Ernest Renan (author of a blasphemous Life of Jesus) once quipped that “hereditary monarchy is a political conception so profound that it is not within the reach of every intelligence to comprehend it.” Indeed, the doctrine of Christian monarchy was the crown jewel of classical public law. In order to introduce our readers to it, Ius & Iustitium presents here a translation of an excerpt from Fr. Magín Ferrer, O. de M.’s Fundamental Laws of the Spanish Monarchy (1843). It is a lucid and brief exposition of this theory from the pen of one of its great exponents.
Introduction
Magín Ferrer (1792-1853), a friar of the Royal and Military Order of Our Lady of Mercy, was one of the early writers—both doctor and pamphleteer—of the Carlist cause, the longest-living Catholic counter-revolutionary and integralist movement of the past two centuries.1 Carlism traces its origins to the break in 1833 of the Spanish royal house, when the death of Ferdinand VII pitted two lines, the agnate and the feminine, against each other. The former was centered on the late King’s brother, the infante Don Carlos María Isidro (King Charles V), whose rights were founded on the old laws of the realm, and the latter on the infanta Isabel (called Isabel II), the King’s daughter, and on her mother, María Cristina of the Two Sicilies. The followers of Don Carlos, Carlists, were the collection of anti-liberal, traditional forces of Spain, enemies of both the liberalism of the Cortes of Cádiz of 1812 and of the French-style absolutism of some reactionaries. They traced their intellectual and moral roots back to the principles of the ancient Catholic Monarchy. The followers of Isabel, the Isabelinos (or Cristinos, for her cunning mother), were their opponents: the forces of Spanish liberalism and their “conservative” enablers.
A profound thinker and a biting polemicist, Fr. Ferrer’s works covered many of the central debates of his time.2 Perhaps his most notable work is the one we have excerpted and translated here, his magisterial Las leyes fundamentales de la Monarquía Española, según fueron antiguamente, y según conviene que sean en la época actual (The Fundamental Laws of the Spanish Monarchy, as They Were of Old, and As It Is Expedient They Should Be Today), published in two volumes in 1843, three years after Don Carlos’s defeat in the First Carlist War. Below is a portion (paras. 66-74) of chapter IV of volume II, which treats of the basic principles of what Fr. Ferrer called the “social constitution” of the Spanish Monarchy, which, as the text explains, he distinguished from its “natural” and its “political” constitutions. It is a lucid and illuminating exposition of the classical doctrine of Christian monarchy.
The clarity of Fr. Ferrer’s exposition is such that it requires little commentary. I will only note two things. First, there is a clear progression in the order of the principles of the social constitution of Spain. While it begins with the assertion that Spain is a “pure and absolute Monarchy,” it becomes clear, as the explanation advances, that the term “absolute” here cannot be understood as the moderns have liked, that is, as lacking any principled limitation. Fr. Ferrer is working within a different tradition of public law: the tradition of the Hispanic Monarchy, in which “poder absoluto” means a power supreme in its own order (potestas summa in ordine suo). That is, a power full in its proper sphere, which implies necessarily that it is bounded, constituted, by the contours of that very sphere. As Fr. Ferrer notes elsewhere, “the authority of the King of Spain is bounded by the natural law, and by the laws that emanate from it, according to which he cannot act against the true fundamental laws of the realm, or against the principles of justice, or against the rules of sound prudence.”3 The natural and fundamental laws (which by definition include the divine law and the law of nations) are what constitute the office of kingship itself, which is in service to such laws. A ruler who breaches them is no longer a king but a tyrant.4 As the Carlist jurists would later put it, “for the ultimate root of power lies in the function of kingship, which (as our classics have always held) is more a service than a dignity, such that the dignity is owed on account of the service.”5
Second, to better grasp the senses of this limitation of power, it is necessary to distinguish between substantive and jurisdictional limitations. Fr. Ferrer below speaks of both. As noted, he affirms categorically that the King’s authority is substantively bounded, and gives some examples of how this works (vid. infra ¶¶ 71, 73).6 He also notes, however, that the King “is not subject to any earthly tribunal” and is responsible “only to God” (¶ 71). This is a reference to jurisdictional limitations on power. Again, however, the meaning of these terms must be understood within the tradition in which they are being uttered, that of Hispanic public law, where kingly power is understood to be supreme (or “absolute”) in its own order. This means that while the King remains immune from any tribunal within his own sphere of action (the order of temporal power), he remains subject to the powers that exercise their jurisdiction in other orders—notably, the order of spiritual authority, which in the Catholic religion is precisely the authority that holds the right, by divine institution, to say infallibly what the divine and natural law and the law of nations (that is, the legal orders that constitute the King’s power) say and demand. Fr. Ferrer is not James I of England.
