From Kings to Monarchs: The Resurgence of Public Power in Late Medieval Europe

Legal History, Rey Juan Carlos University, Madrid, Spain


Let nobody, therefore, suppose that we wish to disrupt or diminish the jurisdiction or power of the illustrious King of the French, just as he does not wish nor should he impede our jurisdiction and power…—Innocent III, Decretal Novit Ille issued to the French bishops in 12041

8.1 Late Medieval Monarchy and the Origin of the Western State

The considerable surge in economic activity because of the multiplication of trade links (Commercial Revolution),and the rising cultural level coinciding with the emergence of the first European universities (Bologna, La Sorbonne, Oxford and Cambridge, Salamanca), were to transform European society in the Late Middle Ages. 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.

These important changes would be reflected in the nature of Europe’s political and legal organization. Late medieval society would necessarily shed its feudal scheme as bourgeois city dwellers became the natural allies of the kings, in opposition to the traditional privileged classes. As we have seen in the last chapter, as of the late twelfth century, the old curia regia (royal court), composed of nobles and bishops, would absorb representatives of this new social class, which would discuss the kingdom’s key affairs with the traditional elite and the king.

Moreover, in the final medieval centuries, the confrontation between popes and emperors would enable a set of strong monarchs to assert the independence of their kingdoms from the papacy and the Holy German-Roman Empire, above all, in chronological order, in the kingdoms of Castile, France and England.

In European society, universalism and the feudal model would gradually decline as a series of kings tended to invest all power in their person. In this sense, the Castilian, French and English kings of the Late Middle Ages, had little in common with the German “royalty” which arose after the fall of the Western Roman Empire, because the very nature of the royal institution underwent three major transformations: the “kings” became “monarchs;” their crowns came to be inherited; and kings no longer ruled over a certain “nation” or “people”, but rather over entire territories.

8.2 From Kings to Monarchs

Kings in the Late Middle Ages were to recover much of the power they had lost in the early medieval period, both externally, by gaining independence from emperors and popes, and internally, where they gained ground against their great vassals, the feudal barons. By becoming the undisputed holders of power, kings evolved into monarchs—a concept much more akin to the imperial Roman conception of political rule. It is no coincidence that European lawyers trained in the late medieval universities turned to citing Roman law texts to justify the kings’ political autonomy, in accord with the well-known maxim: Rex est imperator in regno suo, which sanctioned the independence of the new monarchs from the Holy Roman Empire and from papal authority.

The political consolidation of the monarchs of the Late Middle Ages (in contrast to the kings of the Early Middle Ages) was possible, firstly, because royal status came to be hierarchically posited, at least in theory, above all feudal bonds. The first to advance this principle was Abbot Suger de Saint Denis (1081–1151), royal adviser to Louis VI and Louis VII, and a historian who described feudal society as a pyramid at whose apex stood the king of France, whose suzerainty prevailed over that of all other lords,2 as Suger distinguished for the first time, between the crown as a concept and the king as a person (Grant 1998, 178).

Somewhat later, also in France, there appeared the legal term “sovereignty”, coined by “legists” of Louis IX (1226–1270), better known as St. Louis. Inspired by the Roman concept of imperium, these jurists contended that the King of France prevailed over all lords because he was “sovereign”. As Hallam and Everard (2001, 317) affirm, during his reign the king’s feudal powers were extended to the fullest extent, as he exercised all the rights of suzerainty, to the point that the extension of traditional royal powers, both ecclesiastical and feudal, began to modify the very nature of royal authority, transforming the king from a suzerain into a sovereign.

