Comparative Legal History

ISSN: 2049-677X (Print) 2049-6788 (Online) Journal homepage: http://www.tandfonline.com/loi/rclh20

‘So, you want us to be Englishmen … ’: Jovellanos

and British influence on Spain’s first modern
parliament (1808–1810)

Ignacio Fernández Sarasola

To cite this article: Ignacio Fernández Sarasola (2016) ‘So, you want us to be Englishmen … ’:
Jovellanos and British influence on Spain’s first modern parliament (1808–1810), Comparative
Legal History, 4:1, 51-81, DOI: 10.1080/2049677X.2016.1176353

To link to this article: http://dx.doi.org/10.1080/2049677X.2016.1176353

Published online: 13 Jun 2016.

Submit your article to this journal

Article views: 21

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=rclh20

Download by: [UOV University of Oviedo] Date: 27 October 2016, At: 08:38
Comparative Legal History, 2016
Vol. 4, No. 1, 51–81, http://dx.doi.org/10.1080/2049677X.2016.1176353

‘So, you want us to be Englishmen … ’: Jovellanos and British

influence on Spain’s first modern parliament (1808–1810)
Ignacio Fernández Sarasola*
(Received 21 January 2015; accepted 12 July 2015)

The first modern Parliament in Spanish history held its opening session on 24
September 1810 and was known as ‘Cortes de Cádiz’. It was conceived in
light of the French Assemblée National pattern, as most members of
Spanish liberalism admired French revolutionary political thought.
However, an alternative had already been put forward. From 1808 to 1810,
the most prominent character in the Spanish Enlightenment, Gaspar
Melchor de Jovellanos, had tried to promote the establishment of a Spanish
Assembly similar to the British parliament. Supported by two British
figures, Lord Holland and John Allen, Jovellanos designed a detailed plan
to introduce the British system of a ‘balanced constitution’ in Spain for the
first time.
Keywords: Jovellanos; English constitution; courts of Cadiz; Lord Holland;
John Allen

I. Introduction
The first Spanish modern parliament was convened on 24 September 1810 in the
Andalusian city of Cadiz, then besieged by Napoleonic troops. The new assembly,
known as ‘Cortes de Cádiz’, would later become legendary not only for its tena-
cious opposition to French invaders but also for designing the first liberal Consti-
tution of Spain: the 1812 Constitution.
Spanish historiography usually highlights the role of the Spanish liberals –
above all Count Toreno, Manuel José Quintana, Lorenzo Calvo de Rozas and,
arguably, Martín de Garay,1 when attempting to convene the Cortes. This

*Professor of Constitutional Law, Department of Public Law, University of Oviedo, Spain.

Email: sarasola@uniovi.es
1
Joaquín Varela Suanzes-Carpegna, El Conde de Toreno. Biografía de un liberal (1786–
1843) (Marcial Pons, 2005) 54–56; Manuel Fernández Martín, Derecho Parlamentario
Español (Hijos de J. A. García, 1885–1900) vol I, 439–45; Albert Dérozier, Manuel José
Quintana et la naissance du libéralisme en Espagne (Les Belles Lettres, 1970) vol II,
206; Nuria Alonso Garcés, Biografía de un liberal aragonés: Martín de Garay (1771–
1822) (CSIC, 2009) 214–15.

© 2016 Informa UK Limited, trading as Taylor & Francis Group

52 I.F. Sarasola
legislative body resembled the model set by the French National Assembly, i.e. it
was unicameral and it represented the people irrespective of their social class.
Nevertheless, as I will attempt to demonstrate in this paper, the Cadiz Cortes
would not have been convened without the involvement of Gaspar Melchor de
Jovellanos, the most acclaimed and brilliant member of the Spanish Enlighten-
ment. He was indeed at the forefront of the ‘Junta Central’ – a provisional, agglu-
tinating body, the one who would undertake to ensure that the first Decrees
governing the Cortes’ assembly were passed. For that reason the history of the
Cadiz Cortes cannot possibly ignore the figure of Jovellanos.2 His views rep-
resented an intermediate position between the inertness of the absolutists (who
did not want a Cortes) and the revolutionary approach of the liberals (who
coveted the establishment of an assembly which could break with the past on a
national level). Jovellanos aspired to set up a parliament which combined moder-
nity with tradition. And in order to do so, he focused on the British parliamentary
model. In this way, as this article contends, at the origins of Spanish constitution-
alism there was a line of political thought closely linked to that of the British con-
stitutional model, even though it did not manage to impose itself upon the vision
held by the liberals, who were followers of French revolutionary theories. A
second concern will be to identify the extent to which the early influence of
British constitutionalism existed.
It is a commonly-held belief that the influence of British constitutional thought
first took place during the so-called Trienio Constitucional (1820–23) in Spain and
particularly during the Estatuto Real (1834). A second widespread idea refers to
the fact that in the two absolutist intervals prior to 1814 to 1820 and 1823 to
1834 respectively, the Spanish liberals were forced into exile in England and
France. It would be in those two periods of exile, especially the latter, that they
would become acquainted with the British system; not only those who had fled
to England, like Agustín Argüelles, Antonio Alcalá Galiano and José María Cala-
trava, but also, and almost as important, those who took up exile in France, like
Count Toreno, Francisco Martínez de la Rosa and Andrés Borrego.3 In 1814 a pol-
itical bicameral system had been implemented in the latter, imitating that of
Britain. The influence of British political thought in Spain in the two periods men-
tioned (1820–23 and 1834) was indirect: it was due to familiarization with French
doctrinaires, evidently Anglophile, rather than to direct contact with British litera-
ture and reality. We only need to remember that one of the most outstanding
Spanish liberal politicians, Count Toreno, was acquainted with Guizot, with

2
Ignacio Fernández Sarasola, ‘Anatomía de dos bicentenarios. Jovellanos y las Cortes de
Cádiz’ (2011) 21 El Cronista del Estado Social y Democrático de Derecho 5.
3
Vicent Llorens Castillo, Liberales y Románticos. Una emigración española en Inglaterra
(1823–1834) (Castalia, 1979) 288; Joaquín Varela Suanzes-Carpegna, ‘El pensamiento con-
stitucional español en el exilio: el abandono del modelo doceañista (1823–1833)’ (1995) 87
Revista de Estudios Políticos 63.
 Comparative Legal History 53
whom he developed a close friendship.4 Nevertheless, as shall be seen, Jovellanos’
political thinking and his contact with his two British friends, John Allen and Lord
Holland, provide evidence that the influence of British constitutional thought can
be traced further back to the origins of Spanish Constitutionalism (1808–11) and
was furthermore direct and not just transmitted through an interpretation via
French authors.
Relevant work has been done about the role of Jovellanos in the establishment
of the Cadiz Cortes,5 yet it has not been given the importance which he undoubt-
edly deserves. He has been regarded just as one more player, when in fact, as I will
try to show, that simply was not the case. His intervention was decisive for the con-
vening of the Cortes on 24 September 1810, although his political ideas as to how
that parliament should be organized would never find enough support to succeed.
Similarly, the influence that his confidants from Britain, Lord Holland and John
Allen, had on Jovellanos has never been assessed to its full extent.6 As I will
point out, without them Jovellanos would not have fully understood the impor-
tance of the British parliamentary model, should it be implemented in Spain.
New material supports this position. Many of Jovellanos’ manuscripts had
long remained officially missing, or forgotten, both in public and private archives.
After taking on the editorship of a volume on ‘Political writings’ as part of the
‘Complete works’ of Jovellanos, an exhaustive research in archives and libraries
revealed a surprising result: a large number of texts written by Jovellanos –
nearly a hundred – which contained political and constitutional thought. The
figure was much higher than previously thought.7 As many as 60% of them had
never before been published. Dozens of Jovellanos’ reports, regulations and

4
Joaquín Varela Suanzes-Carpegna, El Conde de Toreno. Biografía de un liberal (1786–
1843) (Marcial Pons, 2005) 143–44; Política y Constitución en España (1808–1978)
(CEPC, 2014) 359–64.
5
For example Federico Suárez, El proceso de la convocatoria a Cortes (1808–1810)
(EUNSA, 1982) 3–43; Martín, Derecho Parlamentario Español (Hijos de J. A. García,
1885) 480–81; Miguel Artola and Rafael Flaquer Montequi, La Constitución de 1812
(Iustel, 2008) 42–45.
6
Among those authors who have best dealt with the relationship between Jovellanos, Lord
Holland and John Allen a noteworthy mention for Manuel Moreno Alonso, La generación
española de 1808 (Alianza, 1989) 103–10; Manuel Moreno Alonso, La forja del liberal-
ismo en España: los amigos españoles de Lord Holland, 1793–1840 (Publicaciones del
Congreso de los Diputados, 1997) 176–80. But perhaps the main study about this relation-
ship was made by Francisco Tomás y Valiente, ‘Las Cortes de España en 1809, según un
folleto bilingüe cuya autoría hay que atribuir a un triángulo compuesto por un Lord
inglés, un ilustrado español y un joven médico llamado John Allen’ (1996) 1 Initium
753. As a matter of fact, Tomás y Valiente was the first scholar to appreciate the real impor-
tance of Jovellanos-Allen-Holland’s proposals.
7
The political thought of Jovellanos had been displaced by his other facets (especially his
economic and artistic writings), which explains the fact that until the edition that I pub-
lished, no compilation of his political writings existed. The only precedent was the work
of Peñalver Simo, which apart from being very brief focused more on his social writings
54 I.F. Sarasola
draft manuscripts, as well as some more written by Lord Holland and John Allen,
have been found in various Spanish institutions – mainly the National History
Archive and the Royal Academy of History, together with the Royal Palace.
Never before had they been quoted by Spanish or British historiographers and
such documents substantially alter the idea hitherto held regarding Spanish
constitutionalism.8
Another novelty here presented, this is the first time the influence that British
political thinking had on Jovellanos is made accessible to an English-speaking
readership. And the same applies to his attempts to convene the Cadiz Cortes. Cur-
iously enough, the issue has passed unnoticed by British academics, and so has the
close relationship built by Lord Holland, John Allen and Jovellanos, together with
the role of the former two in Spain’s first school of moderate constitutional
thought.
The protagonist of this study, Jovellanos (Gijón, 5 January 1744–Puerto de
Vega, 27 November 1811) was, together with Benito Jerónimo Feijoo and
Pedro Rodríguez Campomanes, among the most salient Enlightened thinkers in
Spain.9 He devoted himself to science, the arts, political economy and law,
though with different degrees of success. He studied philosophy, law and

