CITATION DETAILS:
CATHERINE ANDREWS,“Constitutional Projects for the Division of Powers in Mexico during Iturbide's Empire, 1821–1823,” Journal of Latin American Studies, Available on CJO 2014 doi:10.1017/S0022216X14001059 URL: http://journals.cambridge.org/abstract_S0022216X14001059
Constitutional Projects for the Division of Powers in Mexico During Iturbide’s Empire (1821-1823)
Catherine Andrews División de Historia Centro de Investigación y Docencia Económicas (CIDE) Mexico City
[email protected]
Acknowledgements This article benefited from the observations of the anonymous reviewers. It was also presented and discussed in the seminar Reformas ilustradas en hispanoamérica, una perspectiva desde la historia conceptual (UNAM PAPIIT IN401913) led by Alfredo Ávila. The author would like to thank the reviewers and the members of the seminar for their commentaries.
Constitutional Plans for the Division of Powers in Mexico During Iturbide’s Empire (1821-1823)
Abstract This article examines the division of powers established in a number of constitutional projects presented during Mexico’s first Empire (1821-1823). The essay rejects the idea, present in much recent historiography, that constitutional debate in Mexico was exclusively shaped by the experience of Spanish government. Instead it argues that the Empire´s politicians drew on a wide range of theories, ideas and examples from other constitutional systems.
Key words: Mexican Empire, Agustín de Iturbide, moderate monarchy, division of powers
Modern historians have paid scant attention to the constitutional history of Mexico prior to the establishment of the first Federal Republic in 1824.1 This stems from the general disdainful attitude they adopt towards Mexico’s first imperial period. In traditional historiography, Iturbide’s empire is generally considered to have been 1
Exceptions are José Barragán, Introducción al federalismo. La formación de los poderes en 1824 (Mexico City: Universidad Nacional Autónoma de México, 1978); Manuel Calvillo, La república federal mexicana. Gestación y nacimiento (Mexico City: Departamento del Distrito Federal, 1974); Timothy Anna, El imperio de Iturbide, (Mexico City: Alianza/CONACULTA 1991); Jaime del Arenal Fenochio, Un modo de ser libres. Independencia y constitución en México (1816-1822) (Mexico City: El Colegio de Michoacán, 2002); Alfredo Ávila, En nombre de la nación. La formación del gobierno representativo en México (Mexico City: CIDE/Taurus, 2002); and Alfredo Ávila, Para la libertad. Los republicanos en tiempos del imperio, 1821-1823 (Mexico City: UNAM, 2004).
the antithesis of the republican state that was established in 1823.2 Consequently, the constitutional history of this period is routinely misunderstood as a confrontation between liberalism (as represented by the republicans) and conservatism (Iturbide’s supporters).3 This paper analyses the constitutional proposals published during Iturbide’s reign and sets forth an alternative hypothesis for their interpretation. To provide the necessary context, it starts with a discussion of the different forms of constitutional monarchy already in existence in the Atlantic world in 1821.4 Following the example set by historians such as Gabriel Paquette and Matthew Brown, 5 the aim is to demonstrate how Mexico’s debates related to those raging in the rest of the Atlantic world. Specifically, the paper tries to show how Mexican politicians used 2
The classic text is Jesús Reyes Heroles, El liberalismo mexicano (Mexico City: UNAM-Instituto de Investigaciones Jurídicas, 1958, 2 vols). Moreover, Reyes Heroles does not even consider the Iturbide period in his discussions of the antecedents of Mexican constitutionalism. 3 The most recent incarnation of this argument is Ivana Frasquet’s hypothesis that Iturbide modelled his regime on Napoleon Bonaparte’s imperial government. Although Frasquet frames her argument in terms of acception/rejection of the Cádiz constitution, her conclusions do little to question the traditional interpretation of Iturbide as despot. Ivana Frasquet, Las caras del águila: Del liberalismo gaditano a la república federal mexicana, 1820-1824 (Castellón: Universitat Jaume I, 2008), p. 249. Frasquet also addresses constitutional ideas during Iturbide’s empire in ‘La revolución contenida: la Constitución Imperial de México, 1822’, in Brian Connaughton (ed.), 1750-1850: La independencia de México a la luz de cien años. Problemáticos y desenlaces de una larga transición (Mexico, D. F.: UAM-Iztapalapa/Biblioteca Signos, 2010), pp. 417-448. 4 As a result, the republican constitutions of the United States and Latin America are not discussed. The US constitution was very important in the constitutional debates that followed Iturbide’s abdication; however, it was only a minor reference point for Imperial Mexico. See Catherine Andrews ‘Una alternativa para el modelo gaditano: La presencia del pensamiento constitucional anglosajón en México, 1821-1830’, in Rafael Rojas, Adriana Luna and Pablo Mijangos (eds.) De Cádiz al siglo XXI. Doscientos años de constitucionalismo en México y Hispanoamérica (18122012) (Mexico City: Taurus/CIDE, 2012), pp. 67-122. 5 Matthew Brown and Gabriel Paquette, ‘The Persistence of Mutual Influence: Europe and Latin America in the 1820s’, European History Quarterly, 41: 3, (2011): ; Gabriel Paquette, ‘The Dissolution of the Spanish Atlantic Monarchy', Historical Journal 52:1 (2009), pp. 175-212; Gabriel Paquette, Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America, (New York: Cambridge University Press, 2013). Also see: Roberto Gargarella, The Legal Foundations of Inequality. Constitutionalism in the Americas, 1776-1860 (New York: Cambridge University Press, 2010); Isidro Vanegas, El constitucionalismo fundacional (Bogotá: Ediciones Plural, 2012) and Matthew Brown and Gabriel Paquette (eds.), Connections after Colonialism: The Reconfiguration of Relations between Europe and Latin America in the 1820s (Tuscaloosa, AL: University of Alabama Press, 2013).
their knowledge of other constitutional monarchies in order to propose their own innovative projects. This article analyses four constitutional projects and a number of other publications which featured constitutional arguments. Two of the projects emanate from the Constitutive Congress’s Constitutional Committee: Imperial Constitution or a Project for the Organisation of the Legislative Power, published by Antonio José Valdés, and Constitutional Project Presented to the Constitutional Commission by One of its Members, often attributed to Miguel Guridi y Alcocer. Other proposals include Constitutional Project for the Mexican Republic written by Francisco Severo Maldonado in 1822, and José María Couto’s Constitution for the Mexican Empire published in Vallodolid (Morelia), Michoacán on 8 January 1823.6 Among the other proposals to be examined, the most important are Juan Wenceslao Bárquera’s tract Lessons in Politics and Public Law for the Instruction of the Mexican People, and Catechism of Independence in Seven Declarations, written by Luis de Mendizábel y Zubialdea under the pseudonym of Ludovico Lato-Monte.7 This article explains how the various authors imagined the best structural organisation for the division of the powers in a constitutional monarchy. It argues that the proposals for the separation of powers for the Mexican Imperial 6
Antonio J. Valdés, ‘Constitución del imperio o proyecto de organización del poder legislativo por Antonio J. Valdés, individuo de la comisión de constitución de Congreso. México 1822’, in Calvillo, La república, pp. 621-625; ‘Proyecto de constitución presentado a la comisión de ella por uno de sus individuos que la componen’, in Calvillo, La república, pp. 629-448; ‘Constitución política de la república mexicana’, en El Fanal del imperio o miscelánea política, extractada y redactada de las mejores fuentes por el autor del Pacto Social (Mexico City: En la imprenta de L. L. H. H. Morán, calle de Donceles, no. 30, 1822,), vol. 2, pp. 6-180; ‘Constitución del Imperio Mexicano. Proyecto de José María Couto, Valladolid, 8 de enero de 1823’, in Calvillo, La república, pp. 669-674. 7 Juan Wenceslao Bárquera, Lecciones de política y derecho público para instrucción del pueblo mexicano (Mexico City: UNAM, 1991); Ludovico de Lato-Monte, Catecismo de independencia en siete declaraciones por Ludovico Lado-Monte (Mexico City: Imprenta de M. Mariano Ontiveros, 1821).
Constitution can be divided into two broad subgroups: plans for a pure division of powers built upon the division of functions, and plans for a partial separation of powers based upon the idea of British balanced government. As a result, there will be some discussion of the different forms of representation proposed by each project. This subject will be treated in relation to the different forms of constitutional architecture and will not be examined at any length.
