The State of the Prince

In absolute monarchy, the king becomes the sole repository of power. As such, all state functions are placed in his hands, not only judicial functions (which he already held in medieval times), but also legislative ones.

Unlike what happened in the monarchies of the Late Middle Ages, the absolute monarchs could make decisions and pass laws without necessarily consulting the assemblies of the estates. This marked an important development, as in the Middle Ages the king could not alter the order established by God through creation, but only maintain and protect it. Ultimately, the absolute kings established themselves as governors and developed a centralized administration with a very dense network of royal agents, paid for by an efficient tax system that, among other things, enabled them to maintain powerful armies and bring about a “military revolution” (Downing 1993, 10) that consolidated Europe’s system of modern states.^{^[400]}As Zmora (2001,9) points out, the modern state was built upon the pillars of war and taxation.

9.3.1 The Expansion of Royal Jurisdiction

The absolute king inherited from his medieval forerunners status as the supreme judicial authority. Relevant in this regard is the case of France in which, although the courts and parlements generally exercised their functions without interference by the king, their decisions theoretically could always be overridden by the Conseil du Roi (Hamscher 1987) by virtue of the principle of “retained jurisdiction” (justice retenue), according to which the king continued to stand as the supreme judge, a status which he never transferred to the magistrates (Lebigre 1995, 48). Moreover, the king could forgo regular court proceedings and imprison certain individuals unilaterally through the use of lettres de cachet, which required no justification.^{^[401]}

In England, along with the traditional courts there appeared the prerogative courts: special tribunals created by the Crown to deal with offenses considered particularly antisocial, or to prosecute especially recalcitrant individuals.

One of these bodies was what was called the Star Chamber (Camera stellata),^{^[402]} which became a court under the presidency of Cardinal Wolsey, and was not bound by general common law procedure, therefore generally imposing stricter sentences. Under the Tudors, the King’s Privy Council, the supreme governmental body, and the state’s security services went so far as to employ torture, resorting to the rack to secure confessions in criminal cases with political implications. The legal channel through which to handle political process were bills of attainder.^{^[403]} Used with some frequency since the War of the Roses in the middle of the fifteenth century, the practice peaked in the sixteenth, particularly during the reign of Henry VIII, who employed this legal instrument to have his political enemies executed, as was the case with Thomas More, Anne Boleyn, and Thomas Cromwell, who all ended up on the scaffold. These bills were also used by Elisabeth I and the Stuarts and, more rarely, in the eighteenth century. This special process suspended all guarantees, as individuals could be condemned for treason based on nothing more than a simple accusation, even if uncorroborated by witnesses. The accused were not even assured access to a minimally competent defense.^{^[404]}

In the Spain of the Catholic Monarchy, one of the few instruments of the Castilian model through which the kings asserted their power over the former Crown of Aragon, involved the creation of audiencias (courts) and chancillerias (chanceries); in 1493, the High Court of Catalonia was created, and in 1506 that of Valencia, both established at King Ferdinand’s behest. Philip II would later found the Royal Court of Mallorca in 1571. The Spanish Monarchy also employed another powerful instrument: the Tribunal of the Holy Office of the Inquisition, created by a papal bull in 1478, in response to a request by the Catholic Kings. The Tribunal became the only royal court authorized to everywhere with full territorial jurisdiction, and was not abolished until 1834.^{^[405]}

9.3.2 A King Above the Law?

If the expansion of the kings’ judicial authority was relatively easy, it was far more difficult for the medieval monarchs to exercise legislative powers (Desrayaud 1996, 399).

Thus, the essential development bolstering absolutism was that the sovereign laid claim to the authority to create laws. Previously kings had only been able to conserve traditional customs; they could confirm them and, above all, protect them by exercising their roles essentially as judges, a function afforded them as representatives of God on Earth. Unlike their medieval predecessors, however, absolute monarchs came to stand above the law (legibus solutus), and were able to actually devise it, which is precisely why they were regarded as absolute monarchs. In this way, they had fully recovered the legislative function which had been a prerogative of the Roman emperors. In the Early Modern Period the old medieval roi justicier would become a roi legislateur (Olivier-Martin 1997, 197-199).

The aspect in which the absolute monarchies of the Modern Age most clearly differed from their late medieval precursors lay in their capacity to openly “create” law, as they were no longer limited to merely upholding traditional customs. The king was, then, no longer just a judge. Rather, he now stood above the law (princeps legibus solutus est)⁶ and to actually create it (Esmein 2004, 201-214).

It would be in Castile where, without any doubt, kings first exercised this legislative function. The first Castilian legislation was the product of negotiations, as the king approved laws with the Cortes through what were called ordenamientos de leyes (legal ordinances), agreements which took precedence over local customs since 1348.^{^[406]} ^{^[407]} Beginning in the first decades of the fifteenth century the legislative power of Castilian kings was so well established that even the Cortes recognized that the king’s right to create law.^{^[408]} The Castilian monarchs, in fact, began to introduce laws without the need for the Cortes’ approval, as they were able to promulgate pragmaticas, edicts which were as valid and effectual as laws approved through pacts with said body.^{^[409]}

This tendency for kings to monopolize the power to legislate, became widespread in Europe during the sixteenth century.

Even the English Parliament, which in the Late Middle Ages was Europe’s most powerful assembly of the estates, exhibited a surprising degree of deference to monarchs, such as Henry VIII (14911547), and his daughter Isabel I (1558-1603), with both chambers accepting, without protest, the laws which said sovereigns submitted to them.^{^[410]}

In France, however, paradoxically, the kings were slow to adopt a role as legislators. It would not be until Louis XIV (1643-1715), that the monarchy began to introduce reform through legislation, prevailing over the jealously- guarded power of traditional customs which had been respected by his predecessors. In this he was helped by Colbert, who flattered the Sun King with the title of “the new Justinian” and called for the codification of royal laws, which was to represent the major achievement of the king’s reign (Birn 2005, 121).^{^[411]}

9.4

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Source: Aguilera-Barchet Bruno. A History of Western Public Law. Between Nation and State. Springer,2015. — 788 p.. 2015

The State of the Prince

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