The Apogee of Royal Power: Absolute Monarchy (The Sixteenth and Seventeenth Centuries)

For some historians, the Middle Ages came to a close upon the taking of Constantinople by the Ottoman Turks on May 29, 1453. For others, it ended with the discovery of America on October 12, 1492. In any case, the period that follows directly precedes our own times and has traditionally been known as the Early Modern Period,² spanning the sixteenth and seventeenth centuries. During this stage, the major development in terms of the history of the state, was the spectacular growth in the power of kings, who consolidated a new model of political organization termed absolute monarchy, whose paradigmatic summation came in the famous phrase attributed to Louis XIV: “I am the state” (L’État c’est moi), conveying the complete identification of the state with the figure of the king.³

The first consequence was that kings did not recognize any authority superior to their power, considering themselves unbeholden to popes and emperors.

Some medieval jurists had already advanced the proposition that in their kingdoms, kings reigned supreme, that they were “emperors” (Rex in regno suo est imperator) (Post 1953, 296–320). In fact, after the death of Frederic II Hohenstaufen (1220–1250), emperors would no longer aspire to be the supreme authorities in the West, save perhaps, for the exceptional Charles V (1519–1558). The second step would be independence from the papacy.

Since the late fifth century, the churches had managed to impose their power upon the Germanic kings. Meanwhile, since the time of Charlemagne, the popes had succeeded in establishing themselves as the legitimizers of imperial and royal power across Europe. This “papal theocracy”, however, would collapse in the fourteenth century, firstly because Philip the Fair of France dared to defy Pope Boniface VIII, backed by the representatives of the kingdom, gathered in the Estates General, affirming that anyone who was in regno and de regno, had to accept the king as final and supreme judge (Strayer 1980, 270). Secondly, this collapse was brought about by the Western Schism, which seriously discredited papal authority. Finally, the Lutheran Reformation dealt a definitive blow to imperial power and the pope’s former authority.

A landmark moment arrived in western constitutional history when Frederick III of Saxony granted Martin Luther protection at his Castle of Wartburg, despite the fact that Charles V, in the Edict of Worms (May 25, 1521), had declared Luther a fugitive and a heretic, and had prohibited his works. This pivotal event marked the beginning of what MacCulloch (2004, 119–127) has described as an accidental revolution that transformed law and politics based on Luther’s theory of the two kingdoms.⁴ The ensuing Catholic response (Counter-Reformation), advanced by the foundation of the Company of Jesus, or Jesuits (1547), and the convening of the Council of Trent (1545–1563),⁵ only served to split Europe, between 1520 and 1648, into two halves which would square off in a series of bloody civil wars. These would include the conflicts which ravaged France in the second half of the sixteenth century,⁶ the rebellion of the Netherlands against Phillip II in 1581, and the Thirty Years War (1618–1648), which ended up dividing Europe into two camps: the Protestant north and the Catholic south.⁷ The conflict also had momentous consequences in terms of European constitutional history, as it promoted the ascendancy of kingdoms as opposed to the notion of a pan-European political authority, i.e. the Holy Roman Emperor or the pope.⁸ After the Peace of Westphalia, Europe fractured into a series of independent states warring with each other to impose their hegemony, a state of affairs which would last all the way down until almost the middle of the twentieth century.⁹

The papacy’s loss of influence was also manifest in England, when Henry VIII (1509–1547) nationalized the Anglican Church through the Act of Supremacy in 1534 (Lehmberg 1970, 202–203), after Clement VII refused to recognize the validity of his divorce from Catherine of Aragon and the legitimacy of his subsequent marriage to Anne Boleyn. The rift with the papacy prompted the king to adopt anti-ecclesiastical measures such as the dissolution of monasteries and the confiscation of church lands. This policy was reversed by his eldest daughter Mary Tudor,¹⁰ who via a 1555 law, restored Catholicism, declaring it treason to speak out against the Church of Rome. However, her half-sister and successor Elizabeth I (1558–1606), again defied Rome, imposing in 1559 a new Act of Supremacy (Haig 2012, 239–242), a middle way between Roman Catholicism and the strain of Calvinism, which the Puritans wished to establish in the country.¹¹

