Absolutism Versus Autocracy: The Legal Limits of Royal Absolutism
The liberal tradition strongly condemns absolutism in all its manifestations. The negative aspects of absolutist autocracy may jar observers today who are accustomed to living under regimes which are at least, formally bound to respect the rule of law.
The main contemporary dictionaries consider as synonyms of the word absolute, with regards to its political meaning, the words arbitrary, autarchic, autocratic, despotic, tyrannical, tyrannous and totalitarian.6,8Obviously, there were cases of arbitrary arrests ordered by French monarchs via lettres de cachet, which condemned whomever the king designated to the Bastille without due process, such as in the ominous Calas Affair (1763), which was publically denounced by Voltaire,[412] [413] who was sent to the Bastille on several occasions.[414] A number of prominent prisoners died in a dungeon, such as the former ex minister Nicolas Fouquet,[415] not to mention the arbitrary processes and executions carried out, such as those of the ex controleur general des finances Jacques de Beaune, Baron of Semblancay, during the reign of Francis I (Knecht 2005, 195-198).
In the Spain of Philip II, we can cite the emergence of special courts such as the Tribunal de Tumultos, organized in 1567 by the Duke of Alba in the Netherlands, which put to death the counts of Horn and Egmont, among others; the shocking murder of Juan de Escobedo (1578), ordered by the king for reasons of state (Perez de Tudela y Bueso 2003, 221-229); the dubious guarantees in criminal proceedings handled by bailiffs and clerks; and the indiscriminate use of torture, censured by Cervantes in the Quixote.[416]
In England, we have already mentioned the “special” proceedings of the Star Chamber, the bills of attainder, the actions of Henry VIII to divorce his first wife,
and his execution of multiple, succeeding wives, including Anne Boleyn and Catherine Howard, reinforce this same idea of autocratic despotism.
Defying the king’s will constituted a crime of high treason, punishable by death. Thus, former chancellor Sir Thomas More’s refusal to accept the king’s religious policy led him to the scaffold in 1535, even though he had been one of the monarch’s most trusted73
men.'
However, when one examines the reality of the absolute monarchies of the sixteenth and seventeenth centuries more closely, it is surprising the degree to which the monarch’s power was actually checked by a series of forces and mechanisms, in states that were, in the end, not, in fact, absolute (Harouel et al. 2007. 454).
A common impression is that the absolute monarchs could do whatever they wished, beholden to nobody and needing nothing. Yet things were hardly this simple. Although the absolute monarchs of the era did have more power than their Late Medieval predecessors, their autocracy was subject to a series of restrictions which mitigated the absolutism of their regimes, including: the limits imposed by natural and divine laws, fundamental laws, the monarchy’s financial struggles, obstacles to territorial unification, and the relative autonomy of judges.[417] [418]
9.4.1 Absolute Kings, Constrained by Divine and Natural Law
The Christian kings during the Absolutist Era continued to subscribe to the idea of divine right as the base of their legitimacy. Not only were the kings of France anointed, but were called the “most Christian king” (Roi tres chretien), while as of 1494, the king of Spain was “His Catholic Majesty”. They were, therefore, at least subject to Catholic principles, as their legitimacy was based upon the laws of God and nature. Thus, for example, Philip II, before ordering the killing of John of Austria’s secretary, Juan de Escobedo, first sought out the opinion of a board of theologians. In the case of the king of France, subjects were actually authorized to disobey monarchs who acted in ways contrary to the teachings of the Church and the Christian religion.
In this way, the role of royal confessors was essential, as in many cases, it should be noted, the king’s chief advisers were clergy.In addition to divine laws, the kings were to respect the limits of natural laws established by principles such as marriage and the freedom to move about freely.
They were bound to respect as well certain elements of private law, such as a respect for their subjects’ property and freedom—a principle which in France was called honnete liberte des franqais (Desrayaud 1996, 546) and explains why the subjects of the French kings considered themselves to be collectively free (Olivier- Martin 1988, 308-309).
9.4.2 The Limits of “Fundamental Laws”
Although in theory the absolute monarchs could create law, they still had to adjust their actions to respect and maintain their kingdoms’ traditional order. In this regard, in 1574 the French Protestant lawyer Theodore de Beze coined a term when he referred to the “fundamental laws of the kingdom”.[419] This term referred to an indefinite set of norms and customs which had gradually come to shape monarchies’ actions over time,[420] governing aspects such as succession to the throne, the Catholic character of the monarchy, and the inalienability of the prerogatives constituting royal authority.[421]
Given this state of affairs, royal jurists drew a distinction between “ordinary laws” (lois ordinaires), which expressed the king’s will, and which he himself could abolish, and “fundamental laws”, which transcended him. The legal consequence of this was that if the monarch established a law contrary to a fundamental principle of the monarchy, it came to be considered arbitrary and, though it had to be obeyed during his reign, it could be repealed after his death. For instance, the young Louis XVI’s repeal of the severe measures taken against the parlements at the end of the reign of Louis XV (Maupeou Reform), was based on this principle, aimed at restoring the basic laws of the kingdom (Harouel et al.
2007, 581-582). Ultimately, however, it is true that it was the king himself who decided when legislation represented a fundamental law.9.4.3 Respect for Traditional Customs
Another check on kings’ absolute power was the respect that they were expected to exhibit for traditional customary law. While this was not the case in Castile, where kings by the Late Middle Ages could unilaterally abrogate the old ways, it was the case in France, where in the sphere of private law the parlements were the guarantors of respect for the different coutumes—even when they clashed with the monarchy.