8.2.1 The Consolidation of the Hereditary Principle as the Basis of Royal Legitimacy

The late medieval monarchs were able to consolidate their power largely because their legitimacy was not based on an elective procedure of designation, as in the time of the Germanic kingdoms, but on the hereditary principle. This stood in stark contrast to the system employed under the Roman Empire, in which the Emperor appointed his successor by “adoption”—a procedure which frequently sparked struggles for power. By retaining the principle of “elective succession”, the Germanic kings had generated great political instability, as this principle gave rise to warfare between noble clans.3

The hereditary principle did not appear overnight because it was not easy to consolidate (Fedou 1977, 52–61). As Jackson (1984, 6–7) has indicated, the transition from elective to hereditary monarchy went through an initial stage in which early Capetians crowned their successors as heirs to the throne to bring about an instantaneous transmission of power upon the king’s death. Thus, Philip Augustus was designated as heir to the throne on November 1, 1179, and stood as heir until the death of his father, Louis VII, at which point he became the king, serving until his own death on July 14, 1223.4 Philip Augustus’s son, Louis VIII, immediately inherited the throne upon his father’s death without even having been formally designated heir. The monarch’s power came, then, to stem from his birth as the “legitimate heir” of the deceased king. “The king is dead, long live the king” was the refrain to formally announce the death of the sovereign in France; though the king had died, his successor automatically ensured the monarchy’s uninterrupted continuity. The royal institution, thus, came to guarantee the stability of power, averting the chaos and anarchy born of the perpetual state of war between lords which had characterized and marred the feudal era.

To ensure the peaceful nature of succession, this process became subject to a series of specific legal procedures. Thus, in every kingdom there arose rules of succession allowing for the uncontested succession of one ruler by the next which generally came to stand, initially in the medieval period, as the first of the “laws of the realm”. In the sixteenth century these precepts came be called “fundamental laws”, a set of customary rules to which even the king was bound to respect (Desrayaud 1996, 306), and that became the “constitutional” basis of a monarchy, which, according to medieval French jurists, was subject to rules (puissance réglée).

From the moment when royal legitimacy was based on the hereditary principle and was legally stipulated, the monarch became untouchable, as the crown came to transcend political faction. As the monarch did not depend on an election involving compromises between the most powerful figures in his kingdom, his authority being assured by the mere fact that he was in the line of succession, he became au dessus de la mélée, or “above the fray”,5 an arbiter exercising mediating roles between parties in conflict.

When did the order of succession to the Crown begin to be respected? One of the first places was in Spain, specifically in the kingdom of León, where records from the second half of the tenth century evidence respect for hereditary rights in three cases involving minors destined to become kings. The first, dates from 966, during the regency of Ramiro III (966–982), and the second, from 999, when a young Alfonso V rose to the throne; and the third from 1027, after the latter’s death.6

It is also important to point out that it was in this same period when the word princeps first appeared to designate the heir to the throne, denoting that he was the “first” in the order of succession.7

The hereditary principle preserved monarchy. This is why, even today in the twenty-first century, there are still kings in Europe: in Spain, England, the Netherlands, Belgium, Denmark, Sweden and Norway, demonstrating that monarchy is not incompatible with democracy, at least when monarchs reign but do not govern.8

8.2.2 A Territorial Monarchy

The Late Medieval monarchs not only managed to become “sovereigns”, staking their legitimacy upon the hereditary principle, but also exerted their power over whole territories. This situation stood in sharp contrast to what happened during the era of the Germanic kingdoms, when kings represented Germanic groups. The Visigoth and Frankish monarchs were, for example, elected by their respective nations.9

In the Late Middle Ages, monarchies came to be defined by the territories over which they ruled. The king’s power was exercised over entire regions, a new reality reflected in the royal titles themselves: as of 1190 Philip II Augustus (1179–1223), was referred to in some official documents as King of France (“Rex Franciae”) (Guenée 1981, 158), instead of “Rex Francorum” (King of the Franks), as his predecessors had been designated, and in 1205, there appeared the term regnum Franciae (Lombard-Jourdan 1989, 317),10 a crucial terminological transition which for some historians, marks the beginning of the history of the French nation.11

