The formation of the sovereign state

In his life of the Emperor Conrad II from around 1040, the German chronicler Wipo refers the story of the emperor’s visit to Pavia in Italy on his way to receive the imperial crown in Rome (1027).

If the king is dead, the kingdom remains, as a ship remains whose captain dies. The buildings were public, not private; they belonged by right to another, not to you. Those who usurp what belongs to others, are guilty before the king. Therefore, you have become usurpers of the property of others and conse­quently, you are guilty before the king.¹²⁸

Although the Pavians are probably more representative of contemporary attitudes than Conrad, Wipo’s story is an important expression of the idea of the monarchy as an institution, existing independently of the individual rulers. According to the New Testament, monarchy was instituted by God and consequently, rulers had to be obeyed whether they were pagan or Christian. However, this did not necessarily imply an idea of the state. In Carolingian ideology, there was no sharp distinction between state and Church; the king ruled ecclesia together with the bishops. Char­acteristically, the popular allegory of the human body represented ecclesia, usually headed by the king and with various ecclesiastical and secular dignitaries as its various limbs.¹²⁹ Later, however, the body is identified with res publica in John of Salisbury’s Policraticus (1159).¹³⁰ By this time, the Gregorian Reform had led to a clearer dis­tinction between the sacred and the secular sphere and the division of the ecclesia into two organizations. Although the idea of the king as God’s representative on Earth lived on until the period of the French Revolution, secular theories of monarchy became more prominent from the late eleventh century onwards.

Roman law could of course easily be applied to the king of Germany, who held the title of Roman emperor and regarded himself as the successor of the ancient Roman emperors, including Justinian, who had issued the law. However, other kings made the same claim. Already the canonist Etienne de Tournai in the mid­twelfth century identified the king of France with the emperor in the Codex. ¹³² This idea later received support from Pope Innocent III, who, in 1202, stated that the king of France recognized no temporal superior. The idea of monarchy as an institution was expressed in the term corona = the crown. The king’s lands did not belong to him but to the crown; therefore, the individual king was not allowed to alienate them. The same idea was eventually expressed in the doctrine of the king’s two bodies, one mortal and one immortal, representing respectively the individual king and the institution. The doctrine was not formulated explicitly until the six­teenth century but was anticipated in various ways in the Middle Ages.¹³³

The reception of Aristotle’s political thought formed a particularly important step in the development of a secular theory of the monarchy and the state. Aris­totle’s Politics was translated into Latin in the 1260s and was shortly afterwards used by Albertus Magnus and Thomas Aquinas. The latter’s De regno (On Kingship, 1271—73) marks a new epoch in the history of political thought. Whereas earlier mirrors for princes, the most important genre dealing with royal power in the twelfth and early thirteenth century, took monarchy for granted and essentially consisted of advice to the king about how to govern, Thomas began with Aris­totle’s arguments for the necessity of the state. Human beings need a community to live a good life, therefore, government is based on human nature.

The Aristotelian idea of the state (Greek polis) as based on the social nature of humans was shared by most medieval thinkers in the following period. The state was necessary for a good life, while at the same time its inhabitants had natural rights to freedom, earning a living and right to property. The right to the latter was somewhat more limited by social concerns than it became later but was not fun­damentally different.¹³⁴ Some scholars even claimed that serfdom — a common condition in the Middle Ages and to some extent later — was against natural law, meaning than men’s natural right had been taken away.¹³⁵

Aristotle’s theory also laid the foundation for an idea of popular sovereignty more explicit than the one that might be derived from Roman law. When the state was based on human nature and monarchy existed because it was the most practical form of government, it followed logically that the people must have the right to depose a king who ruled unjustly. Consequently, Thomas Aquinas dis­cussed in detail the conditions that might necessitate such a step. The ruler must have committed serious injustice, to the extent that regicide was a minor evil in comparison, and it could only be undertaken as the result of a united action by society. Thomas was thus clearly aware of the threat to the social order resulting from a too liberal interpretation of the right of resistance; it has also been pointed out that the conditions demanded by Thomas would not often occur in practice.¹³⁶ Nevertheless, as we shall see, the baronial rebellion in England might be an example of what Thomas had in mind, although there is no evidence of a direct connection with his ideas.

