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Des chartes aux constitutions

 | 
François Foronda
, 
Jean-Philippe Genet

Partie II. Laboratoires de constitutionnalité

The Scandinavian Election Charters in the Later Middle Ages

Sverre Bagge

Texte intégral

  • 1 Bruno, De bello Saxonico, ed. by F.-J. Schmale, Quellen zur Geschichte Kaiser Heinrichs IV., Darmst (...)

1When Rudolf of Swabia was elected to replace Henry IV as king of Germany in 1077, a number of nobles approached him, demanding specific promises or privileges. The papal legate who was present rejected this: Rudolf was to be the king of all; it was therefore sufficient that he promised to act justly towards everybody1. To an ecclesiastic belonging to the Gregorian Reform Movement, precise conditions for receiving an office would seem close to simony. Nevertheless, although the legate apparently won on this occasion, most medieval election charters and constitutional documents resemble the demands of the German nobles rather than the statement of the papal legate. Thus, Margaret Thatcher was wrong when she dismissed the importance of the French Constitution and Declaration of Human Rights of 1791 by pointing to Magna Carta as stating essentially the same 600 years before. Most of the text of Magna Carta consists of detailed conditions, largely in the interest of the feudal nobility in the early 13th century. However, it eventually became a symbol of limited monarchy and the rights of the subjects, and some basic idea of this is also implicit in its text. The same applies to the Scandinavian election charters.

The origins and development of the Scandinavian election charters

  • 2 I. Skovgaard-Petersen, “The Danish Kingdom”, in K. Helle (ed.), The Cambridge History of Scandinavi (...)

2Although there are references to more or less precise election promises in the Old Norse sagas, proper election charters belong to the Later Middle Ages and are closely connected to the consolidation of the aristocracy as a dominant element in the government of the realm. The first such charter and the model for the later ones comes from Denmark, where the Charter of Nyborg was issued by King Erik Klipping on 29 July 1282 at a meeting of the aristocratic assembly, the Danehof (the Danish Court)2. The occasion was not a royal election but a previous conflict between the king and the aristocracy. The king had to issue a number of promises (below…), including that of summoning the Danehof annually. However, the direct importance of the Charter of 1282 was limited. In 1286, King Erik was murdered. The regency government, headed by the Dowager Queen Agnes, accused a number of high-ranking noblemen of the crime and condemned them to exile, which led to a prolonged civil war in which the exiles received aid from Norway. When the new king, Erik Menved, took over the government himself in 1294, he mostly ruled independently of the aristocracy and rarely summoned the Danehof. His sudden death in December 1319 and the succession of his brother Christoffer II gave the aristocracy a new opportunity; the new king had to issue the first proper election charter in 1320. A new one followed when Christoffer was deposed and replaced by Valdemar III in 1326. When Christoffer’s son Valdemar IV became king in 1340, he did not issue an election charter, but twenty years later, in 1360, he issued a general charter concerning the government of the realm.

3Election charters were introduced later in the two other countries. Having deposed King Birger in 1319, the Swedish aristocracy issued a charter of liberty, which, however, was a general declaration and not a contract between the king (who was only three years old at the time) and the people. Nor was the charter issued by King Albrecht of Mecklenburg in 1371 an election charter – he had been elected to replace King Magnus Eriksson in 1364 – but the introduction of new and stricter rules for his government of the realm. In Denmark, King Oluf, who was a minor, issued a charter at his election in 1376, whereas his successor, Erik VII of Pommerania, became king (in Denmark in 1387, in Norway in 1388 and in Sweden in 1397) without issuing a charter. Erik was a minor at the time, while the actual ruler was his “mother” (actually his aunt; Erik was the son of Margrete’s sister and the Duke of Pommerania), the powerful and clever Queen Margrete, Valdemar IV’s daughter. Margrete wanted a strong monarchy not hampered by detailed promises to its subjects. She also managed to join the three Nordic countries under Erik’s rule. In the long run, however, both the union and the strong monarchy led to reactions and Erik was deposed in all three countries in 1439-1442. His successor Christoffer of Bavaria issued an election charter for Sweden in 1441, but not for any of the other countries. After Christoffer’s death and the election of his successor Christian of Oldenburg in Denmark (1448) and Norway (1449-1450), election charters became a permanent element in Denmark and Norway until 1660, when the monarchy became hereditary and the king absolute, which meant that his subjects could no longer pose conditions for his accession to the throne. Some Danish kings issued election charters for Sweden in the period 1448-1523, although most of the time, Sweden was outside the union and without a king. With the accession of the Vasa dynasty in 1523, the practice of election charters was abolished.