However, even on the Catholic side, monarchs did not want the popes to intervene in the affairs of their kingdoms. The symbol of this state of things was the “Sack of Rome” in 1527 by Charles V’s army, which demonstrated that the popes had lost prestige and the capacity to arbitrate between sovereigns (Flemer 2002). Thereafter, popes retreated into the spiritual realm, and were confined, like the Holy Roman emperors, to be sovereigns within the territorial limits of their own domains, especially following the signing of the Peace of Habsburg in 1555 (Cuius regio eius religio), which resulted in the introduction, even in the Catholic states, of the doctrine of the ecclesiastical supremacy of sovereigns (regalism), which entailed a whole series of limitations when it came to applying ecclesiastical law and prerogatives within each kingdom. For example, the establishment of the “placet” (the Spanish pase regio) for the application of ecclesiastical rules (Vázquez García Peñuela and Morales Payán 2005, 15–35), was an attempt to resolve conflicts between royal and church power and disputes over the authority to appoint bishops, which leading to the signing of the first concordats between the monarchies and the Holy See. All this did not prevent the rise of movements calling for the establishment of autonomous national churches independents of the pope, though without breaking with Rome. The most representative case of this is that of French Gallicanism (Harouel et al. 2007, 382–386).¹² It is significant that in 1610, the Parlement of Paris ordered the burning of the works of the Spanish Jesuit Juan de Mariana (1536–1624), who they considered intellectually responsible for Ravaillac’s killing of Henry IV.¹³

The fact that the kings were no longer under the authority of the pope also meant that the power of absolute monarchs’ could not any more be justified by the fact that they were the rulers of traditionally ordered societies created and ordained by God. The problem, then, was that a new legitimization of royal power was needed.

In the Middle Ages, kings were able to assert their authority over feudal powers because there appeared jurists and political thinkers who justified this imposition, invoking legal validations. The old Roman law contained in Justinian’s Corpus Iuris Civilis was revived and applied to a whole range of customary, feudal, statutory, imperial and canon law issues (Robinson et al. 2000, 109), facilitated by academic interpretations produced by Glossators and Commentators (mos italicus), Decretists and Decretalists, with the pope ever considered the supreme authority.¹⁴ As this new scholar-produced (rather than politically imposed) law was studied in universities all over Europe, and featured a common language (Latin) and a common legal culture (Calasso 1954, 453–454), it was considered Ius commune, a new body of law more original in the methods and reasonings underlying it than in its core principles (Reynolds 2012, VII, 497), which were eminently traditional and Christian.

The justification of royal power, then, was based on Roman legal texts appearing in the Justinian compilation. Principles such as Rex in regno suo est imperator and princeps legibus solutus est were taken and interpreted by medieval jurists precisely to buttress royal authority.¹⁵ The jurists (légistes) of Philip IV of France, such as Guillaume de Nogaret (1260–1313),¹⁶ turned to Canon Law to defend the proposition that the consecration of the king made him a monarch by divine right, thereby justifying his supreme authority over his kingdom—an argument used to thwart the pope’s claims to authority. The political leadership of the papacy collapsed and the dream of a united, Christian West vanished, with the consequence that political decisions henceforth fell into the hands of secular authorities, with whom the Church was not to interfere (Strayer 1980, 389).

The next key development was that the Ius commune, based on the Roman canonical legal tradition, lost its ratio scripta status,¹⁷ a trend which began in the Renaissance, with movements such as Legal Humanism (mos gallicus). Demonstrating the historicity and the relativity of the Corpus iuris destroyed the absolute authority which it had hitherto enjoyed. If Roman law was no more than the product of a given society from a given period, there was no reason why its authority should be applicable to others period, or be superior to current laws (van Caenegem 1994, 56). Therefore, the legitimacy of power had to rely on Natural Law, which fueled the new argument that the absolute power of kings was simply the only way to prevent chaos and maintain social order.

