This article gives an account of late medieval theories and practices of emergency powers. More particularly, it examines the relation between emergency powers and constitutional change. It thus seeks to explain how, in the course of the 13th and 14th centuries, European rulers began using their emergency powers to gradually expand their fiscal and legislative competences at the expense of local authorities and the church. As is demonstrated in this article, it was essentially the normalization of emergency powers that made the transition towards a more centralized government possible. This can be explained by a combination of factors, including the government’s claim to an exclusive right to judge what constituted a public necessity, the new focus on prevention and preparation for future necessities, and the increasing identification of necessity with more general claims to ‘public utility’ and the ‘common welfare’.
JacobiPractica aurea p. 294 659: ‘Item eadem ratione imminente necessitate propter guerram poterit de proximis nemoribus scindere arbores et de domibus capere ligna et locū palis munire et palinas facere cum eadem sit? ratio’.
PostStudies (supra n. 4) p. 273. Compare also Brian Tierney’s analysis of Accursius’s reading of D. 1331: ‘For Accursius the emperor was “loosed from the laws” only in the sense that there existed no legal machinery for bringing him to justice if he broke them. He did not associate the words legibus solutus with any ideas of arbitrary government (…). He never argued that it could be licit for an emperor to break the law nor would he have countenanced such suggestion (…). Fidelity to the law which was required of all men had to be maintained in the case of the Prince alone through internal rather than external discipline’: B. Tierney ‘The prince is not bound by the laws’ Accursius and the origins of the modern state Comparative studies in society and history 5 (1963) p. 392.
PostStudies p. 218and 324. However with regard to the English context Post mentions a few examples of emergency taxes that were refused. For instance in 1242 when Henry III attempted to levy extra-ordinary taxes to finance his military campaign against Louis IX the magnates refused their consent arguing that the king was wrong about the alleged necessity since a military campaign overseas (in France) could not be justified by the ‘necessity of defending the realm’: ibid. p. 321. Examples dealing with the French context are discussed by Brown Cessante causa (supra n. 52) p. 571 ff.
PostStudies p. 22. An interesting example is the 14th-century jurist Philip of Leyden who in an important treatise dedicated to the Count of Holland emphasizes that the ‘cause of preserving the state [causa conservationis publicae rei]’ overrides all private interests privileges and immunities. The ‘prince’ may thus impose extra-ordinary taxes on church property for the ‘defense of the fatherland and the public welfare [defensio patriae et salus publica]’. Indeed the church is expected to give a good example by submitting to these taxes voluntarily. Philippus de Leyden De cura reipublicae et sorte principantis eds. R. Fruin and P.C. Molhuysen The Hague 1915 casus VI p. 36–38.
Thus in1297the clergy of Reims in a letter to the pope accepted that ‘all privilege excuse and exception ceased [omni privilegio excusatione et exceptione cessantibus]’ if the king demanded an emergency subsidy ‘for the defense of the realm and the fatherland [ad defensionem regni et patriae]’. Letter quoted in Wieruszowski Vom Imperium zum nationalen Königtum (supra n. 4) p. 173.
Canon 46 of the Fourth Lateran Council (1215) prescribed that ‘if the bishop with his clergy should perceive such necessity or utility and without compulsion decide that the aid of the churches ought to be enlisted to meet the needs where the resources of the lay people do not suffice let the aforesaid lay people accept such assistance humbly devoutly and with gratitude. However on account of the boldness of some let them first consult the Roman pontiff to whom it belongs to attend to common needs’.