The Advantage of Legal Diversity for State Formation: Bourbon Reforms and Aragonese Law in Eighteenth-Century Spain

The history of Spain can deepen our understanding of early modern state formation. While Spain is often mentioned in accounts of the development of early modern states, the theories guiding their analysis tend to be based on the experiences of England, France, Prussia and increasingly the Netherlands. ¹ These accounts tend to emphasize the failure of Spain to follow the paths of these others states, in accordance with the narrative of the ‘decline of Spain’ that has characterized much writing on the topic since the seventeenth century. ² The neglect of Spain in the scholarly literature of state formation is unfortunate, however, as its omission leads many to miss the advantages that persistent regional variation and legal diversity afforded the Spanish monarchy. Because of dynastic expansion over centuries, the Spanish monarchy had deep variations in the legal and administrative structure of its component kingdoms that severely limited the ability of the king to act domestically and to mobilize the financial and military resources of his domain. Despite the many challenges that these variations created for the king, they were not necessarily a mark of failure but instead were chosen by the Spanish monarchy at certain moments because they supported the development of the Spanish state.

This interpretation of state development in Bourbon Spain runs contrary to most theories of state formation. Benedict Anderson identified the centrality of a sense of national unity, which he called an ‘imagined community’, as an essential justification for the existence of modern states. He argued that this sense of something shared between all the members of a political unit was often actively cultivated by the government. ³ Towards that end, one would expect most states to promote a sense of unity when possible, suggesting that states would attempt to treat their citizens or subjects in a uniform way as far as possible to create some sense of belonging. Indeed, theorists of state formation have long emphasized the importance of establishing legal and administrative uniformity (sometimes described as ‘rationality’) for the creation of successful modern states. ⁴ ‘Success’ in these instances is usually defined based on whether or not the government survived the great winnowing of the eighteenth and nineteenth centuries that dramatically reduced the number of sovereign states in Europe. Indeed, most independent political entities in the early modern period had disappeared by the First World War. ⁵ A high degree of legal uniformity is considered advantageous in these accounts as it increased the ability of a state to overcome the ‘indifference to nation’ of its component regions and link local stability to the preservation of the state. ⁶

New approaches to state formation, however, have begun to suggest that legal diversity could support the development of a state. Philip Gorski has shown that European states have developed along a variety of paths that are in tension with the primary thrust of theories of state formation. While Gorski acknowledges that states are administrative organizations that extract and mobilize resources, as most theorists emphasize, he argues that states are also ‘pedagogical, corrective, and ideological organizations’ that mobilize resources for the purpose of changing their subjects. While early modern states lacked ideological manifestos, they did have an interest in reshaping their subjects ‘into obedient and productive subjects’ through a ‘process of subjectification’. As a part of this process, states frequently operated through the co-optation of pre-existing institutions and structures, such as local governments and social institutions whose members became persuaded of the importance of supporting the state. These non-state institutions were not always impediments to state formation, even though they exercised governing roles – if they used their power to support the state, then they should be interpreted as co-opted by the state and an aid to state power. Rather than arising in the institutional vacuum of a state of nature, early modern states developed within a complex and well-established field of institutions and authorities. These states often employed a strategy ‘more akin to artisanal bricolage than pure engineering’, piecing together a network of administrative tools and authorities rather than replacing them wholesale. ⁷

Recent scholarship on Louis XIV’s France has similarly identified ways in which the French monarchy forged a lasting state through a variety of strategies that do not conform to older descriptions of ‘absolutism’ and theories of state formation. The old revisionist position arguing that Louis’s government depended upon the collaboration of the court elite has become the consensus, even as there are disputes among scholars concerning how this developed and what forms of collaboration between the monarchy and the local and regional elite should be most emphasized. ⁸ James Collins has argued that using the language of absolutism hinders our ability to understand the true revolution in government under Louis XIV, who innovated by creating a state run by ministries and a new national nobility. When the state was at its financial limit during the War of Spanish Succession (1700–1714), however, his administration both developed new forms of direct taxation such as the dixieme and strove to reduce state costs by shifting them to localities and the nobility as often as possible. ⁹ Such responses to pressing events were designed to emphasize the power and authority of Louis XIV, in an approach that Darryl Dee has termed ‘pragmatic opportunism’, rather than being parts of a master plan to create a state. ¹⁰ This body of scholarship reinforces Gorski’s contention that states could develop through a variety of bureaucratic forms without increasing centralization or legal uniformity.

Eighteenth-century Spain exemplified this pragmatic ‘bricolage’ approach to state formation. The long-standing administrative and legal fragmentation of the Spanish state made it difficult for the Spanish monarchy to centralize its institutions – attempts to do so met with a variety of subtle and overt opposition that together preserved the Spanish composite monarchy until the early eighteenth century. ¹¹ More telling than the failure of reform efforts aimed at centralizing the state, however, are the ways in which the Spanish monarchs chose to decentralize their authority. For example, the monarchy sold greater independence to towns in the sixteenth and seventeenth centuries, and in the late-seventeenth century it devolved much of the burden of maintaining the military to its towns. ¹² In these instances, the monarchy increased the role of local institutions to reduce the financial pressure on the state. These devolutionary acts also increased the degree to which the elite actors wielding this authority were invested in the success of the monarchy.

The way in which the Spanish state co-opted local institutions has been noted by other scholars, but what is often missed is that this approach to governing continued into the eighteenth century. When the War of Spanish Succession provided Philip V (1700–1746) of Spain with the opportunity to increase dramatically the administrative and legal unity of the Spanish state, he did so in several ways. These reforms are usually interpreted as the end of the Habsburg composite monarchy and the creation of a centralized and legally uniform state. ¹³ Most recent scholarship emphasizes the militarization of the Spanish state and tends to dismiss the legal and administrative irregularities that persisted as minor concessions. ¹⁴ Nevertheless, the choice to preserve legal diversity throughout his kingdoms, going so far as to reverse some of his early reforms that had sought to unify the laws of Spain, was significant. Philip V chose legal diversity over legal uniformity because it increased his support among the local elite in Aragon and Catalonia, avoiding many (although not all) of the problems that he encountered in his initial attempts to establish his regime on the basis of legal uniformity. ¹⁵ Rather than creating a sense of nationalism by promoting horizontal unity among his subjects, Philip bound his elite subjects to his dynasty as the source of their distinctive privileges, including their divergent civil laws. Forging these vertical links between the king and those he ruled was a ‘process of subjectification’ that strengthened the monarchy and increased its security, even as it led Philip to preserve legal diversity in Spain. ¹⁶ Renewed attention to this dynamic provides a clearer sense of how and why Philip V made these particular concessions and enriches our understanding of one of the paths of early modern state formation.