than his political ones: Patricio Peñalver Simo, Jovellanos: obras sociales y políticas (Pub-
licaciones Españolas, 1962).
8
For this article I have decided to refer to Jovellanos’ Complete Works rather than to the
archival sources. I believe that by doing this the reader will find it easier to contrast the
documents quoted, especially considering that the Complete Works are much more acces-
sible than the primary sources, which are rather disperse and consequently more difficult
to consult. For the exact references for each document here mentioned, see my volume
Escritos Políticos by Jovellanos. Ignacio Fernández Sarasola (ed.), Gaspar Melchor de
Jovellanos, Obras completas, vol XI (Escritos Políticos) (KRK, 2006).
9
There are numerous Jovellanos’ Biographies in Spain. The best documented ones are those
by José Miguel Caso González, Jovellanos (Ariel, 1998), Manuel Álvarez-Valdés, Jovella-
nos: enigmas y certezas (Fundación Foro Jovellanos, 2002) and Manuel Álvarez-Valdés,
Jovellanos: Vida y pensamiento (Ediciones Nobel, 2012). I should also mention the classi-
cal biography by Javier Varela, Jovellanos (Alianza, 1989) which combines biographical
aspect with an intellectual analysis of Jovellanos. There are some interesting English bio-
graphies dating back to the early years of the nineteenth century such as The Foreign
Review and Continental Miscellany 4 (1829) 78–96. This biography is a translation of
Jovellanos’ first biography by Isidoro de Antillón, Noticias históricas de Don Gaspar
Melchor de Jovellanos, conságralas a sus respetables cenizas YM de AM (Imprenta de
Miguel Domingo, 1812). There is another English biography, but much shorter in:
Edouard Blaquiere, A Historical Review of the Spanish Revolution including some
account of Religion, Manners, and Literature (London, 1822) 465–71, 497–507. Jovella-
nos’ biographies published in Britain occasionally contain some important errors. For
example J Gorton, A General Biographical Dictionary (London, 1835) vol II: here the
author states that Jovellanos was murdered during a popular uprising in 1812. This is
clearly untrue as Jovellanos died of pneumonia in 1811 in the Asturian village of Puerto
de Vega, where he had found refuge while fleeing from the French who had invaded his
home town (Gijón).
 Comparative Legal History 55
Canon law, and worked as a judge from an early age. It was in Seville, where he
first took office, that he met the Peruvian citizen Pablo de Olavide, who led a lit-
erary and scientific tertulia where works from all over the world were regularly
read.10 Pablo de Olavide introduced Jovellanos to Enlightenment ideas while he
never abandoned the study of the classics and Spanish history. Thus Jovellanos
became acquainted with some of the most important books of the Enlightenment
thinkers from France, England, Switzerland, Holland and Germany.11
Jovellanos also held a government office, being appointed Secretario de
Gracia y Justicia (Justice Secretary) in 1797, a position he was reluctant to
accept. His integrity set him at odds with the Spanish King’s favourite Prime
Minister, Manuel Godoy.12 Jovellanos was removed from office just a few
months after being appointed. From then on, he devoted most of his time to pro-
moting Nautical and Mineralogy studies in Asturias, his native homeland, where
he created the Instituto Asturiano de Náutica y Mineralogía. The Institute had a
huge library where books forbidden by the Inquisition were abundant. This
would be used against him afterwards.
Jovellanos was also a prolific writer. His most universal work was the Informe
sobre la Ley Agraria (Report on the Agrarian Law, 1794), an extensive report on
the improvements needed in Spanish agriculture and real property. The Report was
strongly influenced not only by the French physiocratic school but also by Adam
Smith’s economic theories.13 In 1801 Jovellanos was anonymously accused of
heresy and corruption and he was imprisoned with no legal charges. He was
then sent to Bellver castle in Palma de Mallorca, where, in spite of his bad
health caused by imprisonment, he never gave up writing. There he dedicated
most of his time to the arts, being specially influenced by Edmund Burke’s sensu-
alist aesthetic theories.14

10
Luis Perdices Blas, Pablo de Olavide (1725–1803), el ilustrado (Editorial Complutense,
1992) 280–85.
11
Francisco Aguilar Piñal, La biblioteca de Jovellanos (1788) (CSIC, 1984) 14–85.
12
Manuel Godoy (1767–1851) was the all-powerful assistant to Carlos IV with whom he
took on the duties of Secretary of State (1792–98) and ‘Generalísimo’ (1801–08). He led
the Spanish war against the French Convention (1793–95) in retaliation for the execution
of Luis XVI. The signing of the Basle peace with France (22 July 1795) was enough for
him to gain the title of ‘Prince of Peace’, an honour bestowed upon him by Carlos IV.
As ‘Generalísimo’ (1801) he led the so-called ‘Guerra de las naranjas’ (War of the
Oranges) against Portugal and initiated hostilities against Great Britain. The catastrophe
of the Spanish Armada in Trafalgar (21 October 1805) weakened his prestige but by
1808 he had almost omnipotent power over the Spanish state and was a decisive influence
on King Carlos IV. Jovellanos did not favour corruption in Godoy’s court and had a disgra-
ceful relationship with him whilst he was Minister of Justice. Godoy’s best biography is
undoubtedly Emilio La Parra López, Manuel Godoy. La aventura del poder (Tusquets,
2002).
13
Vicent Llombart/Joaquín Ocampo, ‘Estudio preliminar’ in Gaspar Melchor de Jovellanos,
Obras completas, vol X (Escritos económicos) (KRK, 2008) 88–96.
14
Javier Varela, Jovellanos (Alianza, 1988) 190.
56 I.F. Sarasola
During his time in prison (1801–1808), Jovellanos, from discretion, refused to
write about politics. Nevertheless, this was a transitory stage, as politics had been a
concern for him already since the end of the eighteenth century. In fact, having
served his sentence, he took up his political reflections more intensely than
ever, and in fact devoted all his attention to them until his death in 1811. Never-
theless, in spite of his interest in what he defined as ‘the art of governing
Nations’,15 Jovellanos never managed to develop a political treatise. His political
and constitutional ethos can be found scattered amongst decrees, pedagogical writ-
ings, correspondence and diaries.16 References to his first political thought can be
found scattered in his books, for instance in the already mentioned Informe sobre
la Ley Agraria as well as in Memoria para el arreglo de la policía de los espec-
táculos y diversiones públicas y sobre su origen en España (1790).17 Neverthe-
less, the book in which his political thinking is most clearly manifested is
Memoria en defensa de la Junta Central (1811). Published shortly after his
death, it narrates his political deeds during the Spanish War of Independence.
Jovellanos’s theory of state is extremely puzzling, blended as it is with count-
less influences. Although his thoughts were regarded as being influenced by
Spanish neo-scholasticism,18 this is far from true. On the contrary, he was
mostly influenced by the natural law theories of Hugo Grotius, Samuel Pufendorf,
Johann Gottlieb Heinecke, Emer de Vattel, Jean Domat and, above all, Christiaan
Wolff,19 whom he particularly admired and quoted on numerous occasions. In
fact, Jovellanos strongly recommended abandoning Spanish universities’ ‘Scho-
lastic method’ in favour of the study of ius naturale and of ius Gentium, based
on Wolff’s works.20

15
‘Introducción a un estudio de la economía civil’ (1797) in Jovellanos, Obras completas,
vol X (n 13) 892.
16
Ignacio Fernández Sarasola, ‘Estudio Preliminar’ in Gaspar Melchor de Jovellanos,
Obras completas vol XI (Escritos políticos) (KRK, 2006) XL; La dimensión política de
Jovellanos, in VVAA, Jovellanos: el hombre que soñó España (Ediciones Encuentro,
2012) 105.
17
This second piece was a settlement reached over how governors should regulate perform-
ances and leisure activities of the Spanish such as hunting, popular festivals, gambling and
bullfighting.
18
Joaquín Varela Suanzes-Carpegna, Política y Constitución en España (1808–1978)
(CEPC, 2007) 120–25, 289. In the most recent edition of this book Profesor Varela
partly corrects his arguments and shares the position which I have put forward in my
work. Joaquín Varela Suanzes-Carpegna, La teoría del Estado en las Cortes de Cádiz
(CEPC, 2011) 12. Jovellanos had been previously linked with Thomist-scholastic theory.
José Luis Villota Elejalde, Doctrinas filosófico-jurídicas y morales de Jovellanos
(RIDEA, 1958) 205.
19
Ignacio Fernández Sarasola, ‘Estado, Constitución y forma de gobierno en Jovellanos’
(1996–97) 6 y 7 Cuadernos de Estudios del Siglo XVIII 80.
20
Gaspar Melchor de Jovellanos, Bases para la formación de un plan general de instruc-
ción pública (1809) in Gaspar Melchor de Jovellanos, Obras publicadas e inéditas
(KRD, 1963) vol 46 (I) 271.
 Comparative Legal History 57
Following Wolff and Domat, Jovellanos believed that man possessed a
natural tendency towards sociability, which inevitably led him to meet like-
minded people, thus tending towards a global or universal society.21 Neverthe-
less, that universal society turned out to be merely an unachievable goal so that
such men were obliged to meet up in smallish groups,22 families, tribes, towns,
villages and societies.23 Such organizations were born out of an associative
pact very close to what Pufendorf24 and Hutcheson25 had described, and from
which both Public law (State-individual relationships) and Private law (relation-
ships among individuals) were created. Within that social agreement, each indi-
vidual relinquished ‘a portion of their independence in order to satisfy public
authority; secondly, a portion of his personal power to help build public power;
thirdly, a portion of his private wealth in order to collect income tax’. In the attain-
ment of these sacrifices, he stated, ‘the essential elements of State power can be
found’.26

