“Sed quamquam solute imperialis a quibuscumque legibus sit maiestas, sic tamen in totum non est exempta iudicio rationis, que iuris est mater”).
- 63.
This is the famous first law of Title 28, passed by the Cortes de Alcalá de Henares convened by Alfonso XI, that include the first express legal official recognition of royal legislative power (Otero Varela 1993–1994, 507–508) and his full triumph over traditional custom. According to the legal ordinance of 1348, conflicts were to be decided by first applying the terms set down in said “legal disposition”, with law proceeding from local customs only to be turned to as a secondary recourse. Over time the disposition came to be interpreted in a more comprehensive manner, as kings concluded that all law created by the crown, with or without the Cortes’ approval, was to be applied, by default.
- 64.
It is significant that in 1445, the Cortes de Olmedo, held in the presence of John II of Castile, declared that the law was subject to the king, who could not be judged by men “because he does not have his power from men, but from God, whose place he holds in secular affairs”. Divine law “expressly commands and forbids anyone to dare to touch the king and prince as one who is anointed by God, or even to comment or say anything evil about him, or even to think it in spirit; rather, he should be held as God’s vicar… no one should dare to oppose him, because those who resist the king evidently wish to resist the ordinance of God” (O’Callaghan 2013, 580).
- 65.
The power of the Castilian kings by the end of the Middle Ages was so great that their pragmáticas, could nullify laws approved by the Cortes, and the representatives of the Castilian cities accepted not only the legislative power of the kings, but also the supremacy of royal laws over all other Castilian prescripts (González Alonso 1980, 476).
- 66.
Thus, for example, when it approved the law declaring Henry VIII’s marriage to Catherine of Aragon null and void, or in 1536, when another law of Parliament, imposed by the monarch, also voided his second marriage, to Anne Boleyn. The law also stipulated that any person who deemed the marriage valid would be condemned for treason. As Baker (1990, 564) points out, Henry VIII did not introduce a novel approach to divorce, as what he had really done was to interpret the canonical rules to his own advantage. From this perspective, the statutes he passed concerning his marriages were merely confirmations of his interpretation of the universal law of the Church. The problem was that his divorces had bastardized two future queens of England: Mary, the daughter of Catherine of Aragon, and Elisabeth, the daughter of Anne Boleyn. Each of them upon their accession, restored her legitimacy via an act of Parliament, and in doing so demonstrated more respect for the sovereign power of parliament than their father.
- 67.
It is interesting to note that the task was immense as from north to south contradictory, Germanic and Roman legal traditions divided France. Clerical courts ruled for the laity on matters of domestic life, such as marriage contracts, while regions and corporations had their own law. More than 80 different civil laws existed, and procedure varied from place to place. Colbert convened a commission of experts that was able to draw up some “Great Ordinances” (Grandes Ordonnances) in the royal French tradition. In 1669, he devised one to protect forest lands for eventual use in primary industries, such as shipbuilding, though it was based on Francis I’s 1516 Grande Ordonnance des Eaux et Forêts. In 1673, there appeared a commercial ordinance, the Code Savary for Jacques Savary (1622–1690), its main author. A maritime ordinance appeared in 1680, and another for colonies and slaves in 1685, called the Code Noir. Nevertheless, in civil and criminal law, Colbert’s commission never managed to do more than establish uniform procedures, and arbitrary and brutal punishments were left untouched.
- 68.
- 69.
Calas died of torture on the wheel, despite being innocent. In 1763, Voltaire, in his Treatise on Tolerance (Voltaire 2000, 107–136), denounced that the Huguenot Calas was a victim of Christian religious fanaticism. The sentence was annulled in 1764, and another court exonerated the unfortunate Calas posthumously in 1765.
- 70.
Thus, in the end he moved to Switzerland, just a short distance from the French border in Ferney, to keep from being bothered again by the monarchy for his opinions.
- 71.
Louis XIV’s Minister of Finance was jailed for life via a simple royal order, without any trial, after being accused of embezzlement—probably for having raised suspicions over the origins of the fortune of a king who he had hitherto faithfully served. The enmity between Fouquet and Colbert, the Sun King’s powerful minister, was the key to the former’s arrest (Drazin 2008, 234).
- 72.
Don Quixote I, 22_ “Regarding the liberty that Don Quixote gave to many unfortunate men who, against their wills, were taken where they did not wish to go” (de Cervantes 2003, 163–172). On the abuses in the use of torture in criminal procedure under Ancien Regime Spain, see Alonso (1982, 250 and 290–302) and Tomás y Valiente (2000, 15–36). For an overall view of criminal law during the era of absolutism, see Tomás y Valiente (1992).