The Bourbon Experiment in Legal Uniformity

Prior to Philip V’s ascension in 1700, the kingdoms of Habsburg Spain typified the complex and idiosyncratic administration of what has been described as ‘composite monarchies’: multiple kingdoms, each with their own unique institutions and laws, united only in the person of the monarch. ¹⁷ The marriage of Isabella and Ferdinand in 1469 created this composite monarchy by bringing together the kingdoms of Castile and León and the Mediterranean kingdoms of the Crown of Aragon, which included the Kingdoms of Aragon, Valencia, Mallorca and the Principality of Catalonia. This was a union of equals, yet equals with very different traditions, institutions, demographic weight and economic power. ¹⁸ Such differences created significant tensions between the kingdoms of Spain and difficult challenges for their monarchs. As the king resided in Madrid, the seat of the royal court since 1561, tensions between the centre of monarchical authority and the periphery of the eastern Aragonese kingdoms were negotiated through a variety of institutional mechanisms. The Aragonese believed that their monarch was bound by traditional oaths that granted him authority within narrow limits. ¹⁹ This constitutional tradition denied the absolute power of the monarch, emphasized the role of representative assemblies (the Cortes and Corts) and preserved local laws and institutions. ²⁰

The divisions within the Spanish state were identified by some contemporaries as a weakness that interfered with monarchical rule. The Count-Duke of Olivares’s (1587–1645) attempts to centralize the authority of the king and integrate the Crowns of Aragon and Castile inspired the revolt of the Catalans in 1640 and ultimately failed. ²¹ When Philip V ascended the Spanish throne, he initially respected Aragonese institutional and political differences, but the War of Spanish Succession (1705–1714) led these tensions to erupt in armed conflict once again. In 1705, the kingdoms of the Crown of Aragon quickly fell to the forces of the Archduke Charles of Austria, the rival claimant to the Spanish throne, and Philip became convinced that these kingdoms had violently rebelled against his rule. ²² Philip regained control of Valencia with the Bourbon victory at the Battle of Almansa on 25 April 1707, providing him with an opportunity to eliminate the institutional impediments to royal authority in the ‘rebellious’ kingdoms.

Philip V was clearly interested in punishing Valencia and Aragon, but his advisors encouraged a nuanced approach to reform. On 14 June 1707, the Regent of the royal appeals court (Real Audiencia) of Valencia, Don Pedro de Larreategui y Colón, cautioned Philip V against the abolition of all the traditional laws of Aragon and Valencia. He warned that many of these laws were ‘useful to the public cause, the privileges of His Majesty, and business…’ and should be preserved, ‘not with the force of fueros [traditional privileges binding the king], nor of laws, but because of the reason for which they were established’. ²³ Larreategui y Colón’s defence of Aragonese laws and liberties here points out what might be obvious were it not for the ample rhetoric surrounding this debate: that many of the laws used in Aragon, Valencia and the other eastern kingdoms of Spain served both the king and the public interest. These laws had been in force for centuries and, like any legal system, they included a mix of those deemed useful and problematic by royal officials. Rather than abolishing the entire system wholesale, Larreategui y Colón argued that royal rule would be stronger if the beneficial laws were retained. He also emphasized that these ‘useful’ laws would be based upon royal authority rather than oaths that bound the king.

The Council of Aragon, which advised the king on how to govern these kingdoms, echoed Larreategui y Colón’s advice. While the privileges granted by the king should be abolished because of the ostensible rebellion, the Council maintained that other laws should be preserved because of ‘the Reason that animates them’. The Council believed that each kingdom’s royal appeals court should sort through their fueros, looking for those that would serve the king and his subjects well. When, on the contrary, they found poor laws, the courts should invoke common law (derecho común) or the laws of Castile to resolve the case at hand. ²⁴

Ignoring this advice, Philip initiated his far-reaching Nueva Planta (or ‘new plan’) reforms with a decree on 29 June 1707, that repealed all the traditional liberties and laws of Valencia and Aragon and replaced them with those of Castile. Additionally, he specified that each kingdom’s royal appeals court would govern in the same way as the appeals courts in Castile, ‘observing literally the same rules, laws, practices, orders, and customs which they keep in these [courts]’. ²⁵ Philip justified his action with the right of conquest and expressed his desire to punish his subjects for their support of his rival. ²⁶ Philip’s explicit intention was to govern all of his kingdoms ‘by the same laws’, as one would expect based on most theories of early modern state formation.

The decision to ignore his officials’ advice reflected a deep division within the Spanish court. While the Council of Aragon was composed of the traditional elite of Spanish society, they were opposed by an influential French faction that had been directed by Louis XIV, Philip’s grandfather, to centralize the Spanish state and unite the kingdoms of the Crown of Aragon under the laws of Castile. ²⁷ It appears that the French Ambassador to Spain, Michel-Jean Amelot, drafted the initial decree of the Nueva Planta, ²⁸ and it was passed by the slimmest majority of his cabinet council: four to three. ²⁹

The Nueva Planta’s abolition of all traditional privileges was seen as a test case that, if successful, could be expanded to Catalonia. Amelot indicated that ‘after introducing the change in this realm [Valencia], one would do the same in Aragon and Catalonia, and if there were no problems the same system would be introduced in other realms and provinces of Spain’. ³⁰ Amelot appears to have considered the Nueva Planta as an aspirational set of reforms. There were problems, however, and they appeared almost immediately.