The emergence of territory-based monarchies meant that kings had to possess the means to govern and manage all the land under their rule. Unlike what occurred with the kings during the feudal period, in the Late Middle Ages the monarch had at his disposal a group of “officials”12 he was able to pay because he consistently collected taxes. He also possessed a permanent and professional army, which had already appeared in France in the mid fifteenth century under Charles VII (1422–1461)—a factor which proved crucial to ensuring the French House of Valois’ triumph in the Hundred Years’ War.13

8.2.3 An Expanding Monarchy

The burgeoning power of the great medieval European kings led them to attempt to absorb the greatest amounts of territory possible into their domains. This explains, for example, the imperialist approach of England to Wales and Scotland; the Kings of France’s progressive assimilation of important feudal territories during the reign of Philip Augustus (1180–1223); and, in Spain, the progressive incorporation at the end of the Middle Ages of territories arising as a result of the Reconquest (Asturias, León, Castile, the County of Barcelona, the Kingdoms of Aragón, Valencia and Mallorca), forming two great political blocks: The Crown of Castile and the Crown of Aragón. In some cases, the kingdoms were unified, as was the case with France and Castile, while in others, the union of realms led to composite monarchies, such as the Crown of Aragon and the British Crown.14

8.2.4 An Administrative Monarchy

The territorialization of the monarchy required adaptation to the new circumstances facing royal institutions. Thus, the curia regis, the old feudal council that advised and counseled the monarch, was gradually divided into specialized units headed by royally appointed, professional officials who proceeded in accordance with pre-established procedures.15 As Desrayaud (1996, 346) points out, the end of the Middle Ages was characterized by the emergence of a strongly structured royal administration, resulting from the consolidation of royal power.

The oldest of these bodies was the “Accounts Chamber” or “Comptos “(Exchequer in England), which administrated the royal agents’ finances. The curia was also deprived of its judicial functions, prompting the emergence of royal tribunals such as the Court of Common Pleas at Westminster,16 the French parlements,17 and the Castilian audiencias (high courts) and chancillerías (chanceries).18 These institutions fast came to preside over the justice administrations because of the quality of their work, which guaranteed a more dependable application of the law than that provided by local judges, essentially because these new courts were run by professional lawyers educated at European universities. Thus, emerged a new type of process with more guarantees in which fundamentally oral processes gave way to written, documented procedures. The old local courts from the early medieval period did not entirely disappear, but their powers were reduced and gradually became hierarchically subject to the royal courts via the instrument of appeals.19 To the extent that kings were considered God’s representatives, their essential role was to act as judges. Thus, the late medieval monarchs often turned to the judicial sphere to consolidate their power.

The medieval kings were essentially judges because their function as Christian monarchs was to maintain the order created by God. As custom initially prevailed over the law in the Middle Ages, monarchs such as Henry II of England in the twelfth century, or Alfonso X, the Wise, in Castile in the second half of the thirteenth century, succeeded in consolidating their power by expanding the king’s jurisdiction over local judges. As Anderson (2006, 152) has indicated, one of the “constitutional” consequences of feudalism was that secular government itself was characteristically narrowed into a new mold, as it became essentially the exercise of “justice”, which under feudalism occupied a functional position, as it became the central modality of political power.

8.3 The Triumph of Monarchy Over Christian Universalism

Kings generally endorsed the ideal of political universalism and, as such, were at least theoretically beholden to the pope and the emperor, a restriction which they came to throw off over the course of the Late Middle Ages as kings asserted their autonomy and independence. By 1250, emperors played no significant role in European politics,20 and the popes had been losing their supremacy ever since the beginning of the fourteenth century when Philip IV, the Fair, of France abducted Boniface VIII, in the aforementioned episode at Anagni. The “captivity of the papacy” at Avignon, the Great Schism and the Protestant Reformation would further serve to severely undercut papal supremacy.

