The Constitution of Cádiz in New Spain more

THE CONSTITUTION OF CÁDIZ IN NEW SPAIN Alfredo Ávila Instituto de Investigaciones Históricas Universidad Nacional Autónoma de México Paper for The Spanish Roots of Modern Liberalism A Celebration on the Bicentennial of May 2nd, 1808 Friday, March 28th, 2008 Mortara Center – Georgetown University Do not copy, quote, or cite without author’s permission. Comments and suggestions are welcome: alf.avila@yahoo.com THE PROJECT FOR A SPANISH NATION In 1776 Pedro Rodríguez de Campomanes proposed the creation of a “unified national body” from the Spanish monarchy’s European and American dominions.1 It might appear paradoxical that this proposal should have been made just at the time when the Bourbon Reforms were modifying the traditional relationship that Spain had maintained with its overseas possessions until that point. As various historians have pointed out, fierce military competition in Europe and the “Age of Enlightenment” had led the Spanish Crown to try to obtain larger profits from America. A new type of colonialism emerged which soon manifested itself through the Crown’s tighter political control over its colonies and in the greater tax revenue gathered for the State’s up keep. As shall be seen later, this apparent paradox was maintained even while the Cádiz Constitution was in force. This created a nation composed of “both hemispheres” in which all Spaniards enjoyed equal rights – regardless of their birthplace– while significantly reducing the size of the American Pietschmann, “Nación e individuo en los debates políticos de la época preindependiente en el imperio español (1767-1812)”, en Isaskun Álvarez Cuartero y Julio Sánchez Gómez, editores, Visiones y revisiones de la independencia americana, Salamanca, Ediciones de la Universidad de Salamanca, 2003, p. 68. 1 1 representation in the legislative body (known as the Cortes) in order prevent it from exceeding that of the deputies from the European Spain. However, the paradox is only apparent. As Horst Pietschmann has shown, the project suggested by Campomanes –and also by the Count of Floridablanca when he occupied the office of First Secretary of State– emphasized the subject’s obligations to the nation. Everyone should contribute to the State’s maintenance to the best of their abilities, no matter what their place of birth or privileges. The Church was one of the institutions most involved in advancing these objectives in the Indies. At least a decade earlier, the enlightened Archbishop of Mexico Francisco Antonio de Lorenzana had recommended the reform of ecclesiastical duties so that everyone would contribute to the Church’s upkeep to the best of their abilities, regardless of corporate privileges. A little later, in the diocese of Valladolid, Bishop Antonio de San Miguel would pen a tract that called for the Indians to lose their privileges, as this kept them in a state of eternal infancy instead of protecting them and excused them from contributing to the maintenance of the State. If, on the one hand, he suggested the abolition of the tribute, on the other, he wanted the Indians to pay tithes and all other taxes. One of the canons close to Bishop San Miguel, Manuel Abad y Queipo would repeat this project that sought to oblige everyone without exception, Indians, the different castes, American and European Spaniards, to participate in expanding the monarchy. Even after the civil war had broken out in New Spain in 1810, he proposed greater participation for the Viceroyalty’s inhabitants in government as an effective way of containing the fighting. He did not really mean in local government, but rather in Spain. Americans could and should be able to occupy offices on Europe on equal terms with the native population, just as European Spaniards should be able to take up colonial posts without being criticised. 2 Mariano de Beristáin, a canon from Puebla, agreed with this idea. From his point of view, the creoles opposition to the gachupines (that is to say, European Spaniards) holding office in Spanish America’s corporations and institutions seemed incomprehensible: a Spaniard born in Lima should be able to have a post in either Mexico or Madrid, while at the same time there should be no obstacles to a European Spaniard having one in America. Beristáin tried hard to show that Spanish central administration had given jobs and offices to numerous Creoles at all levels of government in their homelands and in other American regions as well as in the metropolis during the preceding three hundred years. In this way, he endeavored to counter one of the main arguments put forward to justify the insurrection: discrimination against Americans. For Mariano Beristáin, who would have a distinguished career in the Archdiocese of Mexico, it was not at all important where someone was born within the monarchy’s territories. In 1794 Beristáin preached a sermon in Mexico City’s Cathedral in remembrance of the Spaniards killed in the war against revolutionary France. This would be the first of a series in which he described the glories of the Spanish military action against the foreigners who had dared to oppose the Catholic Monarchy: from don Pelayo, through Hernán Cortés to the brave men who died fighting the French. All were Spaniards, “our brothers”, “our armies”. The pronoun did not leave room for doubt. In Beristáin’s prose he assumed that the Spanish soldiers formed part of the same community with his congregation and the readers of his sermon.2 France’s invasion of the Iberian Peninsula and the imprisonment of the Bourbon monarch in Bayona increased such demonstrations of unity between “both of Beristáin, La felicidad de las armas de España vinculada en la piedad de sus reyes, generales y soldados o el valor, la gloria, la virtud y la religión de los militares españoles demostradas en siete oraciones fúnebres que en sus solemnes exequias ha pronunciado el Dr. D. José Mariano Beristáin, del gremio y claustro de las Universidades de Valencia y Valladolid, caballero de la orden de Carlos III, y actual deán de la Metropolitana de México, México, en la Oficina de Doña María Fernández de Jáuregui, 1815. 