- 73.
- 74.
As Bernard (1979, 1) observes, absolutism did not preclude the rule of law. A ruler may himself be above the law, and even have the power to make law without reference to any other agency, but the manner in which he administered existing law could still be determined by fixed and generally recognized rules. It might not be illegal for an absolute ruler to ignore these rules, strictly speaking, but it was certainly an affront to tradition. Even the notorious lettres de cachet in France represented no more than a minor and very occasional exception to this rule.
- 75.
- 76.
- 77.
In France, the following were accepted as fundamental laws: the hereditary nature of the Crown (based on the principles of primogeniture and masculinity); the continuity of the Crown; and the inviolability of the dominio regio, that is, the set of properties which belonged to the monarchy. Debated, on the other hand, was whether the provinces’ traditional privileges were fundamental laws of the kingdom. Local jurists maintained that they were, while those on the king’s council argued that they were not (Harouel et al. 2007, 297–299).
- 78.
“Outre ces quarante mille lois, dont on cite toujours quelqu’une au hasard, nous avons cinq cent quarante coutumes différentes, en comptant les petites villes et même quelques bourgs, qui dérogent aux usages de la juridiction principale; de sorte qu’un homme qui court la poste, en France, change de lois plus souvent qu’il ne change de chevaux” (Voltaire 1836, 430). On the respect the Kings owed French customary law, see Harouel et al. (2007, 406–409).
- 79.
Except the Kingdom of Valencia, which completely lost its private law under the Decree of 1707, Aragon, Mallorca and Catalonia retained their traditional law under the Decrees of 1711, 1715 and 1716 (Escudero López 2003, 642–644).
- 80.
With the notorious exception of the Basque Provinces, incorporated under the Castilian Crown in 1200 (Guipuzcoa), 1332 (Alava) and 1379 (Vizcaya), preserving their peculiar legal regimes until 1876. On the origins of the regulatory system of the three Basque Provinces, see Tomás y Valiente (2004, 249–261).
- 81.
It is interesting that in the case of Scottish Law, the merger of the crowns of Scotland and England in 1603 did not lead to a merger of laws, even though James I wished to see one country with a “uniformity in laws”. The reason was that English lawyers, led by Edward Coke, were fearful of “Roman infiltration”. When full political union took place in 1707, there was no question that Scottish law should be preserved, subject to any future alterations by the Parliament of Great Britain (Baker 1990, 40).
- 82.
In 1301, Philip the Fair made it a permanent court in Paris, based in the Royal Palace (Rogister 2002, 2). The provincial parlements were created subsequently to take one part of the Parlement of Paris’s work, as it was unable to assume all of it.
- 83.
A ceremony in which the king personally visited the parlement or summoned it to Versailles, accompanied by the “princes of the blood” and the great officers of the crown to announce its intentions. It was a legal fiction designed to give the impression that the monarch was consulting the parlement, when in fact he was imposing his will (Swann 1995, 2–3).
- 84.
In contrast, Colbert stated that “the noises of parlements are out of season” (les bruits des parlements ne sont plus de saison”). See Desrayaud (1996, 515). On the figure of the chancellor Henri François d’Aguesseau, Storez (1996). “Un ministre, respectable d’ailleurs, mais assez jaloux de l’autorité du Roi, et peut-être de la sienne, pour regarder la moindre résistance comme une révolte, voulut, suivant ce qu’on a dit de Louis XI, mettre totalement “le Roi hors de page”, et rompre jusqu’à ces foibles liens qui pouvoient encore embarrasser plutôt qu’arrêter l’autorité du Roi. C’est ce qui fut exécuté par la déclaration du 24 février 1673, par laquelle les parlements furent réduits à ne pouvoir faire éclater leur zèle par leurs remontrances qu’après avoir prouvé leur soumission par l’enregistrement pur et simple des lois qui leur seroient adressées. Il seroit inutile de parler ici des célèbres remontrances que le parlement de Paris fît en cette occasion et qui furent regardées comme le dernier cri de la liberté mourante. En effet, depuis cette déclaration, les remontrances furent non seulement différées, mais par là-même abolies. On n’en trouve plus aucun exemple jusqu’à la mort du feu Roi; et pendant le reste de son règne, c’est-à-dire pendant quarante-deux ans, l’enregistrement de tous les édits et de toutes les déclarations est devenu tellement de style que les conseillers ne prenoient pas même la peine d’opiner sur ce sujet” D’Aguesseau (1819, pp. 14–15).