The evolution from papal to “pact-based” legitimation is especially evident in the case of the Portuguese monarchy. In 1179, Alfonso I Henriques became King of Portugal via papal concession.21 However, when his successors to the throne, Alfonso II (1211–1223), and Sancho II (1223–1248), confronted and squared off against the papacy, they were excommunicated and stripped of their rights to legitimately occupy the throne. It was Alfonso III, who managed to overpower the papacy by winning the support of the Portuguese Cortes (parliament), which met for the first time in 1254, in Leiría. Henceforth the Portuguese kings’ legitimacy rested exclusively on pacts with the social classes. In March of 1385, the Portuguese Cortes gathered in Coimbra demonstrated its capacity to instate a new dynasty when it chose as king John I of Portugal rather than John II of Castile who, in theory, held a greater dynastic right by virtue of his marriage to the daughter of former king, Ferdinand I.22

Another example will help us to understand this phenomenon. In 1493, Pope Alexander VI, through what are known as the “Alexandrine Bulls” divided the New World between the Spaniards and Portuguese to formalize rights to the conquest of the recently discovered overseas territories.23 A year later, however, through the bilateral Treaty of Tordesillas (1494), the kings of Portugal and Spain decided the limits of their respective spheres of expansion on their own, disregarding the papacy.24

More significant for the history of western law and the western polity, were the “internal” limitations curtailing the power of the late medieval kings, as these would prove to be more lasting and effective.

8.4 The Medieval Origins of the “Rule of Law”: Pacts as a Legal Restraint on Territorial Monarchy

The great kings of the late medieval era had much more power than the feudal kings of the early medieval period, but less than modern states’ heads of government. Firstly because, at least initially, when crowned they had to formally defer to the Church, represented by the papacy. As God’s representatives they were not able to create law, but were to limit themselves to protecting the divine order. At most, they were able to “confirm” the law, but never to create it ex novo. The monarch in the medieval period was essentially a roi justicier (Desrayaud 1996, 237)”,25 meaning the king was a dispenser of justice.

Moreover, within the scope of government, a function assigned to the executive branch today, late medieval kings could not make major decisions alone, but had to have backing from their kingdoms’ representatives. In the early Middle Ages, kings only needed to consult the nobles and bishops assembled in the royal court (curia). Beginning in the Late Middle Ages, kings were also compelled to consult representatives of the cities. In fact, the most important decisions had to be settled via pacts reached with the representatives of various institutions and social groups (nobility, clergy and urban leaders). In Spanish legal historiography, this monarchical model has been aptly termed “pactista” (pact-based) as it is rooted in the principle that the king’s decisions must be endorsed by his subjects (Bisson 2003a, b, 141–142). Thus, in this class of monarchy sovereigns were compelled to respect a traditional order and vow to obey its laws, in return for which their subjects took the corresponding oath of allegiance and obedience.26 This obligation was assigned particular importance in some kingdoms, as in the case of the Crown of Aragon, beginning in 1286 (Palacios Martin 1975, 178).

It is commonplace to envision medieval kings as absolute monarchs. This notion, however, could not be more inaccurate, as in reality they were bound to adhere to a whole series of external and internal legal limits which restricted their authority and ability to act.27

8.4.1 The Nobility’s Resistance to Losing Its Political Power

The emergence of the “administrative monarchy” did not spell the end of the feudal order. In fact, the nobility struggled to maintain its political influence. Such was the case, for example, in England when the nobles imposed the Magna Carta (1215) on John Lackland; or when they rebelled against Henry III.28 Meanwhile, the Peers of France refused to submit to the jurisdiction of the Parlement of Paris, as they aspired to be judged by their peers (cour des pairs), as was the practice in the old days of the curia regis. In Aragon, Valencia and Catalonia, nobles grouped into uniones (unions) and managed to seize upon moments when the king was weak, seriously curbing the powers of Peter III and Alfonso III, in the last third of the thirteenth century. Finally, in Castile the nobility imposed its political hegemony upon the kings in the first two thirds of the fifteenth century, during the reigns of John II and Henry IV. It would not be until the reign of Ferdinand and Isabella (1474–1504), that the monarchy would regain its supremacy.