2 3 Fernando’s hemispheres”. Sermons and newspapers exhorted New Spain’s population to show their solidarity with the European part of the monarchy. The reports of “our armies” triumphs and disasters against “our enemies” undoubtedly helped construct a pan-hispanic identity.3 The inclusion of the American dominions in the different government bodies that came into being to remedy the 1808 constitutional crisis, from the Juntas (governing councils) to the Cortes, strengthened the concept of a single nation made up of individuals who ought to contribute in upholding liberty’s sacred cause in the face of a foreign power. As is well known, this started a revolutionary process of hitherto unheard of dimensions. The Constitution enacted in Cádiz in 1812 would bring into existence a gigantic sized nation spread over both hemispheres (as the Spanish liked to say at the time) with a population of more than twenty-six million people in Europe, America and Asia. Neither Great Britain nor France had awarded their colonial inhabitants the opportunity provided by the Junta Central, the Regency and the Spanish Cortes to those immense territories that had been incorporated into the Castile Crown three hundred years earlier. As was clear right from the 1809 and 1810 decrees concerning the election of American representatives for the Junta Central and the Cortes, the European Spaniards were not sure of their overseas dominions’ size, needs or circumstances. For example, this explains why the 1810 invitation to hold elections stated that America should send one deputy for every partido (an administrative unit smaller than an intendancy), when this would have brought about an “Extracto de una carta [de Servando Teresa de Mier a Agustín Pomposo Fernández de San Salvador]”, Diario de México, tomo XII, 1593, sábado 10 de febrero de 1810. 3 4 over-whelming majority of American deputies in the Cortes. This mistake was corrected in the end and it was stated that one deputy should be sent for each province.4 The inclusion of the American territories in the Spanish nation that began to emerge following the 1808 crisis shared a similar characteristic with the entity Bourbon despotism’s enlightened ministers had imagined. Alongside Spain, America and Asia would form part of a “unified national body” –as Campomanes had wanted– although in a different way, as “accessories”, to use the term proposed by José María Portillo. This is clear from the composition of the Junta Central and the Cortes. In the Junta there were representatives from the Spanish insurgent Juntas, but not from their American counterparts; the American members would be elected –in a ratio of one for each Viceroyalty or General Captaincy– by the provincial capital’s municipal council. As for the Extraordinary Cortes, the instructions stated that the Spanish deputies be elected by the insurgent Juntas, by the old and privileged cities “con voto en Cortes” (that is, in the traditional Cortes with states) and by the population –one deputy for every fifty thousand inhabitants, while the Americans only had the right to elect one member for each provincial capital, even if some of these had more than fifty thousand inhabitants. Finally, while the European deputies elected by “people” should enjoy wide and unlimited powers to constitute the nation, the Americans were constrained by instructions issued by the councils that elected them. In the words of François-Xavier Guerra, the former would be deputies, while the latter seemed to be more like the procuradores who attended the traditional Cortes on behalf of their corporation. Real Decreto, Isla de León, 14 de febrero de 1810, in Archivo General de la Nación, México, Reales cédulas originales, 202, 71, f. 129-132. Some parts in this paper are from: Alfredo Ávila, En nombre de la nación. La formación del gobierno representativo en México 1808-1824, México, Taurus – CIDE, 2002. I thank to John Tutino for the invitation to revised my own work. 4 5 The Americans distinguished themselves in the parliamentary debates that led to the passing of the 1812 Constitution. Such important initiatives, such as the Provincial Deputations, originated from the claims made by deputies such as José Miguel Ramos Arizpe. However, these petitions always depended upon approval or rejection by the majority of European deputies in the assembly. This meant that the most reoccurring one was precisely the call for an increase in the number of American representatives, something that was never achieved, despite the fact that the constitutional text being drawn up quite clearly stated that there would be a deputy for every seventy thousand inhabitants, regardless of geographical distinctions. Even though such an equal principle was completely coherent with the type of nation that had been put forward since Cádiz, the European Spaniards prevented this promised equality from being awarded to the Americans. As the liberal Agustín Argüelles clearly expressed: “in that hemisphere [America and Asia] we find there is a larger population than that of the metropolis”. This was true: for every two inhabitants in Spain there were approximately three in America. This became “a barrier […] which America could not overcome in order to give it representation equal to that of the Peninsula in these Cortes.”5 In this way the 1812 Spanish nation incorporated and excluded at the same time. The European deputies were able to maintain the Americans representatives’ minority in the subsequent ordinary Cortes through various constitutional articles. Article 18 excluded the population who originated from outside the Spanish empire from being citizens. This was an extremely important provision as it granted America and Asia’s indigenous population the same rights as the Spanish –it made them citizens– but it affected Argüelles, Sesión de 9 de enero de 1811, in Diario de sesiones de las Cortes Generales y Extraordinarias, in Congreso de los Diputados, Diario de sesiones 1810-1813, pp. 329-330. 