21
Polt believes that this idea was also taken from Adam Ferguson: JHR Polt, ‘Jovellanos
and his English sources’ (1964) 7 Transactions of the American Philosophical Society 54.
22
Gaspar Melchor de Jovellanos, Memoria sobre educación pública (1802) in Gaspar
Melchor de Jovellanos, Obras publicadas e inéditas vol 46 (I) 254; Gaspar Melchor de
Jovellanos, Oración inaugural a la apertura del Real Instituto Asturiano (1794) in ibid
321, in which he bemoans the language barrier which distances ‘the great family of the
human species’ and goes on to say that men are ‘brothers of a large family spread over
the Earth’: Gaspar Melchor de Jovellanos, Apuntes para una memoria que tenía proyectada
el autor y no llegó a extenderla (no date) in Jovellanos, Obras publicadas e inéditas (BAE,
1952) vol 50 (II) 50.
23
Gaspar Melchor de Jovellanos, Curso de humanidades castellanas (1794) in Jovellanos,
Obras publicadas e inéditas vol 46 (I) (BAE, 1858) 102.
24
Samuel Pufendorf, Of the Law of Nature and Nations (London, 1729) 110–15. The ‘Insti-
tuto de Náutica y Mineralogía’ belonging to Jovellanos had among its works that of Samuel
Puffendorf De Officio hominis et civis secundum legem naturale, which was singularly pro-
hibited by the Inquisition. José Miguel Caso González, Biografía de Jovellanos (El Comer-
cio, 2005) 86.
25
Francis Hutcheson, A Short Introduction to Moral Philosophy in Three Books; Contain-
ing the Elements of Ethics and the Law of Nature (Glasgow, 1747) 241.
26
Gaspar Melchor de Jovellanos, Informe dado a la Junta General de Comercio y Moneda
sobre el libre ejercicio de las artes (1785) in Jovellanos, Obras publicadas e inéditas vol 50
(II) (1952) 36, 40. In his Discurso pronunciado con motivo de tomar posesión del cargo de
director de la Sociedad Patriótica de Madrid (1782) in ibid 454, Jovellanos stated that
society was made up of ‘the sacrifice made by each individual of a portion of his
freedom’. In the Introducción a un discurso sobre el estudio de la Economía civil (1796)
in Jovellanos, Obras publicadas e inéditas vol 87 (V) (1956) 14, Jovellanos points out
that society was built from the creation of legislators to maintain law and order, juries
that endorsed its compliance as well as defenders who would guarantee external security.
Its husbandry would be undertaken through income tax. Gaspar Melchor de Jovellanos,
Informe hecho a S M sobre una representación del director general de minas (Gijón,
May 10, 1791) in Jovellanos Obras completas vol 10 (Escritos Económicos) (KRK,
2008) 127.
58 I.F. Sarasola
Once society had been established it was necessary to set in motion a Consti-
tution which would provide the frame of government.27 Therefore, as far as Jovel-
lanos was concerned, the associative moment and the Constitution were two very
different things. But, what did he mean by ‘Constitution’? Naturally, Jovellanos
was kept very well informed about early constitutional experiences. With regard
to the United States he was initially reluctant to go along with the colonies’
Declaration of Independence,28 but ended up admiring the final result of North
American emancipation: the 1787 Constitution. It was a text which took in the
hypotheses of Montesquieu and Blackstone whom Jovellanos greatly admired.
Through this document, the North American people were heading ‘with giant
steps towards greatness and the same great wealth’ as Great Britain.29 The knowl-
edge of American constitutionalism would also reach Jovellanos through his
reading of John Adams. He was also acquainted with the Massachusetts Consti-
tution (The Massachusetts Government Act, of 20 May 1774).30 In the case of
France, his attitude was not, in principle at least, one of open opposition to the
revolution, but rather of expectation.31 The French Constitution of 1791 seemed
too advanced to him, at least in terms of the possibility of its being emulated in
Spain,32 whilst the Constitution passed by the Directoire in year III (1795)
made a good impression on him.33 Nevertheless, the stage which Jovellanos

27
Gaspar Melchor de Jovellanos, Memoria sobre educación pública (1802) in Jovellanos,
Obras publicadas e inéditas vol 46 (I) 255.
28
In 1783 Memorias históricas de la guerra actual con la Gran Bretaña, consisting of
documents relating to the war between the North American colonies and the English metro-
polis was censored by Jovellanos. That censorship included a proposal to remove texts,
added by the French edition (into which language the censored book had been translated)
which could be considered subversive. They also had to remove those expressions in which
the authors manifested to be ‘in favour of the settlers, vindicating their conduct and showing
hostility towards those of the metropolis’. Gaspar Melchor de, Censura a las ‘Memorias
históricas de la guerra actual con la Gran Bretaña’ (1783) in Jovellanos, Obras publicadas
e inéditas vol 87 (V) 33–34.
29
Gaspar Melchor de Jovellanos, Memoria en defensa de la Junta Central in Jovellanos,
Obras completas vol 11 (Escritos políticos) (KRK, 2006) 190.
30
Jean-Paul Clément, Las lecturas de Jovellanos (Ensayo de reconstrucción de su biblio-
teca) (Instituto de Estudios Asturianos, 1980). Jovellanos would have read this text in a
translated French edition in Le Ciourrier de l’Europe 31 (April 1780). According to
Somoza, he wrote an 11-sheet statement: Julio Somoza, Catálogo de manuscritos e impre-
sos notables el Instituto de Jovellanos en Gijón (Imp. y Lit. de Vicente Brid, 1883) 55.
31
In that regard, I turn to the magnificent piece undertaken by professor Bara Escolá, who
compiled all the references made by Jovellanos regarding the French revolution: Fernando
Baras Escolá, El reformismo político de Jovellanos (Nobleza y Poder en la España del siglo
XVIII) (Universidad de Zaragoza, 1993) 233–40.
32
Gaspar Melchor de Jovellanos, Carta a Alexander Jardine (Gijón, May 21, 1794) in
Jovellanos Obras completas vol II (Correspondencia) (KRK, 1985) 636.
33
Gaspar Melchor de Jovellanos, Diario (29 November 1795) in Jovellanos, Obras comple-
tas vol 7 (Diario 2°) 488–89.
 Comparative Legal History 59
most detested was that of the French Convention, which disappointed his early
expectations regarding the French Revolution.
In spite of being familiar with those Constitutional experiences, Jovellanos
held a rather peculiar view of what a Constitution should be. He would identify
it with the ancient Fundamental laws,34 of medieval origin. Such laws established
the sovereign’s rights, i.e. the King’s rights, as well as the rights of the nation as a
social body, the rights of the individuals from said nation, the government system
and, finally, the Domestic Public Law of the kingdom, which governed the
relationship between the individual and the state.35
The Constitution was not then a single text but something made up of a variety
of ancient codes such as the El Fuero Juzgo (1241) or the Partidas de Alfonso X el
Sabio (1256–65). Jovellanos contributed substantially to creating the myth which
would later become known as Constitución gótica (Gothic Constitution) or Consti-
tución histórica (Historical Constitution); an idea which was to enjoy great success
in Spanish history, to the extent that it can be traced as far forward as the end of the
nineteenth century.36 This concept of Constitution was opposed to that resulting
from the American and French revolutions. In both cases, the Constitution was a
written text, bound into a single document and arising from a constituent power.
But Jovellanos believed that a Constitution was made up of a variety of documents,
even through customary law and born from history. His idea of Constitution was
that of a ‘plural’ law: there was not even a unique Spanish Historical Constitution.

34
Fernando Baras Escolá, ‘Política e historia en la España del siglo XVIII: las concepciones
historiográficas de Jovellanos’ (1994) 2 Boletín de la Real Academia de Historia 369;
Santos Manuel Coronas González, ‘El pensamiento constitucional de Jovellanos’ (2000)
1 Historia Constitucional 70; Santos Manuel Coronas González, Jovellanos: Justicia,
Estado y Constitución en la España del Antiguo Régimen (Foro Jovellanos, 2000) 134–
41; Sarasola, La dimensión política de Jovellanos (n 16) 131–39. The recognition of the
Constitution with the Fundamental Laws was not exclusive to Jovellanos, as other
Spanish authors such as Francisco Martínez Marina, Francisco Javier Borrull, José
Cadalso or Juan Pablo Forner, shared it at the end of the eighteenth century and commence-
ment of the nineteenth century: José Manuel Nieto Soria, Medievo constitucional. Historia
y mito político en los orígenes de la España contemporánea (ca. 1750–1814) (Akal, 2007);
Francisco Tomás y Valiente, ‘Génesis de la Constitución de 1812. I. De muchas leyes fun-
damentales a una sola Constitución’ (1995) 65 Anuario de Historia del Derecho Español
23. In fact, in the Cortes of Cadiz this stance was defended by a group of so-called ‘realis-
tas’: Suanzes-Carpegna (n 18) 7–10; Clara Álvarez Alonso, ‘Un Rey, una Ley, una Religión
(Goticismo y Constitución histórica en el debate constitucional gaditano)’ (2000) 1 Historia
Constitucional 30.
35
Gaspar Melchor de Jovellanos, Instrucción de la Junta de Legislación (1809) in Jovella-
nos, Obras completas vol 11 (Escritos políticos) 266. Jovellanos said that the Spanish Con-
stitution had created a Mixed Government and it was ‘in the Middle Ages, one of the best of
Europe’: Gaspar Melchor de Jovellanos, Reflexiones sobre la democracia (June 1809) in
Jovellanos, Obras completas vol 11 (Escritos políticos) 214.
36
Joaquín Varela Suanzes-Carpegna, ‘La doctrina de la Constitución histórica en España’ in
Ignacio Fernández Sarasola and Joaquín Varela Suanzes-Carpegna, Conceptos de Constitu-
ción en la historia (Junta General del Principado de Asturias, 2010) 311–51.
60 I.F. Sarasola
There were instead several separate constitutions belonging to the different king-
doms (Castilla, Aragón, Navarra, Valencia and Asturias).37 Besides, they were
dynamic, since they were adapted to changes in the balance of social forces –
the laws and the political powers, the King and courts – as they took place. In
fact, in 1780 Jovellanos would identify four stages in the Constitution of Castille,
through a very similar division to the one supported by William Robertson in his
History of the Reign of Charles the Fifth (1769).38
This historicism of Jovellanos explains his preference for the English consti-
tution39 and his desire to imitate its parliament, as will be seen below. In Great
Britain, the constitution had also been a product of history and was put together
not only through written acts but also through common law. Jovellanos found
therefore more similarities between Spain and Great Britain than between Spain
and France or the United States.
As already pointed out, for Jovellanos one of the inherent elements of the ‘His-
torical Constitution’ were the ‘rights of the nation’. From thorough examination of
the Fundamental Laws, he deduced that one of them consisted in assembling the
Cortes whenever it was deemed necessary for the sake of the kingdom.40 The
Cortes were ultimately an essential part of the ‘Historical Constitution’.
However, ever since Felipe II’s reign, the Cortes had gradually disappeared and
so did the freedom of the people. During the reign of Carlos III (1759–78), con-
sidered to be the ‘Enlightened King’, Jovellanos did not regret the absence of
those Cortes.41 Yet, all that changed when, after Charles III’s death, his successors