By emphasizing the rebellion of the Valencians and Aragonese, the first decree of the Nueva Planta also punished those of Philip’s subjects who had remained loyal, including hundreds of members of the nobility and clergy who had fled enemy forces. Those who had actively aided Habsburg forces would not have expected to retain any legal privileges should Philip V prevail, while those who remained loyal to Philip (whether in flight or trapped behind enemy lines) had suddenly lost their traditional government and all their privileges, both communal and personal. Even some of Philip’s closest supporters, including the Duke of Orleans, believed that with this act Philip had unnecessarily alienated his most loyal supporters in these kingdoms. ³¹ The tone-deafness of this decree reflects its foreign inspiration, the rejection of the advice by those most familiar with the region and the speed with which it was implemented. The pressure of war further undermined its development.

Philip’s supporters in Valencia and Aragon immediately began to challenge the notion that everyone had rebelled against the king. For example, the city councillors (jurados) of Zaragoza wrote to the king on 4 July 1707. They acknowledged Zaragoza’s ‘past disgrace’ when it was ‘burning with the fire of sedition’, yet insisted that many citizens from every segment of society had held dear ‘the treasure of loyalty to Your Majesty’. On behalf of the loyal citizens, the councillors asked the king to act with ‘munificent clemency’ and restore their privileges. ³²

Other supporters of Philip in Aragon echoed this sentiment, including the Archbishop of Zaragoza, Antonio Ibáñez de la Riva. In a letter to José de Grimaldo, Secretary of War and Finance, de la Riva noted that while most Aragonese were loyal to Philip, stripping them of their privileges and simultaneously imposing a major financial contribution towards the war effort had ‘caused some resentment’. He emphasized that ‘almost all of the nobles, knights and principal citizens of this city [Zaragoza] and the rest of Aragon have been most faithful, with many fleeing this kingdom for Castile and Navarre…’ at the arrival of Habsburg forces. ³³ Another Aragonese supporter of Philip, José Sisón, put it more directly in his letter to Grimaldo, stating that ‘there is not one subject of Aragon (even those who are most faithful and zealous for the Royal service) for whom this decree has not penetrated their heart and cooled the love and zeal that they had professed …’ because the decree identified ‘all’ Aragonese subjects as traitors. ³⁴

Philip and his advisors quickly realized that justifying the abolition of the traditional privileges based on a general rebellion in Aragon and Valencia had backfired. On 29 July, Philip issued a follow-up decree, which acknowledged that many of his subjects had remained loyal and even suffered for their fidelity. He stated that ‘in no case can it be understood with reason that my Royal intention noticed, nor punished as delinquents those that are known to be loyal’. ³⁵ The rhetoric of clarifying his previously declared will enabled Philip to avoid acknowledging the earlier decree’s failure to distinguish between faithful subjects and rebels. The new decree reaffirmed the institutional changes, explaining that they were not ‘occasioned by the past disturbances, but because… there need be no difference in the laws and styles that are for… the conservation of peace and human society’. ³⁶ The justification for the change in the government shifted from a desire to punish rebelling subjects to a desire to create a uniform administration throughout Spain. The king further explained that ‘my royal intention is that all of the continent of Spain be governed by the same laws, in which the Aragonese and Valencians are very interested, for… [this] frees them, with the Castilians, in the positions, honours and other conveniences’ that were now available to all in the newly integrated royal administration. ³⁷ Here the new decree attempted to persuade Valencian and Aragonese nobility that their increased access to royal patronage was worth the loss of their traditional governing institutions.

With the decree of 29 July, Philip continued to push for greater uniformity in the administration of his kingdoms, but he shifted the foundation of this new administration. While the initial decree of 29 June alienated the elite of Aragon and Valencia, the restoration of personal and communal privileges for those who were loyal and the renewed emphasis on the growing opportunity for their advancement in service to the crown bound Philip's subjects more closely to the monarchy. ³⁸ Philip was now cultivating an elite that was personally loyal to him and dependent upon new royal concessions for their privileges, in part through the creation of a more uniform administration. ³⁹ The second decree of the Nueva Planta was an essential step towards restoring the trust and support of the nobility and urban elite of the Crown of Aragon as the monarchy attempted Girmaldo’s experiment in legal uniformity.

The Failure of Legal Uniformity in Bourbon Spain

Problems continued to plague the Nueva Planta. Between 1707 and 1711, the reforms caused significant difficulties for the officials attempting to enforce them. These difficulties were compounded by the continuing war, which distracted royal officials and subjects from implementing the many administrative and legal changes.

While Philip had once again affirmed his intention to establish Castilian law in the kingdoms of Aragon and Valencia, there was no clear guidance concerning how this would take place. The Nueva Planta decrees of 29 June and 29 July 1707 set forth political goals, but they did not go into the technical difficulties of how his officials should implement them. The process was further complicated by the fact that the courts administering the new laws were also in transition. The Nueva Planta fundamentally reorganized the royal appeals courts of Zaragoza and Valencia with ambiguous language, ordering them to follow the divergent practices of two different Castilian courts: the Chancelleries of Valladolid and Granada. Simultaneously altering both the laws and the institutions adjudicating them compounded the difficulty of the reform effort. ⁴⁰

For the Nueva Planta decrees to achieve legal uniformity, three sets of changes were necessary. First, the staff of the new royal appeals courts would have to learn both the laws of Castile and the (divergent) procedures of the courts of Valladolid and Granada. Second, Castilian laws and the new court procedures would have to be distributed throughout the cities and towns of Aragon and Valencia so that notaries and other local officials could begin to comply with them. Third, clear guidance concerning the many cases currently in court would have to be provided so that the plaintiffs, lawyers and judges involved could continue to process them. Only once all three of these steps had been implemented would the new and more uniform legal system begin to function. ⁴¹

These three steps did not take place quickly. Concerning the communication of the practices of the Castilian courts, the courts in Aragon turned to Manuel Fernández de Ayala Aulestia’s Práctica y formulario de la Real Chancillería de Valladolid, a handbook on the practices of the Chancellery of Valladolid that was first published in 1667. ⁴² This book became so important in eighteenth-century Zaragoza that it was revised by a member of the royal appeals court of Zaragoza and republished in that city in 1733. ⁴³ The importance of this book for the operation of the court in Zaragoza suggests that there was no centralized plan for communicating these norms and practices, but rather that dependence on de Ayala Aulestia’s Práctica was the work-around adopted by the judges, secretaries and other legal professionals as they attempted to follow the law without adequate royal support for the transition. ⁴⁴