5 6 those of African origin, that is to say a significant number of people in certain American regions. Now, this was not because there was any interest on the part of the American elites –precisely in the regions in which those of African descent had a larger presence– in including the castas (people of African origin) as citizens. Even in the same Cortes it did not seem that the American deputies were determined to ensure that those of African descent could vote and be voted for. A measure such as this did not appear extraordinary in the context of the rest of the Atlantic world’s constitutions and laws. Evan as various authors have shown, in practice, despite the constitutional provisions, more than a few places in America, African descendants could vote and, on occasion, be elected for local positions. In a number of articles the Constitution also excluded other types of people from citizenship, generally, those who were unable to freely express their own will (the foundation of national sovereignty). In this way, dependents (in a wide sense) were barred: minors, women, domestic servants and members of religious orders; the latter for having expressly renounced their own free will when taking their vows and the rest for being immediately subject to a pater familias. As José María Portillo Valdés has noted, the Constitution did not imply the abolition of the previous order: an important part of human relations carried on being governed by the “economía doméstica” - a natural order, previous to positive law.6 Actually, the debate was provoked by articles 29 and 31, which excluded those of African descent from being counted as part of the population for calculating the number of deputies. In other words, women, children, domestic servants and others excluded from citizenship were counted in order to determine the number of “souls” (to use José M. Portillo Valdés, “Constitucionalismo antes de la Constitución. La Economía Política y los orígenes del constitucionalismo en España”, Nuevo Mundo Mundos Nuevos, Coloquios, 2007, [on line], January 28, 2007. URL : http://nuevomundo.revues.org//index4160.html. 6 7 the terminology employed by article 31), but not the castas. This exclusion was completely unacceptable for the American deputies, who demanded their right to equal representation; not exactly so there would be one representative for every seventy thousand souls, which would have created an American majority in the legislative power, but rather so that there would be the same number of European and overseas deputies. This protest was also rejected. Those European deputies thought that this would mean an artificial separation of America from the Peninsula, when actually they were part of the same nation, represented by the Cortes.7 The debate continued in the ordinary sessions of the Cortes, in 1813 and 1814, as well as in 1820 y 1821. The Spanish revolution, which had begun an ambitious project for national integration and the granting of rights in both hemispheres, succumbed, mainly because it was unable to overcome the contradiction that had been present since the middle of the eighteenth-century in the concept of a Spanish nation that demanded the same obligations from all her dominions’ inhabitants, but tried to keep the most populated part of her in second place. THE CONSTITUTION IN NEW SPAIN There were many different reactions to the Cádiz Constitution in New Spain. For some politicians it was the opportunity to participate further in government. The established authorities thought that the Constitution represented an obstacle in the fight against the insurgency. For their part, the insurgents had to discredit the Spanish Cortes’ work, since it represented an alternative to the project they championed. In general, the Cádiz Constitution was received enthusiastically. The authorities rushed to enact it. The Church Capmany, Sesión de 21 de enero de 1813, in Diario de sesiones de las Cortes Generales y Extraordinarias, in Congreso de los Diputados, Diario de sesiones 1810-1813, p. 4421. Also view Joaquín Varela Suanzes Carpegna, La teoría del Estado en los orígenes del constitucionalismo hispánico (las Cortes de Cádiz), Madrid, Centro de Estudios Constitucionales, 1983. 7 8 celebrated religious ceremonies to thank God for the blessings that the Constitution brought to New Spain’s inhabitants. As has already been mentioned, the new political order prescribed by the Constitution was founded upon national sovereignty, that is to say, all those Spaniards who lived in the monarchy’s territories. As a result, some of the most important government institutions had to be elected by the population. Therefore, one of the first political measures to be enacted in 1812 was the organization of the electoral process in order to shape some of the new institutions. Some lawyers and writers made the most of the freedom of the press to influence their fellow citizens’ votes, although they rarely tried to secure the election of any one person in particular, rather they instructed the public to vote for the most honest and patriotic men. The first part of the process to elect Mexico City’s council members or ayuntamiento was in November 1812. It seems that nobody expected enthusiastic participation from citizens. The descriptions from that day show that a lot of people came out to vote, even those who were legally barred –like the castas– from participating. Immediately there were complaints that various individuals were distributing papers with candidate names on them, something that was not considered in the legislation, but was not prohibited either. The result was that, at the end of the day, those elected were all distinguished inhabitants of Mexico City, some of them suspected of being connected to the insurgents. For this reason, the authorities decided to halt the electoral process.8 Documents housed in the archives prove that elections were held in other towns, although with some delay. In the province of New Spain, it seems that something similar to the events in Mexico City happened, many of those elected were suspected of collaborating with the insurgents. In Guadalajara, the elections also caused some problems. In Yucatan it appears that constitutional ayuntamientos were established in those places with more than a 8 Virginia Guedea, En busca de un gobierno alterno. Los Guadalupes de México, México, UNAM, 1992. 