37
Ignacio Fernández Sarasola, ‘Constitución y Cortes en Jovellanos’ (2011) 178 Boletín de
Letras del Real Instituto de Estudios Asturianos 81. Only from 1809 did Jovellanos begin to
state the need to suppress the different territorial Constitutions in order to forge a single
Spanish Constitution which would amend the principles of the ancient Fundamental
Laws. The historic concept of Constitution would be maintained, though the territorial
diversity of Constitutions would be eradicated. This attitude swing is understandable at
the time it took place: right in the middle of the war of Independence and therefore at a
time when there was a need to support national unity: Gaspar Melchor de Jovellanos,
Instrucción de la Junta de Legislación (1809) in Jovellanos, Obras completas vol 11 (Escri-
tos políticos) 267.
38
Gaspar Melchor de Jovellanos, Discurso leído por el autor en su recepción a la Real Aca-
demia de la Historia, sobre la necesidad de unir al estudio de la Legislación el de nuestra
Historia y antigüedades (1780) in ibid 815–22. William Robertson, History of the Reign of
Charles the Fifth (1769) (London, 1857) 55, 66–68.
39
Clara Álvarez Alonso, ‘La influencia británica y la idea de Constitución en Jovellanos’ in
Andrea Romano, Il modello costituzionale inglese e la sua recezione nell’area mediterra-
nea tra la fine del 700 e la prima metà dell’800 (Giuffrè, 1998) 533–34.
40
Gaspar Melchor de Jovellanos, Nota primera a los apéndices (1811) in Jovellanos, Obras
completas vol 11 (Escritos políticos) 799–802; Instrucción de la Junta de Legislación
(1809) in ibiíd 267; Rectificaciones del dictamen sobre la institución del gobierno interino
(October 1808) in ibid 103.
41
I do not believe it fitting to consider that the first important reference to Jovellanos about
the Cortes, in 1780, should be interpreted as a criticism of Charles III’s reign. This stance,
from my point of view, misguided, has been recently defended in Marcelino Cuesta Alonso,
 Comparative Legal History 61
Charles IV and Ferdinand VII brought with them despotism and triggered the War
of Independence. At that juncture, Jovellanos began to consider that it was vital to
recover that element of the historical constitution which had been largely dormant:
the Cortes. But before examining his proposals it would be fitting to recall the pol-
itical and historical context in which those ideas were formulated.

II. Why summon the Cortes?

In May 1808, the political panorama in Spain could not be more distressing. As a
consequence of the Treaty of Fontainebleau, signed by Godoy and Napoleon on 27
October 1807, French troops were moving freely through Spanish territory. The
treaty allowed French troops to cross Spain while on their way to invade Portugal,
an allied country of Britain. However, the French army was in fact occupying stra-
tegic Spanish villages and cities located a long way from the main routes to Por-
tugal. This made Spanish people and their leaders suspicious of the Emperor’s
actual intentions. He might not just want to invade Portugal.
In April 1808, Napoleon persuaded Fernando VII and his parents (Carlos IV
and Maria Luisa de Parma) to meet him in the southern French city of
Bayonne.42 Before leaving Spain, Fernando VII created a new institution to
govern the country during his absence. That was the Junta de Gobierno (similar
to a Privy Council).43 The Spanish King arrived at Bayonne on 20 April and
ten days later his parents followed suit. Soon after that, the Spanish people
started getting news about what was going on in Bayonne: the King had abdicated
the throne, in the so-called renuncias de Bayona (Bayonne’s relinquishment of the
Crown). Napoleon put pressure on Fernando VII who, finally, gave the Crown
back to his father, who duly gave it himself to Napoleon on the basis of a
Treaty signed on 5 May 1808.44 In such an illegitimate way, Napoleon became

Diana Arauz Mercado and Juan Carlos Orejudo Pedrosa, ‘Jovellanos y los orígenes del
asambleísmo en España’ in Ignacio Fernández Sarasola, Elena de Lorenzo Álvarez,
Joaquín Ocampo Suárez Valdés and Álvaro Ruiz de la Peña Solar, Jovellanos: El valor
de la razón (1811–2011) (Acción Cultural Española, 2011) 340–41. Actually, the reference
to the Cortes in 1780 belongs to one of Jovellanos’ historic works (his welcoming speech to
the Royal History Society) without any political overtones. Of course, it shows a legendary
portrayal of the Visigoth Cortes but it is impossible to deduce from that that he considered
them suitable for the particular time at which he wrote the text. There are no contemporary
texts written to the reign of Charles III in which he acknowledges himself to be supportive
of substituting Enlightened Absolutism for a representative government.
42
Juan de Escoiquiz, Idea sencilla de las razones que motivaron el viaje del rey don Fer-
nando VII á Bayona en el mes de abril de 1808, dada al público de España y de Europa
(Imprenta Real, 1814) 18–45.
43
Its members were: Infante Don Antonio (President), Sebastián Piñuela (Justice Secretary),
Gonzalo O’Farril (War Secretary), José Azanza (Finance Secretary) and Francisco Gil de
Lemus (Navy Secretary).
44
José de Azanza and Gonzalo O’Farrill, Memoria de D José de Azanza y D Gonzalo
O’Farrill, sobre los hechos que justifican su conducta política, desde marzo de 1808
62 I.F. Sarasola
King of Spain. He held the Crown for a short period until 6 June 1808, when he
passed it on to his brother, Joseph Bonaparte.45
The first mention of the Cortes was made during the renuncias de Bayona.
When Carlos IV requested his crown back, which Ferdinand snatched after
Motín de Aranjuez (a famous mutiny organized by the Spanish nobility on 17–
18 March 1808), Fernando claimed in a letter of 1 May 1808 that he was in
fact the legitimate Spanish King, as the ‘Fundamental Laws’ did allow for abdica-
tion. Despite Fernando VII thinking he was the legitimate King of Spain, he agreed
to return the Crown back to his father, on certain conditions, the most important
being that the Cortes should be convened in Madrid to formalize such a measure.
1789 was the year when the Cortes had been last summoned, when Fernando
had made his oath as Prince of Asturias (a title traditionally granted to the crown
heir in Spain).46 However, since the reign of Felipe II (1556–98) the Cortes had
fallen into disuse, and finally was no longer summoned. An absolute monarchy
established itself in Spain for two centuries, and kings ruled their dominions per-
sonally with the sole aid of their counsels. Just by mentioning the ancient parlia-
mentary institution, Fernando provoked very intense political unrest. However, his
plan did not limit itself to mentioning the Cortes. On 5 May, Fernando VII passed
two resolutions by which the Consejo de Castilla (Council of Castille, a judicial
and administrative institution) was allowed to summon Cortes with the only
purpose of obtaining resources to support the war against France. Fernando
VII’s resolutions never circulated to prevent Napoleon from intercepting them,
but the Spanish Minister, Pedro Cevallos, managed to obtain them and had
them copied before their physical destruction took place. He then duly informed
the Spanish people about their contents.47

hasta abril de 1814 (Paris, 1815) 239–43. Real Decreto de Carlos IV, de 8 de mayo de 1809,
comunicando la cesión de la Corona de España a Napoleón, Gaceta de Madrid, 48 (20 May
1808) 482–84.
45
Real Orden y Decreto comunicando la proclamación de José I como Rey de España (6
June 1808) Gaceta de Madrid, 57 (June 14th 1808) 568–69. In spite of Napoleon yielding
the Spanish crown to his brother, he retained the constituent power for himself, which
allowed him to grant Spain its first Constitution: the Bayonne Constitution of 1808; a
text which was only accepted by the ‘afrancesados’(a name given to Spanish followers
of Napoleon and José Bonaparte). For a discussion of the documents relating to the Consti-
tution of Bayonne, including the texts of the ‘renuncias de Bayonna’ see Ignacio Fernández
Sarasola, La Constitución de Bayona (1808) (Iustel, 2007) 127–432.
46
Those sessions were also made use of to override the ‘Ley Salica’. For a summary of those
sessions see Testimonio de las Actas de Cortes de 1789 sobre la sucesión en la Corona de
España y de los dictámenes dados sobre esta materia; publicado por Real Decreto de SM
La Reina Ntra Sra (Imprenta de Pedro Miñón, 1833).
47
Pedro Cevallos, Exposición de los hechos y maquinaciones que han preparado la usur-
pación de la corona de España, y los medios que el emperador de los franceses ha puesto
en obra para realizarla. Por don Pedro Cevallos, primer Secretario de Estado y del Des-
pacho de SMC Fernando VII (Imprenta Real, 1808) 34.
 Comparative Legal History 63
Even though Fernando VII had always conferred on the Cortes very limited
powers, the Spanish people interpreted the Resolutions in very different ways.48
For example, Juan Pérez Villaamil believed that the Cortes would be summoned
to appoint a Regency Council, as the old Spanish Fundamental Laws estab-
lished.49 For his part, Francisco Martínez Marina tried to remind the Spanish
people that the Cortes of Castilla had been entitled to pass laws but with very
narrow room for manoeuvre, as that was an inherent power of the king, while
the Cortes only had the ‘right to petition’.50 Finally, liberals such as Lorenzo
Calvo de Rozas wanted a new kind of Cortes, that is, a replica of the French
‘Assemblée Nationale’ endowed with constituent power.51
In short, it could be said that in May 1808 there were three competing con-
cepts of the Cortes in Spain. First, an absolutist concept of Cortes, according
to which the assembly should represent the three social orders (nobility, clergy
and people) as tradition dictated, and its only purpose should be to sanction the
handing over of the Crown to Carlos IV, to appoint a Regency and to raise
funds for the war. The second concept was a reformist one: the Cortes should
also be able to introduce some institutional reforms but without destroying the
essentials of the main principles of the old Fundamental Laws of Castille,
Aragon and Navarra. Finally, the liberal concept of the Cortes was strongly influ-
enced by French Revolutionary political thought. The Liberals dreamt of a one-
chamber Parliament, conceived as a modern Legislative Assembly, but also as
a constituent body that could make a brand new Constitution with no
restrictions.52