To this must be added kings’ respect for their kingdoms’ territorial distribution, inherited from the medieval period. France was divided into three provinces determined by when and under what circumstances, they had been brought under the French Crown: pays d’election, pays detats and the territories known as pays conquis. The first of these enjoyed the largest apparatus of self-government, while the latter were more directly linked to the government in Paris. Moreover, in the second half of the eighteenth century, among the different territories there was a whole series of variations in customs barriers and traditional law—prompting Voltaire to observe that one travelling through France changed laws as often as he did horses.[422]
Under the Spanish monarchy, the respect for traditional law (the privileges of the kingdom) was also the order of the day in the eastern kingdoms formerly forming part of the Crown of Aragon (the kingdoms of Aragon, Valencia, Mallorca and the Principality of Catalonia), with them conserving almost all of the privileges which had been secured by their medieval cortes. Interestingly, their private law was even respected by Philip V when he abolished their traditional constitution through the Nueva Planta Decrees.[423] Thus, in the sixteenth and seventeenth centuries, though the kings of Spain were the West’s most powerful, on paper, in practice they occupied a very different constitutional position in each and every one of their kingdoms.
In fact, they were only absolute monarchs in Castile,[424] which explains why whenever possible, the Spanish monarchs brought the territories they conquered or occupied, such as Navarre and the Americas, under the Castilian Crown, where their power was not constrained by all the impediments upon it in places suchas Aragon, Catalonia, Valencia, the Netherlands, Italy, Sicily, Naples, Milan, Franche-Comte, Luxembourg and, after 1580, Portugal.
In England, the kings administrated their kingdom directly but held a different legal position in those territories which had been brought under the Crown later in history (Wales, Scotland and Ireland) to form the United Kingdom, territories which largely retained their own legal peculiarities (Baker 1990, 36-40).[425]
9.4.4 The Relative Autonomy of the Ancien Regime's Judges
Absolute monarchies’ freedom of action was also checked by the autonomy of judges, who in many areas became the guarantors of traditional privileges and freedoms. A good example is that of France’s parlements. These bodies were the highest courts of each province, being made up of jurists who had studied at the most prestigious universities and belonged to the leading families, who bought their “offices” and enjoyed social prestige. The most important of these was the Parlement of Paris, the oldest of them all, founded in the mid thirteenth century.[426] [427] However, the parlement was not simply a judicial court, as it also had political functions (Rogister 2002, 10) as well. In addition to constituting the highest courts in their areas of territorial jurisdiction, since the late Middle Ages, they also acquired the authority to register or transcribe new royal orders—a step without which said mandates were not considered officially published and, therefore, did not enter into force. Registration was not a mere formality. The Parisian parlement even had the right to express criticisms (remontrances) of the king’s proposals before registering any law.
If the king did not address and resolve these complaints, the parlement would return them to the government, which could consider the objections received and revise the text, or order the registration of the law by virtue of royal authority by holding what was known as a lit de justice33; although the parlement had the right to review royal laws, it could not actually refuse to register them (Desrayaud 1996, 511).Thanks to this law of “admonishment”, the parlements, especially that of Paris, played an important political role in France under the Ancien Regime, especially since the sporadic convocation of the Estates General meant that the parlements came to function as the kingdoms’ permanent bulwarks against royal autocracy. They were, as the magistrate D’Aguesseau (1668-1751) said, “the last shout of dying liberty” (le dernier cri de la liberte mourante).[428] Thus, it was the parlements which acted against the monarchy in rebellions such as that of The Fronde under Louis XIV (Hamscher 1983), which explains why in 1673, the Sun King introduced the new caveat that these criticisms of royal orders could only be presented a posteriori, after they had been registered (Hurt 2002).[429] Nevertheless, under the reign of Philip of Orleans (1715-1723), the right to remontrance was reestablished and the parlements would operate once again as the main bodies opposing the monarchy[430]—at least until 1771, when Louis XV ordered Chancellor Maupeou to arrest the defiant members of the Parlement of Paris, and replace them with others more pliant to the Crown’s wishes (Harouel et al. 2007, 579-581). Louis XVI’s decision to abolish this reform measure would prove to be rash, for the members of the parlements did not defend democratic principles as much as they did the status of the privileged class, as judges were not selected for their ability or legal knowledge, but rather bought or inherited their legal offices.[431] It is no coincidence that the French Revolution of 1789 began with the “revolt of the privileged”.
Under the Spanish Monarchy, in the “pact-based” territories the judges safeguarded the kingdoms’ traditional privileges from possible royal encroachment. The most famous case was that of the jurisdiction of the Justicia Mayor de Aragon (Chief Justice Ministry of Aragon) an institution initially imposed by noble marriages, which ended up defending the traditional legal system of Aragon, which the Justicia adapted to the times through observancias: sentences which were the “direct expression of Aragon’s fundamental laws” (Morales Arrizabalaga 2007, 62) and functioned as precedents. This is why they were compiled in collections to be used by Aragonian lawyers and judges (Martinez Diez 1975). It is significant that Philip II himself was unable to imprison Antonio Perez after he had crossed over into Aragon and placed himself under the jurisdiction of the Justicia Mayor8 thereby removing him from the scope of royal authority. Out of financial necessity the Spanish monarchy was forced to sell offices, with judgeships being passed down from fathers to sons. The monarchy, however, always retained a certain degree of control over the justice system, at least in Castile, as there existed no institution like the French parlements.
In the England of Henry VIII, the traditional royal tribunals which applied the kingdom’s common law continued to enjoy a considerable degree of autonomy, and the same procedural rules as always. However, it should be noted that the authoritarianism of the Tudors and Stuarts did not alter a state of affairs in which Common Law remained the cornerstone of the English legal system, taking precedence over statutes, ius commune law, and the special tribunals, which all occupied positions peripheral to it.[432] [433]
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