1. Constitution and Politics in Iturbide’s Empire The constitutional question had always been a feature of Mexico’s insurgency movement.8 Ignacio Rayón wrote a first constitutional project in 1811.9 In 1814 the insurgent government published the Constitution of Apatzingán,10 which was briefly in force in insurgent territory. An independent nation needed its own constitution. Thus, when Royalist Army Colonel Agustín de Iturbide proclaimed his own independence project via the Plan of Iguala on 24 February 1821, it was imperative that he outline what form of government he wished to see adopted. Itubide’s plan aimed to unite insurgents, Royalists and the undecided to the cause of independence and was deliberately vague.11 It stated that the nation’s government would ‘be a moderate monarchy in accordance with the kingdom’s particular […] constitution’.12 A Constituent Congress or Cortes would be
8
See Anna Macías, Génesis del gobierno constitucional en México: 1808-1820 (Mexico City: SepSetentas, 1973). 9 ‘Elementos de la constitución’ in Ernesto Lemoine, Morelos, su vida revolucionaria a través de sus escritos y de otros testimonios de la época (Mexico City: UNAM, 1965), pp. 219-227. 10 ‘Decreto Constitucional para la libertad de la América Mexicana’, http://www.juridicas.unam.mx/infjur/leg/conshist/pdf/1814.pdf 11 Anna, El imperio, pp. 13-38. 12 ‘Plan del Sr. Coronel D. Agustín de Iturbide’, art. 3. http://www.loc.gov/rr/hispanic/mexico/iguala.html , art. 4. All translations in this text are my own.
immediately convened; the crown was offered to the Spanish King Ferdinand VII; and, both the Army and the Church were to maintain their privileges. The Plan of Iguala proved popular and was soon adopted by the majority of Royalists commanders, who quickly invited their erstwhile opponents to join the drive for independence. Between February and June 1821 almost all local municipalities also proclaimed their loyalty to the new plan. In August, a new governor, Juan O’Donojú, arrived from Spain to take command of the vice-royalty; but, faced with the reality of the situation, opted to open negotiations with Iturbide. The result of these meetings was the Treaty of Córdoba. This ratified many of the details set forth in the Plan of Iguala: national sovereignty, the agreement to establish a moderate monarchy and the offer of the crown to Ferdinand VII. However, it also introduced a number of new clauses: New Spain was henceforth to be known as the Mexican Empire; and, if Ferdinand were to refuse the offer of the crown, it could be offered to another member of his family or the Imperial Congress could designate anyone of their choosing as monarch. Until a Constituent Congress could be convened, a Provisional Governing Junta would undertake the legislative power while the executive power would be in the hands of a Regency made up of O’Donojú, Iturbide and the Archbishop of Puebla, Antonio Joaquin Pérez. The Treaty also specified that the Imperial government should observe all existing legislation (the 1812 Constitution and colonial laws) until the Empire could establish its own constitution, disregarding only the aspects of these laws that contradicted the terms of the Plan of Iguala.13
13
‘Tratados de Córdoba’, http://www.juridicas.unam.mx/infjur/leg/conshist/pdf/tratcord.pdf
Following his meeting with O’Donojú, Iturbide marched on Mexico City, where he appointed the members of the Provisional Governing Junta. This Junta set to work organising the election of a Constituent Congress, a task which soon illustrated the differences in opinion amongst the Empire´s political class concerning the best form of government for their new nation. The Junta and the Regency clashed on a number of constitutional issues: principally, the manner in which the Constituent Congress should be elected; and the form it should take. Despite disagreements, the Constituent Congress was successfully installed in February 1822. One of its first acts was to appoint a committee to draw up a constitutional project.14 However, political events meant the committee and Congress spent little time on this question. Constitutional debates centred on the question of the formation of the provisional governmental institutions. Above all, discussion centred on the question of who should appoint the magistrates of the new Supreme Tribunal of Justice (Congress or Regency) and how the State Council, established by the Cádiz Constitution to advise the executive power, should be chosen. These questions became all the more important after Ferdinand VII refused to recognise the Treaty of Córdoba and an alternative candidate for emperor had to be found. In May 1821 a military coup allowed Iturbide’s supporters to convince the 14
The original members were: Mariano Mendiola, José María Fagoaga, José Miguel Guridi y Alcocer, Toribio González, Rafael del Castillo, Francisco Sánchez de Tagle, Juan Ignacio Godoy, José San Martín, Francisco García Cantarines, Ignacio Esteva, and Cayetano Ibarra. But membership of the commission was not constant. In May 1821 Francisco Argandar, Sebastián Camacho and Antonio José Valdés joined. According to the acts of Congress, Argandar and Camacho were appointed as temporary replacements for absent members. It is not clear whom they replaced. Valdés seems to have been a permanent appointment, but again the acts do not mention if he was a substitute or a new addition. Juan A. Mateos. Historia Parlamentaria de los Congresos Mexicanos de 1812 a 1822 (Mexico City: Instituto de Investigaciones Legislativas, 1997), vol. 1, pp. 278, 500 and 517. Sessions: 1 Mar., 22 May and 29 May 1822.
Constituent Congress to declare Iturbide as the first Mexican emperor. Iturbide’s supporters believed he should be the one to appoint the Tribunal magistrates. They also thought the emperor should preside the Council, as stipulated by Cadiz, and have the responsibility for naming the council secretary. Iturbide’s opponents in Congress argued that they should have these powers. The Constituent Congress’s power was undermined in August when a republican plot to rebel against Iturbide was discovered. Fourteen deputies, including republican leader Servando Teresa de Mier, were arrested.15 The assembly limped on throughout September and October, but soon lacked a basic quorum due to the absence of the imprisoned deputies and the fact that the representatives of the more far-flung deputations opted to return home. On 24 October Iturbide dissolved the Congress, alleging that that the body had not fulfilled the task with which it had been entrusted: the writing of a constitution. Later, he appointed a new legislative body, or Junta Instituyente, from amongst the former deputies. Meanwhile, the constitutional committee continued its labours. In January 1823 it presented a proposal for the provisional government of the Empire. This formally repudiated the Cadiz Constitution. These rules reduced the prerogatives of the rump legislative power or Junta Instituyente, charging it to dedicate itself exclusively to the drawing up of the constitution and a fiscal project. It gave Iturbide the power to veto absolutely all legislation and the prerogative to name the
15
Mateos, Historia, pp. 886-887. Session: 29 Aug. 1822.
members of the judicial power.16 This text was never enforced. Iturbide’s government was overthrown in March 1823 and he was forced into exile. Mexico embraced republicanism and all ideas for constitutional monarchy were abandoned.17
2. Defining the Architecture of a Moderate Monarchy The Plan of Iguala called for Mexico to adopt a moderate monarchy. In the language of the moment, this meant a form of government based on Montequieu’s theory of the separation of the powers. Moderate government was widely considered to be the antithesis of absolutism as it guaranteed that the actions of the monarch would be moderated by the participation of various institutions in the exercise of government.18 But what was the appropriate constitutional architecture for a moderate monarchy? One option was to adopt an almost pure separation of powers or the division of functions. Such an arrangement required a tripartite division of powers with a corresponding identifiable function of government: legislative, executive or judicial. None of the powers should participate in the functions of the others and membership of each power should be exclusive; no member of the legislature should serve as a minister in the executive or judicial powers. This was designed to
16
This project is not considered here as it was explicitly provisional in nature and was not supposed provide a blueprint for any long-term constitutional project. 17 For more details on Iturbide’s government see Anna, El imperio and Ávila, Para la libertad. 18 Charles Secondat, Baron de Montesquieu, The Spirit of the Laws, translated by Thomas Nugent, revised by J. V. Prichard, bk. 3 ch. 2. http://www.constitution.org/cm/sol.htm
ensure that ‘each of the branches [were] a check on the others and no single group of people [would] be able to control the machinery of state’.19 Jean-Jacques Rousseau was one of the thinkers inspirational in the creation of this idea. He emphasised the importance of distinguishing between the act of deciding and the act of executing legislation.20 He affirmed that sovereignty remained always with the individuals of society and believed that all legislative decisions should be in the hands of citizens, who should agree on the ‘popular will’ in any subject. As a result, Rousseau’s writings are often judged to be hostile to representative government. However, scholars have demonstrated that he was not adverse to government positions being held by the elite. The important detail was that the popular will was respected and consulted in all legislative matters.21 The works of Rousseau were available in Spanish America. Antonio José Valdés had translated the Social Contract while living in Cuba in 1810.22 For his part, Francisco Severo Maldonado included a translation of various chapters of the Social Contract in his newspaper El Fanal del Imperio in 1821. The mode of government Rousseau suggested was generally referred to as ‘republican’ or ‘democratic’ during the wars of independence and early years of independence in Spanish America for two reasons: 1) the primordial place Rousseau awarded to the 19
M. J. C. Vile, Constitutionalism and the Separation of Powers (Indianapolis IN: Liberty Fund, 1998), p. 14; José Antonio Aguilar Rivera, En pos de la quimera. Reflexiones sobre el experimento constitucional atlántico (Mexico City: FCE/Colmex, 2000), pp. 95-128. 20 Jean-Jacques Rousseau, El contrato social o principios de derecho político (Mexico City: Porrúa, 1987), bk. 3, ch. 1, pp. 30-33. 21 Ethan Putterman, ‘Realism and Reform in Rousseau’s Constitutional Projects for Poland and Corsica’, Political Studies, 49 (2001), pp. 481-494; Melissa Schwartzberg, ‘Voting the General Will: Rousseau on Decision Rules’, Political Theory, 36: 3 (2008), pp. 403-423; and Ethan Putterman, ‘Rousseau on the People as Legislative Gatekeepers, Not Framers’, The American Political Science Review, 99 1 (2005), pp. 145-151. 22 Catherine Andrews, ‘El proyecto constitucional de Antonio J. Valdés, 1822’, in Estudios Jalicienses, 87 (2012), p. 58.