The full text excerpted and translated below can be found in the issue for Year 2, No. 4 (June 2012) of the excellent biannual journal of Hispanic and Christian political thought and history Fuego y Raya, at pages 211-221. Google books also has Fr. Ferrer’s work: the excerpted text is located at pages 91 to 96 of volume II (volume I can be found here).
Rafael de Arízaga
The Fundamental Laws of the Spanish Monarchy
Vol. II, Ch. IV: The Fundamental Laws Constitutive of the Spanish Monarchy (excerpt)
66. One is the natural Constitution, which contains the principles common to all societies; another, the social Constitution, which embraces the principles that constitute each particular society; another, the political Constitution, which regulates the manner in which society, once constituted, is to be governed. I have already suggested in the first Part that it is in vain to exert oneself with decreeing a Constitution a priori, that is, to form fundamental laws that constitute a society before that society has been constituted. Such laws cannot be decreed, and if they are written down it is only when, a long time after the society has been constituted, it is declared that the laws by which it is conserved are those very laws that have naturally and imperceptibly arisen through submission to the Chief that rules the society and through the habits, uses, and customs which have in a certain sense become unalterable.
In Spain one must, therefore, distinguish the social from the political Constitution. The former should contain few laws, or I should better say, a declaration of few principles, none of which can be altered without destroying the social order. The political Constitution should be more detailed and, properly speaking, a kind of statute or regulation where those social principles are explained and reduced to practice in a constant and uniform manner. These political laws should be quasi unalterable. That is, the Sovereign should swear to exercise his absolute power and authority only in accordance with them, decreeing as a fundamental law, as did our kings of old, that any decree, order, or provision that is issued contrary to such laws should be obeyed but not complied with [obedecido pero no cumplido].7
67. If I am asked if it is necessary that the social and the political Codes should be reduced to writing for the good government of Spanish society, I will say that it is. But this is not because it is the fashion of the day that the constitutions of nations should be written down, but so that the principles and laws that are scattered in countless books of our legislation and our history might be brought to order and in a single book. The social Code, which would contain the fundamental and unalterable laws that constitute Spanish society, must be very short, for it must not include anything that might be subject to change. I believe that the whole thing may be contained in the following declarations, which would have to be drafted in such manner as truly wise and upright persons, after a mature and careful examination, might consider most convenient.
68. “First. Spanish society is a pure and absolute Monarchy, governed by a King, in whom resides essentially the fullness of sovereign power, who is only responsible to God for his actions, and whom all Spaniards are bound to honor, respect, and obey as their natural Lord.”
69. “Second. Succession to the Kingdom resides in the royal House and is hereditary. It belongs peculiarly to the sovereign authority of the Monarch to establish, in accordance with the principles of the land, the rules that determine, among those with the right to succeed, the priority of some persons over others.”
70. “Third. All Spaniards, who are united under the single head that is the King, are also united by the bonds of the only true Religion, which is the Catholic, Apostolic, and Roman, in such a way that just as anyone who does not want to be subject to the King is considered to be outside of Spanish society, any person who does not want to profess the Religion that is exclusively professed in Spanish society will equally not be deemed to be a Spaniard.”
71. Consider that the fundamental principle that establishes the profession of the one true Religion in the Kingdom is so convenient in politics and in the social order that it is the strongest, and almost the only, guarantee that a people can have that the prudent rule of the Monarch will not degenerate into tyranny. It is in the fact that whosoever exercises sovereign authority is not subject to any earthly tribunal, and by the same token only in the laws of the Religion revealed by God and in the fear of God’s judgment, where the prudent security that he will not abuse his power may be found.
It is also the strongest guarantee of the social order itself, for no one can desire for a society the mixture of false religions with the true one, except one who has no religion at all. And he who lacks religion does not fear God, and does not respect or obey His law. And he who does not fear God and does not keep His law, is disposed to overturn social order and peace for his own benefit, so long as he can overcome the fear caused by external force, whose effects are at every step frustrated by a greater force, or by talent, or by gold, or by any other of the thousand evil arts that are the ordinary arms of the unruly.
72. “Fourth. Although the sovereign and absolute power resides essentially in the King, he must exercise it in accordance with the principles of the natural law, the rules of justice and sound prudence, respecting and defending the property, the security, and the liberty of his vassals, and not acting against the legitimate uses and customs of the land, which in a certain way form the peculiar character of Spanish society and constitute its fundamental customary laws.”