It also seems that the legal changes were only slowly implemented beyond the capital. The only aspect of the civil law of the Kingdom of Aragon that immediately changed was the notarization of documents by the new appeals court in Zaragoza. Everything else remained beyond direct royal control and dependent on local notaries and officials, whose actions were limited by their knowledge of the reforms and Castilian law. Local notaries and officials had to use their own judgment concerning how to put the new laws into effect and there were no officials to oversee the documents that they notarized. Consequently, Castilian law was rarely followed in Aragonese wills and marriage contracts from 1707 to 1711 and the traditional fueros continued to guide local governance. ⁴⁵

Philip V became aware of some of these difficulties in the months following his second decree. In a letter dated 10 September 1707, he addressed the question of what to do with pending court cases, stating that the courts should ‘continue following the fueros’ for cases that had already begun, while those that ‘were to be newly commenced’ should be tried according to Castilian law. ⁴⁶

Similar difficulties arose in Valencia. Philip dispatched Melchor de Macanaz, a royal secretary up to that point, ⁴⁷ to report on the state of taxation in Valencia and suggest ways to improve it. ⁴⁸ In the spring of 1713 he wrote a report for the king on the results of the Nueva Planta in which he critiqued the many failures of the new government. Every reference to the Valencian royal appeals court is negative – he was particularly frustrated by its failure to compile a list of the useful fueros of Valencia. Instead, Macanaz insisted that the court ‘only met to devise ways to remove the authority of the generals and their troops, and to process the ancient sins of the natural citizens… every day their excesses grew greater’. ⁴⁹ They even ignored the Duke of Berwick, the general commanding Bourbon troops in Valencia, when he ordered the court to stop interfering with the military and work on the compilation of the fueros. Macanaz recommended that the court be stripped of all of its power except the judicial authority to try cases and their work on the fueros, threatening that if its members meddled in other affairs they should be ‘sent to their houses’. ⁵⁰ Macanaz was no friend of this court, but his account does indicate the chaotic legal situation in Valencia during the first several years of these reforms. In addition to these problems, the development of a new process for selecting local officials, not to mention the actual appointment of those officials, dragged on until 1709, impeding local government. ⁵¹ As in Aragon, legal uniformity in Valencia was far from a reality in the years following 1707. ⁵²

Confusion persisted as the war raised serious doubts about whether Philip V would continue to rule Spain. Bourbon forces faced repeated defeats which were compounded by the growing tensions between Philip and Louis XIV. Declining French support enabled Habsburg forces to conquer Zaragoza and Madrid in 1710, forcing Philip’s court to flee to Valladolid. ⁵³ Charles turned Philip’s unpopular reforms to his advantage by reversing the Nueva Planta. When he entered Zaragoza, he confirmed all the traditional fueros to solidify his hold on Aragon. ⁵⁴

The military reversals were further compounded by a wave of betrayals that shook the Bourbon court. Several grandees, the highest rank of the Spanish nobility, defected in 1710: the Count of Paredes, the Duke of Híjar, the Duke of Uceda and the Duke of Medinaceli. ⁵⁵ Medinaceli’s treason was particularly significant as he was the most influential and active member of the grandees. He was frustrated with the power of the French faction, however, and had consistently defended the privileges in the Crown of Aragon and opposed the marginalization of the Spanish nobility at court. ⁵⁶ Medinaceli had just been appointed to a key position on the new Secret Council (Consejo Privado) when he was arrested in April 1710, and sentenced to imprisonment, dying in his cell in January 1711. ⁵⁷ Betrayal by such powerful and well-positioned individuals was deeply troubling for Philip and his court and it became clear that he had to increase his support among the Spanish nobility.

While Philip’s willingness to abolish the traditional liberties in the Crown of Aragon might suggest that he was unconcerned with the support of his subjects, he had worked to solidify their backing since the beginning of his reign. When he first arrived in Spain, Philip travelled throughout his kingdoms to assemble their representational assemblies and confirm their rights and privileges. ⁵⁸ During the war, Bourbon supporters mounted a significant propaganda campaign that linked the legitimacy of the Bourbon dynasty in Spain with the defence of orthodox Catholicism. This took place through numerous pamphlets, as well as through a wide variety of public ceremonies that linked Philip’s rule with the Catholic faith, including public prayers for his success, Te Deums for the monarchy and the public celebrations of the birth of Philip’s son, Louis I. ⁵⁹ The popular support of the Castilians served Philip well during the war. In 1706, when Madrid fell to Habsburg forces for the first time, widespread popular support for Philip severely undermined Charles’s control of the city and pushed him to abandon the city quickly. ⁶⁰ While several nobles betrayed Philip, his common subjects and the urban elite demonstrated their loyalty despite the enemy presence, which led Queen Marie Louise to conclude that ‘after God, it is the people to whom we owe our crown’. ⁶¹ Philip learned this lesson well and his decision in July 1707 to affirm the privileges and honours of those who had remained loyal to him reflects the value he placed on their fidelity. After the upheaval of 1710, Philip was more motivated than ever to cultivate the loyalty of the Aragonese elite and secure his rule, especially as he knew that he could no longer rely on support from France.

When Bourbon forces re-entered Zaragoza on 4 January 1711, Philip once again had to establish a government in Aragon. The instability of his hold on the kingdom led Philip and his advisors to reconsider his prior policies and act with greater caution. ⁶² Before initiating sweeping political reforms, he issued a royal decree on 2 February 1710 that solicited advice concerning how to improve the situation by ‘moderating and altering’ his reforms. Philip emphasized that the new reforms must not limit his ‘supreme power and royal sovereignty’, but should improve ‘the administration of justice’ and serve ‘the satisfaction and comfort’ of his subjects. ⁶³ Don Diego Franco de Villalba, who was one of the most prominent lawyers in Zaragoza and a staunch supporter of Bourbon rule, responded with a pamphlet entitled Crisis Legal (1710), that detailed the problems with the prior reforms and encouraged the restoration of Aragon’s traditional civil and canon law based upon a regalist reinterpretation of the fueros. ⁶⁴

