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The Rise of Constitutional Government in the Iberian Atlantic World

The Impact of the Cádiz Constitution of 1812

The University of Alabama Press

The Medieval Roots of Spanish Constitutionalism

Brian Hamnett

The reinvention of the Hispanic Middle Ages in historiography, literature, and political discussion became a major preoccupation in the period from the 1790s to at least the 1850s. This was the core period in which Spanish liberalism and its opposing ideologies were formulated. In many respects, Medievalism formed one aspect of the Spanish Enlightenment, and, as such, preceded by several decades the main impact of Romanticism in Spain during the 1830s and 1840s. Political theories emanating from other European sources in the later seventeenth century and during the eighteenth century — such as those of John Locke or the Baron de Montesquieu — existed alongside this perceived medieval inheritance. That was equally the case with regard to the ideas and examples of the North American and French Revolutions, which came later in the eighteenth century.

The reception of the European Enlightenment in Spain and Spanish America reflected the perceived needs of those societies. Since the component parts of the Hispanic monarchy had different characteristics, reception took different forms. It has always been difficult to ascertain when this process of absorption began, but recent historiography suggests the first decades of the eighteenth century. The Hispanic Enlightenment had deep roots in sixteenth-century humanism. Furthermore, the developing Natural Law tradition strongly influenced its character and continued to do so well after Spanish American independence. This chapter focuses on Hispanic understandings of "fundamental laws" and the "traditional constitution," and their continuing influence in the first constitutional period of 1810–1814 and thereafter. That raises the question of the relationship between Medievalism and the perceived modernity as seen by liberal constitutionalists of the 1810s and by historians in the present.

The purpose here is neither to contrast the 1812 Constitution with the concept of "fundamental laws" and the "traditional constitution," thereby finding the former wanting, nor to ignore parallel influences. It is simply to place the first period of Hispanic constitutionalism into its proper historical context, one recognized by participants. In the war-torn condition of Spain and the outbreak of conflict in the continental American territories, respect for tradition often fell by the wayside.

Spanish Reassessment of the Middle Ages

Medievalism initially entered the Spanish Enlightenment through critical history. Originating in the later seventeenth century, the new history took root in the course of the following century. Bourbon governmental institutions sought to direct it into official channels through the establishment of the Real Academia Española (1713) and the Real Academia de Historia (1738). Historical perceptions of the Hispanic Middle Ages gradually entered the broader political arena. Bourbon assertion of an absolutist mode of government may have provided the motivating factor, especially from the 1760s. The key issue of investigation during the later eighteenth and early nineteenth centuries was, first, why, how, and when Spanish liberties had been lost, and, second, how they could be recovered. The disintegration of monarchical authority from the 1790s made resolution urgent. These issues affected the overseas territories of the Hispanic monarchy as much as they did European Spain, although in different degrees.

Spanish historians saw the origin of political liberties in the Visigothic era before the Islamic invasions of 711. The Visigothic monarchy at Toledo had nearly succeeded in uniting the peninsula, and its king had, in 587, adopted Catholic orthodoxy. This perceived golden age of liberties became inextricably associated with the defense of the Catholic religion. During the Visigothic era, the Fuero Juzgo, with Roman prototypes, laid the basis for Hispanic legal codes. The beleaguered Christian states of northern Spain — Asturias, Leon, Navarre, Catalonia, Aragon, and Castile — regarded themselves as the inheritors of Visigothic traditions. Medieval realities, however, revealed important distinctions. Only the Kingdom of Leon adopted the Fuero Juzgo, which, in 1017, became the Fuero de León. Castile, by contrast, observed its own laws and customs, which in the mid-thirteenth century were grouped together as the Fuero Real. The County of Barcelona observed its own Usatges from 1064. In short, different legal traditions obtained in different territories. Nevertheless, the kings and princes in all of them were regarded as subject to the laws and were expected to administer justice.

The influence of Roman Law, brought in by lawyers trained at the University of Bologna, characterized the Siete Partidas, introduced into the Kingdom of Castile-Leon by Alfonso X (1252–1284). This body of laws reinforced the king's authority, including his presentation of candidates to bishoprics. The king's right to issue laws was upheld: these had to be obeyed by the king's vassal, but they were not unalterable and could be revoked. The Siete Partidas proved to be hugely influential in Castilian history. The Habsburg dynasty (1516–1700), seeking to strengthen its authority in Spain, had them republished six times in the first half of the sixteenth century. In May 1798, the government of Carlos IV (1788–1808) authorized a revised edition, commissioned by the Real Academia de la Historia, which would appear in 1806–1808. The Partidas also applied throughout the Spanish Indies and survived there for some time after independence. Francisco Martínez Marina (1754–1833) wrote the preface, though this was later published separately. Martínez Marina's works, especially his Teoría de las Cortes (1813), sought to establish the legitimacy of constitutional government in Spain on medieval foundations. He rejected social contract theories from Hobbes to Rousseau, which several leading liberals in the Cádiz Cortes (parliament) found appealing.