Two election charters

4As election charters were issued over a period of nearly 400 years (1282-1648), they give important information about ideas of royal government, aristocratic interests, political culture and the relationship between the king and the aristocracy. They tell less about actual royal government, as the kings rarely kept all their promises. In the following I shall deal in some detail with two examples which illustrate the development between the late 13th and the late 15th century.

  • 3 Text (in Latin) in Den danske Rigslovgivning indtil 1400, ed. by E. Kroman, Copenhagen, Munksgaard, (...)

5The Danish charter of 29 July 12823 contains all together seventeen paragraphs which include the following provisions: (1) the Danehof (the assembly of the aristocracy) should be summoned annually. (2-4, 11) The king should not arrest people without lawful procedure – cf. the same provision in Magna Carta. (5) The king should observe King Valdemar’s law and abolish all illegal practices introduced in the previous period, notably illegal exactions. (6-9) Various provisions to limit king’s right to taxes and provisions. (10) The king should not build on anyone’s property. (12) The king should uphold royal privileges, unless taught by fideles nostri that they should be abolished. (13) Nobody should lose his property unless convicted of lesae maiestatis. (14) The king should uphold the law regarding shipwreck. (15) The king should not harm foreign merchants. (16) The king should deal with suits over property together with the council in parliamentum. (17) The king should not visit ecclesiastical institutions illegally.

6The content of the document is relatively general; most of the rights concern all inhabitants, although in practice, they mostly favour the aristocracy; the common people dealt directly with the king to much lesser extent than the aristocracy. Thus, the ban against confiscation, exile and executions and the restrictions against the use of the lex maiestatis are mainly relevant for the aristocracy and form a reaction against practice in the years before. Whereas the secular aristocracy figures prominently in the document, it is striking that the Church is only mentioned once. The explanation may be the previous conflict between the king and the archbishop during which most of the secular aristocracy had supported the king.

  • 4 Text (in Danish) in Norges gamle Love 2. Række III, ed. by G. Authén Blom, Oslo, Grøndahl, 1966, no (...)

7On 1 February 1483, King Hans issued an election charter for all three countries4, although the Swedes eventually failed to elect him. The charter contains fifty-one articles, which are interesting regarding specific issues as well as principles. The main issues are: (1) the relationship between the three kingdoms: they should be equal, aid one another, be visited regularly by king, while in his absence, there should be deputies (= members of the council) in each country. Nor should the king force the council of the realm or its members to visit him abroad. (2) The relationship between the king and the council: a series of restrictions are introduced concerning the king’s government and the need for consulting the council of the realm. Consent is necessary for: war, extra tax, custom duties, and various prohibitions. (3) The king should respect the Church, ecclesiastical jurisdiction, etc. (4) The king should respect the rights of his subjects and the privileges of the aristocracy and the Church, and he should not arrest anyone contrary to the law. (5) The king should aid a number of individuals mentioned by name, including the widow of Olav Nilsson who was killed in Bergen by German merchants (1455). (6) A right of resistance is introduced. If the king arrests anyone without legal procedure or acts arbitrarily against anyone, rich or poor, layman or cleric, the “good men” (i.e. the nobles) in the three countries should “teach” him, and if the king fails to heed the “teaching”, they have the right and duty to proceed against him to prevent the injustice. By doing this, they do not break the oath of loyalty they have sworn to the king.

