Pre-constitutional law and constitutions: Spanish colonial law and the constitution of Cadiz.

• Published date: 22 March 2013
• Author: Mirow, M.C.
• Date: 22 March 2013

The Spanish Constitution of Cadiz of 1812 (1) ("Constitution") has recently attracted the attention of constitutionalists and legal historians for its role as an essential step in the development of both world and Latin American constitutionalism. The interest in the Constitution has increased due to its 2012 bicentennial and the rolling independence bicentennials of the Latin American republics. There is a well-documented connection between the events leading to the Constitution's implementation throughout the Spanish Empire and both initial Latin American independence movements and subsequent constitutional texts and practices. (2) There are fewer studies, however, concerning the pivotal role the extant Spanish colonial law (derecho indiano) played in these events. (3)

Instead of exploring the effect produced by the Constitution in subsequent constitutional developments, this study examines the way existing law informed the constitutional process in Cadiz and shaped the Constitution itself. More specifically, this article examines the role and function of Spanish colonial law as related to both the constitutional debates and the text itself. (4) It seeks to explore the important place Spanish colonial law had in the Constitution's construction, the way it limited the scope of the Constitution, and the way the Constitution, in turn, shaped Spanish colonial law.

Spanish colonial law's effect on the Constitution and in the Cortes (5) has three distinct aspects. First, Spanish colonial law served as a common knowledge base concerning the status of the Americas, their institutions, and their relation to peninsular Spain. (6) Second, Spanish colonial law served as a source to resolve questions of law during the constitutional drafting process. (7) Third, Spanish colonial law was at the forefront of a broader debate concerning the Constitution's historicity and the extent to which the Constitution's text merely affirmed pre-existing institutions, rights, concepts, and structures into a new written text. (8)

To understand fully the interaction between the Constitution and Spanish colonial law, the two must first be understood separately. The Constitution is well known by historians of political thought, constitutional law, and nineteenth-century liberalism. (9) It is often considered one of the first liberal constitutions in Europe and in America. Like the United States Constitution, the Constitution of Cadiz had great influence during the drafting of the first constitutions of the Americas during the independence period. (10) This document, consisting of 384 articles in about forty pages of text, established sovereignty in the nation and not in the king. The Roman Catholic religion received substantial preference under the Constitution, and the practice of other religions was prohibited. (11) The text included provisions that evinced a liberal bias: representative elections at multiple levels of government, (12) restrictions on the power of the king, (13) rights to property, (14) and rights for the criminally accused. (15) Because the Constitution was drafted by deputies representing not only peninsular Spain but also the American provinces, it was the first truly transatlantic constitution, and the American influences on the Constitution and vice-versa have been a subject of substantial speculation, historical scholarship, and debate. (16)

Because the exact status of the Americas in the Spanish Empire was not entirely clear--the Americas could arguably be seen as completely separate from Spain, or as incorporated provinces of the Spanish Empire--Spanish colonial law oscillated between law best characterized as strict imperial law, and that which falls closer to special local legislation. The peculiarities of government and legislation in the Americas were highlighted in the eighteenth century in the works of Manuel Joseph de Ayala and Benito de la Mata Linares, for example. (17) In Spanish colonial law, we find a ship anchored in the ius commune tradition, fitted with the two grand sails of the Recopilacion of 1680 and Juan Solorzano Pereira's Politica Indiana, with a myriad of local orders and roles expedited by audiencias, viceroys, and other local authorities, all fitted out for the unique situations and challenges of the Americas. (18) The Recopilacion, referred to throughout this study, was divided into nine books roughly dealing with the following subject matters: (1) the church and clergy; (2) the Council of the Indies and courts; (3) the viceroy and military matters; (4) discovering and populating new lands; (5) royal officials and their jurisdiction; (6) indigenous populations and their labor; (7) moral and criminal offences; (8) finances; and (9) the Board of Trade and American commerce. (19) The diversity of sources contributing to Spanish colonial law, the multiple provincial provisions, and the variety of local customs leads to an understanding that perhaps there was not one uniform system of Spanish colonial law. (20) Thus, one may think in the plural of Spanish colonial laws. Despite the increasing centralization within the Spanish Empire leading up to the century of the Cortes of Cadiz, local variations continued and the laws and customs of indigenous communities also continued to be expressed as applicable legal norms. (21)

