VI

On September 24, 1810, the Extraordinary Cortes assembled on the Island of Leon; on February 20, 1811, they removed their sittings thence to Cadiz; on March 19, 1812, they promulgated the new Constitution; and on September 20, 1813, they closed their sittings, three years from the period of their opening.

The circumstances under which this Congress met are without parallel in history. While no legislative body had ever before gathered its members from such various parts of the globe, or pretended to control such immense territories in Europe, America and Asia, such a diversity of races and such a complexity of interests — nearly the whole of Spain was occupied by the French, and the Congress itself, actually cut off from Spain by hostile armies, and relegated to a small neck of land, had to legislate in the sight of a surrounding and besieging army. From the remote angle of the Isla Gaditana they undertook to lay the foundation of a new Spain, as their forefathers had done from the mountains of Covadonga and Sobrarbe. How are we to account for the curious phenomenon of the Constitution of 1812, afterward branded by the crowned heads of Europe, assembled at Verona, as the most incendiary invention of Jacobinism, having sprung up from the head of old monastic and absolutionist Spain at the very epoch when she seemed totally absorbed in waging a holy war against the Revolution? How, on the other hand, are we to account for the sudden disappearance of this same Constitution, vanishing like a shadow — like “la sombra de un sueño,"’ say the Spanish historians — when brought into contact with a living Bourbon? If the birth of that Constitution is a riddle, its death is no less so. To solve the enigma, we propose to commence with a short review of this same Constitution of 1812, which the Spaniards tried again to realize at two subsequent epochs, first during the period from 1820-23, and then in 1836.

The Constitution of 1812 consists of 384 articles and comprehends the following 10 divisions: 1. On the Spanish nation and the Spaniards. 2. On the territory of Spain; its religion, government, and on Spanish citizens. 3. On the Cortes. 4. On the King. 5. On the tribunals and administration of justice in civil and criminal ‘matters. 6. On the interior government of the provinces and communes. 7. On the taxes. 8. On the national military forces. 9. On public education. 10. On the observance of the Constitution, and mode of proceeding to make alterations therein.

Proceeding from the principle that

“the sovereignty resides essentially in the nation, to which, therefore, alone belongs exclusively the right of establishing fundamental laws,”

the Constitution, nevertheless, proclaims a division of powers, according to which:

“the legislative power is placed in the Cortes jointly with the King;” “the execution of the laws is confided to the King,” “the application of the laws in civil and criminal affairs belongs exclusively to the tribunals, neither the Cortes nor the King being in any case empowered to exercise judicial authority, advocate pending cases, or command the revisal of concluded judgment.”

The basis of the national representation is mere population, one deputy for every 70,000 souls. The Cortes consists of one house, viz: the commons, the election of the deputies being by universal suffrage. The elective franchise is enjoyed by all Spaniards, with the exception of menial servants, bankrupts and criminals. After the year 1830, no citizen can enjoy this right who cannot read and write. The election is, however, indirect, having to pass through the three degrees of parochial, district and provincial elections. There is no defined property qualification for a deputy. It is true that according to Art. 92, “it is necessary, in order to be eligible as a deputy to the Cortes, to possess a proportionate annual income, proceeding from real personal property,” but Art. 93 suspends the preceding article, until the Cortes in their future meetings declare the period to have arrived in which it shall take effect. The King has neither the right to dissolve nor prorogue the Cortes, who annually meet at the capital on the first of March, without being convoked, and sit at least three months consecutively.