In Crisis Legal, Villalba argued that Philip’s goal with the initial reforms of 1707 had failed because he had ignored the deep-rooted differences between his various subjects. ⁶⁵ Villalba mentioned the ‘restless turmoil of war’ as one source of trouble, but focused mainly on how the long-established customs and laws of Aragon were uniquely suited to the Aragonese character. According to Villalba, introducing Castilian law had brought ‘a political illness’ of ‘bad digestion’ to Aragon, not because of any inherent defect in Castilian laws, but rather because they were new. ⁶⁶ Uncertainty concerning how old contracts and other legal documents would be interpreted by the courts led plaintiffs to file numerous suits that would never have come to court under the old laws. Villalba blamed the significant increase in cases on the ‘captious ingenuity of litigants and lawyers’ taking advantage of the confusion surrounding the new laws, which created additional work for the already overburdened courts. ⁶⁷

Villalba also emphasized that the problems created by imposing Castilian law included the censos, with considerable economic consequences. Censos were contracts that were often used to work around the prohibition on lending money for interest – in this case, one party would purchase the right to receive a series of smaller payments over a set period. Throughout the Crown of Aragon, censos also served as the contracts for several kinds of leases on a wide variety of property, and so the application of Castilian law governing censos caused significant confusion. ⁶⁸ Adding to these difficulties was the reduction of the legal maximum interest rate that could be charged in the payments of a censo in Castile, which dropped from 5 per cent to 3 per cent in 1705. Since the Nueva Planta officially repealed and replaced Aragonese law with Castilian law, it seemed likely that the interest rate would similarly drop in Aragon. Various royal officials came to different conclusions, leading to lawsuits over the censos that would last for decades. ⁶⁹ Already in 1710, Villalba identified ‘many inconveniences’ created by the regulation of Aragonese censos through Castilian law. He attributed this problem to the fact that these Castilian laws were not designed to govern the greater diversity of contracts grouped under the broad category of censos in Aragon. The divergent legal practices in the different parts of Spain made it difficult to take a set of laws from one kingdom and apply them to another. Instead, laws had to be tailored to the customs and contracts that existed in each locality, as Villalba explained: ‘The prudent, comfortable, and just law at one time, becomes in another heavy, dissonant, and prejudicial’. He believed that good laws had to fit their context and that no law was so perfect that it could be applied everywhere and at all times with equal success. ⁷⁰

Villalba encouraged Philip to solve these difficulties by consulting officials in Aragon prior to issuing any further legal reforms. ⁷¹ Villalba also encouraged Philip to restore Aragonese canon and civil law, but not necessarily Aragonese criminal law, which he deemed much more similar to Castilian law. ⁷² Villalba’s arguments were grounded in the significance of local variations in customs and laws that were tailored to their context. The Nueva Planta reforms attempted to create unity by ignoring these distinctions, which had created considerable difficulties. Villalba’s solution was to restore some of the old laws and to consider the advice of local legal experts before issuing further reforms.

This affirmation of the Aragonese legal tradition was paired with a regalist reinterpretation of the fueros. In Crisis Legal, Villalba flipped the relationship between natural law based on equity (‘la equidad natural’) and the fueros as they were described by James I of Aragon in their Prologue. James had claimed that the natural law should be consulted only after the fueros if they were found to be ambiguous; Villalba suggested that natural law should guide judicial decisions with recourse to the fueros only when necessary. Such a change grounded the Aragonese fueros in the tradition of Castilian law and Roman jurisprudence. Villalba also emphasized the supreme sovereignty of the king to make law, which was in tension with many previous interpretations of the fueros, making them appear much more compatible with the regalism of Philip V. ⁷³

Villalba’s call for a moderation of royal policy found a powerful ally in Philip’s grandfather, Louis XIV. Louis came to believe that Philip V may have overreached in his attempt to centralize the Spanish monarchy in 1707. Reversing the initial recommendation of Philip’s French advisors at that time, by 1711 Louis had concluded that alienating the Aragonese and Catalans for the sake of a uniform government was not worth the increased risk that they might support the Archduke Charles. ⁷⁴ The French faction in Philip’s court now encouraged him to take a pragmatic and more conciliatory approach in the Nueva Planta reforms. ⁷⁵

Villalba’s suggestions were largely implemented on 3 April 1711, when Philip restored Aragonese civil law and gave the Real Acuerdo the authority to register royal edicts. ⁷⁶ This third decree of the Nueva Planta differed starkly from those of 1707. It struck a much more conciliatory tone, reflecting both the instability of Bourbon control of Aragon and the recent advice Philip had received. This decree differed in more than just tone, however, as it was a much more technical document than the earlier decrees, providing detailed guidance for the operation of the royal appeals court. Taken together, these changes created a new system of government that was distinct from both its Castilian and Aragonese antecedents. While most of the old privileges of the Aragonese were lost, the restitution of Aragonese civil law was accompanied by a government that, while new, enabled most local issues to be resolved within the kingdom. ⁷⁷

Some scholars have suggested that the preservation of Aragonese civil law was a trivial concession that was either unnecessary for Bourbon success or too minor a factor to play an important role in accounts of the Nueva Planta reforms. ⁷⁸ In addition to the arguments of contemporary lawyers, courtiers, and even Louis XIV, it is worthwhile to consider who was affected by the reform and the significance of the changes for them. Reforming civil law was more complicated than altering criminal law because civil law shaped the way in which the censos, marriage, adoption and inheritance functioned, with far-reaching consequences for family construction and preservation. ⁷⁹ By leaving these in place, Philip preserved the institutional structure that defined the parameters of long-term planning for successive generations of elite Aragonese families. ⁸⁰ Additionally, positions on the civil law bench of the royal appeals court were more prestigious and more remunerative than those on the criminal bench further indicating that contemporaries viewed civil law as deeply significant. ⁸¹

The restoration of Aragonese law was not a flash in the pan, but rather a key turning point in the way in which Philip V approached governing. When Philip reformed the government of Catalonia in 1714, his advisors were divided concerning what to do. ⁸² Francesc Ametller (a Catalonian supporter of Philip and member of the Council) suggested that Catalonian civil law be restored while Castilian criminal law remain in place. ⁸³ To facilitate the transition, he suggested that loyal Catalonians be appointed to the royal appeals court who understood the character, laws and styles of Catalonia and could be used to instruct the Castilians unfamiliar with the region. ⁸⁴ José Patiño, the Intendente of Catalonia, ⁸⁵ went further, arguing that there were many problems brought on by changing the law which would ‘cause confusion in the land’ and impose ‘a great work on all of the lawyers, notaries and secretaries of the land, who are many, all of whom would be obliged to begin new studies, become exposed to many errors, [and] harm’ the good of the Catalonians. ⁸⁶ His solution was to restore Catalonian law across the board while also establishing a mechanism for implementing specific reforms targeted to reduce the few truly abusive laws.