I. SPANISH COLONIAL LAW AS A COMMON BASE OF LEGAL KNOWLEDGE

One does not need to read much of the Constitution to realize that it has much to do with America, or Ultramar, as Spaniards then called it. The first twelve words of the Constitution are enough: Article I famously states, "The Spanish Nation is the reunion of all Spaniards of both hemispheres." (22) Article 10 reinforces the continental continuity, stating that the territory of Spain explicitly includes, in this order: New Spain, New Galicia, the Yucatan, Guatemala, the Provinces of the East, the Provinces of the West, Cuba, the Floridas, Santo Domingo, Puerto Rico, New Granada, Venezuela, Peru, Chile, and Rio de la Plata. (23) Other articles make it clear that the Cortes of Cadiz never stopped thinking about America's place within the Spanish Empire and within the text of the Constitution. The ideas of "both hemispheres," America, or Ultramar, are found in articles dealing with citizenship, (24) the formation of the Cortes, (25) elections at the city (parroquia), district (partido), and province (provincia) levels, (26) the composition of the Permanent Deputation of the Cortes, a kind of standing committee when the Cortes were not in session, (27) the creation of an Office of Overseas, (28) the composition of the Council of State, (29) the jurisdiction of the tribunals to hear appeals in the region, (30) and the power of the deputations to oversee public works. (31)

Americans had significant representation in various political and representative bodies created during the period, including memberships in the Regency, (32) as presidents, secretaries, and vice-presidents of the Cortes, in the Permanent Deputations, and on the committee that prepared the draft Constitution. (33) No fewer than 47 deputies, representing overseas interests, out of a total of 183 signers, signed the Constitution. (34) Of the 86 deputies from the Americas, approximately one third (28) were trained lawyers. (35) They fought diligently to increase the Americas' power and influence in the Cortes, in the government, and in the text of the Constitution. Agustin de Arguelles, a key liberal figure in the Cortes and deputy for Asturias, proposed an early solution concerning American demands. He suggested that the decision of representation of America be suspended until the Constitution itself was finished, while advancing a decree assuring the equality of peninsular Spaniards and American Spaniards. (36) Issues related to the Americas were often before the Cortes. There were speeches and debates concerning the indigenous communities (indios), various kinds of legal institutions to extract their wealth or labor (mitas and repartimientos), and a committee focused on the pacification of America. (37)

American deputies at the Cortes were important contributors to the drafting of the Constitution. A site filled with ships and businesses, sailors and merchants, and cafes and traders at the time of the Constitution, Cadiz was a bustling economic hub with political institutions tied to foreign trade, and trade with the Americas in particular. (38) In addition to the political and economic activities that tied the Americas to Cadiz, American financial contributions were essential in continuing the Spanish fight against the French. (39) As Rieu-Millan has written, "[t]here was in Andalucia and especially in Cadiz an accentuated 'presence' of American Spaniards perfectly integrated into local life." (40) Nonetheless, the quality of debate and overall consideration of the Americas in Cadiz suffered in several crucial respects due to a lack of knowledge and understanding about the current state of affairs in the Americas. (41) American voices were respected and heard, but not always victorious, in the process of drafting and promulgating the Constitution. (42)

About one hundred years ago, Rafael Maria de Labra began his study of the Americas and the Constitution with a detailed description of the content of the Recopilacion. (43) He was correct to begin with this source because the sources of Spanish colonial law, and especially the Recopilacion, defined the manner in which the drafters of the Constitution understood the Americas. De Labra noted the traditional topics related to the Americas, the conversion of the indigenous inhabitants, transatlantic trade, and the Crown's guidance of the Roman Catholic Church in the Americas, called the Real Patronato. (44) Despite these distinctive features, there was also a juridical uniformity between the Spain of Europe and the Spain of the Americas. (45) De Labra wrote:

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