A new Cortes is elected every second year, and no deputy can sit in two Cortes consecutively; i.e., one can only be re-elected after an intervening Cortes of two years. No deputy can ask or accept rewards, pensions, or honors from the King. The secretaries of state, the councillors of state, and those fulfilling offices of the royal household, are ineligible as deputies to the Cortes. No public officer employed by Government shall be elected deputy to the Cortes from the province in which he discharges his trust. To indemnify the deputies for their expenses, the respective provinces shall contribute such daily allowances as the Cortes, in the second year of every general deputation, shall point out for the deputation that is to succeed it. The Cortes cannot deliberate in the presence of the King. In those cases where the ministers have any communication to make to the Cortes in the name of the King, they may attend the debates when, and in such manner as, the Cortes may think fit, and may speak therein, but they cannot be present at a vote. The King, the Prince of Asturias, and the Regents have to swear to the Constitution before the Cortes, who determine any question of fact or right that may occur in the order of the succession to the Crown, and elect a Regency if necessary. The Cortes are to approve, previous to ratification, all treaties of offensive alliances, or of subsidies and commerce, to permit or refuse the admission of foreign troops into the kingdom, to decree the creation and suppression of offices in the tribunals established by the Constitution, and also the creation or abolition of public offices; to determine every year, at the recommendation of the King, the land and sea forces in peace and in war, to issue ordinances to the army, the fleet, and the national militia, in all their branches; to fix the expenses of the public administration; to establish annually the taxes, to take property on loan, in cases of necessity, upon the credit of the public funds, to decide on all matters respecting money, weights and measures; to establish a general plan of public education, to protect the political liberty of the press, to render real and effective the responsibility of the ministers, etc. The King enjoys only a suspensive veto, which he may exercise during two consecutive sessions, but if the same project of new law should be proposed a third time, and approved by the Cortes of the following year, the King is understood to have given his assent, and has actually to give it. Before the Cortes terminate a session, they appoint a permanent committee, consisting of seven of their members, sitting in the capital until the meeting of the next Cortes, endowed with powers to watch over the strict observance of the Constitution and administration of the laws; reporting to the next Cortes any infraction it may have observed, and empowered to convoke an extraordinary Cortes in critical times. The King cannot quit the kingdom without the consent of the Cortes. He requires the consent of the Cortes for contracting a marriage. The Cortes fix the annual revenue of the King’s household.

The only Privy Council of the King is the Council of State, in which the ministers have no seat, and which consists of forty persons, four ecclesiastics, four grandees of Spain, and the rest formed by distinguished administrators, all of them chosen by the King from a list of one hundred and twenty persons’ nominated by the Cortes; but no actual deputy can be a councilor, and no councilor can accept offices, honors, or employment from the King. The councilors of state cannot be removed without sufficient reasons, proved before the Supreme Court of justice. The Cortes fix the salary of these councilors whose opinion the King will hear upon all important matters, and who nominate the candidates for ecclesiastical and judicial places. In the sections respecting the judicature, all the old consejos are abolished, a new organization of tribunals is introduced, a Supreme Court of Justice is established to try the ministers when impeached, to take cognizance of all cases of dismissal and suspension from office of councilors of state, and the officers of courts of justice, etc. Without proof that reconciliation has been attempted, no law-suit can be commenced. Torture, compulsion, confiscation of property are suppressed. All exceptional tribunals are abolished but the military and ecclesiastic, against the decisions of which appeals to the Supreme Court are however permitted.

For the interior government of towns and communes (communes, where they do not exist, to be formed from districts with a population of 1,000 souls), Ayuntamientos shall be formed of one or more magistrates, aldermen and public councilors, to be presided over by the political chief (corregidor) and to be chosen by general election. No public officer actually employed and appointed by the King can be eligible as a magistrate, alderman or public councilor. The municipal employments shall be public duty, from which no person can be exempt without lawful reason. The municipal corporations shall discharge all their duties under the inspection of the provincial deputation.

The political government of the provinces shall be placed in the governor (jefe politico) appointed by the King. This governor is connected with a deputation, over which he presides, and which is elected by the districts when assembled for the general election of the members for a new Cortes. These provincial deputations consist of seven members, assisted by a secretary paid by the Cortes. These deputations shall hold sessions for ninety days at most in every year. From the powers and duties assigned to them, they may be considered as permanent committees of the Cortes. All members of the Ayuntamientos and provincial deputations, in entering office, swear fidelity to the Constitution. With regard to the taxes, all Spaniards are bound, without any distinction whatever, to contribute, in proportion to their means, to the expenses of the State. All custom-houses shall be suppressed, except in the seaports and on the frontier. All Spaniards are likewise bound to military service, and, beside the standing army, there shall be formed corps of national militia in each province, consisting of the inhabitants of the same, in proportion to its population and circumstances. Lastly, the Constitution of 1812 cannot be altered, augmented, or corrected in any of its details, until eight years have elapsed after its having been carried into practice.

When the Cortes drew up this new plan of the Spanish State, they were of course aware that such a modern political Constitution would be altogether incompatible with the old social system, and consequently, they promulgated a series of decrees, with a view to organic changes in civil society. Thus they abolished the Inquisition. They suppressed the seignorial jurisdictions; with their exclusive, prohibitive, and privative feudal privileges, i.e., those of the chase, fishery, forests, mills, etc., excepting such as had been acquired on an onerous title, and which were to be reimbursed. They abolished the tithes throughout the monarchy, suspended the nominations to all ecclesiastic prebends not necessary for the performance of divine service, and took steps for the suppression of the monasteries and the sequestration of their property.