9 thousand inhabitants at the end of 1812 and the beginning of 1813. Contemporary historians agree that more than a thousand ayuntamientos were established in New Spain, which could mean that many places that were originally governed by the councils of other towns (ciudades cabeceras) used the Constitution as a means to gain self-government.9 We know little about how the Cádiz Constitution was applied in indigenous towns. It should be remembered that the New Laws of the sixteenth-century had recommended the establishment of Indian Government (repúblicas de indios) in places with only eighty tribute payers, in other words, around four hundred inhabitants. According to the Cádiz Constitution, only a thousand inhabitants were needed to set up an ayuntamiento. So it is most probable that the number of indigenous pueblos with their own authorities would have been reduced by the application of the liberal order. The indigenous populations of San Juan and Santiago were subordinated to Mexico City’s Creole ayuntamiento. Something similar happened in other pueblos, when they became dependent on ayuntamientos which only rarely had indigenous members. Even so, many inhabitants of Indian pueblos in Oaxaca, the Huasteca and the Valle de México, learnt the liberal language in order to defend their rights. Every year the municipal elections encouraged the pueblos to consider themselves sovereign. They even took on powers not specified in the Constitution, as was the case of the administration of justice, which informally rested in the hands of the alcalde constitucional.10 By the middle of 1813, even in the Mexico City the electoral process to select the new ayuntamiento had been completed. The next stage was the election of deputies for the The best book on this subject: José Antonio Serrano Ortega, Jerarquía territorial y transición política, Zamora, El Colegio de Michoacán, 2001. 10 Antonio Annino, “Nación y liberalismo en el siglo XIX mexicano”, in El Estado y la nación en España y Mexico, Santander, Universidad de Cantabria, forthcoming. 9 10 Ordinary Cortes and for the Provincial Deputations. This last institution –the Provincial Deputation– was very important, as it was to administer each province. In New Spain, the Yucatan Deputation was installed at the beginning of 1813, later in the second half of that year, another was established in Guadalajara. In contrast, the Provincial Deputation of New Spain (which included the provinces of Mexico, Puebla, Oaxaca and Veracruz) was not set up until 1814, a little before the Constitution was abolished. In fact, during the first period of constitutional rule (between 1812 and 1814), the Constitution faced many obstacles. The most important were the insurgency and the Viceroyalty’s authorities’ attitude to the rebellion. As José Antonio Serrano and Juan Ortiz have shown, the Viceroys and the military believed that the Constitution was a problem for the war against the insurgency.11 Press freedom, for example, allowed adverse and critical opinions about the government to be expressed, just at a time when the consolidation of the Viceroy’s and the military’s image was most needed. For this reason, Viceroy Venegas did not want to enact the decree which provided for press freedom. Finally in 1812, he was obliged to allow writers to freely express their opinions, but then immediately suspended the decree and arrested some of the most important writers, like José Joaquín Fernández de Lizardi, and forced others, like Carlos María de Bustamante, to flee to insurgent controlled regions. The Viceroys of New Spain, Francisco Xavier Venagas and Félix María Calleja, used the Constitution and the liberal laws to their own convenience. José Antonio Serrano has shown that the fiscal laws passed by the Cortes were welcomed by Calleja, who kept them in force even after Fernando VII abolished the Constitution in 1814. This was due to Juan Ortiz Escamilla, “Calleja, el gobierno de la Nueva España y la Constitución de 1812”, in Revista de investigaciones jurídicas 20, 1996, p. 405-447. I thank to Juan Ortiz and José Antonio Serrano for their ideas and suggestions. We are working in a book entitled Escenarios y actores de la Independencia. 11 11 the fact that the liberal order required all persons to contribute to the State’s upkeep, regardless of their privileges. In New Spain, the conditions of war made a measure like that very important. However, when the Constitution threatened to weaken the Viceroy’s authority, he simply referred to the old laws in order to avoid applying it. This happened in the Mexico City elections in November 1812, when the Viceroy consulted the Real Audiencia before halting the electoral process. The Cádiz Constitution stripped the Viceroy of the enormous authority he had once had. It took away many of his powers to levy taxes and, what was more important, made him the jefe político (Political Chief) of the province of New Spain, without legal authority in Guadalajara, San Luis Potosí, Provincias Internas de Oriente, Provincias Internas de Occidente and Yucatán. In each of these locations a Political Chief and a Provincial Deputation were arranged. The Viceroy also lost his position as president of the Audiencia. This body became part of the judicial power, in this way the members of the Audiencia (the oidores) also lost much of their administrative and governmental powers. This provoked a lot of unhappiness, since many oidores benefited from sizable incomes for the commissions they held and lost when the Constitution was enforced. However, the Viceroy found a way to preserve his governmental attributes. As Juan Ortiz has shown, the Cortes appointed Félix María Calleja as the province of New Spain’s Capitán General (General Captain), but because of a mistake in the wording they also called him “Viceroy Governor […] and President of the Real Audencia”. This appointment allowed Calleja to ignore some of the Constitution’s provisions, especially those which stripped him of power in the other provinces. Thus, he considered himself New Spain’s General Captain, as well as the superior of the Political Chiefs from the other provinces. 