The Council of Castile was deeply divided in its advice, offering the king a variety of alternatives. A strong contingent in the Council advocated for the abolition of Catalonian civil law. The Fiscal of the Council agreed with Patiño’s plan, but the majority of the council countered their thinking and insisted on the need for ‘solid, clear, and rightly established’ laws and practices for the subjugation of the ‘bellicose spirits of the Catalonians’. Towards this end, they recommended the continued application of Castilian law in civil and criminal matters, as any uncertainty now would threaten the stability of Catalonia. ⁸⁷ Four members of the council went still further, championing the Valencian model of using considerable force to transform the Catalans into more obedient subjects, as in Castile. ⁸⁸ They had great faith in the power of technically skilled Castilian ministers. They argued that the reform of the Aragonese government in 1711 had ‘spoiled’ the successes in that kingdom, and that ‘with the novelty and mixture’ of Aragonese and Castilian law, the royal ministers and the Aragonese lived ‘in a state of perpetual confusion’. ⁸⁹

Despite the slim majority in favour of abolishing Catalonian civil law, there was a significant minority that defended its preservation. Eight of the 25 members of the council, including its president, dissented from the majority and echoed Ametller’s suggestion that the royal appeals court sort out the beneficial from the malicious laws. ⁹⁰ Another councillor, Don Lorenzo Matheu de Villamayor dissented from everyone else and advocated the preservation of the Catalonian privileges and government in their entirety, suggesting that the creation of a new government was too expensive to be worth the cost. On the matter of changing the law, he pointed out that contracts and wills would continue to use the old language for some time and that they would always remind the Catalonians of their old legal tradition. Instead, by restoring their old system, the king could safely impose a new tax on them and increase his revenue while making his subjects happier. ⁹¹

Significantly, Louis XIV also encouraged Philip to leave the Catalonian civil laws and institutions in place as late as August 1714, stating that ‘it is in your interest to moderate the severity that you wish to use with the inhabitants, for although they are your subjects, you should be as a father to them, chastising them without losing them’. ⁹² The marriage of Philip to Isabella Farnese, which precipitated the fall of the French faction at court, simultaneously led to the reversal of numerous reforms throughout Spain and reinforced the push for a more moderate reform in Catalonia. ⁹³ On 16 January 1716, Philip followed the advice of Ametller, Patiño, a sizeable minority of the Council of Castile and Louis XIV by extending the system created in Aragon in 1711 to Catalonia, which included the preservation of their civil laws. ⁹⁴

Even in Valencia, the only kingdom in the Crown of Aragon to lose its traditional civil laws, Philip offered to restore Valencian civil laws on three occasions. First, on 2 February 1710 he requested advice concerning how to ‘moderate’ the Nueva Planta reforms for both Aragon and Valencia, demonstrating his willingness to consider restoring Valencian law. ⁹⁵ The second opportunity occurred during Philip’s only visit to Valencia in May 1719, when the city council stopped him on the street to present a request to restore their privileges, which he promised to do. ⁹⁶ After two years had passed without their restoration, the city council requested written confirmation of Philip’s intention to reinstate their laws, and he complied. Despite the king’s willingness, he did not ultimately act on these promises because the appeals court in Valencia was full of Castilians who had no interest in learning Valencian law and failed to officially request their reinstatement. ⁹⁷

Philip V clearly changed his mind concerning the importance of establishing legal uniformity throughout his kingdoms by 1711, and his decision to accept divergent regional civil laws appears to have remained constant. The impetus for this change seems to have grown out of his recognition of the problems created by the imposition of Castilian law in Aragon. Near the end of the Nueva Planta decrees for Catalonia, Philip made a particularly interesting observation, emphasizing that his subjects were united in their relationship to him, which superseded their national divisions: ‘my royal intention is that in my kingdoms the ranks and honours are conferred reciprocally to my vassals because of merit, and not because of birth in one or the other of my provinces’. ⁹⁸ His subjects were thus rewarded for their service to him regardless of where they were born. He was primarily interested in securing his rule in Catalonia and strengthening the connection between him and his subjects as he built his state through the creation of a loyal governing elite bound to him through their own status and privileges. ⁹⁹ In this way, Philip pursued the creation of what Josep Torras i Ribé described as the ‘human foundation of the political and administrative edifice’. ¹⁰⁰

Philip had given up on creating a legally uniform Spanish state and instead pursued the support of his subjects throughout the kingdoms of Spain. Towards that end, sometimes he increased the uniformity of his administration, such as through opening offices to subjects from all his kingdoms, while in other instances he accepted divergent civil laws as a practical step that won him the favour of the wealthy and powerful segments of society. He did not act in ignorance, but intentionally chose to alter the legal framework of his kingdoms in a way that preserved (and, in Aragon, reintroduced) heterogeneity in the civil laws of his kingdoms. Following 1711, Philip consistently rejected the goal of legal uniformity and chose to permit regional variation in civil law because the support of local and regional elites was more valuable than the abstract good of legal uniformity. ¹⁰¹ This conclusion suggests that Philip’s approach to governing had much in common with that of his grandfather, Louis XIV, as it is depicted in recent scholarship. ¹⁰²

Standardizing the Administration in a State with Legal Diversity

The Bourbon reforms made offices in Aragon accessible to subjects from all of Spain and enabled a greater degree of standardization in the administration of Spain than any prior monarch had achieved. Many Castilians quickly took advantage of this opportunity to become judges in the kingdom of Aragon. The restoration of Aragonese law made it difficult for them to carry out their duties, however. To help them make sense of these laws, new legal handbooks were written providing a convenient guide to the differences in Aragonese and Castilian law. These handbooks served as a crucial tool that enabled Castilians to serve in Aragonese courts despite the many practical difficulties they encountered in fulfilling the duties of those offices.