III. Jovellanos, the Junta Central and Lord Holland

In the absence of the King, two institutions would govern the Spanish nation. The
first one was the Consejo de Castilla, an institution of the Ancient Regime, though
originated in the Middle Ages, invested with some judicial and administrative
powers. The second one was the Junta de Gobierno, a kind of Privy Council
created by Fernando VII before leaving for Bayonne to meet Napoleon.
However, most Spanish people believed that these institutions were unlawful
because they had been too compliant with Napoleon’s wishes.

48
Hans Juretschke, ‘Concepto de Cortes a comienzos de la Guerra de la Independencia. Car-
ácter y actualización’ (1995) 15 Revista de la Universidad de Madrid 369.
49
José Pérez Villaamil, Carta sobre el modo de establecer el Consejo de Regencia del Reino
con arreglo a nuestra Constitución (Imprenta de la Hija de Ibarra, 1808) 23.
50
Francisco Martínez Marina, Ensayo histórico-crítico sobre la legislación y principales
cuerpos legales de los Reinos de León y Castilla (1808) (BAE, 1966) 40–45.
51
Lorenzo Calvo de Rozas’ proposal to the Junta Central (15 April 1809) in Martín (n
1) vol I, 509–12.
52
Ignacio Fernández Sarasola, Los primeros parlamentos modernos de España (1780–
1823) (CEPC, 2010) 121.
64 I.F. Sarasola
Due to the absence of legitimate institutions, new bodies emerged spon-
taneously: the so-called Juntas Provinciales. As the name indicates, they were
created in the provinces, their composition being quite heterogeneous (nobility,
clergy, army, bourgeois, intellectuals, etc) and they proclaimed themselves ‘sover-
eign’.53 One of these, the Asturian Junta Suprema was the first to declare war on
Napoleon, and it was also the first assembly to send deputies to England (José
María Queipo de Llano – later Count of Toreno – and Andrés Ángel de la
Vega) in order to request military support.54
However, the provincial juntas had serious difficulties in coordinating their
military action, so they tried to create a centralized power that could also be a
valid alternative to the Junta de Gobierno and the Consejo de Castilla. At this
early stage of the Peninsular War, the juntas provinciales pondered three different
options: to form a Regency (an idea shared by the Consejo de Castilla and the
British Government); to summon a Cortes; or to create a Junta Central whose
members would be appointed by the different juntas provinciales. In the end,
the latter decided the best option was to create a Junta Central.55 The Junta
Suprema Gubernativa del Reino, known simply as the Junta Central, was first
assembled in Aranjuez, a town close to the capital city of Madrid, in September
1808. Each Junta Provincial contributed two members, or deputies for the creation
of the new body, which would officially act in the name of the King during his
absence.
Among the 35 members of the Junta Central (apart from Count Floridablanca
who was the President and died shortly afterwards, in December of 1808),56
Gaspar Melchor de Jovellanos was undeniably the most eminent. He had been
appointed by the Asturian Junta.
Jovellanos’s appointment as a member of the Junta Central took place barely a
few months after being freed from his imprisonment in Mallorca. Incidentally, it
was during his confinement that Jovellanos’s ‘British connection’ started to
grow through contact with Lord Holland, a nephew of Charles James Fox and,
like his uncle, a member of the Whig party. Henry Richard Vasall Fox, third
Lord Holland (1773–1840), had travelled all around Europe at a very young
age. He had first visited France in 1791, where he met some important

53
Antonio Moliner Prada, ‘Las juntas como respuesta a la invasión francesa’ (2006) 1
Revista de historia militar, 1 (2006) 37–70.
54
The official documents can be consulted in Alicia Laspra Rodríguez, Las relaciones de la
Junta General del Principado de Asturias y el Reino Unido en la guerra de la Independen-
cia (Junta General del Principado de Asturias, 1999).
55
Ángel Martínez de Velasco, La formación de la Junta Central (EUNSA, 1972) 145.
56
José Moniño, conde de Floridablanca (1728–1808) was Secretary of State between 1777
and 1787, with Charles III, carrying on with his duties under Charles IV, until his dismissal
in 1792. Amongst his most well-known political decisions the expulsion of the Jesuits from
Spain in 1767 (a decision which was also supported by the Secretaries Count Aranda and
Pedro Rodríguez de Campomanes) stands out, as does the creation of a rigorous censorship
to prevent revolutionary works from entering Spain, from 1789.
 Comparative Legal History 65
personalities such as Lafayette and Talleyrand. Then he travelled to Spain (1793)
and Florence (1794). Back in Britain (1796) he became a member of the House of
Lords, where he was a firm supporter of many of his uncle’s political issues. He
was later appointed Lord Keeper of the Privy Seal (1802), a post he enjoyed for
a short period of time. Lord Holland himself said that in politics, ‘I have been edu-
cated to detest tyranny, of every denomination’.57
Lord Holland was just 19 when he first visited Spain and he had been advised
to visit Jovellanos in Gijón, Asturias. The young British Lord was deeply
impressed by an enlightened Jovellanos, whom he never forgot. As time went
by, he became one of his fondest friends.
After the Motín de Aranjuez, one of the first measures of the new King, Fer-
nando VII, was to release Jovellanos from prison. At that time the Asturian was
64 years old and he suffered from a serious illness resulting from his imprison-
ment. When Jovellanos returned to the Iberian Peninsula in 1808, Spain was
already at war with France and the imposed French government tried to persuade
him to work for them. José Bonaparte appointed him Minister of the Police on 7
July 1808,58 an office that Jovellanos rejected. He soon became part of the ‘patrio-
tic Spanish party’ and split from many of his old friends who had decided to col-
laborate with the French party.
As soon as Lord Holland learnt that Jovellanos was free again, he wrote to him
and thus the friendship between the Spanish thinker and the British Lord continued
never to be interrupted.59 In fact, Lord Holland travelled to Seville during some of
the harshest days of the War of Independence in Spain and met Jovellanos again.
The Junta Central had by then moved to that city, after its members had been
forced to leave Aranjuez due to the pressure of the French army.60 But this time
Lord Holland was not alone: he travelled with his family and, above all, with
his family doctor, John Allen, who was already an expert in political affairs.61
Together, Jovellanos, Lord Holland and John Allen devised a plan to shape a
new kind of Cortes in Spain.62

57
Lord Holland to Jovellanos (Cádiz, 14 April 1809) in Gaspar Melchor de Jovellanos,
Obras completas vol 4 (Correspondencia 4°) (KRK, 1988) 110.
58
‘Real órden nombrando á los ministros que se expresan’ (13 July 1808) 85 Gaceta de
Madrid 797.
59
‘Lord Holland, besides keeping his bust by the side of that of Fox, is known to pride
himself upon having been the friend of the illustrious original’: Anonymous, ‘Life and
Works of Jovellanos’ (1829–30) 5 The Foreign Quarterly Review 547.
60
Gaspar Melchor de Jovellanos, Informe de la Comisión especial encargada de la trasla-
ción del gobierno (Aranjuez, 24 November 1808) in Jovellanos, Obras completas vol 11
(Escritos políticos) 127–30; Comunicación sobre las gestiones realizadas para el traslado
del gobierno (Madrid, 26 November 1808) in ibid 131–32.
61
Allen had written the Annual Register (1806). He was also the author of An Enquiry into
the Rise and Growth of the Royal Prerogative in England (London, 1830).
62
Tomás y Valiente, ‘Las Cortes de España en 1809’ (n 6) 753.
66 I.F. Sarasola
IV. The Resolution to summon the Spanish Cortes
Within the Junta Central there were three political attitudes: absolutist, liberal and
reformist (whose leader was Jovellanos). Whilst the absolutist party tried to
prevent a call of the Cortes, the liberals and reformers looked forward to parlia-
ment being brought back to Spain, for they thought that the Cortes would
provide the solution to all national problems.63
In the end Jovellanos was the first member of the Junta Central to request the
establishment of Cortes, yet he believed that it should be a very similar institution
to the old medieval Cortes of Castille:64 an assembly where the three social orders
were represented and whose functions were to be very limited. But at least this insti-
tution would be entitled to appoint a Regency Council though with an empty throne.65
Therefore, as it was firstly conceived of by Jovellanos, the Cortes had not much to do
with modern parliaments and, of course, it was far away not only from the British
Parliament, but also from the Assemblée Nationale of France and from the United
States Congress. As shall be seen, Jovellanos would not take long to change his
ideas for those more in keeping with a Cortes based on the British model.
Initially, Jovellanos’s concept of Cortes had been closely linked to his early
writing. As seen above, in the eighteenth century he had written about the existence
of a Gothic Constitution in medieval Spain on the basis of which Cortes, where the
three social estates were represented, were frequently summoned.66 That body, in
agreement with the King, would pass some acts considered to represent the
‘general will’ of the nation, a concept that Jovellanos had taken from Rousseau.
In fact, Jovellanos would only borrow from Rousseau the term, ‘general will’, but
he would not use it with the meaning attributed to the Geneven. Jovellanos strongly
disagreed with Rousseau, an author, who together with Milton, Locke and Mably
‘had become delirious in politics’.67 The Spanish thinker based his ideas, as
already seen, on a very different theory of state from that of Rousseau by not
acknowledging the state of nature but boasting of the sociability of humankind
instead. Additionally, the associative pact did not afford itself to a sovereign
general will, but was simply the origin of a co-operative society and of a state