8.4.2 Urban Autonomy

If the Romans’ development of their municipal network was one of the instruments which most effectively assured their expansion all over the Mediterranean, in the early Middle Ages, cities virtually disappeared as entities enjoying political and legal autonomy. However, because of the urban renaissance which Europe saw in the eleventh century, cities regained undeniable political importance—particularly those which received privileges consolidating their legal autonomy,29 as was the case in the Iberian Peninsula, Germany, northern Italy and Flanders. In England, the centralism imposed by the monarchy since the days of William the Conqueror in the second half of the eleventh century prevented cities from attaining full political autonomy.

In the Iberian Peninsula, two situations must be distinguished. In its western region, municipal autonomy appeared in borderlands as a result of the Reconquest, when the monarchs or corresponding repopulation authority granted fueros—charters grating special political privileges and authorities—to “resettle” the territories taken from the Muslims and assure that they would remain in Christian hands (García de Valdeavellano 1986, 1188–1191). Over time, these cities developed more extensive legal systems retaining these privileges, which afforded them considerable autonomy.30 In contrast, in the eastern part of the Peninsula the emergence of urban privileges (costums) came later, spawned by the rise of a bourgeoisie rebelling against the feudal nobility, which until then had been dominant. This type of municipal rights arose especially in Catalonia, the only territory in Spain in which feudalism fully triumphed31 (Hughes 2011, 93–125).

Something very different happened in northern Italy, without any doubt the most urbanized area in Europe in the Late Middle Ages, as it featured cities with populations of over 100,000, which were practically independent, having managed to exploit the struggles between popes and emperors. Thus, appeared urban republics with their own autonomous governments and legal systems based on lengthy documents called “statutes” that, in a way, functioned on a local level very much like the constitutions of contemporary states. However, the absence of a strong power generated permanent internal strife between families grappling for control of city governments, and wars with other cities, which in some cases led to the formation of leagues, as cities conducted independent relations with other cities, whether to negotiate agreements over issues such as boundaries or coinage, or to pursue expansion through warfare (Waley and Dean 2010, 8–9). It is, therefore, not surprising that it was in late medieval Italy where a relatively democratic political system arose for the first time in European history. In were cities such as Florence and Siena, where in the fourteenth and fifteenth centuries important decisions were not made unilaterally by municipal magistrates, but rather by assemblies of citizens. This was possible because they were organized into neighborhoods and perfectly structured guilds, which in some cases were headed up by leaders known as capitani del popolo.32

In Germany, the emperor’s power waned while the territorial princes’ power grew as they exploited imperial weakness to consolidate the feudal system, initially allowing merchants to form a union to protect their interests and, eventually, permitting cities like Lübeck and Bremen to form urban leagues, which not only protected the interests of German merchants abroad, but become great powers in northern Europe (Dollinger 1970, 62).

In France, the municipal movement’s consolidation was inversely proportional to the political strengthening of the monarchy. Though initially the crown’s weakness allowed some cities to achieve significant autonomy, as of the late thirteenth century, the strengthening of royal authority served to quash municipal power. In some cases the kings did not hesitate to subjugate rebellious cities by force of arms, as occurred, for example, in the revolt of Etienne Marcel, the leader of Paris’s merchants, who was killed in 1358.33

In Flanders exceptional urban growth was the result of both great economic prosperity and the weakness of the Germanic Empire, to which the territory was theoretically subject. In the mid fourteenth century, under the leadership of Captain Van Artevelde of Ghent, Ghent, Bruges and Ypres managed to become true city-states (Caenegem 1995, 79). However, the political savvy of the Dukes of Burgundy allowed them to reassert their authority. Only Ghent rebelled, successively, against Philip the Good of Burgundy, Charles V and Philip II, who finally subjugated the city in 1584.

8.5 Towards the Shared Exercise of Power

In the previous chapter, we saw how feudalism radically altered relationships of power as kings became bound to their vassals through a contractual relationship, the feudal pact, which placed them on a plane of equality. The most important consequence of this relationship was that, when exercising their power, kings were obligated to seek the support of their subjects, or at least those with the greatest social and political power: the nobles and urban oligarchs. This is what Bisson (2009, 556) calls the “Parliamentary custom of consent”.