8The two documents express largely similar principles. The king’s rights are limited by those of the people; the king promises to respect a series of specific rights, significantly more detailed in 1483 than in 1282. Institutionally, an important change has taken place with the introduction of the council of the realm as the king’s counterpart instead of the Danehof. Apart from the promise to summon the Danehof regularly, this body plays a relatively subordinate role in 1282. By contrast, the council of the realm is constantly present in 1483 as the king’s regular partner in the government and the body restricting his power. The council of the realm was originally an informal group of royal servants, but gradually developed into an instrument for the aristocracy and played a prominent part in the government in all three countries during the 14th century, often in opposition to the king. It is not clear exactly when it became institutionalised with formal membership and the right to elect the king, but this had clearly happened well before 1483. The institutionalisation of the council in turn meant a stronger position for the aristocracy and the Church, whose privileges are dealt with in far greater detail than in 1282. In this way, the charter of 1483 becomes a more formally constitutional document than its earlier counterpart. Although it goes to extreme length in specific detail, even mentioning the claims of named individuals, there is a basic idea of the division of power between the king and the council of the realm underlying the individual provisions.

9This basic idea is expressed most explicitly in § 37, in which the king promises to receive the castles – the keys to the control of the kingdoms – from the council of the realm and accept that they be returned after his death. In this way, the charter expresses a consistent doctrine about elective monarchy. The sovereignty belongs to the “people”, represented by the council, which then delegates it to the king by transferring the castles to him for his lifetime. This was no empty formula; the Norwegian council had fought Hans over this issue, which resulted in an interregnum lasting for nearly two years. However, the king’s remedy was to have his son elected during his lifetime. Hans managed this in 1489, which, however, did not prevent a formal election of his son Christian with an election charter, common for the two countries (1514). In practice, elective monarchy in Scandinavia did not mean that the council could chose whomever they wanted; if the previous king had a son, he was always elected. In practice, election meant the right to determine the conditions for the king’s government.

The election charters and late-medieval politics

10If we turn to the practical consequences of King Hans’ election charter, it would immediately seem that the king would have little room for independent manoeuvring. According to the charter, any individual who succeeded in persuading the council of the realm that he had been wronged by the king, might spark a general rebellion. How could the king rule under such conditions? We can also add that the lay and clerical aristocracies were also in practice in a strong position, notably in Denmark. They owned most of the land and had considerable rights over their tenants. Moreover, they – particularly the members of the lay aristocracy – governed most of the country as the king’s chatelains. Although Denmark was a wealthy country, a relatively small part of this wealth ended up in the king’s treasury. Nevertheless, the king was in a significantly stronger position than his election charter would indicate. A passage in § 24 gives an indication of this: “if anybody in the council of the realm will separate himself from his brothers and ingratiate himself with Us or before anyone else reveal what is said or done in the council without the consent of all, then he shall be expelled from the council in shame and never become its member again”.

11The problem for the council of the realm was first, that it did not work as a modern government, sitting together most of the time and deciding on current matters. Its members normally stayed apart and were occasionally summoned by the king. Secondly, although the members of the council had common interests as nobles, they were at the same time competitors individually. They needed a good relationship to the king to get promoted to the many attractive positions in the local administration. It was easy to stand together during the negotiations about an election charter, but afterwards, individual aristocrats had to fend for themselves and might easily use the recipe mentioned in the charter to achieve a good relationship with the king. In addition to this “rational-choice”-reason, there was also the general respect for the king as God’s representative on earth and the symbol of the nation. It did happen that Scandinavian nobles rebelled against the king and even deposed him, but this was a far rarer occurrence then one might believe by reading the paragraph in King Hans’ election charter. King Hans himself was a powerful and clever ruler who only to a very limited extent fulfilled the promises in the charter. He strengthened the royal administration, built a modern fleet, put down a rebellion in Norway and strengthened Danish control of this country, while he only for a short time managed to be recognised as the ruler of Sweden (1497-1501). For the rest of his reign, until his death in 1513, he fought to regain this country.