63
Suárez (n 5) 427.
64
As Tomás y Valiente has highlighted, Jovellanos used mainly the example of Castille,
more than the institutions of Aragon or Navarra: ‘Las Cortes de España en 1809’ (n 6) 762.
65
Gaspar Melchor de Jovellanos, Dictamen del autor sobre la institución del gobierno inter-
ino (7 October 1808) in ovellanos, Obras completas vol 11 (Escritos políticos) 631; Borra-
dor de proyecto de Reglamento de la Junta Central (September 1808) in ibid 73; Proyecto
de Reglamento para la Junta Central (September 1808) in ibid 77.
66
Gaspar Melchor de Jovellanos, Discurso leído en la recepción a la Real Academia de His-
toria, sobre la necesidad de unir al estudio de la legislación el de nuestra historia y anti-
güedades (4 February 1780) in Jovellanos, Obras completas vol 11 (Escritos Políticos)
815–22.
67
Jovellanos to Lord Holland (Muros de Noya, 5 December 1810) in Jovellanos, Obras
completas vol 5 (Correspondencia 4ª) 427.
 Comparative Legal History 67
which would later have to be shaped through fundamental laws. Therefore, when
Jovellanos said that medieval Cortes expressed a ‘general will’ he did not use the
term in the ‘Rousseaunian’ sense: it was for the Asturian a will which was borne
out of the sum of the will of the three social estates (aristocracy, clergy and third
estate) and not the result of a deliberation among free and equal subjects.
In 1808, this concept of Cortes remained in Jovellanos’s mind, and was strength-
ened by the influence of two new books written that year by Juan Pérez Villaamil and,
above all, Francisco Martínez Marina. The latter was one of the most important his-
torians of nineteenth-century Spain. He was a member of the Spanish Academy of
History and in 1808 he published Ensayo histórico-crítico sobre la legislación y prin-
cipales cuerpos legales de los Reinos de León y Castilla where he studied the old Fun-
damental Laws of Castille. He argued that in medieval Spain the Cortes had no
legislative power, as it belonged to the King, but it could at least exercise a right to
petition, requesting the King to pass new acts. This idea of Cortes was used by Jovel-
lanos at first. But Jovellanos was so strongly influenced by Lord Holland and John
Allen that he gradually gave up the idea taken from Martínez Marina and started
to envisage another kind of Cortes very similar to the British parliament.
In any case Lord Holland, Jovellanos and Martínez Marina had something in
common: the idea that the Cortes to be summoned in 1808 should not be comple-
tely new. The Cortes should not follow the revolutionary model of the French
Assemblée Nationale; on the contrary, it should respect the basis of the Spanish
‘Historical Constitution’, that is, her ancient Fundamental Laws. In line with
Edmund Burke’s Reflections on the Revolution in France, both Holland and
Allen believed that a country should not give up her political history. Just as Eng-
land’s liberties were founded on ancient laws – as in the Magna Carta and, of
course, common law – Spain should not forget her past. For this reason, Lord
Holland and Allen tried to learn more about medieval Spanish history.
On the other hand, Lord Holland thought that it would be useless to summon
the same kind of Cortes that had been summoned for centuries in Castille, Aragon
or Navarra. It was necessary to introduce improvements and to adapt the Cortes to
the nineteenth century. And the best way to do so was by following the British
example, quite well known in Spain, mainly through the readings of Montesquieu,
De Lolme, Bolingbroke, Blackstone and Paley. In Britain, parliament had suc-
ceeded in fighting despotism for centuries and it had always restrained the
King’s powers, even though there had been attempts to introduce absolutist politi-
cal theories, as was the case with James I.
Lord Holland’s first attempt to convince Jovellanos was through a book he sent
to his Spanish friend about the history of the English monarchy, written by his
uncle, Charles James Fox.68 Besides, the Lord recommended Jovellanos to read

68
Lord Holland did not mention the title of the book, but it seems to be Charles James Fox,
A History of the Early Part of the Reign of James the Second: With an Introductory Chapter
(London, 1808).
68 I.F. Sarasola
the English regulations of the House of Commons, as they were very important to
know how a parliament should deliberate, something French politicians had failed
to take into account.69 In exchange, Jovellanos recommended that Lord Holland
read Martínez Marina’s work to learn what the Spanish medieval Cortes were
like.70
In January 1809, when Lord Holland arrived in Seville, he started to put more
pressure on his friend. From February 1809 onwards, the British Lord stressed the
importance of the two useful means to solve the Spanish political crisis: the intro-
duction of freedom of the press, and to summon Cortes. Both had the same impli-
cation: to ‘popularize’, in Lord Holland’s words, Spanish affairs.71 The Junta
Central should rely on the people, turning them into political actors. The
Spanish people should be considered as active citizens and not as mere vassals.
Some Spanish politicians also thought that freedom of the press should be
introduced in Spain. From the mid-eighteenth century up to 1808, Valentín de
Foronda, Flórez Estrada and Isidoro Morales had supported the same principle.72
But Lord Holland was not able to convince Jovellanos of the importance of
immediately introducing freedom of the press in Spain. Certainly not. Lord
Holland was a young Whig, born in a country with a deep tradition of liberties
where public opinion was fully established. Jovellanos was an old man of the
Enlightenment, a former magistrate, and he feared the risks of allowing Spanish
people to write and print without censorship. As with many other Spanish political
thinkers of the Enlightenment, he thought that a free press was dangerous if people
had not been previously educated. This does not mean that Jovellanos rejected
freedom of the press, however. He felt that transferring knowledge was an essen-
tial form of freedom and in 1796 he had read about the debate on freedom of the
press in the French Assemblée Nationale, between deputies Louvet, Postore and
Boissy d’Anglas. Indeed, the speech of the former had pleased him so much
that he decided to translate it into Spanish.73 What Jovellanos did not wish at
all was to introduce freedom of the press at that time, as Spain did not seem to
be ready to use such liberty after having endured centuries of despotism.
It should be added that the difference between Lord Holland and Jovellanos
about freedom of the press was also due to Jovellanos’ political responsibilities.

69
Lord Holland to Jovellanos (Holland House, 12 September 1808) in Jovellanos, Obras
completas vol 4 (Correspondencia 3°) 572.
70
Jovellanos to Lord Holland (Seville, 2 November 1809) in Jovellanos, Obras comple-
tas vol 5 (Correspondencia 4°) 22.
71
Lord Holland to Jovellanos (Seville, 9 April 1809) in Jovellanos, Obras completas vol 5
(Correspondencia 4°) 96. Lord Holland to Jovellanos (Seville, 12 April 1809) ibid 104.
72
Ignacio Fernández Sarasola, ‘Opinión pública y “Libertades de expresión” en el constitu-
cionalismo español (1726-1845)’ (2006) 7 Historia Constitucional 162, 164–65; Ignacio
Fernández Sarasola, ‘La opinión pública. De la Ilustración a las Cortes de Cádiz’ (2010)
80 Ayer. Revista de Historia contemporánea 58, 66–67.
73
Ignacio Fernández Sarasola, El pensamiento político de Jovellanos. Seis estudios (In
Itinere, 2011) 146, 175.
 Comparative Legal History 69
The Junta Central would not pass a resolution about freedom of the press, but this
liberty was working de facto in Spain, due to the weakness of political institutions:
books and newspapers were being printed in a much higher number than at earlier
times. Many of these papers were very critical of the Junta Central, thus weaken-
ing the government. In fact, even the newspaper which most closely supported the
Junta Central (Semanario Patriótico)74 had been hostile with some of her resol-
utions and was eventually banned.75 It is hardly surprising that Jovellanos feared
the freedom of the press, because it could obstruct some government resolutions.
As mentioned above, Lord Holland thought that the other solution to Spanish
problems was to summon the Cortes, and Jovellanos did agree with him. They
both believed that it was such an important issue that they called it le grand
affaire – Lord Holland added that it was his ‘hobbyhorse’.76 In April 1809,
Holland and John Allen decided to write a short outline of their constitutional
ideas for Jovellanos so that they might be applied to Spain.77 In short, the text
argued that the Junta Central ought to summon the Cortes, because a Parliament
was the only way to guarantee a country’s peace, as Edmund Burke had written
years before. But it was necessary to decide what the most suitable way to
summon the Cortes was. Allen and Lord Holland thought that three problems
had to be tackled. First, what could be done with the Junta Central once the
Cortes was working? Second, how could the provinces which were occupied by
French troops be represented? Third, which provinces should be represented in
the Cortes?
The first question was an easy one: once the Cortes was working, the Junta
Central would become just an executive power – a kind of Regency – and a
reduction of the number of its members would be necessary. Those who would
leave the Junta Central could obtain the privilege of being members of the
Cortes as a reward for their services. The second problem was theoretically
solved in a rather clever way: the Junta Central could appoint deputies who
were born in the provinces occupied by the enemy, but these deputies should be
replaced by others – selected through free elections – as soon as their provinces
were freed from French domination. This measure would provide some provi-
sional kind of ‘virtual representation’ that should be replaced by ‘real represen-
tation’ when possible. The third question, as to which provinces should be
represented in the Cortes, would require an alteration of Spanish Fundamental
Laws. For Lord Holland the problem was quite similar to that of the English