Legal education at Spanish universities was poor by European standards and focused primarily on legal theory based on Roman law. Graduates in law struggled for centuries with the transition from the university to the nitty-gritty world of legal practice, but brought to their work a grand vision of the ability of universal law to bring rational order to the chaos of human affairs. ¹⁰³ Only in the mid-eighteenth century did universities begin to teach Castilian law, and even after these reforms outside observers still tended to criticize the quality of Spanish legal education. ¹⁰⁴

The challenge of learning the practical aspects of the law were further complicated when a Castilian judge was appointed to a court in Aragon, Catalonia or Mallorca. The laws in these kingdoms of the Crown of Aragon differed from Castilian law in that each legal code embodied a fundamentally opposed understanding of the nature and source of law. Since the thirteenth-century promulgation of the Siete Partidas by Alfonso X of Castile (1221–1284), Castilian courts functioned as if there were absolute principles of justice upon which the law depended for legitimacy. This deductive approach to the law followed Roman legal thought, which the Partidas acquired from the Code of Justinian. Alfonso intentionally crafted the Partidas into a unified and systematic code that was abstract and universal so that it could be used throughout the kingdoms he ruled as Holy Roman Emperor and King of Castile. Prior to this codification, however, Castilian law had followed a complex customary law based upon local practice rather than a theoretically consistent legal framework. ¹⁰⁵ By replacing this collection of customary practices with the principles of Roman law, Alfonso established a legal system that affirmed the legitimacy of a universal law.

A stark contrast is visible when one considers the alternative path followed by James I of Aragon (1208–1276), who preserved the Aragonese understanding of law as the crystallization of long-established practice when he codified these in the fueros. He did not replace the Visigothic customary law with Roman law, producing a unique legal code that reflected the practices of his subjects rather than transforming their law based on the abstract Roman ideals. ¹⁰⁶ As a result, the Aragonese and Castilian legal systems diverged concerning a foundational assumption about the nature of law. Aragonese civil law followed an inductive approach that emphasized the particular, while Castilian law used deductive reasoning from first principles to ascertain the particular laws that governed daily life. ¹⁰⁷ Understandably, those trained in Roman or Castilian law found Aragonese civil law difficult to interpret.

The quality of legal education and the differences between Castilian and Aragonese legal codes only mattered for those who studied the law, however, and many officials with judicial duties in eighteenth-century Spain came from a military background and lacked any formal legal training. This was the case for the majority of the corregidores appointed in Aragon, Valencia and Catalonia. In these circumstances, the mayor (alcalde mayor) of the city often had to serve as the legal council for the corregidor. This did not solve every problem, however, as these mayors did not always have a background in the law and at times their offices were left vacant for years. Even when there was a mayor with a legal background, many came from Castile and were ill equipped to judge cases on Aragonese law. Given these challenges, it is not surprising that city councils often employed Aragonese lawyers to help them parse Aragonese civil law. ¹⁰⁸ The royal appeals courts also struggled with deciphering regional civil laws and depended upon their members who came from the region to understand them. The Count of Aranda, first as Captain General of Valencia (1765–1766) and later as President of the Council of Castile (1766–1773), worked to increase the number of locals appointed to the appeals courts in Valencia, Aragon and Catalonia. He worried that it would be impossible to convince a ‘foreigner’ of the importance of the ‘civil laws and particular privileges’ of the kingdom. ¹⁰⁹

Given the inadequacy of legal training and the considerable differences between the Aragonese and Castilian legal traditions, it is no surprise that lawyers and judges found it difficult to navigate the legal diversity of Bourbon Spain. When all else failed, Castilians serving as judges in Aragon could turn to legal handbooks, which offered practical guidance for those attempting to understand the practical application of Spanish law. Handbooks such as these were a rapidly growing genre in the eighteenth century as a valuable tool for those overwhelmed with the amount of information available to them. While these handbooks earned plenty of criticism for oversimplification, they remained quite popular. ¹¹⁰ Legal handbooks were widely consulted as guides to legal practice and served a crucial role in transmitting legal knowledge. ¹¹¹

These legal handbooks helped judges and lawyers make sense of the practical implementation of the law. While some of these were focused on teaching Castilian law, such as Joseph Berni y Catalá’s Instituta Civil y Real (1745), ¹¹² others promised to aid those familiar with Roman or Castilian law in coming to terms with Aragonese civil law. Villalba (the author of Crisis Legal discussed earlier) began this effort with a legal tract explaining the similarities and differences between Aragonese and Castilian civil and canon law that was published in 1727, which he later revised and expanded to two volumes. ¹¹³ In these books, he provided a systematic explanation of the fueros and their implementation in Aragon that was organized to facilitate comparison with Roman and Castilian law. This was a significant project, as earlier compilations of the fueros were thematically disorganized, making it difficult to compare them to more systematic legal codes based on Roman jurisprudence. ¹¹⁴ In the process, he interpreted the fueros in a way that emphasized their compatibility with Bourbon regalism and undermined their limits on royal authority, sometimes simply omitting fueros that inhibited the king. ¹¹⁵

Manuel Silvestre Martínez built on these works in the Librería de Jueces (1763) which made Aragonese law even more accessible by systematically presenting it in Castilian rather than Latin. Martínez had struggled to learn Aragonese civil law as the Mayor of Huesca, which inspired him to write this book. His intended audience was other Castilians appointed to three-year terms in Aragon, who were looking for the most direct way to fulfil their official duties despite their unfamiliarity with the law. ¹¹⁶ Martínez’s Librería attracted considerable interest, as indicated by its many editions, suggesting the existence of a ready market for his work. It expanded to 12 volumes with a separate index by its fifteenth edition in 1796. The success of this work suggests that there was a significant need for clarification of the differences between Castilian and Aragonese law throughout the eighteenth century.

Legal diversity created a challenge for the integrated administration of Bourbon Spain. Hiring local lawyers for advice and turning to legal handbooks were some of the ways in which these officials overcame the challenges of their circumstances. The existence of such handbooks suggests that many officials felt underprepared for their positions and raises questions concerning the consistency of legal decisions in the 1710s and 1720s during which such handbooks did not exist. Nevertheless, the administrative challenges of maintaining Aragonese private law emphasized the importance of local knowledge and increased regional difference while simultaneously integrating the local elite into the operation of the state.