Everything started during the Renaissance, in an Italy torn between supporters of the pope and the emperor, with the Guelphs and Ghibellines in constant conflict,¹⁸ generating a permanent state of chaos. From this anarchy arose a multitude of political units whose existence was founded on their brute power, provoking, as Burckhardt (2010, 2) points out, the rise of a new phenomenon in history: the state as an outcome of reflection and calculation, “the state as a work of art”. It was amidst these circumstances that Niccolo Machiavelli (1469–1527) lived. In his landmark work The Prince (1513), he offered rulers a series of formulas and pieces of advice to maintain, at any price, the power which guarantees social order. The “prince” no longer justified his power on the premise that he was the legitimate representative of God on Earth, or by tracing his authority back to the Roman emperors, but rather exclusively on his capacity for political survival.¹⁹

With the actions of all men, but especially those of princes, against whom there is no higher authority to which to appeal, their ends are simply considered. The prince, therefore, must dedicate himself to overcoming difficulties and preserving his state. If he is successful in this, the means he employs will always be considered honorable, and be praised everywhere: the masses always focus on appearances, and are seduced by results. Now the world is almost entirely made up of the masses, and the small number of insightful minds in it do not announce what they can see until the countless hordes who see nothing no longer know what to think.²⁰

There thus began a secularization of the justification of political power which received its first theoretical formulation by jurist Jean Bodin (1529–1596), who lived in a France plagued by the long and bloody French Wars of Religion.²¹ This situation naturally, made him a firm supporter of strong and undisputed authority. Bodin presented his arguments in The Six Books of the Commonwealth, published in 1576, advancing the idea of sovereignty,²² which he understood as absolute power, which takes precedence over everything and everyone else:

Sovereignty is that absolute and perpetual power vested in a commonwealth which in Latin is termed majestas (…) Sovereignty is not limited, in power, responsibility, or in time (…) it is necessary for sovereigns not to be subject to anyone else’s power so that they may (…) impose law upon their subjects and rescind or amend useless laws (…). The term needs careful definition, because although it is the distinguishing mark of a commonwealth, and an understanding of its nature fundamental to any treatment of politics, no jurist or political philosopher has in fact attempted to define it…²³

Bodin, however, affirmed more than he actually explained the expedience of an absolute respect for sovereign power. Thomas Hobbes (1588–1679), went one step further.²⁴ After enduring the English Civil War, from which Cromwell emerged victorious, Hobbes offered a justification for absolute submission to state power in his most famous work The Leviathan, the first edition being published in 1651 in an England profoundly affected by the beheading of Charles I (January 30, 1649).²⁵ Hobbes was reacting against the anarchy of the civil war he had witnessed. Thus, after writing that “where there is no common power, there is no law; where there is no law, there is no justice”, he went on to state that:

The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will. Which is as much as to say: to appoint one man, or assembly of men, to bear their person; and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act, or cause to be acted, in those things which concern the common peace and safety; and therein to submit their wills, every one to his will, and their judgments to his judgment. This is more than consent, or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH; in Latin, CIVITAS. This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to which we owe, under the immortal God, our peace and defence.²⁶

Despite their different approaches, Machiavelli, Bodin and Hobbes all came to the same conclusion: the state should be placed in the hands of a single person, a monarch whose power ought not to be contested in any way.²⁷ This figure, the prince, became the great protagonist of a new era in European constitutional history. As Anderson (2013, 15) points out, the rise of the absolutist state marked the demise of the feudal conception of law and power, as the centralized monarchies of France, England and Spain represented decisive ruptures with the old pyramidal medieval social structure, with its three estates and liege systems.

Although in some kingdoms royal absolutism appeared early, such as in Castile, where the kings imposed their supremacy as of the late fourteenth century,²⁸ the era of classic absolutism (Hochabsolutismus) would span the sixteenth and seventeenth centuries, even if in some countries, such as France, it would last until the second half of the eighteenth. This period of the history of Western Public Law is also known in German historiography as the Fürstenstaat, literally the “State of the Prince”, because all branches of the state—executive, legislative and judicial—relied upon the monarch and exercised their powers in his name.