popular will, which seemed to conform to the classical definition of democracy; and 2) the modern idea –established by James Madison and the Federalists in 1787– that republican government should be based on the representation of its citizens. The Cadiz constitution, in force in Spain and Mexico between 1812 and 1814 and then again from 1820, operated on the principle of the separation of functions. It specified the creation of an executive power composed of the king, his ministers and a State Council consisting of forty dignitaries (including two bishops and two nobles). The legislature was a single chamber of deputies elected via indirect suffrage by all citizens. The judicial power was in the hands of magistrates and supervised by a Supreme Tribunal of Justice whose members were appointed by the king. The authors of the Cadiz constitution rejected Rousseau’s ideas on sovereignty in favour of Emmanuel Sieyès’s principle of national sovereignty. 23 This taught that individuals in each community were sovereign until they came together to constitute their nation. Once the nation had been constituted individuals were no longer sovereign, but rather sovereignty belonged to the collective nation. As Fernández Sarasola explains, this meant that
the liberals distinguished between the ownership and exercise of sovereignty. The Nation, the owner, could not exercise it for itself, given its abstract personality so, as a result, it divided the exercise between diverse organisms: 23
Vile, Constitutionalism, pp. 195-217. Fernández Sarasola demonstrates that the template for the division of powers in 1812 was the 1791 French constitution. Spanish liberals tried to disguise this in a variety of ways as ‘a manoeuvre to avoid being accused of following the French model’, due to the unpopularity of France in Spain. Ignacio Fernández Sarasola, La Constitución de Cádiz. Origen, contenido y proyección internacional (Madrid: Centro de Estudios Políticos y Constitucionales, 2011), pp. 164-179.
king, the Cortes and judges. In this way, the absolute power invested in the Nation was divided in legislative, executive and judicial powers and entrusted to different constituted authorities.24
This arrangement created a government whereby all the powers were said to be representative of national sovereignty. However:
theirs was not a relation of equals, as the legislative power, being the most immediate expression of national will and the home of sovereign nation’s representatives became the state’s political centre leading to the creation of a parliamentary supremacy.25
In the Cadiz Constitution, the supremacy of the legislature over the executive is made clear in the sections relating to the royal succession and regency, for example. In the case of the extinction of the Bourbon family, it is the Cortes who should decide on the proper successor (arts. 180-181).26 During the incapacity or minority of the monarch, it is also the Cortes who names the members of the regency (arts. 186-192). The monarch's role in the legislative process was limited to the recommendation of bills to the house and the exercise of a suspended veto over law bills (arts. 142-152, y 171). This veto could be overruled after two votes in favour of the bill in the Cortes although these could not be
24
Fernández Sarasola, La Constitución, p. 162. Fernández Sarasola, La Constitución, p. 163. 26 Constitución política de la monarquía española, Cádiz 1812 (Mexico City: Tribunal Electoral del Poder Judicial de la Federación, 2012). 25
immediate, but rather had to be realised in different sessions (arts. 142-150).27 He was forbidden from interfering in the business of the legislature in any other way and had no power to dissolve or convoke its assembly (art. 172, part 1). All government ministers were accountable to the Cortes for their actions, although, the monarch himself was guaranteed total immunity (art. 168). The monarch was to be advised by the Council of State in all his actions. This body was chosen by the king from a list of candidates drawn up by the Cortes (art. 233). Another well-known constitution practising the division of functions was the Spanish Statute of Bayona.28 A hispanicised version of the Napoleonic imperial constitutions of 1802 and 1804, this was written for José Bonaparte after Napoleon’s invasion of Spain in 1808.29 It rejected the idea of national sovereignty in favour of the principal of mixed government. Mixed government allowed the representation of all three classical forms of government: monarchy, aristocracy and democracy. Bayona divided the government into six institutions: the monarchy, a ministry, a Council of State and a Senate; the Cortes and a Judicial ‘Order’. The Council of State was presided over by the king and made up of between 30 and 40 individual of his choosing (arts. 52-60). The Cortes was divided into three chambers by estate: nobles, clergy and people (arts. 61-86). The Senate was composed of the adult Spanish princes and 24 other individuals named by the monarch from amongst his ministers, the General Captains of the Navy and Army, ambassadors, state counsellors and royal counsellors (art. 32). The judicial power
27
Each session lasted two years. ‘Estatuto de Bayona (6 de julio de 1808)’, http://biblio.juridicas.unam.mx/libros/2/804/10.pdf 29 Ignacio Fernández Sarasola, ‘La primera constitución española: El estatuto de Bayona’, Revista de Derecho, 26 (2006), pp. 89-109. 28
was made up of the local courts and Audiencias. It also had two institutions of appeal: the Royal Council and the High Royal Court (arts. 96-114). The Statute adopted the opposite relationship between executive and legislative branches of government to that established by the Cadiz Constitution. The fountain of legitimacy and sovereignty was the monarch and the statute is a charte octroyée as a result. Of the three chambers of the Cortes, only the popular chamber was to be elected. The Cortes's existence depended on the will of the monarch; it could only meet if convened by the king and could be dissolved on his orders (art. 77). The king chose the president of the Cortes (from a list drawn up by its members) and it was his exclusive prerogative to present law bills to the assembly of estates (arts. arts. 83 and 84). All government ministers could be impeached by the Cortes, but the hearing into accusations of misbehaviour would be in the hands of the Royal and State Councils (art. 85). Bayona gave an important role to the Senate as guarantor of constitutional order. This body was bound to watch over individual liberties and that of the press (art 39). It could also suspend the constitution on the petition of the king in case of ‘armed uprising or unrest that endanger[ed] state security’ or ‘take other emergency measures’ required to restore order (art 38). The inspiration for these clauses can be found in the Imperial Senates established in 1802 and 1804.30 An alternative to both Cadiz and Bayona was Great Britain’s balanced constitution. This model was also present in the French Constitutional Charter of 30
‘Sénatus-consulte organique de la Constitution du 16 thermidor an X’, art. 55; and, ‘Sénatusconsulte organique du 28 floréal an XII’, arts. 61-67, in Les constitutions de la France depuis 1789, introduction by Jaques Goechot (Paris: Garnier-Flammarion, 1979), pp. 174, 196-197. David Pantoja Moran discusses the transcendence of Sieyès thought in Mexico in El Supremo Poder Conservador. El diseño institucional en las primeras constituciones mexicanas (Mexico City: El Colegio de México/El Colegio de Michoacán, 2005).
1814. The British constitution was well known in the Hispanic world thanks to the eulogies of Montesquieu, the writings of Melchor de Jovellanos and the journalism of Spanish exile José María Blanco White.31 The division of powers it was said to practise can be summed up in William Blackstone’s famous description: ‘[i]n England th[e] supreme power is divided into two branches: the one legislative, to wit, the parliament, consisting of king, lords and commons; the other executive, consisting of the king alone’.32 Blackstone also recognised that magistrates formed the judicial power and while they were named by the monarch, they could not be removed by him, which he believed guaranteed their independence. 33 The House of Lords functioned as the ultimate instance of justice and was also home to the most senior judges. This constitutional arrangement was considered to be balanced because none of the parts could act without the other. It was described as a partial separation because each of the powers could participate in some of the activities assigned primarily to the others. The legislative was formed, not by the representative assemblies, but rather by the reunion of both assemblies plus the monarch. The institution of ‘King-in-Parliament’ was ‘the supreme and absolute authority’ whose actions could not be restricted; however, it was perfectly balanced through a special division of prerogatives which guarantee that ‘all the parts […]
31
Catherine Andrews, ‘Los primeros proyectos constitucionales en México y su influencia británica (1821-1836)’, Mexican Studies/Estudios Mexicanos, 27: 1 (2011), pp. 12-15; André Pons, Blanco White y España (Oviedo: Instituto Feijoo de Estudios del Siglo XVIII/ Universidad de Oviedo, 2002) pp. 199-124. 32 William Blackstone, Commentaries on the Laws of England (Lexington, KY: Forgotten Books, 2010), pp. 146-147. 33 Blackstone, Commentaries, p. 268.