- 85.
Which effectively made the remontrance useless. When Louis XIV died in 1715, registering a royal edict had become a mere formality (Desrayaud 1996, 515).
- 86.
In September, the Regent Philip of Orleans rescinded the 1673 declaration because he needed the support of the Parlement to defy Louis XIV (Rogister 2002, 10).
- 87.
As Swann (1995, 8) points out, the Parlement of Paris was never made up of a closed caste, as of the 590 families represented in it between 1715 and 1771, no fewer than 228 were present for the first time. It was the permanent corporate existence of the Parlement of Paris which enabled it to preserve its strong esprit de corps.
- 88.
Hence, Philip II tried to accuse his former Secretary Antonio Pérez of heresy. Pérez escaped from royal justice and sought refuge in Aragon under the protection of the special jurisdiction of the Justicia Mayor. Those accused of heresy, however, were not protected by the Justicia, and had to be remitted to the Royal Inquisitorial Tribunal—the only court under the Spanish monarchy with universal jurisdiction (Martínez Navas 1991, 147). In the end, Pérez managed to escape, finding refuge in France and England.
- 89.
Baker (1990, 241) mentions the case of Thomas Bonham vs. College of Physicians (1610), in which the court established the principle that common law could prevail over acts of Parliament: “for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void”. This was a bold assertion that had some influence on the establishment of legislative judicial review in the U.S.
- 90.
“Le seul et le vrai moyen d’éviter en France les guerres civiles est la puissance absolue du souverain, soutenue avec vigueur, et armée de toutes les forces nécessaires à la faire craindre” (Bayle 1820, 441).
- 91.
The cities of Castile, represented in their cortes, rebelled against Charles I, who they accused of being dominated by foreign advisers. After being defeated in 1523, leaders Juan Bravo, Padilla and Maldonado were executed, marking the end of Castilian autonomy and the definitive establishment of the preeminence of royal power.
- 92.
Henry VIII committed atrocities, such as his order to torture and kill 18 Carthusians of the London Charterhouse between 1535 and 1537, simply because they refused to endorse his divorce from Catherine of Aragon, and to back him when he broke with Rome. The monks’ approval was important for Henry VIII because the Carthusians enjoyed great prestige in English public opinion. Their opposition to the king’s will infuriated Henry VIII to the point that he moved to annihilate them (Gasquet 2006, 202–243).
- 93.
Rowlands (2002, 2), however, dissents and rejects the traditional depiction of Louis XIV’s personal rule as the expression of an authoritarian, bureaucratic and centralizing regime, arguing that the success of Louis XIV’s reign owed much to a conscious royal effort to be far more sensitive to the interests and aspirations of the social elite. On the same line, see Beik (2005, 194–224).
- 94.
On Richelieu’s death, Pope Urban III famously said: “If there is a God, Cardinal Richelieu will have much to answer for. If not, he has done very well” (Ohanian 2009, 45).
- 95.
A valido is the person who has access to the monarch and enjoys his friendship and trust, therefore controlling certain areas of the government and its power (Escudero López 2004, 18).
- 96.
The famous Conseil des Affaires which ended up as the Conseil d’en haut, the predecessor of the subsequent Conseil d’État, a restricted council made up, depending upon the case, of 3–6 members.
- 97.
At the end of the sixteenth century, the Spanish Catholic Monarchy came to depend on 13 different councils: State, War, the Inquisition, Military Orders, Taxation, Castile, Las Indias (the Americas), Aragon, Navarre, Italy, Portugal, Flanders, and the Chamber of Castile. As Valero Torrijos (2002, 102) observes, despite the heterogeneous nature of these institutions, they shared a certain systematic character, with similar organizing and political principles. Some councils occupied subordinate positions to others, they were all bodies answering to the monarch, they were established at the Court, their functions were political, and their members were able to sit on multiple councils at the same time, which assured an indispensable interrelationship between the different parts of this complex government apparatus.
- 98.
On the formation of the national idea in Spain before the French Revolution, from Roman times to the early eighteenth century, see Aguilera-Barchet (2008, 132–148).
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Aguilera-Barchet, B. (2015). The Apogee of Royal Power: Absolute Monarchy (The Sixteenth and Seventeenth Centuries). In: A History of Western Public Law. Springer, Cham. https://doi.org/10.1007/978-3-319-11803-1_9
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