The principle of urban autonomy, favored by the emergence of great politically and legally autonomous cities in the Late Middle Ages, entered into crisis in the Modern Age, in large part because the most independent cities which had managed to stand up to royal power came under military siege by monarchs. Such was the case in Ghent and Florence, whose respective rebellions were put down by Charles V; the Castilian cities, which fought the king in the War of the Communities; and the German cities, which were also militarily vanquished by the king-emperor in the early sixteenth century. It must be said that royal intervention encountered scant resistance from the masses, as the governments of the cities lay in the hands of local oligarchies which perpetuated their power by purchasing key offices from the monarchs,’ who needed the revenue obtained from their sale.²⁹

Inevitably, this situation sapped municipal autonomy, which was soon also restricted by the appointment of royal officials charged with overseeing those who held local offices. Thus, for example, in Castile, beginning in 1348, along with the municipal officials (regidores) there arose the figure of the corregidor: the royal agent who would end up controlling city life during the Modern Age up to the era of Liberal revolutions (González Alonso 1970).³⁰ In the legal sphere this diminished municipal autonomy was evident at the legislative level, where there was a “petrification” of anachronistic and obsolete municipal legal terms from the medieval period, which gave royal legislators ample leeway to adapt local legal ordinances to the times, especially after the defeat of the Comuneros Revolt at Villalar (1521). Therefore, in the Spanish monarchy, as of the reign of Comuneros Revolt (1621–1665), municipal ordinances had to receive royal approval before entering into effect.³¹ To all this, one must add the progressive submission of municipal law to royal law,³² and that of local tribunals to those of the monarchy since 1348. All of these factors led to a progressive derogation of cities’ legal autonomy, as old municipal laws had become virtual relics by the end of the Old Regime.

Cities’ political decline was also evident in Italy, where powerful families gradually took over the governance of urban republics like Florence, Siena and Milan. The divisions between cities, meanwhile, opened the door to foreign invasions, from France as of the time of Charles VIII and Louis XII, and Spain, since the era of the Catholic Kings, thanks to the victories of the Gran Capitán (Gonzalo Fernández de Córdoba)³³ over the French in southern Italy.³⁴ During the sixteenth and seventeenth centuries, most of Italy—essentially Milan, Sicily and Naples—was incorporated under the Spanish Crown which, in accordance with the model of the compound Catholic Monarchy, respected traditional public institutions.³⁵ The king did appoint the governors, however, and Philip II created a Council of Italy at the royal court (corte regia). As a result, powerful city-states entered into decline, such as the Republic of Venice—though it was still powerful enough to fight victoriously with Spain against the Ottoman fleet at the Battle of Lepanto (1571).³⁶

In the United Provinces, the rebellion against the king of Spain (1566), sparked a war won by the cities, which had achieved considerable political autonomy thanks to their commercial prosperity. These would evolve into maritime republics governed by a bourgeois oligarchy of merchants, which enjoyed its greatest degree of prosperity in the seventeenth century, though ultimately this did not prevent the consolidation of hereditary monarchy and the rise to power of the House of Orange-Nassau.³⁷

In France, the cities fell under royal control during the reign of Louis XIV with the increase in the number of “Intendants” during the Colbert Era (Mousnier 1984, 519), which became an extremely effective instrument of centralization (Desrayaud 1996, 632). In 1683, an edict set down the detailed mechanisms through which the monarchy would exercise its control over the cities. All this said, it was not so much the case that the monarchs abolished the cities’ traditional prerogatives as that they progressively fell into disuse.³⁸

The nobility, which during the Middle Ages had shared political power with the monarchy, was finally overpowered by the absolute kings, with the result that the nobility, at least a section of it, generally ended up cooperating with the monarchs, to the point that, as Zmora (2001, 6) observes, absolutism essentially rested upon a renewed covenant between the monarchy and the nobility, though in every kingdom this relationship took featured different characteristics.

