Legislation of the era and the Novísima recopilación.

Naturally, a period so rich in reforms as this was bound to have a great body of legislation. In Castile this was almost exclusively in the various forms of royal orders, recording the directions given by the king and his ministers, and the decisions of the Consejos. Thus the work of the Nueva Recopilación of 1567 got to be out of date, although five new editions were published in the eighteenth century, with the addition of some of the recent laws. Finally, a proposal for another codification was approved, and the compilation was made by Juan de la Reguera, who brought it out in twelve books, under the title of the Novísima recopilación de las leyes de España (Newest, or Latest, Compilation of the Laws of Spain). Reguera claimed to have solved the problem of the concentration of legal material, but in fact his work suffered from the same defects as the earlier codes of Montalvo and Arrieta. His distribution of the laws was faulty, and he failed to indicate many important acts which were still in force. Furthermore, he reproduced the ordinance of Alcalá (1348), repeated in the laws of Toro and the Nueva Recopilación, according to which the laws of various earlier codes, such as the Fuero Real, remained in effect in so far as they had not been repealed by later legislation, and the Partidas was valid as supplementary law. Thus the old evils of the lack of unity of the law and lack of clearness subsisted. Nobody could be certain whether a law was still in effect or not, and it remained the practice to cite textbooks and the ancient codes of Justinian on the ground that they might have a bearing as supplementary law, unless there was something clearly stated to the contrary in the Novísima Recopilación. In Catalonia there was a new codification in 1704, and in Navarre in 1735. In most of the formerly separate legal jurisdictions, however, the laws of Castile applied, henceforth, as a result of the changes brought about, as already mentioned, at the close of the War of the Spanish Succession.

Reforms in the Americas and their results.

It remains to deal with the relations of the crown and the church, to which the next chapter is devoted, and to allude to the important reforms in the Americas. Much that was beneficial to the colonies at the time was achieved, and much else which in fact helped them to be the better prepared in the approaching combat with the mother country. In the main, however, the policies of subjection and of the development of the revenues in the supposed interests of Spain were followed, with the result that resentments were kept alive and ultimate disaster invited.

CHAPTER XXXVI
STATE AND CHURCH, 1700-1808

Pronounced zeal of the Bourbons in subjecting the church.

The elements in controversy.

IF the kings of the House of Austria had displayed zeal in diminishing the range of ecclesiastical jurisdiction, the Bourbon monarchs, with their accentuated ideal of absolutism, were even more insistent in that respect. The kings were assisted by elements to which they themselves were otherwise hostile, such as the Jansenists[63] and the encyclopedists, whose partisans furnished arguments for the royal authority, because they opposed the rule of the church. Nevertheless, the monarchical ideal of the kings was sufficient to induce them to attack the church, except as concerned the purely spiritual interests of the Catholic religion, and the absolute patronage which the kings enjoyed in the Americas became the model of what they wished to establish in Spain. There were two principal angles to the problem, that of overcoming the intervention of the popes in the affairs of the Spanish church, and that of lessening the power and the privileges of the Spanish clergy. As for the intervention of the popes, they exercised the right of appointment to Spanish benefices which became vacant in any of the so-called eight “apostolic months,” and also to those vacated in the four “ordinary months” (March, June, September, and December) if the death of the holder occurred at Rome; considerable sums of money were also collected for papal dispensations to marry, papal pardons, and other papal acts of an irregularly recurring character, although government officials charged that a large part of these moneys remained in the hands of Spanish and Italian intermediaries without reaching the coffers of the pope; the tribunal of the nunciature, despite the provisions of the papal brief of 1537, had come to be composed of foreign priests, and besides exercising its judicial functions independently of the royal courts administered the rents of vacant benefices (vacantes), which gave rise to accusations of abuses in the management of the funds; the tribunal of the Cruzada, for the collection of the tax of that name, was still in papal hands, although the income had frequently in the past been granted to the kings of Spain; and finally, there existed the old question of the pase regio, about the necessity for royal consent prior to the publication of papal bulls and briefs, or in fact even for the delivery of pontifical letters. As concerned the relations with the local clergy, the kings were preoccupied with such matters as the great numbers of churchmen (especially the regular clergy), the immunities they enjoyed, the immensity of their landed estates held in mortmain, the extent of the right of asylum in ecclesiastical edifices, and the power of the Inquisition and, far more, that of the Jesuits.

Conflict of the kings with the popes in the first half century of the era.

The conflict with the papacy began at the outset of the reign of Philip V, for the popes favored the candidacy of the Archduke Charles to the Spanish throne. Philip V expelled the nuncio, suspended the court of the nunciature, and gave orders against the circulation of papal bulls in Spain. These measures were only temporary, during the course of the war. Nevertheless, Alberoni, who restored matters to their former basis, had occasion, even though he was a cardinal himself, to banish the newly appointed nuncio. Finally, an agreement was reached in the concordat of 1737 from which the crown obtained some advantages, such as the suppression of the right of asylum in some cases and its restriction in others, the limitation of the number of churchmen with rights of personal immunity, and the giving of guarantees against false allegations with a view to extending the immunities of church estates, together with the derogation of this right for such properties as the church should acquire in future. The concordat satisfied nobody, and moreover most of its provisions were not observed. When Ferdinand VI ascended the throne, he took steps to procure a more acceptable arrangement, for though an exceedingly devout Catholic he was unbending as concerned matters affecting the royal authority. The result was a fresh concordat with the pope, dated 1753. Several important rights were gained at this time: in return for a heavy money indemnity Ferdinand obtained a recognition of the royal right of patronage in appointments to all church offices, except some fifty-two dignities and the naming of bishops to benefices vacated in the four “ordinary months”; various kinds of papal taxes were renounced in favor of Spain; the tax of the cruzada was granted in perpetuity to the crown; and the right of exemption from the taxation of lands held in mortmain was abolished. Nevertheless, the partisans of royalty were not yet satisfied.