12 Through his influence over the army, Calleja was able to maintain a lot of power in nearly all the Viceroyalty, even in the face of the Constitution’s previsions. However, some of the other Political Chiefs also used the Constitution to stand up to the Viceroy’s authority. Bernardo de Bonavía, who was the Commander of the Provincias Internas de Occidente, considered himself to be independent of the government in Mexico City. During a few months he sustained a very coarse correspondence with Calleja and managed to preserve his autonomy in Durango. Also in the North, Joaquín de Arredondo, the Commander of the Provincias Internas de Oriente, disobeyed the orders that Calleja sent him, although it seems he did not have to justify himself to do so. Nearer to Mexico City, the Provincial Deputation of Guadalajara sent a petition to the Cortes in May 1814, arguing that, according to article 324 of the Constitution, the Kingdom of New Galicia had been separated from the Viceroyalty of New Spain. In this case, the provinces of Guadalajara and Zacatecas were independent of Mexico City and recognised no other authority than that of their Political Chief, José de la Cruz. As can be appreciated from this, the Viceregal and local authorities endorsed the Constitution in order to get more governmental attributes, but stopped applying it when it was not convenient for them. The insurgents criticized this discretionary attitude and used it to attack the liberal laws. They knew that the rights offered by the Constitution were very attractive for the inhabitants of New Spain. For this reason, the most outstanding ideologues amongst the insurgents attacked the Cortes’ laws in order to gain support. They even managed to criticize the abolition of the Holy Office of the Inquisition’s Tribunal. José María Cos was the ideologue who expressed the insurgents’ objections to the 1812 Constitution most clearly. In general, he criticized the Cortes for having very few American representatives and for being composed, from his point of view, mostly of substitutes 13 (deputies who replaced those representatives who were unable to attend parliament). In his famous, Plan de Paz y Guerra, he stated that Spain and America were equal parts of the Spanish Monarchy, for that reason the latter could not be subordinate to the governments established in the former. The Juntas that had been established in the Iberian Peninsula in 1808 only had legitimacy in the territories they had been set up in. It was ridiculous that these Juntas demanded obedience from the Americans, who had played no part in their formation. For this reason, some Creoles had proposed the establishment of a Junta in New Spain since July 1808. As is well known, a coup d’état put an end to this project, but the insurgency, which began in 1810, resurrected the idea of erecting their own Junta.12 According to José María Cos, neither the Regency nor the Cortes had any right to govern America, since “we will never be properly represented” by an Assembly in which nearly all the deputies were substitutes and there were so few American representatives. Consequently, in the Plan de Paz he proposed that those who exercised political and military power in New Spain should surrender it to a National Congress, rather like the Cádiz Cortes, but with more legitimacy as it would be convened by Americans and not by a Spain “infected with treason”. At the end of this document, Cos declared that his aim was not to separate New Spain from Spain completely. On the contrary, he claimed that he wished to support the Spanish patriots in their fight against Napoleon, but he refused to accept that a handful of Spaniards should try to govern an enormous number of Americans. By 1813, after José María Morelos had conquered Oaxaca City, he proposed the formation of an American Congress that should draw up a Constitution apt for “América Mexicana”. One of this project’s main promoters was Carlos María de Bustamante, who had participated in the elections organized according to the Cádiz Constitution’s liberal 12 Cos, Escritos políticos, México, UNAM, 1996, pp. 15-28 14 laws in 1812 in Mexico City. Undoubtedly, the experience of the Spanish Constitution was a determining factor in the insurgents’ decision to seek their own Congress also. José María Morelos called elections to select deputies for this Constituent Assembly in the territories under his control. In the end, only one deputy, José Manuel de Herrera, was elected, for the province of Tecpan. All the other deputies were substitutes, which meant that it was possible to criticise the American Congress for the same thing that people like Cos had attacked the Cádiz Cortes: it was unrepresentative and therefore, lacked legitimacy. Historians know very little about the Congress that met in Chilpancingo. The majority of the sessions’ minutes are lost. However, we know from later testimonies, amongst them Morelos’ own statements, that the Mexican deputies had access to at least two Spanish documents postdating the 1808 crisis: Alberto Lista’s El espectador sevillano and the Cádiz Constitution. This is not to say that there were no other intellectual influences present in the Mexican deputies’ work. Modern scholars recognize echoes of the 1795 French Constitution and of iusnaturalist thought, widespread in the universities of the time. In the end, the Apatzingán Constitution, passed in 1814, contained elements that distinguished it