8.5.1 The Rise of State Assemblies

Though the “parliamentary system” in the strictest sense emerged in eighteenth century England (as we shall see below), it is clear that the principle according to which the sovereign was expected to make decisions by reaching a consensus with the representatives of his kingdom had already appeared by the Late Middle Ages. To this end assemblies of the estates were constituted, so termed because in them the most important social groups (the estates) convened—usually nobles, clergy and representatives of the cities.34 The assemblies of the estates received various names in the different European kingdoms. In the Iberian Peninsula, they were called the Cortes; in England, Parliament; in France and the Netherlands, the “Estates General;” and in Poland or the Empire, the “Diet” (Desrayaud 1996, 419).35

Even if the origin of these medieval assemblies is obscure (Fedou 1977, 197), their precedent may be traced back to the “feudal court”, composed of the king’s most important vassals—essentially nobles and bishops—who owed him consilium (Desrayaud 1996, 185), as the kingdoms emerging from the feudal experience found it essential to secure the support of the propertied classes for many acts of government (Strayer 1965, 72). The principle that kings should consult with their subjects—or at least with the most important (magnates)—regarding important political decisions became institutionalized through the curia regis, a kind of select assembly presided over by the king and made up of the great landowning nobles and the highest-ranking ecclesiastical authorities, a body of advisers and courtiers who assisted the king and supervised the administration of the realm whose origins may be traced back to the ancient Germanic aula regia, or the Anglo-Saxon witenagemot (Baker 1990, 20). As part of this forum the great nobles, barons and bishops convened to parler (from the French, to speak) with the king—hence the term parliament, which in England came to designate the assembly which discussed the most important matters of state with the king.36

Following the flourishing of cities in the late medieval period, this restricted body was expanded through the integration of representatives from the burgeoning urban bourgeoisie. The kings would seek to offset the nobility’s considerable influence by simply admitting representatives from the cities into the royal curia, in accordance with the Roman legal principle that “what concerns all should be approved by all” (quod omnes tangit, ab omnibus approbetur) (Post 2008, 163–219), taken from the Justinian Code (C. 5, 59, 5, 3) (Ullmann 2009, 21–26).37

This marked a revolution. As there were so many city dwellers, not all could attend the meeting with the king, so they elected representatives. Thus did the “representative principle” appear for the first time, constituting a major contribution to western political organization (Post 1973, 92–102). It was not democracy, as the appointments were usually controlled by urban oligarchies, but it was a very important step towards it.

8.5.2 The Origins of the Representative Principle

This crucial initiative of admitting city representatives into the royal curiae, was adopted for the first time in European history in Spain, specifically in the Kingdom of León. In 1188, King Alfonso IX summoned the representatives of cities, along with nobles and bishops, convening the first cortes in Spanish history (Procter 2010, 105–106). These state assemblies were so termed because they brought together the three curiae, or cortes,38 representing the kingdom’s most important “estates” or social groups.39 The example spread to other European kingdoms thereafter. In Spain over the course of the thirteenth century, cortes took hold in Castile and the eastern kingdoms of the Crown of Aragon, in Catalonia, Aragon and Valencia.40

As shall be further discussed in Chap. 10, representatives from English cities came to form the Parliament of Westminster as of the late thirteenth century, while in France those from the cities made up the Estates General beginning in 1302, when Philip IV the Fair summoned them to ensure his political supremacy over and independence from the authority of Pope Boniface VIII.41 In this way, little by little, the old royal curiae in the different European kingdoms gradually evolved into feudal assemblies, which approved the special outlays requested of them by the monarchs, as well as the most important legislation. This incorporation of the citizenry into the old royal curiae was crucial because members of the urban class were appointed or elected and, therefore, served as representatives, by virtue of which they were declared deputies. This constituted another essential advance, as subjects came to exercise control over royal power.42

One must keep in mind that among the contingent or “estate” of citizens there were “jurists” who had been educated at European universities (noblesse de robe), mostly proceeding from the lesser nobility or the urban bourgeoisie, in the tradition of Roman law, where they studied the texts compiled by Justinian, which served to bolster royal power from a legal point of view (Post 1943, 211–232). The substantial reception of Justinian’s law and the unrestricted dominance of the academically-trained jurist appointed by a sovereign (Wieacker 1981, 259) became an effective instrument to rein in the privileged classes which had dominated feudal society.