The Legacy of the Fueros in Spain

The tensions between the kingdoms of Spain persisted after Philip V’s death in 1746. When Charles III of Spain called the Cortes of Castile into session in 1760 to confirm his son, Charles Anthony, as the heir to the throne, the delegates of the four capitals of the Crown of Aragon used the meeting to suggest further reforms to the structure for the political union of Spain in the Memorial de Greuges, or the Petition of Grievances. ¹¹⁷ The Petition demonstrates the persistence of arguments like those that Villalba made fifty years earlier.

The delegates of the Crown of Aragon argued that the Nueva Planta had failed, but they did not attribute this failure to a deficiency in Castilian law. Instead, they emphasized that the laws of Castile ‘are very just and very useful for the kingdoms in its Crown’. ¹¹⁸ These virtues were not transferable to other kingdoms, however, and the laws of Castile were demonstrably ill-suited to the needs of the Aragonese, Catalans, Valencians and Mallorcans:

… just as the human body is not one and perfect but its parts, while distinct and dissimilar, obey the head or the soul that resides in it, so also is the unity and perfection of the body of the monarchy but its parts or provinces, while they have different civic laws, obey and are subjects of Your Majesty. Your royal will, Lord, is a supreme universal law that unites all and obligates them to sacrifice their properties and lives in the defence of Your Majesty and of the common good. The difference of the government and of the civil laws of the kingdoms of Spain are not at all opposed [ni se oponen en un ápice] to the sovereignty of Your Majesty, nor to the union of your vassals.… Prudence and the same natural reason dictate that as the provinces have different climates and different types of people, their laws must be different so that all can be well ordered and the body of this monarchy happy. ¹¹⁹

While many historians and theorists have considered such political divisions the mark of a weak political union or an undeveloped state, the delegates from the Crown of Aragon believed it heightened the king’s authority by elevating him above all his subjects in a unique and compelling way. In this account, legal diversity and regional difference offered advantages over unification because diversity could reinforce the importance of a strong centre. Although the reforms proposed by these delegates were largely ignored in 1760, they demonstrate the persistence of this line of political thought.

Part of the reason for the enduring nature of this legal tradition might be the stability of the local elite in these kingdoms. Detailed local studies in Catalonia, Aragon and Valencia have demonstrated that the local elite in these towns remained entrenched despite the Nueva Planta, and in many cases increased their control of local power over the century. ¹²⁰ While these local elites may not have persuaded Charles III to reverse more of the Nueva Planta in 1760, the fueros continued to shape the law and administration in Spain. For example, the Nueva Planta had abolished the local selection of city officials by pulling names from a bag, known as the insaculación or insaculació, but this process of selecting officials was restored throughout many towns and cities over the final decades of the eighteenth century and the beginning of the nineteenth. The primary reason for this change, it appears, was the same as that for the original use of the insaculación in the thirteenth century: it increased the perceived legitimacy of local officials and reduced opposition to its decisions. ¹²¹ Similarly, in Valencia, Antonio Pascual y Molina, marqués de Peñacerrad, and Ignacio Pérez de Sarrió, marqués de Algorfa, invoked a privilege granted by Alfonso II of Valencia (IV of Aragon) to create new seigniorial estates by establishing towns with at least fifty new households in a formerly empty place. Not only did the king affirm their claims on 10 April 1772, but the Council of Castile encouraged him to make this a universal law throughout all of Spain. While Charles declined to do so, he did reaffirm ‘the substance of the fuero’ in Valencia, demonstrating his willingness to restore particular privileges from the fueros when he deemed them beneficial to the state. ¹²²

Conclusions

The preservation of legal diversity strengthened the Spanish state and reinforced the legitimacy of the monarchy. Even when Philip had the legal and military might to abolish all the differences between Crowns of Castile and Aragon, he did not do so because it was not beneficial to him nor to the state. As Regina Grafe has noted, the erratic progress towards administrative and legal unification in Spain was not a ‘failure’, but rather a prudent strategy that reflected the tensions built into the fabric of Spanish society. Because fragmentation and royal authority were dependent upon this common foundation, the Spanish monarchy found it difficult to increase uniformity without simultaneously undermining royal authority. ¹²³ When forced to choose between increasing legal uniformity at the cost of undercutting the foundation of royal legitimacy, or accepting a degree of legal heterogeneity and regional diversity while reaffirming the centrality of the monarchy, Philip and the majority of his advisors chose the latter.

Although the Petition of Grievances of 1760 pushed for a fundamental reversal of the Bourbon reforms in favour of considerably greater devolution that was untenable, it provides helpful context for interpreting the government of Bourbon Spain. While legal uniformity appeared to be a desirable goal in 1707, the cost of legal uniformity in civil law was too high and its benefits for the strengthening of the state were too limited. Philip repeatedly acknowledged the practical value of maintaining a variety of legal systems when he restored Aragonese law in 1711, preserved Catalan law in 1716 and offered to re-establish Valencian law in 1719 and 1721. The Bourbon monarchy of Spain did not return to the old composite monarchy of the Habsburgs, but neither did it ignore the distinctiveness of its kingdoms in the interest of promoting a universal law regardless of the practical consequences. The surprising resilience of the Spanish monarchy in the eighteenth century suggests that it achieved a successful balance between the practical benefits of standardization for those in the royal administration and the various divergent needs of the many regions under its rule. ¹²⁴

Considered within the larger context of early modern state formation, the preservation of a plurality of civil codes in Spain demonstrates that the significance of legal uniformity for the development of states has been overstated. While modern notions of sovereignty and the fundamental equality of all humans make universal law appear obviously compelling to us, in the early eighteenth century such ideas had limited sway over policy in Bourbon Spain. Instead, the Spanish state tolerated a significant degree of legal diversity as it developed because this diversity helped it to cultivate the support of the local elite throughout its extensive kingdoms. Their support in turn reinforced Bourbon rule. Incorporating the value of legal diversity into theories of state formation will help refine our understanding of the strategies and governing practices that created early modern states.