Thus, there was clearly an idea of the state in the Middle Ages in the sense of a political community represented by the king but which existed independently of him. More doubtful, however, is the question of the consequences of this idea, in particular, the question of sovereignty. The modern idea of law is formal, a result of what is decided by the supreme legislative authority, in democratic states a legislative assembly elected by the people, in absolutist states the king. The king was usually recognized as the supreme legislator in the Middle Ages, in accordance with the doctrine of Roman law ‘Quod principi placuit legis habet vigorem’ (‘What the king decides has the force of law’) and ‘Princeps legibus solutus est'. ¹³⁸ The king was therefore above the law he had himself given and could not be accused by his subjects of having broken it (the Prince is not bound by the laws), but he was nevertheless morally obliged to obey it and would be punished by God if he did not. In addition, the positive law must not con­tradict natural law and divine law as laid down by God in the Bible. Concerning what the subjects might do if the king acted against divine and natural law, the lawyers in the king’s service saw a close connection between the king and social order and were more reluctant than Thomas Aquinas to allow the subjects to rebel against or depose a king whom they found unjust. Consequently, the various attempts to influence the king, which will be discussed later, took the form of charters where the king promised to respect various specific rights or rule in the interest of his subjects and with their consent, but the political bodies giving this consent were rarely involved in the daily running of government.

As already mentioned, there are various opinions among scholars concerning the development of the European state. One issue in this discussion is the term itself, Latin status = state or condition (derived from the verb stare = to stand) which is mostly believed to have been developed from the sixteenth century onwards. However, the word was also current in the Middle Ages in the combination status rei publicae = the condition of the realm. Strictly speaking, we are here dealing with a new term for an old reality, res publica or regnum being replaced by status in the sense of the political community. Although these terms did not always refer to

what we would consider the state but might also simply be synonyms for the king, there is considerable evidence of the distinction between the ruler as a person and the realm as an institution already in the Middle Ages. However, there is clearly a more technical use of the term ‘state’ from the early sixteenth century. In The Prince (1513), Machiavelli refers to the people’s duty to aid the prince in times of adversity; because in such circumstances ‘the state has need of its citizens’ (‘lo stato ha bisogno de' cittadini'). Later, he refers to ‘the majesty of the state’ (‘la maestà dello stato’). However, his most frequent use of the term is in the traditional sense of the position and range of powers of the prince. The full development occurs later in the sixteenth century, first, in France, with authors like Guillaume Bude and Jean Bodin and then in England from the period of Cromwell’s regime in the 1530s.

In practice, one of the clearest expressions of the idea of royal sovereignty was the result of the conflict over Henry VIII’s divorce of Catherine of Aragon in order to marry Anne Boleyn. Having applied for many years for a papal annulment of his marriage, Henry was persuaded by the Cambridge scholar Thomas Cranmer whom he shortly afterwards appointed Archbishop of Canterbury, that he did not need a papal annulment, as he was himself the head of the Church of England. The doc­trine of royal sovereignty over the Church was then formally stated by the king’s new head minister, Thomas Cromwell, and accepted by Parliament.¹⁴⁰ As a sovereign ruler, the king could not be subordinated to any external power, including the pope. Similar proclamations were made in other Protestant countries. Catholic kings continued to recognize the pope’s spiritual authority after the Reformation but interpreted it in a more restrictive way than previously.

In principle, the state is an abstract entity, not identified with any individual person. The servants of the state vary over time and they only represent the state in their official capacity. In the monarchies that still exist, the king serves as a symbol of the state without any power to represent it in practice. By contrast, both in the Middle Ages and in the early modern period, the state was largely identified with the king. The development of central political institutions, the council of the realm, the supreme courts of law and the increasingly more extensive royal bureaucracy, did not reduce the importance of the king as the expression of the state. Although Louis XIV neither said nor meant that he was the state (‘l'Etat c'est moi'),¹⁴¹ to the extent that there was a sovereign ruler, it was the king. Whether he had his power from God or from the people — both theories existed — he had received a decisive power that he could not give up or be deprived of.

At least in some respects, Louis XIV distinguished clearly between himself and the state, as when he said on his deathbed that he would die but the state would continue to exist. His introduction of the courtly ceremonial with its cult of the monarchy may be interpreted as evidence of a strong idea of the state but also as an expression of the link between the state and Louis himself and the dynasty. Fre­derick William I of Prussia (1713—40) is depicted as a great landowner, regarding the country as his own property which he tried to leave in the best possible condition to the next generation. However, his son, Frederick II (1740—86) made a sharp distinction between himself and the state, for instance, in tolerating criticism of himself but not of the state and distinguishing between his own interests and those of the state, whereas French kings were less explicit in this respect.¹⁴² Regarding foreign policy, there is also a difference between Francis I’s honour, chivalry and attachment to family possessions and the focus on territorial interests and the balance of power in eighteenth-century diplomacy. On the other hand, the distinction between the state and the king’s person did not imply an idea of the state being identical with all its inhabitants. Unlike modern democracy, the med­ieval and early modern state did not exist for the sake of its inhabitants but as an institution that had to perform in competition with other, similar ones and whose success was the king’s responsibility.