They intended to transform the immense wastelands, royal domains and commons of Spain into private property, by selling one half of them for the extinction of the public debt, distributing another part by lot as a patriotic remuneration for the disbanded soldiers of the war of independence and granting a third part, gratuitously, and also by lot, to the poor peasantry who should desire to possess but not be able to buy them. They allowed the inclosure of pastures and other real property, formerly forbidden. They repealed the absurd laws which prevented pastures from being converted into arable land or arable land converted into pasture, and generally freed agriculture from the old arbitrary and ridiculous rules. They revoked all feudal laws with respect to farming contracts, and the law according to which the successor of an entailed estate was not obliged to confirm the leases granted by his predecessor, the leases expiring with him who had granted them. They abolished the voto de Santiago, under which name was understood an ancient tribute of a certain measure of the best bread and the best wine to be paid by the laborers of certain provinces principally for the maintenance of the Archbishop and Chapter of Santiago. They decreed the introduction of a large progressive tax, etc.

It being one of their principal aims to hold possession of the American colonies, which had already begun to revolt, they acknowledged the full political equality of the American and European Spaniards, proclaimed a general amnesty without any exception, issued decrees against the oppression weighing upon the original natives of America and Asia, cancelled the mitas, the repartimientos, etc., abolished the monopoly of quicksilver, and took the lead of Europe in suppressing the slave-trade.

The Constitution of 1812 has been accused on the one hand — for instance, by Ferdinand VII himself (see his decree of May 4, 1814) — of being a mere imitation of the French Constitution of 1791 transplanted on the Spanish soil by visionaries, regardless of the historical traditions of Spain. On the other hand, it has been contended — for instance, by the Abbé de Pradt (De la Révolution actuelle de 1'Espagne) — that the Cortes unreasonably clung to antiquated formulas, borrowed from the ancient fueros, and belonging to feudal times, when the royal authority was checked by the exorbitant privileges of the grandees.

The truth is that the Constitution of 1812 is a reproduction of the ancient fueros, but read in the light of the French Revolution, and adapted to the wants of modern society. The right of insurrection, for instance, is generally regarded as one of the boldest innovations of the Jacobin Constitution of 1793, but you meet this same right in the ancient Fueros of Sobrarbe, where it is called the Privilegio de la Union. You find it also in the ancient Constitution of Castile. According to the Fueros of Sobrarbe, the King cannot make peace nor declare war, nor conclude treaties, without the previous consent of the Cortes. The Permanent Committee, consisting of seven members of the Cortes, who are to watch over the strict observance of the Constitution during the prorogation of the legislative body, was of old established in Aragon, and was introduced into Castile at the time when the principal Cortes of the monarchy were united in one single body. To the period of the French invasion a similar institution still existed in the kingdom of Navarre. Touching the formation of a State Council from a list of 120 persons presented to the King by the Cortes and paid by them — this singular creation of the Constitution of 1812 was suggested by the remembrance of the fatal influence exercised by the camarillas at all epochs of the Spanish monarchy. The State Council was intended to supersede the camarilla. Besides, there existed analogous institutions in the past. At the time of Ferdinand IV, for instance, the King was always surrounded by twelve commoners, designated by the cities of Castile, to serve as his privy councilors; and, in 1419, the delegates of the cities complained that their commissioners were no longer admitted into the King’s Council. The exclusion of the highest functionaries and the members of the King’s household from the Cortes, as well as the prohibition to the deputies to accept honors or offices on the part of the King, seems, at first view, to be borrowed from the Constitution of 1791, and naturally to flow from the modern division of powers, sanctioned by the Constitution of 1812. But, in fact, we meet not only in the ancient Constitution of Castile with precedents, but we know that the people, at different times, rose and assassinated the deputies who had accepted honors or offices from the Crown. As to the right of the Cortes to appoint regencies in case of minority, it had continually been exercised by the ancient Cortes of Castile during the long minorities of the fourteenth century.

It is true that the Cadiz Cortes deprived the King of the power he had always exercised of convoking, dissolving, or proroguing the Cortes; but as the Cortes had fallen into disuse by the very manner in which the Kings improved their privileges, there was nothing more evident than the necessity of cancelling it. The alleged facts may suffice to show that the anxious limitation of the royal power — the most striking feature of the Constitution of 1812 — otherwise fully explained by the recent and revolting souvenirs of Godoy’s contemptible despotism, derived its origin from the ancient Fueros of Spain. The Cadiz Cortes but transferred the control from the privileged estates to the national representation. How much the Spanish kings stood in awe of the ancient Fueros may be seen from the fact that when a new collection of the Spanish laws had become necessary, in 1805, a royal ordinance ordered the removal from it of all the remains of feudalism contained in the last collection of laws, and belonging to a time when the weakness of the monarchy forced the kings to enter with their vassals into compromises derogatory to the sovereign power.