In France, it is worth noting the attitude of Louis XIII’s prime minister, Cardinal Richelieu, who waged a relentless struggle against the kingdom’s most powerful figures, determined to impose the king’s supremacy. The nobles did not truly lose their influence, however, until they were vanquished after the revolt known as the Fronde (1648–1653), during the reign of Louis XIV, thanks to the determined actions of Mazarin and the Queen Mother and Regent, Anne of Austria. Louis XIV finally, tamed the nobility by creating a vast court through which he distributed spoils and pensions to all the great French nobles, who settled near Versailles in an effort to curry favor with the Crown and secure royal pensions in what Desrayaud (1996, 515) calls the “domestication” of the French nobility. This approach was a costly but effective remedy. The nobles, close to and dependent upon the king, were in no position to rise up against him. It is also significant that most of the great servants of the French state in the seventeenth century, hailed from the gentry or bourgeoisie.³⁹

In Spain the great nobles, after having had their way in Castile during the first two thirds of the fifteenth century (during the reigns of John II and Henry IV), were subdued by the Catholic Kings (1474–1504), who systematically relied upon jurists from the gentry and bourgeoisie to construct a modern state, at least in Castile, part of a trend that would be continued by Charles I and Phillip II in the sixteenth century. Beginning in the seventeenth century, the great nobles would become servants of the state, filling the most important territorial positions, as validos (“favorites”), viceroys and governors, though in general royal authority would never be challenged again (Carrasco Martínez 2000).

In England, after the anarchy sown by the War of the Roses (1455–1485), a struggle between rival nobles to determine who would control the throne of England, the people readily accepted the authoritarian rule of the Tudors as the best way to restore law and order (Bernard 1992). The result was that the old military nobility never again recovered the leverage it once held with the Crown, while the bourgeoisie was not yet strong enough to limit royal prerogative through Parliament, unlike what would ultimately happen in the second half of the seventeenth century under the Stuarts, as a consequence of two English revolutions.⁴⁰

Among the institutions which had decisively limited the power of the late medieval monarchs were, as we know, the assemblies of the estates, which reached agreements with the monarch regarding everything, from the fundamental laws of the kingdom to the finances needed by the monarchy. During the absolutist era, the general trend was for these types of bodies to be brought under royal authority—with the notable exception of England, which we shall examine separately, where Parliamentary power surged dramatically in the second half of the seventeenth century.

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.⁵⁷

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),⁵⁸ 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.⁵⁹ 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.⁶⁰

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 1834.⁶¹

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 législateur (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)⁶² 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 1348.⁶³ 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.⁶⁴ The Castilian monarchs, in fact, began to introduce laws without the need for the Cortes’ approval, as they were able to promulgate pragmáticas, edicts which were as valid and effectual as laws approved through pacts with said body.⁶⁵

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 (1491–1547), and his daughter Isabel I (1558–1603), with both chambers accepting, without protest, the laws which said sovereigns submitted to them.⁶⁶

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).⁶⁷

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 très chrétien), 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 honnête liberté des français (Desrayaud 1996, 546) and explains why the subjects of the French kings considered themselves to be collectively free (Olivier-Martin 1988, 308–309).

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 Bèze coined a term when he referred to the “fundamental laws of the kingdom”.⁷⁵ This term referred to an indefinite set of norms and customs which had gradually come to shape monarchies’ actions over time,⁷⁶ governing aspects such as succession to the throne, the Catholic character of the monarchy, and the inalienability of the prerogatives constituting royal authority.⁷⁷

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.

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 coûtumes—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’élection, pays d’états 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.⁷⁸

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.⁷⁹ 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,⁸⁰ 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 such as 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).⁸¹

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.⁸² 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 justice ⁸³; 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 liberté moura nte).⁸⁴ 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).⁸⁵ 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 monarchy⁸⁶—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