Turning to political practice, the most important criterion is the monopoly of violence. Only the state may wage war and prosecute and punish crimes. All inhabitants of the country are subject to the authority of the state but may also appeal to it, regardless of their social status. In thirteenth-century Norway, the author of The King's Mirror expresses this doctrine somewhat crudely in the state­ment that the king is so powerful that he controls the life of his subjects; he may kill without punishment or revenge. This gives occasion for a long discussion of the death penalty and the king’s heavy responsibility for judging justly. Although no human can judge him, God can, and the king must therefore always act in the awareness of this.¹⁴³

Whereas the idea of the office in modern society is so familiar that elaborate formalities are mostly unnecessary when high officials are appointed or a new government or president replaces the old one, the royal office was, as we have seen, subject to increasingly elaborate ceremonials in the medieval and early modern periods. Although the king in person eventually became more distant from his subjects, his symbols were everywhere, in the form of coins, seals, charters and public buildings and of course his officials, whose authority depended on their relationship to him. These became more numerous as well as more professional, held office in different districts and formed an organized hierarchy. In this sense, the state had made great advances from the Middle Ages until the eighteenth century, although traces of the old order remained, in the form of some right to government and jurisdiction for the landowners over their peasants. Ecclesiastical courts of law continued to exist in Catholic countries after the Reformation, although they could not inflict the death penalty and eventually also came under increased royal control. Finally, there were still composite states where more than one ruler had state-like authority over his subjects.

We may also ask to what extent officers in the royal bureaucracies regarded themselves as servants of the state in a similar way as modern bureaucrats. Here an anecdote about the Norwegian government minister Niels Vogt (1817—94) may serve as an illustration. Vogt had two inkpots on his desk, one owned by the government for official letters and one by himself for private ones. When asked whether he actually wrote private letters when working in his office, he answered that of course, he did not, but it happened that he stayed in his office after working hours to write some private letters. Vogt was known to be pedantic and the two inkpots are of course an extreme case, which appears ridiculous to us, but would probably have been comprehensible in the seventeenth or eighteenth century.

The relationship between rulers and their officials is probably better illustrated by the following story from the reign of Queen Elizabeth I of England. Sir Robert Carey, a local governor near the Scots border, had for a long time dealt with var­ious difficult problems in the area without receiving any letters or money from the queen. He became more and more irritated and finally decided to approach her directly and complain about the way he was treated. On his way south, he was intercepted by friends, who warned him against what he was planning. He must under no circumstances come unbidden to the queen, nor demand payment of money. Carey returned and finally found the solution. He got in touch with a member of the queen’s privy chamber who told her about Sir Robert’s love for her, which was so great that, having not seen her for over a year, he could no longer endure the pain of absence that had deprived him of all happiness; he requested only to kiss the queen’s hand once. The invitation arrived in due time, the queen received him very graciously and gave him £500 from the exchequer along with other favours.¹⁴⁴

A distinction between private and public is essential in a modern bureaucracy and rules against corruption are extremely strict, based on a distinction between the state as an entity which the official serves in his public capacity and private matters concerning which he is in the same category as anybody else. It is difficult to imagine this dis­tinction to have been fully developed in countries like France and Spain, where offi­cials bought their offices or in England where they largely consisted of local gentry who served the government in addition to their own business. Richelieu and Colbert were both brilliant politicians and administrators who increased the power and prestige of France and its kings, but in serving their own ends, they did not stop at the inkpots. Both became incredibly wealthy and both favoured their family and friends, building up large networks of clients, linked to themselves rather than to the state. There is little evidence of bureaucracies in the modern sense before the eighteenth century, when they begin to appear in Germany, notably Prussia, and Scandinavia.

The state did become an institution in the early modern period, but not in the sense that the king was replaced by an impersonal bureaucracy, nor in the sense that this bureaucracy corresponded to the Weberian ideal, but in the sense that the king became an institution.