form a mutual check upon each other’.34 In other words, unlike the Cadiz or Bayona, no one institution was granted total supremacy over the others. . The French Constitutional Charter of 1814 offered an adaptation of the British model.35 This was established in dying years of the Napoleonic Regime and amended by Benjamin Constant in the Additional Act of 1815.36 It divided government into the institutions of monarchy, an executive ministry, a legislature (exercised by the king, a House of Peers and a Chamber of Deputies) and a judicial power. The king named the members of the House of Peers (art. 27). In 1814 membership of this house could be held for life or inherited (art. 27). After 1815, the titles of nobility were all decreed to be hereditary (art. 3). The monarch also named the members of the judicial power and was not required to consult any other institution (art. 58). Perhaps the most important innovation was the indication that government ministers should be members of either one of the legislative assemblies (art. 54). As is well known, Constant’s proposal to separate the monarch from the executive ministry was based on his observations of cabinet system and parliamentary government in Britain during the eighteenth century. These arrangements created an executive government composed of a prime minister, named by the monarch and charged with forming a cabinet from amongst the members of both Houses of Parliament. Such a government required the support 34
Blackstone, Commentaries, p. 154. Annelien de Dijn, ‘Aristocratic Liberalism in Post-Revolutionary France’, The Historical Journal, 48: 3 (2005), pp. 661-681; Lucien Jaume, ‘Le libéralisme français après la révolution compare au libéralisme anglais’, Historia constitucional, 6 (2005), http://hc.rediris.es/06/index.html; and Alain Laquièze, ‘Benjamin Constant et l'acte additionnel aux constitutions de l’empire du 22 Avril 1815’, Historia Constitucional, 4, (2003), http://hc.rediris.es/04/Numero04.html 36 ‘La charte constitutionnelle du 4 juin 1814’ and ‘L’acte additionnel du 22 avril 1815’ in Les constitutions, pp. 217-224; 231-239. 35
of Parliament in order to survive and its resignation could be contrived via a vote of no confidence in the Commons. Ministers were not only accountable to Parliament as Blackstone had described, but rather were also members of this institution and could take an active part in its labours.37 Equally, the specification that ministers should be members of one of the legislative assemblies was the attempt to move France towards parliamentary government of the type practised in Britain.38 Constant wanted to ensure that ministers participated in the discussion and approval of legislation in the assemblies while at the same time being independent of the monarch.39 It should be noted that the Constitutional Charter was not designed to replace, merely amend, the former Napoleonic constitutions. Thus, it maintained many of these constitutions’ forms. The executive ministry is the only power able to propose legislation and the two assemblies were confined to the roles of consultation and revision (arts. 16-22). Even so, the separation of the ministry and king meant that the rationale behind the division of powers had been subtly amended. Constant’s defence of the monarch as a ‘neutral power’ meant that there was now no need for a Conservative Senate. Instead, the king - ‘being apart, superior to differences of opinion [and] having no interest but the maintenance of order and liberty’– could now be entrusted with the guardianship of the constitution.40
37
Vile, Constitutionalism, p. 226. Vile, Constitutionalism, pp. 233-262 and Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1995), pp. 1-41. 39 Constant, Political Writings, pp. 221-224. 40 Constant, Political Writings, pp. 186-187. 38
2. Moderating the Cadiz Constitution The importance of Cadiz as a model for the new Empire was always evident in political discussions.41 In Mexico, the principle of legislative superiority was immediately adopted in the opening session of the Constituent Congress on 24 February 1822. Here deputies followed their peers in Cadiz by adopting the principle of national sovereignty and by further declaring that this sovereignty ‘reside[d]’ in Congress. Deputies then ‘delegated’ the exercise of the executive power to the Regency.42 Congress’s position was underlined by Iturbide’s coronation as emperor by the President of Congress in June 182.43 Despite the importance of Cadiz, none of the projects presented during the Empire proposed its adoption without first introducing some modifications in the division of powers it established. Chief amongst the reforms proposed was the addition of a second legislative chamber, which appeared in all the projects and publications considered in this essay. Experience of the Cadiz constitution had convinced Mexican politicians that a unicameral legislature had few effective checks on its actions.44 As Iturbide argued in November 1821, a partial executive veto had not been sufficient to keep the legislators in order.45 It is clear that Mexico’s politicians were mindful of the controversies surrounding the constitutional organisation drawn up in 1812. They were probably 41
This subject is treated at length by Frasquet in Las caras. Mateos, Historia, p. 269. 43 Anna, El imperio. 44 The Supreme Governing Junta had decided that the Constituent Congress should be bicameral but made no special arrangements for the election of a Senate. All members of Congress were to be chosen by the same process and when the Congress convened the representatives should divide themselves in order to form two chambers. In the event, members decided to ignore the Junta’s indication and convened a unicameral Constituent Congress. 45 Indicación dirigida por la regencia del Imperio a Su Majestad la Soberana Junta Provisional (México: Imprenta Imperial de don Alejandro Valdés, 1821) pp. 1-2. 42
aware of Blanco White’s criticisms of the single chamber legislature and weak monarch, since his newspaper El Español had circulated amongst royalists and insurgents alike during the independence wars. 46 They might also have been aware of hostility to the restoration of Cadiz among some sectors of Spanish liberal thought. In 1819, a conspiracy against the absolute government of Ferdinand VII was discovered. As Claude Morange has shown, the conspirators shared Blanco White’s opposition to Cadiz’s separation of powers and were in favour of establishing a constitutional monarchy in the style of the French Restoration in 1819.47 Like Spanish liberal opponents of Cadiz, many of Iturbide’s supporters believed the answer was to abandon the example of Cadiz entirely in favour of balanced government. This did not appeal to those who were convinced by the idea of national sovereignty. In the constitutional project written by an anonymous member of the constitutional committee, the author argued that a legislative power divided between democratic and aristocratic elements in the manner of the ‘English or the French’ would be ‘against the very nature of representative government’.48 It allowed the emperor to name the nobles and clergy to sit in the upper house, giving the government too much influence in the legislature. It could also lead to ‘perverse’ elements, perhaps with designs against the representative system, taking up seats.49
46
Pons, Blanco White, pp. 119-124. Claude Morange, Una conspiración fallida y una Constitución nonnata (1819) (Madrid: Centro de Estudios Políticos y Constitucionales, 2006), pp. 197-301. 48 ‘Proyecto de constitución’, p. 632. 49 ‘Proyecto de constitución’, p. 632. Frasquet argues that this project did not adopt the principle of national sovereignty, but rather imagined a political nation made up only of citizens. (See ‘La revolución’, p. 427). She bases her argument on arts. 1 and 2: ‘1. The Mexican nation is the society 47
Juan Wenceslao Barquera emphasised the importance of the principle of national sovereignty. In his opinion, government and ‘our representatives can only be the depositaries of public confidence if they represent the national will’. He affirmed that introducing mixed government to the Mexican constitution risked destroying representative government and returning the Empire to the ‘chains of despotism’.50 If the legislative power should not divide itself between democratic and aristocratic representation, how should it be divided? The committee member’s project suggested that the principles of national sovereignty could be respected via the adoption of provincial representation in the manner of the US constitution. He proposed a constitution in which the legislative power was divided between a lower chamber elected indirectly by the population, made up of one deputy for every 50, 000 souls (art. 15); and a higher chamber elected by the provinces and composing of one member per province, ‘whatever their population’ (art. 30).
resulting from the aggregate and reunion of the inhabitants of Mexico’s territory’. ‘2. This society is the supreme or sovereign authority of the state, in which all citizens participate as its members […]’. For Frasquet, art. 2 implies a reduction of the membership of the sovereign power to just citizens. However, it is perfectly possible to interpret art. 2 to mean that only citizens participate in the exercise of sovereignty, ie having passive and active rights as citizens. This makes more sense in the context of the preamble to the project: The social pact that is supposed to have been celebrated between society and its members is the first principle from which all the maxims of civil law are derived. The social pact gives the supreme power its dignity, primacy and the right to govern as well as the obligation to ensure the common happiness of the individuals [who have made this pact], since it is supposed that they have given up their natural liberties and subordinated themselves to [the supreme power] with the aim of procuring their prosperity. For the same reason, in virtue of this pact, they [the individuals] also undertake the responsibility to obey and the right to have their tranquillity and well-being respected (p. 643) The author makes a clear distinction between the rights of all inhabitants and the political rights of a citizen. In art. 94 he specifies that ‘Citizens’ rights are limited to participating in society’s government of which they are perfect members’. While there are echoes of scholastic pactism in the author’s reasoning (affirming that the social pact is made between society and its members) and Catholic theology (society being ‘perfect’) this is not reason to believe he imagined a sovereign nation made up of anything other than all its inhabitants. 50 Barquera, Lecciones, pp. 161-162.
