CITIZENSHIP IN ITS INFANCY

It is a common mistake to read the constitutional debates in the early stages of lib­eral revolutions in terms of present-day ideological assumptions. It is a common teleological abuse, for example, to scrutinize the idea and practice of citizenship as if it was then the mature political institution that it is in our times, and on that basis to judge the notions of historical actors accordingly.

Paradoxically enough, universal sovereignty was born exactly at the time when those multiple and sometimes competing jurisdictions were beginning themselves to challenge the intrusive character of an expanded monarchical administration. Resistance to both this intrusion and to the erosion of inherited law were the fount of the legalistic tradition of Montesquieu, Coke and Burke (all distinctions consid­ered), as well as of the whole family of legal ideas that emphasized the double ori­gin of corporate bodies and monarchical lawgiving, in short, of pluralistic legal systems. In this light, the influence exerted by Lord Holland and the Whig tradition upon an influential group of Spaniards on the eve of French invasion and the break­up of the monarchical state - the enlightened writer Gaspar Melchor de Jovellanos being the most well-known among them - has been underlined by various schol­ars.^[668] But more important than foreign influence, what really mattered to Spanish liberals was the persistence of the legalistic and contractual traditions both in Spain and its Empire. As Francisco Tomas y Valiente explained many years ago, the first constitutional committee in charge of the preparation of the Cortes had been at pains to decide which of the old laws of Castile, Navarre and the Crown of Aragon should be respected and which rejected.^[669] After exhaustive debates, they reached only two conclusions: first, that assembling in a single unit such immense and con­tradictory sets of public and private law was impossible and impracticable; and second, that old constitutions and compilations, in their diversity and variety, showed the moderate character (“temperado”, or temperate, was the word in Span­ish) of the Spanish monarchy. The committee boldly depicted the Spanish Monar­chy as committed to the respect and upholding of the law and the independence of corporate bodies and magistrates.

Taking these considerations seriously, the meaning of �citizenship’ as expressed in 1811-1812 can be seen in a different light. Only by granting near-universal (male) citizenship could the Cortes guarantee the future of liberal Spain, because citizenship (�volitional citizenship,’ as James Kettner redefined an old word) and national sovereignty (plural representation) seemed to be the only tools capable of shaping both general consensus and social change.^[672] Those were perhaps utopian expectations, but they were in keeping with the dramatic circumstances and birth­ing pains of foundational liberalism. Liberal gospel did not project itself as a revo­lutionary weapon against a world of men and women dispossessed of rights and privileges as monarchical subjects. These subjects were not individuals “subjected” to arbitrary designs, without any notions or ideas of inherent rights. For better or for worse, liberalism did not fight against the multiple political identities and rights as­sociated with corporate bodies of professional activity, religious appurtenance and local and provincial adscription, the historical rights and duties that monarchical subjects carried upon their shoulders.^[673] This precise but uncertain equilibrium be­tween respect for the past, the challenges of the present, and hopes for the future is what explains the defense of a firmly and homogeneously Catholic nation and the reinforcement of the jurisdictional capacities of magistrates and town-hall authori­ties in the Constitution. In sum, the conflict between old and new ideas of rights expressed an unstable equilibrium between the utopian program of a global trans­formation of society along liberal lines and the weight of inherited hegemonic ideas and institutions that resisted this transformation.

The limitations and exclusions of the form of citizenship inscribed in the 1812 Constitution of Cadiz must be understood within this framework, and not, or not simply, as the result of blatant racism and Liberal hypocrisy. Indeed, in all liberal revolutions of the time, the political status of the people openly or cunningly ex­cluded by constitutions and electoral laws must be assessed without anachronistic judgments. Exclusions were different in character and signification. One kind re­flected the legislator’s often unaware acceptance of the period’s social consensus regarding certain basic unquestionable conventions.^[674] Thus, gender and age were the most common causes of exclusion, and were often not even considered exclu­sions at all. Perhaps needless to say, slaves were excluded by default, given their “social death” vis-a-vis the community of persons in which they were held as prop­erty. Slaves were not part of society except as members of the Christian flock, and even though they had recourse to the law and the courts to denounce ill treatment, as they in fact did, and to exert the right to self-manumission (“coartacion” in Span­ish) and to constitute family units, they evidently could not claim the same �rights’ granted to free persons.^[675] But some free persons were also excluded by default - those who lacked independence of criteria or will, namely servants and women. Their will and their interests were administered by masters and husbands, who at the time of voting did so for themselves and their family dependents and servants. The exclusion of dependents was quite different from that of slaves, of course: fam­ily members were bound together by ties of love; while slaves were held in captivity against their will, so masters could not be said to represent or administer it.

There are other elements that must also be taken into consideration in this line of inquiry. Since the liberal constitution of 1812 granted universal citizenship qual­ified by a repertoire of well-known exclusions, most historians have described the first Spanish fundamental law as one far from containing a universal proclamation of rights.^[676] But shouldn’t we look at the context in which rights were granted or limited to determine whether they were significantly expanded or not, before reach­ing such a dismissive and drastic conclusion? The democratic constitutions of today did not exist before the twentieth century.

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