Analyzing the 1812 Spanish Constitution: A Liberal-Absolutist Compromise
Review of the 1812 Constitution
The text approved by Parliament in March 1812 resulted from a compromise between liberals and absolutists, prompted by the political situation of the time. This compromise is evident when comparing the liberal state organization established by the Constitution with the full recognition of the rights of the Catholic religion, a key demand of the absolutists.
The Constitution’s header (Fernando VII, King of Spain, <<… by the grace of God and the Constitution>>), the various religious practices to be observed in elections and schools, and the absolute recognition in Article 12: <<The religion of the Spanish nation is and will be true,>> accompany the recognition of typically liberal citizens’ rights, generally protected by Article 4: <<The nation is bound to preserve and protect by wise and just laws civil liberty, property, and other legitimate rights of all individuals composing it.>>
Other individual rights are scattered throughout the text: legal equality (Section 248), inviolability of the home (Article 306), a free press for non-religious books (Article 371), the right to vote (Article 29), elementary education (Articles 25.6 and 366), and a series of criminal and procedural guarantees (Sections 302, 303, etc.).
The state structure corresponds to that of a limited monarchy, based on a strict division of powers (Articles 14 to 17). The Cortes (Parliament) emerges as the central institution, representing the national will (Article 27). Its powers are extensive: developing laws, deciding on the succession of the crown, approving international treaties, setting annual contributions and army forces, etc. (Article 131).
The Cortes were to meet annually for a period explicitly fixed by the Constitution, fearing that the king might not convene or suspend them. The Permanent Deputation, consisting of seven elected members, was an original institution designed to enforce the Constitution if the Cortes were not in session.
The status of Members is detailed: a two-year term, incompatibility with any appointed office (including that of minister), and inviolability in the exercise of their functions. The electoral system, unusually, is fixed by the Constitution itself in Title III. Residency is the only condition for voters and candidates (although there is an income requirement for the latter), and the system is indirect, with four levels: neighboring parish electors, district electors, provincial electors, and deputies.
The monarch’s powers were limited by a distrust of a potential return to absolutism. The monarch retained the government and administration (Articles 170 and 171) and participated in lawmaking through initiative and sanction, with a suspensive veto power for two years.
Article 172 expressly limits some of the monarch’s decisions, preventing attempts to expand their powers. The Cortes also had the power to exclude the heir to the throne for unworthiness or inability and to appoint a regency in the case of minors. The detailed regulation of the royal family and succession aimed to prevent a repeat of the events of the Mutiny of Aranjuez and the Abdications of Bayonne.
The Constitution regulates the function of ministers (still called Secretaries of State), requiring their endorsement for all royal decisions; without it, royal acts were invalid (Article 225). It also established their criminal liability.
The combination of ministerial endorsement and criminal responsibility, along with a powerful legislature, moved Spain towards a parliamentary system, similar to England’s political responsibility of government. The framers aimed to prevent a return to absolutism and establish a liberal regime, aligning Spain with the progress seen in other European countries.
The State Council was the principal advisory body to the king, intended to replace the influence of palace lobbies. Its members were appointed by the king from a list proposed by the Cortes. The judiciary was solely the responsibility of the courts. The Constitution expressly prohibited interference from the Cortes and the king, ensuring the fundamental principles of the rule of law: codes only in civil, criminal, and commercial matters (Article 258), with exceptions for ecclesiastical and military courts; judges’ tenure (Article 252); formality of the process; and guarantees for the safety of citizens.
Other sections of the Constitution address the organization of provincial and local government (combining local choice with central state management), the treasury, the army (creating the National Militia and establishing compulsory military service), and public education, with goals that seem admirable even today.
The final section deals with the enforcement and reform of the Constitution. It could not be changed for eight years and then only through strict procedures, making it a <<super-rigid>> text1.
1 BRYCE (Constitutions flexible and rigid constitutions, Madrid, 1952) distinguished in the late nineteenth century between constitutions that could be reformed under the same procedures as ordinary laws and those requiring more difficult procedures. The distinction illustrates the political implications of the methods of constitutional reform.
Nature of the Constitution of Cadiz
Before and after the adoption of the Constitution, the Cortes of Cadiz and the ordinary legislatures that followed issued laws and decrees aimed at dismantling the Old Regime: abolition of manors, freedom of work, cancellation of guilds, abolition of the Inquisition, and the beginnings of confiscation and land reform. However, the restoration of absolutism annulled this embryonic liberal state-building.
The Constitution of Cadiz is the cornerstone of this endeavor. Its primary significance lies in its nature as the beginning of Spanish constitutionalism, establishing the idea that power is not absolute but limited and must respond to the general will of the nation.
While it has been criticized as an instrument of bourgeois domination, this should not overshadow the immense progress it represented compared to the previous absolutism.
Within early Western constitutionalism, the Cadiz text is exemplary, comparable to the French Constitution of 1791 or the American Constitution of 1787. Mirkine-Guetzevitch argued that it surpassed the former and had a greater influence on the rest of Europe due to its national spirit, which the French one lacked2.
Like those constitutions, it embodied the features of early liberalism: the aspiration to rationalize power and a belief in the Constitution’s almost magical ability to solve all problems. Early constitutions aimed to build the state according to rational criteria to achieve a more functional, less arbitrary, and more logical society.
Article 6’s statement that Spaniards should be <<just and beneficent>> and Article 13’s declaration that <<the object of government is the happiness of the nation>> demonstrate that the Constitution intended not only to regulate power but also to achieve a general reordering of society. This ethical dimension, characteristic of early constitutionalism but later diminished by positivism, is perfectly reflected in the Constitution of Cadiz.
Therefore, the 1812 text became the quintessential liberal symbol in Spanish history, representing a panacea for national problems. <<The Constitution is born,>> as R. Solis says, <<as a symbol, as a weapon in the fight against the invaders, and above all, as a solution to the problems of Spain>>3.
2 This scholar of European constitutionalism devoted two articles to the Cadiz text: <<La Constitution anglaise, 1812 et les debuts europeen du liberalism>>, in Introduction à l’étude du droit comparé. Recueil d’études en l’honneur d’Eduard Lamberts, t. II, Paris, 1938, and <<The Constitution of Cadix>>, Revue d’histoire politique et constitutionnelle, Paris, 1939.
3 Ramon Solis, <<Heads and tails. The first Spanish constitution>>, Journal of Political Studies, 162, November-December 1962, pp. 146.