In the elections for the first chamber, he proposed that citizens be required to possess a property valued at a hundred pesos more, or to have ‘an office, profession or rental income which paid three hundred pesos annually’. All artisans must be given the vote, as were all indigenous men employed in farming (art. 11). Deputies in the lower chamber should possess property valued at more than five hundred pesos or an annual income of the same amount (art. 12). Members of the upper house should be over forty years of age and have enough money to live independently (art. 30). The proposal included no plans for amending the administrative provincial order established by Cadiz. It imagined a centralist state: provincial political chiefs were to be named by the emperor and were to function as ‘the government’s agent and its means of communication with the people’ (arts. 44 and 45, part 12). A second house was included exclusively to provide balance; it was to be a revising chamber ‘in which the ardour of a heated discussion could be cooled, […] any illusions of seductive eloquence could be dispelled and any party or factional spirit [apparent] amongst the deputies would be shattered’.51 The second chamber’s faculties were limited to a provisional veto over law bills presented to it by the lower house and the ability to propose legislation (art. 34). Despite this reform, the author wished the Empire to adopt the division of powers and the legislative supremacy enshrined in the Cadiz constitution. The executive power would be made up of the monarch, his ministers and the State Council (arts. 42 and 45). Members of the legislature could not be ministers (art. 14). The emperor could name his ministers freely, but the state counsellors would 51
‘Proyecto de constitución’, p. 632.
be chosen from a list presented by the legislature (art. 45, part 7). Monarchy was to be hereditary, but the succession would be decided by Congress in the case of a lack of a male heir; Congress also would appoint a Regency if the heir were still a child (arts.47-53). The monarch should have the prerogative to propose legislation to the Congress and a provisional veto over law bills. This veto could be only be used twice; if Congress insisted a third time, the law must be published (arts. 3334).52 Like the Spanish king, the emperor would have no powers to convene or dissolve the legislative assemblies (art. 40). There would be ministerial responsibility while the monarch would be immune from prosecution. The subordinate position of the monarch to Congress was made explicit in the project: article 46 stated that the monarch could be reprimanded by Congress. On receiving three reprimands he would be considered to have abdicated the throne. Barquera wanted to conserve the basic division of powers but reduce the importance of the legislature within the framework of government. Instead of endorsing legislative supremacy, he wanted ‘a fair and rational distribution of power’ by creating the right ‘balance of weights [...] capable of ensuring the authority of magistrates and laws in the most vigorous possible way’.53 He favoured the creation of a Conservative Senate of the type proposed by Sieyès in 1799.
52
Frasquet affirms that the Cadiz Constitution did not allow the monarch to propose legislation. As a result she argues that this project gives more power to the emperor than that enjoyed by the Spanish king (Frasquet, ‘La revolución’, pp. 435-6). However, the king was granted this prerogative in Cadiz. The only amplification of the monarch’s influence proposed here is the specification that all the government’s bills should be discussed (‘Proyecto de constitución’, art. 27, p. 637). It is clear that the project reduces the monarch’s powers, not least in terms of the veto. Under Cadiz a legislative project vetoed by the king could not be discussed again until the reunion of the next session of The Cortes. In this proposal vetoes could be dismissed immediately. 53 Barquera, Lecciones, pp. 113-4.
Barquera’s emperor would have had the right to a suspended veto over legislative projects,54 and the ability to dissolve the legislature in case of emergency.55 The legislature should be elected indirectly, with one deputy representing every forty thousand people.56 The Senate should be chosen from amongst those ‘of the most propriety, wisdom and good name’. They should be of a ‘mature age’ and have given ‘decided signs of patriotism’, a quality he hastened to add could not be measured by ‘employments, honours or rewards’. They would receive a salary that would permit them to live independently, but could aspire to ‘no other employment, honours, pensions or titles’ and would conserve their seats for life. Barquera wanted to ensure, as Sieyès had before him, that the members of his Conservative Senate would be independent of the executive: not able to be swayed through the promise of further honours, nor threatened by the loss of their seat. The Senate was also to be independent of the Chamber of Deputies. The founding members would be elected by the deputies, but vacancies would then be filled by the councils of secondary electors in the provinces from lists prepared by the deputies and the executive.57 Barquera’s independent Senate would be entrusted with overseeing elections to the legislature. It would advise the monarch on his executive appointments. Its most important power would be the faculty to judge the constitutionality of the legislative and executive branches’ actions. He also thought that the Senate should be charged with the guardianship of the constitution and its 54
Barquera, Lecciones, pp. 187-8. Barquera did not give details on the requirements of this prerogative, although he noted that it would be important to establish ‘precautions’ to avoid its abuse. Barquera, Lecciones, p. 188. 56 Barquera, Lecciones, p. 159. 57 Barquera, Lecciones, pp. 197-200. 55
reforms. This institution should be able to decide when ‘all judicial and legal formalities had been met’ during the process of reform and to convene an assembly in which to discuss them.58 Even so, Barquera did not recommend giving the Senate all the powers entrusted it by the French Imperial Constitutions or the Statute of Bayona. He did not suggest that the Senate be allowed to declare the suspension of the constitution nor did he charge it with the protection of individual liberties, preferring to give these powers to the legislative assembly. 59
4. Moderation via balanced government Other politicians rejected national sovereignty and a division of powers based on functions in favour of balanced government.60 A few, like Antonio José Valdés, were close supporters of Iturbide and it appears that the emperor himself had some sympathy for such constitutional organisation.61 The balanced model of mixed government allowed them to support the idea of a popular representative lower chamber as well as advocating a hereditary monarchy entrusted with wideranging powers. This position has often been misunderstood by historians who have assumed that the desire to strengthen the role of the monarch must be indicative of a wish to transform Iturbide into a Mexican version of Napoleon. There is little evidence to suggest that Iturbide or his supporters had such plans. The only
58
Barquera, Lecciones, p. 200. Barquera, Lecciones, p. 169. 60 Andrews, ‘Los primeros’, pp. 5-43. 61 Andrews, ‘El proyecto’, pp. 55-71. 59
constitutional project which proposed the adoption of a constitution similar to those in force during Napoleon’s rule was that of José María Couto, a cathedral canon from Michoacán and former deputy to the Cadiz Cortes. But, Couto did not propose to copy the unreformed Napoleonic charters. Rather he favoured the adoption of a system modelled on the French Constitutional Charter of 1814. Couto’s constitutional project was formed almost completely with articles selected from this French charter. He put forward a system in which the monarch should play the directing role in government and be the exclusive source of legislative projects (art. 16), while the legislature should function as an institution of revision (art. 18). He proposed that legislative power be made up of a popular chamber, elected via indirect election (arts. 34-50) and an Imperial Chamber of unlimited size named by the emperor (art. 26). However, he was not in favour of the parliamentary government, as he did not include any of the articles from the 1814 constitution which outlined how members of the legislature could be executive ministers. Couto wanted to see an ecclesiastical presence in the second house, something not contemplated by the French charters. He indicated that the Mexico’s bishops and Archbishops should have a seat Imperial Chamber along with a representative of all the Empire’s cathedral chapters (art. 26). Aside from Couto’s plans, the only other support for French ideas during the Empire appeared in El Sol. In December 1821, this publication included an editorial essay lauding Benjamin Constant’s proposals for a constitutional monarchy. This argued that balanced government could only be guaranteed by the mediation of the king, who being wholly separate from government was ‘the only one capable of
acting as mediator’ due to the fact he had ‘no interest’ in provoking conflict between the other powers.62 In May 1822, the editors returned to this theme arguing that a moderate monarchy also required the presence of ‘an intermediate body between the legislative and executive power’ in order to ‘avoid the monarch’s favouritisms’ and assure ‘our liberty forever’.63 There was no suggestion of adopting of a Napoleonic solution. Other plans which proposed mixed government favoured the British model. For example, Ludovico Lato-Monte argued in Catechism of Independence in favour of an English-style government in which there was ‘a monarch-executor of laws, with two chambered legislature, an upper [chamber] made up of nobility and clergy and a lower [chamber] for the common estate’. The author was keen to stress the importance of the upper house within this arrangement: ‘it defends the king from the insults of the people and also the people from the tyranny of the king’. Without an upper chamber government would necessarily fall into ‘one of two extremes, despotism or regicide’.64 Iturbide and his fellow regent, Archbishop Antonio Joaquín Pérez, were also of a similar opinion. In a text presented to the Provisional Governing Junta in 1821, they argued that the Cadiz Constitution had been unable to uphold its ‘liberal principles’ because its organization did not provide for equal representation in government for all Spain’s corporations. By creating a single chamber legislature, it excluded the aristocrats and other privileged estates from government, thus converting them into natural allies of the constitution’s opponents. The result had 62