Medieval assemblies, however, were not democratic, at least not by any modern standard. They generally presented a tripartite structure, ideally featuring late medieval society’s three estates: the nobility, the clergy, and a third group, usually composed of representatives of the cities. This structure favored the privileged classes, as the clergy and nobility tended to vote in unison, united against the urban representatives. Nevertheless, the tripartite structure could vary. Some assemblies featured a fourth division through which the peasants had their own set of representatives, or in which the nobles were divided into two distinct feudal bodies, as occurred in Spain in the Cortes del Reino de Aragón.43

The English Parliament was special, though, as it was composed of only two assemblies: the House of Lords and the House of Commons, which from the outset meant that the privileged classes only controlled half the body. The House of Lords was the prolongation of the old curia regis, and in it the great lords and high-ranking prelates continued to meet. The House of Commons was formed during the last third of the thirteenth century when representatives elected by small landowners and the urban bourgeoisie began to enter Parliament. As a consequence of the outbreak of the Hundred Years War, the kings of England required large sums of money and, to this end, more frequently convened Parliament. Thus, by the mid-fourteenth century the structure of the English Parliament—which came to be permanently headquartered not in London, but in the neighboring city of Westminster—was consolidated with its characteristic bipartite structure and its full political power (Edward 1968, 141–154).

The purviews of these assemblies of the estates were diverse. Initially, their role was to provide the king with money when the Crown’s traditional revenue was inadequate—a situation that became increasingly common as the monarchy’s regular and non-recurrent expenses grew greater and greater.44 Constitutionally this was a great advance, as by the end of the thirteenth century the principle that taxation required the assent of the House of the Commons was established, for instance, in the English Parliament, which sparked protest from the nobles (Harris 1975, 66), jealous or their prerogatives. In 1340, Edward III ended up conceding that no taxation should be imposed without the Commons’ consent. From a historical standpoint we can say that current budget laws represent the most important legislation that national parliaments approve, despite the fact that in modern, contemporary states tax revenues are constantly being collected anyway.

In return for providing their financial support parliaments tended to lodge specific requests with the king, with whose approval they became law.45 This was the origin of the legislative function that these assemblies would play as of the late medieval period, a principle that would be defended by the great medieval jurist Bartolus (1313–1357), when he argued that the state was its own prince (civitas sibi princeps) and could legislate “as it pleases” (prous sibi placet) on any matter affecting the public weal, with the crucial consequence that, according to him, legislative sovereignty relied on a “free people” possessing all law-creating capabilities through its popular assembly (Ullmann 2010, 284). This doctrine explains why, for instance, in Castile, a kingdom that can be considered the oldest consolidated European state, in the first half of the fourteenth century the Cortes passed laws (ordenamientos)46 which, beginning in 1348, prevailed over local customary local law.47

In some cases, the assemblies of the estates also claimed judicial authorities, as was the case with the English Parliament, which continued to be regarded as a “high court”, with the difference relative to other courts being that its acts were not tied to the course of common law; its judgments were not inter partes, but bound everyone on the medieval principle that, as all the estates were represented in Parliament, everyone was “privy” to its acts. By the middle of the fourteenth century, however, all the judicial work of Parliament had been assumed by the House of Lords, as Parliament’s legislative or deliberative function was distinguished, while it shed any contentious or judicative ones (Baker 1990, 238).