While praising Alfonso X's intention of coordinating the laws of Castile, Gaspar Melchor de Jovellanos (1744–1811), prominent ilustrado and former minister under Carlos IV, argued in his "Discourse on Entry into the Royal Academy of History" in 1781, that the Siete Partidas showed the influence of Gratian's Decretales, the body of canon law compiled in Bologna in the mid-twelfth century. The Roman Law tradition, which henceforth spread through church and state in Castile, often conflicted with homegrown traditions. Nobiliar opposition to a perceived diminution of fueros had delayed application of the Partidas.

In historical scholarship, rather than in open political life, the argument developed that the two foreign dynasties, the Habsburgs and the Bourbons, had subverted constitutional liberties by extending royal power. By contrast, the medieval monarchies of the peninsula became perceived as types of "moderated monarchy." Although the legitimacy of royal authority was not challenged, ministers and their policies were. This perception became a widespread view, shared across the political spectrum, after the collapse of Bourbon absolutism in 1808, and it permeated Spanish liberal historiography from the 1840s onward. The reality, however, was different. Sixteenth- and seventeenth-century governments had shared the exercise of power with the constituted bodies of the realm, which, like the monarchy itself, had medieval origins. Furthermore, the fueros of the distinct realms of the peninsula survived in what was a composite monarchy. The Crown made no attempt to remove any of these parallel authorities. A wide range of seigneurial jurisdiction, exercised by members of the nobility and clergy, existed throughout the peninsula alongside direct, royal jurisdiction. Much of this derived from the rapid reconquest of southern and southwestern territories from the 1220s.

These practices of government became known as la antigua constitución and las leyes fundamentales del reino. This was not an unwritten constitution; on the contrary, there were written laws and privileges. The monarchs were themselves subject to them and were required to honor them. When forms of representative government developed from the twelfth century, the Cortes participated with the monarch in this process of upholding the "fundamental laws of the realm." There was no question of a juxtaposition of king versus Cortes. Similarly, no division existed between a supposed royal executive power and a supposed parliamentary legislative power. Such a distinction was an ex post facto superimposition of nineteenth-century legal history, beginning in the 1800s and 1810s.

The Limitations of the Cortes of the Antigua Constitución

It is important to appreciate that the Cortes was the creation of the king for the purpose of consultation on how best to administer the realm. The monarch convoked the Cortes — in full or in part — when and where he or she decided. The Castilian monarch claimed the right to decide how many representatives of the towns and cities should compose the Third Estate (or brazo popular) of the Cortes. Isabel I (1474–1504), for instance, reduced the number to thirty-six. She and her successors tended to marginalize the Cortes in favor of the Royal Councils, established between 1480 and 1524. They gave political prominence to civil and canon lawyers, but this did not signify either the construction of an absolute monarchy or a concerted attack on the nobility as the senior corporation of the body politic. The practice of summoning the two senior brazos, representing the nobility and clergy, of the full Cortes became increasingly irregular, until, after 1538, they ceased to be summoned at all as separate bodies. In the debates of the Cádiz Cortes, this departure was regarded as a serious abuse, a symbolic beginning of royal absolutism. At the time, however, it was not seen as at all unusual.

With the expansion of bureaucratic institutions in the much-enlarged Hispanic monarchy of the sixteenth century, the Cortes of Castile did indeed appear to decline. Its particular vulnerability lay in its failure to establish effective and permanent control over taxation in previous centuries. The three brazos, furthermore, had never cooperated with this objective in mind. The Castilian Crown had secured the right to impose an extraordinary tax, the alcabala (sales tax), in 1342, which did not need the consent of the Cortes and became a major source of royal revenue. It was extended to the Spanish Indies in 1575 for New Spain, 1576 for Guatemala, and 1591 for Peru. These late dates indicated the political difficulty involved and the degree of opposition. The brazo popular did have the capacity to negotiate with the royal government over the tax levels of the servicio. Negotiation became intense between the 1620s and the 1650s, at the time of Spanish involvement in the Thirty Years' War and during the subsequent war with France.

The Habsburg monarchs continued to convoke the Cortes of their various Hispanic territories in the peninsula. Felipe II (1556–1598) did so twelve times in the case of the Cortes of Castile; Felipe III (1598–1621) summoned it six times; and Felipe IV (1621–1665) eight times. The Cortes of Aragon, Catalonia, and Valencia also met as separate bodies on several occasions during these three reigns, as did the Cortes of Navarre. The childless Carlos II (1665–1700), however, never convened the Castilian Cortes. Hence, no Cortes was involved in the discussions of the succession question in 1698–1700.