The European context

  • 5 On the intellectual background, see F. Hervik, Nordisk politikk og europeiske ideer…, op. cit., pp. (...)

12The Scandinavian election charters show considerable similarity to constitutional documents from other European countries, such as Magna Carta in England (1215) and the Golden Bull in Hungary (1222), as well as to the discussion about ­constitutional issues conducted by contemporary ­intellectuals. As the charters contain very little explicit theory, it is difficult to show direct influence from these discussions. However, it is highly likely that the people who issued the charters were familiar with them. Most bishops and members of the higher clergy had university education, which they must have received abroad until 1477-1479, when the universities of Uppsala and Copenhagen were founded, and most probably also afterwards, as the two Scandinavian universities were very small in the beginning. There were sometimes prominent intellectuals in the royal administration, such as Martinus de Dacia, who had taught at the University of Paris and was a canon of Notre Dame. He became King Erik Menved’s attorney in the process before the papal curia against Archbishop Jens Grand in 1296-1302. In the 15th century, the Council of Basel, which was well attended by Scandinavian prelates, was an important source of constitutional ideology5.

  • 6 W. Blockmans, “Representation (since the Thirteenth Century)”, in C. Allmand (ed.), The New Cambrid (...)

13The most original aspect of the Scandinavian election charters is the fact that they were issued separately for each king rather than being permanent documents obliging every king. The practical difference between these two options was not enormous – actually a large part of the charters were repetitions of previous ones – but there was always the opportunity to add new conditions, partly as the result of experience with the previous reign and partly in order to satisfy specific individuals. In this way, there was, at least in theory, the possibility to increase the pressure on the king. The principle of election charters is a logical consequence of elective monarchy and is in practice mostly found in such polities. In a hereditary monarchy, the subjects had the opportunity to regulate the monarchy as such, but would not normally pose specific conditions for the individual king at his accession. Thus, election charters are not to be found in England and France. It is more surprising that we do not find them in the Empire, Poland and Hungary, which were elective but where the electors were a narrow aristocratic circle, like in Denmark. A possible explanation may be that the electors considered themselves sufficiently strong to keep the ruler under control. By contrast, election charters played a prominent role in Aragon-Catalonia, an elective monarchy with strong limitations on the king’s power, but also in Castile-León, where the monarchy was in principle regarded as hereditary. They were also frequent in a number of principalities in the Netherlands, Germany and Italy. In some countries, they only occurred during changes of dynasty, as in Bohemia in 1306 and again in 13106.

Election charters and constitutionalism in the Scandinavian countries

14As we have seen, the election charters developed in Denmark and were used more often in this country than in the two others. Their spread to the rest of Scandinavia is largely the result of the union between the three countries which lasted intermittently from 1397 to 1523 and resulted in Norway being subordinated to Denmark until 1814. Norway was also the last country where election charters were introduced (1449), clearly because the monarchy in this country was defined as hereditary in the law of succession of 1260, revised in 1274 and 1302. In Sweden, the monarchy was defined as elective in 1319, but election charters did not become a regular feature in this country. The reason is most probably that the Swedish Code of the Realm of 1350 contained a separate section on the rights and duties of the king, which limited his power in a similar way as the election charters. The constitutional differences between the three countries correspond to social ones. The aristocracy was significantly stronger in Denmark and Sweden than in Norway. The lay and clerical aristocracy was the dominant political class in Denmark throughout the Middle Ages and well able to defend its interests against encroachments from the king. The Swedish aristocracy was also strong, but this country also had a class of wealthy miners and farmers in the inland regions, particularly Dalarna, which played an important political role, mostly in alliance with parts of the aristocracy in opposition to the rest. Finally, the Norwegian aristocracy was the weakest in Scandinavia and more dependent on cooperation with the king, whereas the peasants had a stronger position than in the neighbouring countries. Here the absence of election charters until the mid-15th century corresponds to a general lack of explicit restrictions to the king’s power. Their introduction was therefore clearly a result of the Scandinavian union.