from that of Cádiz. It established a republican form of government and included a section with a declaration of the rights of the citizen. Moreover, the nation’s representatives would be elected by the provinces, one deputy per province, which meant that the principle of proportional representation, so important to the Cádiz deputies, was ignored. Other differences are more subtle, but nevertheless interesting. For example, in the 1812 Constitution the nation was essentially sovereign, in other words, it never lost its sovereignty, even though it was exercised by its representatives. In contrast, in the 1814 Mexican Constitution, sovereignty was found originally in the people, which meant that at 15 the same time they elected their representatives they also handed over their original sovereign power.13 Even so, the similarities between the two constitutions are bigger. In the first place both assert that Catholicism is the State religion. The citizen, according to both Cádiz and Apatzingán, is rooted in the idea of a good neighbor, he is a good Catholic and must also be a good patriot. Both documents indicate that prayers should be said in churches for God to guide citizens’ votes, and as I have stated, the parish was the natural space in which the citizen should exercise his rights. It could be said that the section of the 1814 Constitution which outlines electoral procedures is copied from the respective articles in the 1812 Constitution. In short, the Cádiz Constitution was a guiding model for the insurgents, as they knew that this document offered rights and institutions that were very attractive for the people and the pueblos of New Spain. For this reason, the supporters of independence championed, through the electoral process, the establishment of a Congress and a constitutional government, similar to the Spanish ones, although with some notable differences. At the same time, the ideologues of the insurgency criticized the Spanish Cortes because, despite the fact that they had declared equality of rights for all Spaniards – regardless of their birthplace– they always made sure the American representatives were in a minority so that their influence in the creation of the Spanish nation’s fundamental laws was less than that of their counterparts born in Europe. THE CÁDIZ CONSTITUTION DURING MEXICO’S INDEPENDENCE The first constitutional experiment was short lived as much as in Spain as in America. In both places, the war prevented the Cádiz Constitution from being applied in large areas out 13 Anna Macías, Génesis del gobierno constitucional de México 1808-1820, México, SEP. 1973. 16 of the Spanish authorities’ control. In New Spain, the insurgents dominated a good part of the south and center of the country, so that in those regions constitutional ayuntamientos were not established. Even in the places that were under Spanish control, the 1812 Constitution was not completely enacted either. Military commanders used it to their convenience. Calleja, for example, gladly accepted the liberal tax measures, as they forced the whole population –regardless of privileges– to contribute to State and war expenses. He also promoted the establishment of constitutional ayuntamientos, even in localities that did not meet the prerequisites set out by the Constitution, since one of the most effective ways he found to combat the insurgents was with militias and guards from the pueblos. However, in many cases, the authorities of New Spain impeded or delayed the application of many constitutional provisions. Press freedom was not respected, elections were halted and some Provincial Deputations were no set up until many months after the Constitution had been passed. In fact, the province of New Spain’s Deputation was established just a few days before Fernando VII abolished the constitutional order. In contrast, in 1820, the situation in Spain and New Spain was much more favorable to a more complete application of the Constitution. Viceroy Juan Ruiz de Apodaca had managed to limit the insurgents to marginal areas. This does not mean that he had reestablished the power enjoyed by the viceroys before 1808. On the contrary, many military commanders who had fought the insurgents had acquired too much power rivaling that of the Viceroy. José de la Cruz, for example, was a higher ranking and more influential military officer than Ruiz de Apodaca. Many of these officers had committed excesses in combat against the insurgents and had acquired military, economic and political strength. Their corrupt behavior was scandalous. Thus, as Christon Archer has shown, they feared 17 the reestablishment of the Spanish constitutional order as it threatened their interests and the political positions they had acquired.14 Even so, in general terms, the reestablishment of the Cádiz Constitution was warmly received. In Spain, the new government believed that constitutional order would help bring the American wars to an end, as many distinguished liberal politicians supposed that the main reason for their revolt was the wish for their rights to be recognized as being equal to those of the European Spaniards. Undoubtedly, many Americans considered that this understanding was wrong. For them, the main demand in 1820 was for independence, regardless whether the Spanish government was absolute or constitutional. However, as I have already mentioned, in New Spain at least, the majority of political groups in the towns and cities welcomed the reestablishment of the Constitution. They accepted the rights granted by this document and considered, just like the liberal politicians in Spain, that liberalism would be sufficient to bring about the reestablishment of peace in the Viceroyalty. Although some authorities decided to proceed with caution and wait for new from Spain before enacting the Constitution –as they perhaps thought that Fernando VII would soon manage to re-establish absolutism–, public pressure forced them to swear loyalty to it. In Veracruz, for example, the ayuntamiento and an immense crowd forced the military and political authorities to proclaim the new order. In Mexico City something similar occurred. The panorama was promising for those who had confidence in the constitutional order. Instructions were immediately received for the celebration of elections, although some Archer, “The Militarization of Mexican Politics: The Role of the Army, 1815-1821” in Five Centuries of Mexican History, México, Instituto Mora, 1992, I, p. 285-302; “Where did all the Royalist Go? New light on the Millitary Collapse of New Spain 1810-1821”, in The Mexican and the Mexican American Experience in 19th Century, Tempe, Bilingual Press, 1989. 