El Sol, 8 Dec. 1821, no. 2, pp. 6-8. El Sol, 11 May 1822, no. 45, pp. 202-4. 64 Lato-Monte, Catecismo, pp. 42-3. 63
been the rebellion against the constitution in 1814 and the restoration of absolutism under Ferdinand VII. The regents also argued that a bicameral system in which the two houses were ‘composed diversely according to the respective circumstances of the population’ was key to explaining the ‘amazing prosperity’ of the US and Great Britain. They made no distinction between the US Senate and the British House of Lords. In fact, they appear to have believed that the US Senate was merely a republicanised version of the Lords.65 Another partisan of British bicameralism was José Antonio Valdés, a Cuban exile and deputy for Guadalajara in the 1822 Constituent Congress.66 During 1822, Valdés published his Imperial Constitution, as well as a pamphlet entitled The Mexican Republic. Valdés believed that ‘[t]he imitation of the Spanish constitution would be absurd for the Empire’ since its deficient organisation had been the cause of its failure to establish stable government in 1812 and again in 1820.67 The root cause of this incapacity was the creation of an all-powerful unicameral legislature, which being unchecked by the executive, was more suitable for a ‘democratic republic’ than a moderate monarchy.68 Valdés rejected the idea of charging the monarch with the direction of the legislative power in the manner of the French Constitutional Act of 1814, as he did not consider it to properly moderate the actions of monarch:
65
Indicación, pp. 1-3. Andrews, ‘El proyecto’, pp. 55-71. 67 A.[ntonio] J.[osé] V.[aldés], República mexicana, Puebla, 26 Oct. 1822, (Mexico City: en la oficina de D. Pedro de la Rosa, Impresor del Gobierno, 1822), p. 41. 68 Valdés, República, p. 40. 66
The French constitution offers an example of the opposite extreme [to Cadiz]. None of the chambers can present law bills, only the king can propose them, and the chambers must reject or adopt them. In this way, [...] a political farce develops, [...] since, as a result, the king [as head of the executive] only sanctions the emanations of his own will.69
For Valdés, a true moderate monarchy could only adopt a legislature consisting of ‘three votes of equal force in the manner of England’.70 He proposed that the legislature been formed by three institutions: Emperor, Senate and a House of Representatives in imitation of the three estates present in the English constitution. The House of Representatives would be elected popularly but indirectly according the Cadiz system: all citizens could vote in primary elections but only those possessing a ‘capital of two thousand pesos [...], a state salary of more than five hundred pesos, or a profession, industry or art that produce[d] the required sum’ could vote in secondary and tertiary stages. Deputies would have to possess a capital of ‘no less than ten thousand pesos or a salary of two thousand pesos’ resulting from state employment or a ‘scientific profession’. In his pamphlet Valdés considered three alternative compositions for the Senate:
1. –From the Empire’s nobility, in which case it should be permanent.
69 70
Valdés, República, pp. 41-2. Valdés, República, p. 40.
2. From individuals named by the people in the manner of the United States, or by the town councils, in which case it should be renewed by a third every year. 3. From a selection of themselves [the deputies of the House of Representatives], elected in the first session of each legislature [...] with the same prerogatives as the originating house.71
When writing his constitutional project, he opted for a mixture of the first two options elements while also incorporating the idea that the upper house should also count on some ecclesiastic representation:
The imperial princes over the age of twenty-five, [...] all the Empire’s archbishops [...], twenty-four individuals named by the emperor from amongst the secretaries of state, the state counsellors, bishops, ambassadors, military generals, nobles, intendents [political heads of the provinces], magistrates [...] [and] a senator for each province named every five years by the Provincial Deputation from amongst hacienda owners, merchants, miners, lawyers and clergy (art. 27).
All but the elected elements would be senators for life and should have the wealth necessary ‘to live decorously’ (art. 28). All but the princes should be over thirty years old (art. 29). Valdés aimed to include different interest groups and corporations in the Senate, although in a very different to the style of the British 71
Valdés, República, p. 41.
House of Lords or the organisation of estates and corporations typical during the colonial period.72 As ‘an essential part’ of the legislative power (art. 17), the emperor in Valdés’s constitution has most of the attributions believed to belong to the British monarch: immunity from prosecution; an absolute veto over all legislative projects; the prerogative to convene or extend the sessions of both chambers; and the right to dissolve the House of Representatives. He must summon the legislative every year. In the interests of balance, deputies, senators and the emperor all have the right to present law bills; although, again in imitation of the balanced constitution, all projects concerning taxation must originate in the House of Representatives (arts. 18-24). Despite Valdés’s rejection of the 1814 French constitution, he did partly endorse the idea of a ‘Conservative Senate’. His constitution entrusted the Senate with the supervision of ‘the conservation of individual liberties and the liberty of the press’ in the manner of the Statue of Bayona. He awarded it the same power to suspend the constitution or parts of it –on petition of the emperor– ‘in case of armed uprising, or unrest that compromises the security of the state’ (art. 38). However, Valdés’s Senate was to be much more wide-ranging its powers than that of Bayona. It should also be the court in which all impeachments of ‘imperial persons, ministers, state counsellors, members of the Supreme Tribunal of Justice, its own members and the representatives’ are heard (art. 39). This recalled the powers of the Senate in the 1804 French constitution (arts. 101-102).
72
Andrews, ‘Una alternativa’, pp. 67-122.
It seems clear that supporters of a mixed version of moderate monarchy wished to create a constitution in which there were three equally important elements: the popular assembly, the aristocratic and ecclesiastical senate and the emperor. Their authors believed this was the only way to ensure proper balance in government and to prevent either the monarch or the popular assembly abusing its power. There was no question of making Iturbide a Napoleonic figure or allowing him unlimited power in government.
5. Moderation via (Enlightened) Democracy Completely different from all the proposals studied so far was the Constitutional Project for the Mexican Republic published by Francisco Severo Maldonado in the latter part of 1822.73 Maldonado had originally written his plan for the Spanish nation, but after independence he rewrote it for the Mexican Empire. He also wrote an extensive pamphlet entitled The New Social Pact, which he published in four parts in 1821.74 The first three parts of the text were written for the Spanish nation, while the final part was dedicated to the Mexican Empire and was entitled, Mexicans’ Social Pact.75. In 1823, after the establishment of the republic, Maldonado reedited this plan once more, restyling it the Contract for the Association of the Republic of the United States of Anahuác.76
73
‘Constitución política’, pp. 6-180. El nuevo pacto social propuesto a la nación española (Guadalajara: Impreso en la oficina de doña Petra Manjarrés y Padilla, 1821), nos. 1-2; El nuevo pacto social propuesto a la nación española (Guadalajara: En la imprenta de Don Mariano Rodríguez, 1821), no. 3. 75 El pacto social de los mexicanos (Guadalajara: n. e., 1821), no. 4. 76 ‘Contrato de Asociación para la República de los Estados Unidos del Anáhuac por un ciudadano del Estado de Xalisco’, in Calvillo, La república, pp. 755-830. 74
Maldonado’s premise was that a constitution that sought only to rearrange the powers of government without tackling the question of social inequality was bound to fail. As a result, in 1822 he also published plan for the reorganisation of taxation and the imperial treasury,77 as a complement to his political ideas. Here, he argued that despotism and the oppression of civil liberties could not be destroyed without first tackling the question of land-ownership. His opinion was clear: ‘the art of giving [liberty] to the people can be reduced, in the last instance, to the division of the totality of national property amongst them, without this, equality cannot be maintained [...] nor can liberty’.78 For Maldonado, neither the British constitution nor the various French charters published since 1789 had brought liberty and equality to their citizens. In his economic plan he cited the Abbé de Pradt. Pradt maintained that the concentration of property in the hands of the English aristocracy meant the English constitution had been completely obliterated. Its claim to represent balanced government was false, since the reality of property-ownership always tipped the scales in favour of aristocratic and monarchical power.79 Maldonado concludes that this ‘celebrated’ constitution could never be anything but ‘sterile, vague and unfruitful’ since it offered merely ‘chimerical protection’ to a people living in
77
‘Bosquejo de un plan de hacienda, capaz de cubrir todos los gastos del servicio público’, El Fanal del Imperio, vol. 1, nos. 7-8, pp. 289-435. Also see ‘Prospecto ó muestra de las incomparables ventajas que este código acarrea a todos los españoles europeos y americanos, sacada de un solo capítulo de los varios que componen en plan de Hacienda nacional’, in El nuevo pacto social propuesto a la nación española, no. 2, pp. 30-92. Jesús Hernández Jaimes, La utopía antitributaria: El proyecto hacendario de Francisco Severo Maldonado (1822), unpublished essay, cited with the author’s permission. 78 Maldonado, ‘Bosquejo’, p. 396. 79 Dominique-Georges-Frédéric Dufour de Pradt, L'Europe et l'Amérique depuis le Congrès d'Aix-laChapelle (Paris: chez Béchet aîné, Libraire, Quai de Augustins, no. 57, 1821), pp. 64-7. Maldonado, ‘Bosquejo’, pp. 396-7.