74
This newspaper was edited, among other liberals, by José María Blanco, later an exile in
London, where he would be the editor of El Español.
75
Gaspar Melchor de Jovellanos, Memoria en defensa de la Junta Central (1811) in Jovel-
lanos, Obras completas vol 11 (Escritos políticos) 544.
76
Lord Holland to Jovellanos (Seville, 5 May 1809) in Jovellanos, Obras completas vol 5
(Corrrespondencia 4°) 129.
77
Lord Holland and John Allen, ‘Reflexiones de John Allen y lord Holland sobre la orga-
nización de las Cortes’ in Jovellanos, Obras completas vol 10 (Escritos políticos) 182–96.
70 I.F. Sarasola
‘rotten boroughs’, which would not be solved until the Reform Act of 1832. The
best solution would be to establish a modern representation and thus only popu-
lated provinces would be represented in the subsequent Cortes.
The new Cortes should then be ‘extraordinarias’ (extraordinary), an adjective
that in fact was finally used in 1810, when the Cádiz Cortes started its delibera-
tions. But in 1810 the Liberals would interpret ‘extraordinary’ as constituent,78
while Lord Holland and John Allen used that word simply to mean that the
Cortes would have been summoned in a different way: with new cities called to
elect representatives and without the King, who was still Napoleon’s captive.
Drawing on the theories of Burke and Fox, John Allen and Lord Holland also
determined that the election of deputies should be a direct one. The only require-
ments to vote should concern age and residence. On the other hand, candidates
should be at least 20 years of age and they could not be members of the clergy
or the nobility, as these groups would be directly represented in the Cortes, as
high dignities from the Church and the high nobility would automatically
become members of parliament. No property requisite was to be introduced,
although Lord Holland and Allen thought of property requirements in an indirect
way: deputies would receive no salaries, so only well-off members of the public
would be candidates.79
Finally, Allen and Lord Holland longed for a large parliament (between 300
and 400 members) invested with legislative power and where speeches should
be free and never made under duress. But an important doubt was still pending:
should the new Cortes have one or two chambers? John Allen and Lord
Holland suggested that the composition of the Cortes should admit both
possibilities.
In short, this was the first written proposal concerning the Spanish political
system made by Jovellanos’s British allies. They added that such a plan could
be easily put into practice in Spain because, even if in some respects it was a
replica of the structure and the procedures of the British parliament, it should be
borne in mind that the latter was in their view a replica of the Cortes of
Aragon.80 Besides, they made a very important confession when they told Jovel-
lanos that it was true that the project included some innovations which,

78
Ignacio Fernández Sarasola, La Constitución de Cádiz. Origen, contenido y proyección
internacional (CEPC, 2011) 62.
79
In a recently uncovered previously unknown manuscript, Jovellanos firmly stated that
candidates to be members of parliament should be property owners. Note by Jovellanos
in Holland and Allen (n 77) 192. It appears that the indirect system put forward by
Holland and Allen did not seem to be enough for him.
80
Nevertheless, recent studies have shown that English thinkers mentioned the Spanish
Fundamental Laws in their works as a precedent of the British Constitution: Clara
Álvarez Alonso, ‘Instrumentalización y utilidad de un mito constitucional: la “English
Ancient Constitution” de Coke a Bolingbroke’ (2010) 6 Fundamentos. Cuadernos mono-
gráficos de Teoría del Estado, Derecho Público e Historia Constitucional 210.
 Comparative Legal History 71
nonetheless, could be concealed with historical arguments, albeit false, if this
helped the Spanish people to accept the arrangement.
Jovellanos was delighted by their proposal and made use of their text at the
earliest opportunity that presented itself. In April 1809, the already mentioned
liberal member of the Junta Central, Lorenzo Calvo de Rozas,81 requested an
immediate summoning of the Cortes. He drew up a Resolution project – with
the aid of other two liberals, Martín de Garay and Manuel José Quintana –
which envisaged a modern constituent Cortes, following the example of the
French Assemblée Nationale.82 Calvo de Rozas’s project seemed controversial
to many of the members of the Junta Central. The absolutists rejected the plan,
because they did not want a constituent Cortes at all, as well as because they
believed that Spain already had immutable Fundamental Laws that could not be
changed. In fact, the absolutists were even upset with the inclusion of the term
‘Constitution’ in the Resolution project put forward by the liberals. Reformists
such as Jovellanos rejected a constituent Cortes as well. They preferred a parlia-
ment that could only reform, though not destroy, the ancient Spanish Fundamental
Laws. Jovellanos’s report on this affair became one of his most influential political
essays.83 His ideas were quite similar to those which he had conveyed earlier: a
three-estates Cortes, with limited legislative power and with no constituent
power. His words became the paradigm for reformist’s ideas and were quoted in
Spain on numerous occasions, throughout the nineteenth century:

I very often hear that the Cortes will make a new Constitution, and even that they will
execute it, and I think this would be very inconvenient and dangerous. By chance,
has not Spain got her own Constitution? Of course she has. Because, what is a Con-
stitution but a group of Fundamental Laws that state the liberties of the Sovereign
and those of his subjects, and that also state the best means to preserve them? And
can anybody doubt that Spain has these Laws and knows what they are? Have
any of them been violated and destroyed by despotism? Then, have them restored.
Are there any beneficial measures to guarantee that they are all complied with?
Then put them in place.84

81
Lorenzo Calvo de Rozas (1773–1850) was the legal representative for the Aragon provin-
cial assembly (‘Junta Provincial’). With a liberal orientation, Calvo de Rozas had played an
outstanding role in the defence of Zaragoza when confronting French troops, and promoted
the convening of Cortes of Aragon in order to organize the resistance against Napoleon’s
troops.
82
Martín (n 1) vol I, 436–38.
83
Gaspar Melchor de Jovellanos, Consulta sobre la convocación de las Cortes por estamen-
tos (21 May 1809) in Jovellanos, Obras completas vol 11 (Escritos políticos) 683–99. The
same idea in Jovellanos, Proyecto de dictamen sobre la institución del gobierno interino
(September 1808) in ibid 81–82; Dictamen sobre la minuta de Decreto de convocatoria
de cortes (May 1809) in ibid 180; Dictamen de la Comisión de Cortes que acompañó a
las convocatorias por estamentos (Seville, 7 January 1810) in ibid 319–29.
84
Gaspar Melchor de Jovellanos, Consulta sobre la convocación de las Cortes por estamen-
tos (21 May 1809) in Jovellanos, Obras completas vol 11 (Escritos políticos) 696–97. The
72 I.F. Sarasola
At that moment, it seems that Jovellanos did in fact follow the project issued by
Lord Holland and John Allen, but only partially. For example, he considered
the concept of ‘extraordinary’ Cortes and he remarked upon the trouble involved
in virtual representation of the cities occupied by French troops. But Jovellanos
did not strictly follow his British friends’ plan because he remained very respectful
towards Spanish medieval history and Martínez Marina was still his intellectual
guru. Jovellanos believed that the medieval Cortes of Castille should have more
influence than the British parliament when establishing the organization of the
new Cortes. But he would soon change his mind.

V. Towards a modern parliament: the English path of Jovellanos

After discussing Calvo de Rozas’s Project of Resolution on Cortes, the reformist
proposal led by Jovellanos prevailed. So on 22 May 1809 the Junta Central passed
the first Resolution to summon modern Cortes in Spain. It contained Jovellanos’s
ideas: the Cortes would only be enabled to ‘reform the Fundamental Laws’ but
would have no constituent power. Jovellanos was glad and wrote to Lord
Holland: ‘the grand affaire is concluded.’85 But this was to prove not to be the
case. The Resolution established that the Cortes should be summoned before
1810, but it said nothing about its composition and organization. Should the
three estates (clergy, nobility and people) be represented, as Jovellanos wished?
Would the Cortes be organized in two chambers in the British way? Nothing
about this could be found in the 22 May Resolution. Most of the work and
decisions would still have to be done. For that reason, the Junta Central
decided to create an internal committee called Comisión de Cortes that would
examine those questions. Jovellanos was promptly chosen as a member of said
committee.86 But there was another important circumstance. Jovellanos led the
committee, where most of its members were reformists like him,87 so any
project he was to formulate with the aid of Allen and Lord Holland should

same idea in Jovellanos, Dictamen sobre la formación de un Consejo de Regencia (Seville,

August 1809) in ibid 239.
85
Jovellanos to Lord Holland (Seville, 22 May 1809) in Jovellanos, Obras completas vol 5
(Correspondencia 4°) 155.
86
A commission which he was most grateful to accept: Gaspar Melchor de Jovellanos,
Respuesta al nombramiento como vocal de Cortes (Seville, 1 June 1809) in Jovellanos,
Obras completas (Escritos políticos) 205. Jovellanos himself wrote a Bill ruling the Com-
mittee of Cortes: Jovellanos, Exposición sobre la futura actividad de la Comisión de Cortes
(Seville, June 1809) in ibid 206–13.
87
At the very beginning the Committee was made up of three reformists (Jovellanos, the
archbishop of Laodicea and Francisco de Castanedo) and by two absolutists (Francisco
Javier Caro and Rodrigo Riquelme) and they began their sessions on 8 June 1809. Never-
theless, on 1 November 1809 the two absolutists were chosen to take part in another com-
mittee (the Executive committee) and were replaced by two speakers more committed to
Jovellanos’ stance: the count of Ayamans and Martín de Garay. From then on, Jovellanos
would go on to be pre-eminent in the committee of Cortes.
 Comparative Legal History 73
easily be passed as a Resolution of the committee, and it would also be very likely
to be passed by the Junta Centra itself. Therefore, the resolutions of these insti-
tutions could be previously decided by Jovellanos and his two British
collaborators.
Jovellanos had already made, of his own accord, a few relevant decisions con-
cerning the forthcoming Cortes, mainly affecting its composition. On the one
hand, he suggested changing the composition of Parliament while identifying
the cities and provinces which would be entitled to send representatives to the
Cortes on the basis of their respective financial and demographic relevance at
the time.88 On the other hand, he proposed that the Spanish American provinces
should also be represented in the Cortes. They should not, in his view, count on
an equivalent proportion of deputies to that of the metropolitan provinces but,
at least, those born in said overseas provinces should be entitled to join the
ongoing assembly. Yet Jovellanos made no decision whatsoever on a hypothetical
bicameral system for the future Cortes.89
It was then that John Allen decided to offer Jovellanos more profound advice,
and he wrote an interesting book called Suggestions on the Cortes, which was
delivered to Jovellanos in instalments.90 In a nutshell, the book included all the
political ideas endorsed by Lord Holland and John Allen. Both had been studying
the old legal codes of Castille and had come up with a comprehensive project that
respected both tradition and innovation, using the British parliament as a model.
The Cortes would include the three social estates, and the King and his ancient
councils would be present at the Cortes during their sessions. But these traditional
subjects were combined with modern ones: cities which had lost most of their
former population and importance would have no actual representation; the occu-
pied territories would have a ‘virtual representation’; and, above all, the two-
chamber Cortes would be established. John Allen was fully persuaded of that
point: British bicameralism was the only valid option for Spain.
Suggestions on the Cortes did not convince Jovellanos at first, because he had
not yet considered the idea of summoning a bicameral Cortes. Grounding his