15Whereas Denmark was the country where the constitutional principles were most explicitly articulated in the Middle Ages, Sweden was the only of the three countries to show a continuity in this respect in the following period. Military defeat and a financial crisis enabled the King of Denmark-Norway to gain absolute power and abolish election and the council of the realm in 1660. In this he had the support of the burghers, gentry and clergy, who resented the power monopoly of the high nobility. This country actually became the only formally absolute monarchy in Europe, where his absolute power was defined by law. By contrast, Swedish constitutionalism had a broader basis. The council of the realm did not have the same central position in the Middle Ages as its Danish counterpart. From the anti-Danish rebellion in 1434 onwards, Sweden largely became dominated by an alliance between a part of the aristocracy and the peasants and miners in various inland regions, notably Dalarna in the north-east (the Sture regime). The council of the realm played a relatively subordinate part, whereas the Sture, who ruled the country as “protectors of the realm”, sought popular support by appealing to the local assemblies. This led to the development of the Swedish Diet (Riksdag), consisting of four estates, which according to the most recent research met for the first time in 1527, but then had a continual existence until it was replaced by a modern parliament with two chambers in 1866.

Conclusion

16The Scandinavian election charters are characteristic examples of late-­medieval European constitutionalism. In accordance with the development of elective monarchy in Denmark and Sweden, the limitations of the monarchy became expressed in explicit contracts between the king and his subjects at his accession to the throne rather than in the form of general constitutional documents. Although the election charters conformed to the normal medieval pattern of listing a number of specific conditions, even including provisions for named individuals, they had their background in a general idea of popular sovereignty, which was articulated particularly strongly in the late 15th century. Denmark, with the strongest aristocracy, was the driving force in this development. Norway followed because of the union with Denmark, whereas Sweden developed a broader basis for constitutional government, which resulted in a similar development as in England, with continuity from the medieval assemblies to the modern parliament.

Notes

1 Bruno, De bello Saxonico, ed. by F.-J. Schmale, Quellen zur Geschichte Kaiser Heinrichs IV., Darmstadt, Wissenschaftliche Buchgesellschaft (Ausgewählte Quellen zur deutschen Geschichte des Mittelalters, 7), 1963, pp. 191-405, ch. 91.

2 I. Skovgaard-Petersen, “The Danish Kingdom”, in K. Helle (ed.), The Cambridge History of Scandinavia, Cambridge, Cambridge University Press, 2003, p. 362. For the general political history of the Scandinavian countries in the following period, see the chapters by K. Helle, I. Skovgaard-Petersen, H. Schück and J. Olesen in K. Helle (ed.), The Cambridge History of Scandinavia, op. cit., pp. 345-420 and 679-770, and S. Bagge, Cross and Scepter. The Rise of the Scandinavian Kingdoms from the Vikings to the Reformation, Princeton, Princeton University Press, 2014, pp. 232-289. The election charters until 1450 have recently been discussed by F. Hervik, Nordisk politikk og europeiske ideer. En analyse av nordiske forfatningsdokumenter 1282-1449, Bergen, University of Bergen, 2012.

3 Text (in Latin) in Den danske Rigslovgivning indtil 1400, ed. by E. Kroman, Copenhagen, Munksgaard, 1971, no. 13.

4 Text (in Danish) in Norges gamle Love 2. Række III, ed. by G. Authén Blom, Oslo, Grøndahl, 1966, no. 1.

5 On the intellectual background, see F. Hervik, Nordisk politikk og europeiske ideer…, op. cit., pp. 14, 53, etc., and S. Bagge, Cross and Scepter…, op. cit., pp. 176-187 and 218-222.

6 W. Blockmans, “Representation (since the Thirteenth Century)”, in C. Allmand (ed.), The New Cambridge Medieval History, vol. 7: c. 1415-c. 1500, Cambridge, Cambridge University Press, 1998, pp. 38-47.

© Éditions de la Sorbonne, 2019

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