73. “Fifth. The King’s absolute power being subject and subordinate to the law of God, to the eternal rules of justice and sound prudence, and to the fundamental laws of the land, he must in no event publish any law and thus bind others to obey it, unless on the one hand he knows the justice of such law beyond a doubt, and on the other he is certain that the people will not reasonably be able to oppose it. For although the essence of the law does not depend on its acceptance by the people, the Monarch is bound by a law of prudence, which speaks to the heart of man, not to impose on his subjects any precept, duty, or burden that might induce them to make themselves criminals by resisting the commands of their Sovereign, and leading by imprudent measures to disturbances, conspiracies, uprisings, and civil wars. In order to be sure of the justice of the law the Monarch must consult it with his ordinary Council, and to be sure of its convenience he must propose it to the Body that represents the Kingdom, so that it may either receive it and obey it in the name of the people or expose to him the inconveniences that might ensue from it, and beg the King to suspend its publication.”
74. It seems to me that these five declarations contain all the essential, constitutive principles of Spanish society. All the principles that they contain are immutable, and anything that could be added would be ill-judged, for while there might exist unalterable principles in the political order, they can be modified without thereby destroying the social order. Such is, for instance, the law that establishes succession to the Throne among those who have a right to it according to the social constitution, or the law that ordains the configuration of the political Body that represents the Kingdom, and others like these.
All such laws must be part of the fundamental political Constitution of the State, and may be drafted in view of the doctrine that I will explain in the following chapters, with the changes or variations that wise and enlightened persons who know more than I do might judge convenient, in the understanding that far from clinging obstinately to my opinion, I yield with the best will to the better thinking of those who judge in good faith and with knowledge. Good faith is the only thing I demand from those who might read, examine, and censure my writings. If good faith is present, if they read, examine, and censure disinterestedly, free from the passions that always incline the human mind to the part where private interest lies, it is certain that we will all understand each other, and will arrive at the very same principles, for either I will vary my opinion on account of the observations that are made to me, or the strength of my reasons, or I should better say, for they are not mine, the strength of the voice of nature, of reason, of history, and of experience will force those whose opinion is contrary to mine to shift their judgment.
Magín Ferrer, O. de M.
- A brief, but fuller, account of his life and work can be found in Spanish here.
- He wrote about the juridical problem of the dynastic split, about the rights of the Roman Pontiff, about the errors and outrages of Napoleon Bonaparte, about the rights of the Church in a rightly ordered State (including an early refutation of a Madisonian style of “liberty” for the Church a la norteamericana). He was also a reputed moral theologian and spiritual writer (for instance, he made a fresh Spanish translation of the Imitation of Christ from the Latin), as well as a lexicographer and collector of popular sayings.
- Leyes fundamentales, vol. I, ch. III, ¶ 43. Fr. Ferrer dedicates two considerable chapters to explain how this “absolute” power is to be understood. Id., vol. I, ch. III (“Of how the absolute power of the King must be understood”) and vol. II, ch. III (“Of the order that the King must have in the exercise of his absolute authority”).
- The Hispanic tradition famously admitted the licitude of tyrannicide in carefully outlined circumstances. Vid., e.g., Francisco Suárez, S. I., Defensio fidei catholicae et apostolicae adversus anglicanae sectae errores (1613), IV, 4; Juan de Mariana, S. I., De regis et de rege institutione (1599), I, 6. Fr. Ferrer, however, appears not to follow this opinion, though he states as a matter of fact that it is understandable that in the presence of a tyrant, all kinds of seditions and violence will ensue in a kingdom. Leyes fundamentales, vol. I, ch. III, ¶ 40.
- Francisco Elías de Tejada et al., ¿Qué es el Carlismo?, Esceliecer, Madrid, 1971, ¶ 19.
- He expands on this in other parts of his work. Vid., e.g., Leyes fundamentales, vol. II, ch. III, ¶¶ 54-56.
- Translator’s Note: Fr. Ferrer is referring to the old Spanish legal maxim “obedezco pero no cumplo” (“I obey but I do not comply”). Liberals have read this aphorism variously as if it were a proto-revolutioanry doctrine or (in the spirit of the Black Legend), as a sign of Hispanic incapacity to be ruled by law. In fact, its meaning was that in certain contexts (including the contexts where St. Thomas says that necessity may be invoked to dispense from the law, and where fundamental laws were at stake), subordinate officials could respectfully refuse to obey the letter of the King’s decrees by professing obedience to the higher, more foundational laws that such decrees might derogate from, the observance of which over all other laws the King was understood always to intend. The King retained the right to review such judgments, of course, but this was an elegant legal mechanism by which the royal authority was preserved and indeed bolstered in the very act of not obeying the letter of its particular commands and decrees.