The exercise of these functions afforded the assemblies of the estates an undeniable political significance because of the fact that they discussed major domestic and foreign policy issues with the king. Their political clout, however, varied greatly. In England it became decisive in the Late Middle Ages, especially after the defeat of the English monarchy in the Hundred Years War and the debacle for the nobles following the War of the Roses, as the Westminster Parliament played a decisive role in the civil war between the House of York and the House of Lancaster, which led to the crowning of a new King of England. To explain, in 1327 the English Parliament forced Edward II to abdicate in favor of his son, Edward III, thereby imposing its will and effecting a change of monarch. The War of the Roses, by pitting two powerful rival forces against each other vying for the crown, had the effect of bolstering the power and prestige of the English Parliament, which served as the arbiter ending the conflict and ushering in a new royal dynasty: the Tudors, under King Henry VII.

In France, the Estates General, however, would prove anemic compared to the robust English Parliament. It would not meet regularly, but only when the monarchy found itself in a bind and needed to call upon it. As Strayer (1980, 384) has indicated, the Estates were not convoked by the king with the idea of obtaining formal approval of his initiatives. Rather, these assemblies were “exercises in propaganda, not in constitutionalism”. As long as there were enough people from enough regions to ensure that information about the reasons for the royal decision would be disseminated widely, it did not matter which individuals attended or what communities were represented. This is why the French Estates General did not take part in the legislative process.48 Thus, throughout the entire Ancien Regime, it did not become a regular organ of government. To an extent, this fact would lie at the root of the French Revolution centuries later.

On the Iberian Peninsula, the political importance of the cortes varied. In Castile, they only acquired a certain relevance in the fourteenth century. However, during the fifteenth century the cortes suffered a clear decline, growing more pronounced in the following two centuries. In contrast, in the kingdoms of the eastern peninsula, until the late Middle Ages forming part of the Crown of Aragon, the cortes boasted undeniable political power, largely maintained after their integration into the Spanish Monarchy, until their abolition by Philip V at the beginning of the eighteenth century.49 Las Cortes de Navarra, in contrast, were not very active during medieval times, but would become extraordinarily important after the conquest of the kingdom by Ferdinand the Catholic in 1512, and its integration into the Spanish Catholic Monarchy.

In these eastern Spanish kingdoms, pact-making would be reinforced by another essential institution, the Diputación del General, which arose when the cortes, upon being dissolved, named permanent delegates representing the kingdom (el General) before the king.50 In the kingdom of Aragon, mention must be made of the particular institution of the Justicia de Aragón, which became an essential pillar of Aragon pact-based government, as it boasted a function similar to that of today’s constitutional courts).51

8.6 A King Subject to the Law

From what we have seen it can be most clearly observed that the power of late medieval sovereigns was bound by significant limitations in their submission to the law.

This idea that the kings were obliged to respect the law gained ground after the rediscovery of Roman law, which was once again studied in European universities beginning in the late eleventh century. Significantly, the Englishman Henry Bracton (d. 1268), one of the first jurists to codify common law (Bracton 1997), expressly placed the king sub Deo et sub lege (under God and the Law) (Loughlin 2010, 40). Similarly, Accursio, the author of the Magna Glossa, and one of the leading scholars of Justinian’s Corpus Juris Civilis, believed that the emperor was compelled to obey the law, even though there was nobody empowered to judge imperial infractions under the ancient Roman Empire. In this manner, at least theoretically, the idea that the law could limit the king’s authority began to take shape, without any doubt setting the stage for what we know as the modern-day “rule of law” (Caenegem 1995, 89).

Strayer (1971, 209) has described one of the most important kings of France, Philip the Fair (1285–1314), as a “constitutional king”, as the monarch strove to conform to the traditions of the French monarchy and the practices of the French government, endeavoring to stay within the letter of the law and observe the customs of the kingdom. Moreover, when he had to act outside of established custom he always sought to justify his action and obtain the consent of those affected. This is why the monarch convened the Estates General to explain his policies toward Boniface VIII and the Templars, for example, or sought approval for unusual taxes, reflecting the king’s desire to recognize legal limitations.

8.7 Europe’s First “Constitutional” Texts?

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