DSCF0040

ESSAYS IN SWEDISH HISTORY

members of the nobility:¹²² the arrangement was natural, scnsible and traditional. For the nobility were, and had always been, the natural buttresses of the rule of law. It was a matter of history that when Erik xiv⁵s High Court lost its aristocratic chara eter aft er 1562 the only real barrier to royal bending of justice was removed. Aft er that experience it was no wonder if the nobility felt that tliey must not only be tried by their peers, but also dominate the supreme judiciary.¹²³ As time went by, it is true, the offtce of county-court judge (haradshovding) came to be regarded morę as a lucrative sinecure than as a real responsibility;¹²⁴ and until Charles xi enforced residence its holders w^ere often absentees who discharged their functions by deputy. But such things by no means diminished the aris-tocracy^?s respect for, and knowledge of, the law. Moreover, as long as the nobility continued to exercise important judi-cial functions - in the council (as supremejtppellate coirrtjj in the horrdtUr, and in the local courts - fhe security of tenure of the judiciary was pretty safe from attack by the crown.¹²⁵ And the best opinion nowadays is that even in the dark days of the mid-seventeenth century the peasant could as a rule be surę that the courts and the council would give him justice against his lord.¹²⁶

It would be a mistake, moreover, to assume that the aristo-cracy's pursuit of its own advantage was incompatible with the advancement of the constitutional cause. On the contrary, the two often enough went hand in hand. The Recess of Kalmar itself embodied an important guarantee of the liberty of the subject, when it demanded security against arbitrary imprison-ment, and a promise that the king would take no punitive action upon the strength of unsubstandated delations.¹²⁷ These demands were repeated almost rerbatim in the Postulała,¹²⁸ and finally acąuired legał sanedon in the Charter of 1611.¹²⁹ The draft pri\ileges of 1567, King John⁵s privileges of 1569, the coundTs draft of 1594, all included clauses designed to safe-guard the rule of law;¹³⁰ and in 1594 the nobility expressly sdpulated that there should be no legisladon without the eon-sent of the Estates.¹⁸¹ A da im which may at first sight appear to be wholły dictated by secdonal interests may well turn out on doser esamination to be the asserdon of a genuine constitu-donal principle. For instance, there was a reiterated demand (not finally conceded until 1612) that the king be debarred from

ON ARISTOCR ATIC GONSTITUTIONALISM

negotiating directly with the peasantry of the nobility when he wished to obtain a grant of men, money or labour services from them: the reąuest, it was contended, must be madę not to the peasants but to their lords. This looks like an attempt to preserve the fiscal immunity of the nobility, and to degrade their peasants to mediate status. But in fact it is a statement of the generał principle of no taxation without consent. For even though the peasants might make the grant, the burden would in reality fali upon their landlords; sińce the morę the crown took the less the lord would get.¹³²

It was certainly unfortunate that successive regents and kings should have been able to drive a wedge between the council-constitutionalists and the Estates. But in the existing circum-stances it is difficult to deny that constitutional principles, at least until the seventeenth century, were safer in aristocratic hands. Erik Sparre and his friends could have contended, with much justice, that by opposing Charles rx’s tactics of treadng all dissentients as ‘unruly and lopped-off members’¹³³ of the body politic — by upholding the right of a minority to differ, as against Charles’ s totalitarian notion of obligatory imanimity — they were championing a morę truły democratic system of govemment than their adversary. No doubt the aristocracy, like the ńksdag, could on occasion be bribed. But it is still true, that while the Strife of Estates (stdndstriden) continued the council was the only element in the State which could normalły be relied upon to provide a constitutional opposition: the events of the i68os madę that quite plain. It was precisely because Charles xi*s reduktion brought the Strife of Estates morę or less to a close that a nationally-hastd constitutionalism became possible for the first time, in the years after 1718.

And this must be added, in conclusion: the Swedish aristocracy, for all its heavy faults, had the high virtue of a genuine patriotism which in the last resort was prepared to put country before class.¹³⁴ In this it contrasts strikingly with the aristo-cracies of Poland, Denmark, and perhaps Holland too, to name no morę. It could always be relied upon to waive its privileges and its fiscal immunities if the national interest seemed to demand it: indeed, its readiness to do so sometimes provided monarchs with a usefiil argument for screwing a grant out of the ordinary taxpayer. It was not infected with the servicubmerud