14 18 people were unhappy that the new Cortes that would meet in Madrid included thirty substitutes while the voting took place and the elected deputies arrived in Spain. This they saw as a replay of what had happened in the Cádiz Cortes. It was very soon obvious that that they were right. In the new Cortes, the American deputies immediately pressed for the balancing of American and European representation. A reform of articles 29 and 31, as I have already mentioned, would have meant that the New World deputies were in the majority in the Cortes, as its population was larger than that of Spain. On the other hand, the European deputies did not agree that America and Spain should have the same number of representatives either, as this would imply that the nation comprised of two entities rather than being part of one single body as the Constitution indicated. Elections were held in the majority of New Spain’s pueblos although precise information is not available, more constitutional ayuntamientos were certainly established in 1820 than in 1814. Many of these ayuntamientos were in pueblos that had been subordinate to ciudades cabeceras for centuries. The Cádiz Constitution and the long war, begun back in 1810, had contributed to the breakup of territorial hierarchies. Although the Constitution clearly stated that only the Cortes represented sovereignty and that it could only be exercised by central government, some ayuntamientos argued that municipal government was also sovereign since it was elected by citizens. Some writers even claimed that the people’s sovereignty should not be limited to the election of the councilors who administered “economic government”, but rather that they should also elect the judges charged with administrating justice. Some present day historians have pointed out that the 19 real revolution in New Spain was precisely the administration of justice by the constitutional mayors.15 In contrast to what occurred during the first constitutional period, in 1820 the Provincial Deputations of New Spain, Yucatán, Nueva Galicia, San Luis Potosí, Provincias Internas de Oriente and Provincias Internas de Occidente were very quickly established. Nettie Lee Benson has shown how other provinces, like Puebla, soon complained that article 325 of the Cádiz Constitution, which stated that Deputations should be established in every province, was not being applied. Puebla, along with Oaxaca, Michoacán, Guanajuato and Veracruz had been incorporated into the Deputation of New Spain without any reason and, as a result they demanded their right to set up their own Deputation. Something similar happened in other places. The Spanish Cortes accepted that Michoacán (in conjunction with Guanajuato) should create a Provincial Deputation, but failed to meet the demands of the poblanos; something which certainly influenced many of Puebla City’s important politicians to support the independence movement headed by Agustín de Iturbide.16 The constitutional ayuntamientos and the Provincial Deputations were institutions created by the Cádiz Constitution that were well accepted by the inhabitants of New Spain. In fact, the criticisms that were made about the Cortes was that they did not apply the “liberal principals” that they themselves had championed. For many people, this meant that pueblos should be considered sovereign, while the provinces demanded that each one of them should have their own Deputation. In other words, they believed that the Spanish liberal regime was beneficial to their interests, but that it fell short in some of its provisions or in its application. Cfr. Antonio Annino. Benson, La diputación provincial y el federalismo mexicano, México, El Colegio de México – UNAM, 1994. 16 15 20 In fact, these are some of the main arguments that can be seen in the publications of the time. In 1820, the press freedom was established and numerous writers made the most of the opportunity to express their ideas. Carlos María de Bustamante, for example, published a document entitled Motivos de mi afecto a la constitución, in which criticized Francisco Xavier Venegas and Félix María Calleja for “having mixed liberty and slavery”, something that had discredited the Constitution. For Bustamante the most important right granted by the Constitution was the liberty to publish their opinions, since the tribunal of public opinion became the most efficient way to confront tyranny and arbitrary behavior. However, Bustamante also recognized the benefits that the Constitution had brought to marginal groups, such as the indigenous peoples, to whom he directed a document entitled La Malinche de la Constitution, written in Nahuatl and that pointed out the main virtues of the liberal order. However, in 1820 many works criticizing the new liberal order also appeared. Friar José de San Bartlolomé, for example, defended the Holy Office of the Inquisition’s Tribunal and entered into a polemic discussion with Joaquín Fernández de Lizardi. The same San Bartolomé had published, during the six year absolutist restoration, a work which strongly criticised the liberals’ and the insurgents’ ideas about liberty. Generally, the clergymen were those who most fervently opposed the Constitution. We know that Antonio Pérez Martínez, bishop of Puebla, feared reprisals from the Spanish government as he had signed the 1814 Manifiesto de los persas that had