If the election of the deputies by general suffrage was an innovation, it must not be forgotten that the Cortes of 1812 were themselves elected by general suffrage, that all the juntas had been elected by it; that a limitation of it would, therefore, have been an infraction of a right already conquered by the people; and, lastly, that a property qualification, at a time when almost all the real property of Spain was locked up in mortmain, would have excluded the greater part of the population.

The meeting of the representatives in one single house was by no means copied from the French Constitution of 1791, as the morose English Tories will have it. Our readers know already that since Charles I (the Emperor Charles V) the aristocracy and the clergy had lost their seats in the Cortes of Castile. But even at the time when the Cortes were divided into brazos (arms, branches), representing the different estates, they assembled in one single hall, separated only by their seats, and voting in common. From the provinces, in which alone the Cortes still possessed real power at the epoch of the French invasion, Navarre continued the old custom of convoking the Cortes by estates; but in the Vascongadas the altogether democratic assemblies admitted not even the clergy. Besides, if the clergy and aristocracy had saved their obnoxious privileges, they had long since ceased to form independent political bodies, the existence of which constituted the basis of the composition of the ancient Cortes.

The separation of the judiciary from the executive power, decreed by the Cadiz Cortes, was demanded as early as the eighteenth century, by the most enlightened statesmen of Spain; and the general odium which the Consejo Real, from the beginning of the revolution, had concentrated upon itself, made the necessity of reducing the tribunals to their proper sphere of action universally felt.

The section of the Constitution which refers to the municipal government of the communes, is a genuine Spanish offspring, as we have shown in a former article. The Cortes only re-established the old municipal system, while they stripped off its medieval character. As to the provincial deputations, invested with the same powers for the internal government of the provinces as the ayuntamientos for the administration of the communes, the Cortes modelled them in imitation of similar institutions still existing at the time of the invasion in Navarre, Biscay and Asturias. In abolishing the exemptions from the military service, the Cortes sanctioned only what had become the general practice during the war of independence. The abolition of the Inquisition was also but the sanction of a fact, as the Holy Office, although re-established by the Central junta, had not dared to resume its functions, its holy members being content with pocketing their salaries, and prudently waiting for better times. As to the suppression of feudal abuses, the Cortes went not even the length of the reforms insisted upon in the famous memorial of Jovellanos, presented in 1795 to the Consejo Real in the name of the economical society of Madrid. The ministers of the enlightened despotism of the latter part of the eighteenth century, Floridablanca and Campomanes, had already begun to take steps in this direction. Besides, it must not be forgotten that simultaneously with the Cortes, there sat a French Government at Madrid, which, in all the provinces overrun by the armies of Napoleon, had swept away from the soil all monastic and feudal institutions, and introduced the modern system of administration. The Bonapartist papers denounced the insurrection as entirely produced by the artifices and bribes of England, assisted by the monks and the Inquisition. How far the rivalry with the intruding government must have exercised a salutary influence upon the decisions of the Cortes, may be inferred from the fact that the Central Junta itself, in its decree dated September, 1809, wherein the convocation of the Cortes is announced, addressed the Spaniards in the following terms:

“Our detractors say that we are fighting to defend old abuses and the inveterate vices of our corrupted government. Let them know that your struggle is for the happiness as well as the independence of your country; that you will not depend henceforward on the uncertain will or the various temper of a single man,” etc.

On the other hand, we may trace in the Constitution of 1812 symptoms not to be mistaken of a compromise entered into between the liberal ideas of the eighteenth century and the dark traditions of priestcraft. It suffices to quote Art. 12, according to which

“the religion of the Spanish nation is and shall be perpetually Catholic, Apostolic, and Roman, the only true religion. The nation protects it by wise and just laws, and prohibits the exercise of any other whatever”;

or Art. 173, ordering the King to take, on his accession to the throne, the following oath before the Cortes:

“by the grace of God and the Constitution of the Spanish Monarchy, King of Spain, I swear by the Almighty and the Holy Evangelists, that I will defend and preserve the Catholic, Roman, and Apostolic religion, without tolerating any other in the kingdom.”

On a closer analysis, then, of the Constitution of 1812, we arrive at the conclusion that, so far from being a servile copy of the French Constitution of 1791, it was a genuine and original offspring of Spanish intellectual life, regenerating the ancient and national institutions, introducing the measures of reform loudly demanded by the most celebrated authors and statesmen of the eighteenth century, making inevitable concessions to popular prejudice.