The Bourbon dynasty used the Cortes to ratify the succession. Bourbon victory in the War of Succession (1701–1715), however, provided Felipe V (1700–1746) with the opportunity to abolish the three distinct Cortes of the Crown of Aragon and incorporate their representatives into a united Spanish Cortes, always meeting in Madrid. This policy became known as the Nueva Planta (1707 and 1716). Castilian institutions, such as the audiencia, were extended across the peninsula. Thirteen captains general, royal appointees, combined civil and military authority throughout the peninsular provinces. In this way, the composite monarchy of previous centuries came to an end and a process of discreet centralization began. The united Cortes met in one chamber, with no distinction of chambers for the three brazos. This should not be regarded as an anticipation of the unicameral Cortes of Cádiz of 1810–1813, since the juridical principles were entirely different. In the first place, its composition reflected the sociedad estamental of privileged orders, with their distinct legal status and ethos. The towns and cities of the Third Estate still convened in the traditional manner. Furthermore, the representatives of the nobility and clergy in no way forfeited their juridical status through incorporation in the same chamber as the procuradores of the towns and cities. There was no question in this ancien régime context of either equality before the law or representation according to population. These two principles would lie at the heart of the liberalism which became the predominant political force in the Cádiz Cortes.

The Spanish Cortes was not convened once during the reign of Fernando VI (1746–1759), at a time when the ministry under the leadership of the Marqués de la Ensenada was discussing a far-reaching fiscal reform for the monarchy. Similarly, no Cortes participated in fiscal discussion under either Carlos III (1759–1788) or Carlos IV, when wartime pressures exposed the limitations of the imperial state. Instead, the ministry resorted to a series of extraordinary fiscal measures, beginning with the issue of paper bonds known as vales reales in 1780 and continuing with unpopular money-raising devices, such as those of 1798, 1804, and 1806, which put pressure on ecclesiastical institutions. They brought the imperial government into disrepute in both Spain and the Indies at a time of collapsed bond values, military defeat, and political confusion in Madrid.

Once the royal family was removed from Spain in May 1808, discussion focussed on revival of the Cortes. Accordingly, its composition became a crucial issue. Should a forthcoming Cortes consist of brazos, reflecting the juridical structure of a sociedad estamental, or should it reflect the new ideas of popular representation? If the former, then what were the American brazos supposed to be? Jovellanos, who seemed oblivious to the American context, argued that a Cortes without brazos would violate the "fundamental laws of the realm." Antonio Capmany, another major figure of the Enlightenment, pointed out the difficulty of summoning brazos, the composition of which was unclear. He argued, nevertheless, that the two senior estates had not lost their right to be summoned to the Cortes, despite royal practice after 1538. Like Jovellanos, he feared the implications of unicameralism. Yet, he did favor the convocation of a "General Cortes," acting "freely and in sovereign terms to establish liberty and future security." Again, the Americas were not specifically mentioned, although Capmany did point to the different legal traditions of the Crown of Castile and Aragon, with greater liberty experienced in the latter. Manuel Josef Quintana, the celebrated poet who became secretary of the Supreme Central Junta of Seville, went further still. While adopting the prevailing view that absolutism originated with the Habsburgs, his Manifesto of October 29, 1809, argued that the convocation by estamentos was no longer practicable.

Even well-known liberals, such as the Valencian cleric Joaquín Lorenzo Villanueva, deputy in the Extraordinary Cortes of 1810–1813, affirmed the existence of the "traditional constitution" and the "fundamental laws." Evidently, he did not believe, as traditionalist opponents did, that the Constitution of 1812 had violated them. Writing from exile in London in the mid-1820s, he described the Spanish monarchy as a "moderated monarchy" until it was subverted by a combined absolutism in church and state. Other leading liberals, such as Agustín Argüelles, Diego Muñoz de Torrero, Juan Nicasio Gallego, Quintana, and the Conde de Toreno, regarded the "traditional constitution" as unrealistic and inoperable in the different conditions of the early nineteenth century.

One further point needs emphasis. The imposition of the Nueva Planta did not finish off regional sentiment in the territories of the Crown of Aragon. Carlos III made a point of ignoring the request by their representatives in the Cortes of 1760 for the reinstitution of the abolished fueros of Aragon, Catalonia, and Valencia. The writings of Antonio Mestre and Ernest Lluch make clear the thwarted aspirations of these territories under the Bourbon monarchy. Such sentiments would reemerge during the peninsular political crisis of 1808–1810, following the collapse of Bourbon absolutism.

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Excerpted from The Rise of Constitutional Government in the Iberian Atlantic World by Scott Eastman, Natalia Sobrevilla Perea. Copyright © 2015 University of Alabama Press. Excerpted by permission of The University of Alabama Press.
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