invited Fernando VII to abolish the Constitution. For his part, the bishop of Guadalajara believed that many clergymen were 21 upset because the liberal laws attacked ecclesiastical privileges and, especially, the religious orders.17 Not all criticism came from the defenders of the traditional order, there were also an important number of writers who favoured liberalism, but considered that Spain did not guarantee that the rights established in the Constitution were respected. The author of La chafaina se quita claimed that the Constitution was good for Americans, but it was not enough simply to enact it. He remembered how the Spanish authorities had acted in an arbitrary way in 1814 and had only respected the Constitution when it suited them. Defenders of the union between New Spain and the mother country insisted that independence infringed the Constitution, since article 1 had stated that the nation was the reunion of all Spaniards in both hemispheres; but it is interesting to see how many of the writers who supported the Plan of Independence proclaimed by Agustín de Iturbide in 1821did not oppose the Cádiz Constitution, but rather believed that the Spanish government was not ready to respect it in the New World. In the Cortes also, the European deputies accused the Americans of wanting to break the nation up. It must be remembered that the Americans’ first demand had been for equality of representation in the Cortes, but was never conceded to them. Following on from that, in 1820 a few deputies from New Spain and other regions proposed a plan that they hoped would guarantee the complete pacification of the American territories under the constitutional system. They proposed the establishment of three branches of the Cortes, one in Mexico, another in Lima and a third in Buenos Aires. The Cádiz Constitution would be fully respected and the Spanish King would be recognized as their superior, but in practice Vid. Cristina Gómez, El alto clero poblano y la revolución de independencia 1808-1821, México, UNAM, 1997; Brian Connaughton, Clerical Ideology in a Revolutionary Age. The Guadalajara Church and the Idea of the Mexican Nation, 1788-1853, University of Calgary, 2002. 17 22 these branches would be independent from each other and from Peninsula Spain. When the liberal deputies refused to accept this proposal, the representatives from New Spain abandoned the Cortes to return to their country.18 In Mexico, a military group headed by Agustín de Iturbide had proclaimed a Plan of Independence that nonetheless kept the Constitution in force for all that did not go against emancipation or religion. It seems that Iturbide represented the interests of many groups in New Spain, from those who feared that the Spanish Cortes would continue to attack the Church to those liberals who considered that the rights given by the Spanish government were insufficient. I will not talk about the first group except to say that contemporary publications show that defending religion was their main argument. I am only interested in highlighting the fact that the Plan of Independence was also defended by the argument that the rights promised by the Constitution could be better achieved if Mexico became independent from Spain. EPILOGUE: THE CÁDIZ CONSTITUTION IN INDEPENDENT MEXICO To end, I will just mention a few aspects of the 1812 Constitution that remained in force in Independent Mexico. Undoubtedly, many of the characteristics of the Nation State that emerged in 1821 originated in the provisions of the Cádiz Constitution. Federalism is the best known example thanks to Nettie Lee Benson’s magnificent study. The Provincial Deputations were used to demand autonomy in the provinces, something that would lead to the establishment of State Congresses and federalism in 1824. Equally the constitutional ayuntamientos became the bedrock of the political system, due to the control they had over the electoral process and the administration of justice in the first instance. Even so, 18 Lucas Alamán, Historia de Méjico, Méjico, Imprenta de J. M. Lara, 1852, vol. V, p. 46-49, and appendix p. 49-65. 23 Mexican leaders used the Cádiz Constitution in more or less the same way as Spanish authorities, like Calleja, had done: they applied it or ignored it according to their own interests. Thus, when Agustín de Iturbide pressed for a Constituent Congress composed of corporations and classes, he claimed that there was no obligation for the elections to follow the 1812 Constitution’s rules. Similarly when Iturbide wanted to apply the constitutional provision that gave the Executive Power the right to revise the laws drawn up by the Legislative Power, Congress argued that the Cádiz Constitution was inapplicable in this case.19 The Cádiz Constitution left a very important legacy for Mexicans. It was the first document that established rights and liberties, it limited the monarch’s power, established the separation of the powers and national sovereignty. All these principles would be later adopted by the Mexican National State. However, it was a paradoxical legacy. On one hand, the Constitution opened doors, but did not allow the Americans to cross the threshold. It offered equal rights for all inhabitants and all regions of the Spanish nation, but it opposed equality of representation for Americans and European Spaniards. It guaranteed fundamental freedoms, like that of the press, but the Viceroys and Political Chiefs did not always allow them to be practiced. Similarly, it established institutions elected by the people, but it did not allow them in all the American provinces. Mexicans were perplexed by these paradoxes. Many came to the conclusion that the best way to ensure that the rights offered by the Cádiz Constitution were fully respected in Mexico it would be necessary to flout this document’s first article, in other words, break with the Spanish nation. Translated by Catherine Jane Andrews 19 View Alfredo Ávila, Para la libertad. Los republicanos en tiempos del imperio, México, UNAM, 2004. 24