‘servitude and poverty’.80 In the New Social Pact, he paraphrased Thomas Paine’s judgement that the British constitution is no more than ‘a pact agreed between the chief and principal subjects to live at the expense of everyone else and to oppress them’.81 Maldonado thought the French constitutions were little better. In his opinion, the first revolutionary documents had proposed ‘vane and ridiculous theories’ and established ‘extravagant and chimerical systems’ all ‘inapplicable to the actual state of the population’. The result had been a disaster: political divisions and rebellions had fermented until France found itself once more restrained by ‘the chains of oppression’ that it had not long since thrown off. For Maldondado, the counterrevolutionary constitutions marked France’s ‘violent regression into despotism’.82 To prevent Mexico from repeating these mistakes, Maldonado advised its politicians to avoid both constitutional models and to ensure that they first tackled the question of social inequality. He proposed an economic plan whereby the state should gradually nationalise all property, renting it back on life-long leases to its inhabitants in equal portions. Such an arrangement would not only bring social equality, but also provide the state with sufficient income to cover its expenditure and make the need for taxation completely unnecessary. 83 This scheme would also allow the state to finance the education of its youth, thus ensuring it received all benefits of the modern Enlightenment. In his opinion, social equality, education and
80
Maldonado, ‘Bosquejo’, p. 398. Maldonado, El nuevo pacto, no. 1., p. 6. 82 Maldonado, El nuevo pacto, no. 1., p. 9. 83 Hernández Jaimes, La utopía. 81
prosperity would form ‘three battering rams before which any wall of despotism would disintegrate and fall’.84 A well-educated, prosperous and equal society Maldonado’s
constitutional
project.
Seemingly
inspired
was essential to by
Jean-Jacques
Rousseau’s ideas about democracy, his plan was based on the premise that the inalienable holders of sovereignty were the active members of the Mexican polity, whose general will should be the fountain of all legislation. Maldonado was quite familiar with the arguments that rejected direct democracy for large polities.85 He believed he had managed to resolve the inherent problems of involving millions of people in the affairs of government.86 He proposed to make the body politic a voluntary association into which all males above the age of sixteen could enrol. Those who chose to remain outside the association would become passive citizens and would not be allowed to participate in the affairs of government (art. 15). The association of citizens was to be divided into ‘political and military’ corporations formed of ‘all individuals with the same state, profession or mode of living’. In each (unspecified) locality there would be corporations of labourers (compromising of property-owners, sharecroppers and ranch hands); miners (owners and all those employed in mining); merchants; artisans divided by their office; and, domestic employees. These corporations formed the basic unit of the political nation and were also to provide services as militia soldiers in case of a foreign attack. Nationally, they were to be organised in centuries, divisions and 84
Maldonado, ‘Bosquejo’, pp. 404-5. Maldonado, El pacto social, pp. 134-8. 86 Maldonado, El pacto social, p. 163. 85
battalions. The would-be citizen was required to take part in a lengthy ceremony of allegiance conducted by his parish priest. In the ceremony, he would choose which corporation he would join, swear his allegiance to the patria and present the weapon of his choice to be blessed by the priest (art. 32). This nation of associated citizens was to be administered by a government divided into three branches: legislative, executive, judicial. The legislature was made up of a series of small congresses: the first, a municipal congress in each locality in which each corporation would have a representative; the second, a district congress, formed of one representative from each municipal congress contained in its jurisdiction; the third, a provincial congress with a representative of each district congress; and finally, a national congress made up of a representative from each provincial assembly (arts. 33-45). The executive power was made up of the emperor and his ministers, plus an administrator for each level of government: provincial, district and municipality (arts. 123-137). Also part of the executive were a nationalised Church or ‘ecclesiastical power’ (arts. 204-241), a regular army and a nationalised education system made up of network of educational institutes. The system imagined the provision of state primary schools in all towns, secondary education in all district capitals through to state universities in all provincial capitals (arts. 138-148; 165-203). The judicial power was formed of judges and magistrates. Here it should be noted that judicial jurisdictions were to correspond to the different corporations individually (arts. 381-448). None of the positions within the executive power –except that of the emperor– were to be held for life, nor should they be inherited (arts. 242-248). Maldonado proposed an elaborate scheme to create something akin to a
professional civil service whereby all positions were to be earned on merit and seniority. This was probably inspired by Rousseau’s plans for a similar institution for the constitution for Poland.87 The executive power would oversee all education and examinations, and only those gaining the required qualifications would be able to serve in the three branches of government. All the qualified would begin in the lowest positions of government and would gradually ascend to higher positions as a result of longevity in service (arts. 250-266). The members of the judicial power would be chosen in the following way: the corporations would choose the judges for their corporation via annual indirect elections in two stages. In the first stage, each corporation’s company would elect twelve electors by means of a lottery. In the second stage, electors would choose five judges and two replacements for their company (arts. 391-393). There were also to be tribunals in each province to oversee the procurement of justice, these would be made up of judges with life-long appointments. Maldonado did not elaborate on how they would be chosen (arts. 336-338). To fill the provincial and national assemblies, Maldonado proposed drawing up lists of civil and ecclesiastical lawyers and member of the literary professions. The most senior of these lists would be members of the national assembly. Once all the places in this assembly were filled, the most senior candidates would be made members of the provincial assembly. Vacancies in both assemblies would be
87
‘Plan for a sequence of official promotions embracing all members of the government’, in JeanJacques Rousseau, Considerations on the Government of Poland and on its Proposed Reformation, 1772, ch. 13, http://www.constitution.org/jjr/poland.htm
filled in order of seniority. Maldonado did not indicate what the deputies’ length of term would be.88 The executive power was only to be concerned in administrating the law. Its members were to take no part in legislation. There would be no executive veto. Law bills were to be discussed by the national assembly. Once they had been approved they were passed down to the provincial, district and municipal assemblies. It would be the responsibility of these congresses to print and circulate the bills amongst the population. Citizens who wished to pass comment or object to the bill were to be invited to do so by addressing the one of the congresses with their arguments in writing within fifty days of the bill’s publication. When the bill was discussed in the provincial, district and municipal congress, all those who had submitted text were to be invited to attend the congressional discussions on the subject (it is not clear if they were to be allowed to speak). District and municipal congresses should pass the results of their discussion to the provincial congress. Here the bill was voted on after listening to the different representations from the lower assemblies and those submitted privately by citizens. Each bill must receive the approval of two thirds of the provisional congresses in order to become law (arts. 93-122).89 Maldonado made it quite clear that this arrangement was designed to give the lower assemblies the role of constitutional guardian. They existed not only to give citizens a voice in legislation but also to moderate the actions of the national legislative or executive. Their ability to veto legislation was supposed to paralyse
88 89
El Fanal del Imperio, vol. 2, pp. 166-71. This recalls the powers given to the communes by the 1793 French Constitution (arts. 56-60).
the ‘disastrous consequences’ of any party spirit in the national congress. Having laws approved by the provincial congresses would ‘suffocate despotism at birth, preventing intrigues, torturous manipulations and collusions between deputies against the interests and rights’ of the people.90 The multitude of chambers involved in the legislative power meant that the behaviour of all members of the powers could be held to account. The actions of the national executive could be impeached in the national legislature; those of the lower administrators in their corresponding assemblies. Each provincial congress was charged with hearing impeachments against their own member of the national legislature, while the district assembly would in turn hear the accusations against its provisional representative and so on. According to Maldonado such an arrangement provided the solution to one of the most difficult problems facing politicians: how to find ‘a counterweight [...], a neutral power’ which ‘could maintain the balance’ between the others’.91 This role of constitutional guardian is made further explicit in the final version of Maldonado’s plan written for the republic in 1823. Here, he explained that bitter experience has taught the Mexican people that their constitutions not only required ‘a moderating power, which [was] sufficiently enlightened and sufficiently strong [...] to keep the agents of authority within the orbits of their respective attributions’, but they also needed a power that could reconstitute the state in the case of an emergency (arts. 90-91). However, he continued, history had repeatedly shown this power to be ineffective in the hands of ‘senates, higher or second chambers
90 91
Maldonado, El pacto social, p.163. Maldonado, El pacto social, p. 163.
and state councils’ (art. 102). The only solution was to give it to the provincial congresses. Provincial legislatures should also have the right to impeach members of the national executive, but also the prerogative to reconstitute the national legislature in case of its dissolution by a foreign power or a despotic executive. Should this occur, each congress should name its most senior deputy as its representative to be sent to form a new national legislature. In the case that the national legislature should become the despot, the same action should be taken in order to isolate and neutralise the tyrannical assembly (arts. 193-196). In short, Maldonado presented a plan for a moderate monarchy in which the moderation was provided by the division of the legislative power into hundreds of smaller assemblies. He wanted to create a democratic state in which there were no elections of the type practised hitherto in the Spanish Empire. The administration of government was entrusted most erudite members of society, while at the same time allowing all citizens a voice in the making of laws. As a result, his plan could be fairly described as an enlightened democracy.
Conclusions The different projects studied in this article lead to two conclusions. First: it is necessary to question the emphasis currently given to the role of the Cadiz Constitution by Mexican historiography as the most significant point of reference for nation-building during the early years of independence.92 There is no doubt that
92
Some examples are Jaime E. Rodríguez O., ‘La constitución de 1824 y la formación del estado mexicano’, Historia mexicana, 40:3, (1991), pp. 507-35; Jaime E. Rodríguez O., El proceso político de la independencia en México (México: Instituto Mora, 1993); Ivana Frasquet, ‘La ‘otra’ independencia de México: el primer imperio mexicano. Claves para la reflexión histórica’, Revista
Cadiz was extremely important for Mexico’s politicians; however, historians’ continual preoccupation with its legacy risks creating a misleading picture of political life. Above all, it is in danger of perpetuating two long-debunked myths concerning the intellectual history of Spanish America: its isolation from Atlantic political debate and its capacity for independent political thought. This article shows that the Empire’s politicians had many sources of constitutional ideas and knowledge other than the Cadiz Constitution. The different constitutional projects studied demonstrate that they were familiar with a number of French constitutions, the model of the British balanced constitution and the US charter. It also suggests that their authors were unwilling to accept uncritically any of the pre-existing models of government. They point to the fact that Mexican politicians, like their American, French or Spanish counterparts, debated their future constitution on the basis of the examples and political debate available to them. They did not blindly adopt any one charter nor follow any one particular thinker. Secondly, the projects examined show that the origins of Mexico’s constitutional debates can be found in the political discussion surrounding a constitution in 1822. The question of how to create constitutional government which did not allow any of its component parts to overstep the law was constant until at least 1857. Specifically, the need for an institution charged with the role of constitutional guarantor evident in the ideas of Barquera and Valdés would be complutense de Historia de América, 33, (2007), pp. 35-54; Ivana Frasquet and Manuel Chust La trascendencia del doceañismo en España y América (Castellón: Universitat Jaume I, 2004); and Manuel Chust (ed.), 1812. El Poder de la Palabra. América y la Constitución de 1812 (Barcelona: Acción Cultural Española, Consorcio para la Conmemoración del II Centenario de la Constitución de 1812, Lunwerg Editores, 2012).
revisited. A proposal for a Conservative Senate, independent of the legislature, with powers to ‘supervise the conservation of the constitutional system’ was included in the constitutional project drawn up for the Federal Republic in May 1823.93 It also made an appearance in Lucas Alamán’s plans for the reform of the 1824 Federal Constitution, published first in as a series of editorials for the newspaper Registro Oficial in 1830 and later, reedited as a pamphlet in 1835.94 A version of this institution was adopted in the 1836 Constitution. This created four branches of government: the traditional trinity of legislative, executive and judicial powers, and a neutral Supreme Conservative Power, whose remit included the prerogative to judge the constitutionality of the other powers’ actions and to reconstitute the nation in case of rebellion or invasion.95 To conclude, the first Mexican Empire played witness to important debates concerning the best way to organise the division of powers. These debates were based on a wide-range of sources and ideas. Although the Empire’s politicians did not manage to draw up a constitution before the monarchy fell, they left a rich legacy upon which the new Republic could establish itself.
93
Morán, El Supremo Poder, p. 307. Catherine Andrews, ‘In the Pursuit of Balance. Lucas Alamán’s Proposals for Constitutional Reform (1830-1835)’, Historia constitucional, 8, (2007), http://www.historiaconstitucional.com 95 Catherine Andrews, ‘El debate político de la década de 1830 y los orígenes de las Siete Leyes’, in Cecilia Noriega and Alicia Salmerón (eds.), México: un siglo de historia constitucional (18081917) (Mexico City: Instituto de Investigaciones Dr. José María Luis Mora/Suprema Corte de Justicia, 2009), pp. 119-25. 94
CHRONOLOGY OF KEY EVENTS YEARS 1808-1814 1810-1821 24 February 1821 24 August 1821 27 September 1821 24 February 1822 19 May 1822 28 August 1822 24 October 1822 1 February 1823 4 March 1823 19 March 1823 12 June 1823 7 November 1823 31 January 1824 4 October 1824
EVENTS Napoleonic occupation of Spain War of Independence in Mexico Plan of Iguala Treaties of Cordoba Iturbide enters Mexico City Constituent Congress installed Congress elects Iturbide as Emperor 14 congressional deputies arrested accused of plotting in favour of a republic Iturbide dissolves Congress Plan of Casa Mata Iturbide restores Congress Iturbide abdicates. Congress establishes a Republic Constituent Congress calls fresh elections Second Constituent Congress is installed Constitutive Act of the Federation published Federal Constitution of the United Mexican States published
REGIMES 1812-1835 YEARS 1812-1814 1814-1820 1820-1821 1821-1823 1823-1835
REGIMES Constitutional monarchy Absolute monarchy of Ferdinand VII Constitutional monarchy of Ferdinand VII Constitutional monarchy of the Mexican Empire Federal republic
44
THE DIVISION OF POWERS IN CONSTITUTIONAL MONARCHIES (CIRCA 1821) AND IN THE PROJECTS PUBLISHED DURING ITURBIDE’S EMPIRE DEFINITION OF SOVEREIGNTY BAYONA
None
COMPOSITION OF THE NATION Estates
CONSTANT’S CONSTITUTION AL ACT, 1815
None
Estates
Partial (parliamenta ry government)
JOSÉ MARÍA COUTO
None
Estates
By functions and persons
Monarch
Monarch and ministers plus the Council of State
JUAN WENCESLAO BÁRQUERA
Sovereignty derives from God and society can entrust to the authorities.
Pueblos
By functions and persons
Three powers moderated by an independent Senate
Monarch and ministry
Single Chamber of deputies
Not mentioned
CÁDIZ
Sovereignty resides essentially in the nation. The nation is the state’s supreme authority or sovereign.
Sovereign nation
By functions and persons
None: Legislative supremacy
Monarch and ministers plus the Council of State
Single Chamber of deputies
Tribunal of Justice
Sovereign nation
By functions and persons
None: Legislative supremacy
Monarch and ministers plus the Council of State
Single Chamber of deputies
Tribunal of Justice Audiencias
Sovereignty resides in the union of the King-inParliament.
Estates
Partial
Via balance of prerogatives
Monarch and ministers
Monarch bicameral legislature (Houses of and Commons)
Judges House of Lords
ANONYMOUS
BRITISH (according to Blackstone)
DIVISION OF POWERS By functions and persons/
MODERATING FORCE Royal supremacy moderated by Senate Monarch
COMPONENTS OF THE EXECUTIVE POWER Monarch and ministers
COMPONENTS OF THE LEGISLATIVE POWER Tricameral: Houses for nobles, clergy and commons
COMPONENTS OF THE JUDICIAL POWER Audiencias, High Royal Court, Royal Council
COMPONENTS FOURTH POWER
Monarch and ministers plus the Council of State
Monarch plus bicameral legislature (House of Peers and a Chamber of Deputies) Monarch plus bicameral legislature (House of Nobles, Princes and Clergy and a Chamber of Deputies)
High Courts Ordinary Tribunals
Monarch
plus
Lords
OF
Senate: Spanish princes and 24 other individuals named by the monarch
Not mentioned
Senate Patriots of mature age and wisdom elected by the pueblos.
45
ANTONIO JOSÉ VALDÉS
Sovereignty resides radically in the nation.
Estates
Partial
Via balance of prerogatives
Monarch and ministers
Monarch plus bicameral legislature (House of Nobles, Princes and Clergy and a Chamber of Deputies)
Tribunal of Justice
FRANCISCO SEVERO MALDONADO
None
Corporations
By functions and persons
Legislative supremacy moderated by District and municipal assemblies
1. Monarch and ministers. 2. Administrator for each district and municipality. 3. Ecclesiastical Power.
1. Municipal congresses 2. District Congresses 3.National Congress
Tribunals of Judges and Magistrates for each corporation