88
Jovellanos wrote a report about the cities which should lose their right to elect represen-
tatives. Gaspar Melchor de Jovellanos, Votos de los reinos y ciudades en las antiguas Cortes
(Seville, 15 June 1809) in Jovellanos, Obras completas vol 11 (Escritos políticos) 221–23.
89
Gaspar Melchor de Jovellanos, Propuesta de comunicación al Consejo Reunido de
España e Indias sobre la forma de convocarse las Cortes (Seville, 10 November 1809)
289; Exposición sobre la organización de las Cortes (Seville, December 1809) in ibid 711.
90
Some weeks later it was published in full: John Allen, Suggestions on the Cortes (London,
1809). The book was translated into Spanish by Andrés Ángel de la Vega Infanzón, a friend
of Jovellanos’ and an admirer of the British Constitution: John Allen and Andrés Ángel de
la Vega Infanzón (translator) Insinuaciones sobre Cortes (London, 1809). The text was
nearly forgotten, but it was later recovered by Manuel Moreno Alonso, ‘Las “Insinuaciones
sobre las Cortes de John Allen”’ (1994) 33 Revista de las Cortes Generales 237. A couple
of years later, Tomás y Valiente published the text again, including the most important study
on this document: Tomás y Valiente (n 6).
74 I.F. Sarasola
arguments on sound principles, he then believed that the Junta Central should
only introduce slight alterations to the way that the Cortes should be summoned.
The Junta Central was only an executive branch and it was also provisional and
anomalous, so it could not introduce major amendments to the Cortes, which was
the only body entitled to do it. When Jovellanos first read John Allen’s bicameral
proposal, he rejected the idea: such crucial amendment could not be passed by the
Junta Central, which could only present it to the Cortes once the assembly was in
operation.91
But the arguments used by his British friends slowly began to persuade Jovel-
lanos, who hesitated as to how the Cortes should be summoned.92 As a result of
this, he requested Lord Holland to inform him about the benefits of a bicameral
parliament.93 The questions he asked Lord Holland showed how confused Jovel-
lanos was about the advantages of the British system of government, which is
quite surprising, as Jovellanos was well acquainted with the works of Montes-
quieu, De Lolme and Blackstone, not to mention the collected speeches of
William Pitt and Charles James Fox.94 It seems that Jovellanos’ understanding
of the bicameral system was due to the influence of Lord Holland and John

91
Jovellanos to Lord Holland (Seville, 7 June 1809) in Jovellanos, Obras completas vol 4
(Correspondencia 3°) 197. Jovellanos was a lawyer and was keen to comply with the laws.
That very fact protracted the decision to assemble the Cortes which was criticized by Lord
Holland himself and by the Liberal Manuel José Quintana, who collaborated in the Sec-
retary of the Junta Central. Lord Holland, Souvenirs diplomatiques de lord Holland,
publiés par son fils lord Henri Edouard Holland et traduits de l’anglais par H. de
Chonski (Paris, 1951) 114; Manuel José Quintana to Lord Holland (Madrid, 10 June
1809) in Manuel Moreno Alonso, ‘Principios políticos y razones personales para la
reforma del Estado en España (1805–1840)’ (1990) 70 Revista de Estudios Políticos
325; Manuel José Quintana to Lord Holland (Isla de León, 10 March 1810) in ibid 328.
92
Lord Holland to Jovellanos (7 June 1809) in Jovellanos, Obras completas vol 5, 197.
93
Jovellanos to Lord Holland (Seville, 11 June 1809) ibid 204–205.
94
Jovellanos seemed unaware however of another important British author: Jeremy
Bentham. In the early part of 1809, Lord Holland asked Jovellanos for a safe-conduct
pass so that Bentham could sail from Spain to Mexico. Lord Holland to Jovellanos
(Seville, 1809) in Jovellanos, Obras completas vol 5 (Correspondencia 4°) (KRK, 1990)
44–45. Jovellanos not only authorized it but transmitted the authorization to Bentham
himself, even though he knew neither him nor his works: Jovellanos to Jeremy Bentham
(Seville, 1809) in ibid 124–25. As a matter of fact Bentham was scarcely popular
amongst Spanish intellectuals during the Spanish War of Independence. His works are
likely to have circulated among scholars in Salamanca university thanks to Etienne
Dumont’s translations. This translation of Bentham’s works had been brought into Spain
by French military personnel. Antonio Enrique Pérez Luño, ‘Jeremy Bentham and Legal
Education in the University of Salamanca during the Nineteenth Century’ (1981) 5 The
Bentham Newsletter 44. However, there are no previous records of Bentham in the afore-
mentioned university: Ricardo Robledo, ‘La difusión del pensamiento moderno en la Uni-
versidad de Salamanca a fines del siglo XVIII’ (2006) 6 Historia Constitucional 427–50. In
the period surrounding the Cortes of Cadiz the liberal member of parliament, Agustín
Arguelles seems to have become aware of Bentham’s political ideas thanks to his stay in
London (1806–1808), where he had been sent by Manuel Godoy to spy on the British
 Comparative Legal History 75
Allen, to a greater extent than to his readings of classical works about the British
system.
Consequently, Jovellanos’s British friends highlighted the wonderful advan-
tages of a bicameral system: an upper chamber, vested with veto power and
acting as a bridge between the King and the commons, would be able to restrict
the popular drive of the lower chamber; this would be the best way to follow
the wise steps of Britain and to avoid the excesses of the French Revolution.95
But, even if a bicameral parliament was a good idea on paper, should this
system be introduced in the first Spanish Cortes or would it be better to postpone
such an important decision? John Allen was clear about it: it would be better for
the first Cortes to be summoned from the very beginning as a bicameral parlia-
ment. If, on the contrary, the Junta Central approved of postponing that decision
until the Cortes themselves could take it, as Jovellanos had previously suggested,
it might perhaps never be done as a consequence of the combined opposition of
both absolutist and liberal deputies.
From June to December 1809, those arguments finally convinced Jovellanos
and he then became the main defender of an upper chamber, following the
British pattern. The Spanish thinker said that the bicameral system would intro-
duce a ‘balanced constitution’ in Spain, whereby legislative, executive and judicial
branches would be evened out. In fact, Jovellanos supported his British political
ideas to such an extent that some of his colleagues in the Junta Central accused
him of being an Anglophile:

Someone, listening to my arguments berated: ‘So, you want us to be Englishmen

… ’. ‘If you, I replied, know something about the British Constitution, if you have
read all the things that have been written by Montesquieu, De Lolme and Blackstone
about it; if you know that the republican Adams says that it is the most fabulous
machine of the human intellect, due both to its balanced system and the means to
prevent its alteration … if you have noticed the great achievements that such a dis-
tinguished and powerful country has derived from her Constitution; and if you are
aware of the analogies between that Constitution and the previous Spanish one;
and, finally, if you understand that we could not only imitate it, but also introduce
through suitable constitutional amendment any changes needed to avoid conflicts
with our Constitution; if you bear in mind all of this, then your criticism will be
not uttered nor heard’.96

government: Joaquín Varela Suanzes-Carpegna, Asturianos en la política española. Pensa-

miento y acción (KRK, 2006) 343–44, 351.
95
Lord Holland to Jovellanos (Seville, 14 June 1809) in Jovellanos, Obras completas vol 5
(Corresponencia 4°) (KRK, 1990) 214.
96
Gaspar Melchor de Jovellanos, ‘Memoria en defensa de la Junta Central’ (1811) in Jovel-
lanos, Obras completas vol 11 (Escritos políticos) 524. Jovellanos said that British bicamer-
alism had been an invention as great as a ship’s compass: Gaspar Melchor de Jovellanos,
Dictamen de la Comisión de Cortes, dirigida a la Junta Central, a propósito del informe
remitido por la Junta de Ceremonial in ibid 303–304.
76 I.F. Sarasola
In January 1810, the Junta Central finished office and a Regency Council took over.
But, before withdrawing, Jovellanos tried to make sure the Cortes would be sum-
moned in the way he, Lord Holland and Allen had planned. Consequently, he
wrote the Junta Central’s last decree, on 29 January 1810, which would force the
Regency Council to summon a bicameral Cortes as soon as possible. A Spanish par-
liament mirroring the British Parliament seemed to have been agreed on, but the
Regency did not comply with the Decree of the Junta Central and they summoned
the Cadiz Cortes with no higher chamber. The reasons why the Regency Council did
not carry out the Junta Central plans – that is, Jovellanos’s plans – were threefold. In
the first place, nobody could compel them. The Junta Central had been dissolved, so
the new ruling body was the Regency Council and it was sovereign. Second, the
Junta Central decree was not implemented because it strangely disappeared and
remained hidden for some months. Moreover, very few people knew about its exist-
ence or contents. Some historiographers blame Manuel José Quintana for the unex-
plained disappearance.97 The Liberal poet, incidentally, was then Deputy Secretary
of the Junta Central. He did not sympathize with the Cortes model advocated by
Jovellanos and, given his direct contact with the Government’s documentation, he
might indeed have withheld this important decree to make sure that it would
never see the light of day. It was in fact the very last decree ever passed by the
Junta Central, on 29 January 1809. Coincidentally, it had been given the premoni-
tory title of Junta Central Last Decree on the meeting of Cortes.98 Finally, it inter-
esting to remember that the liberals were pressing the Regency to assemble the
Cortes and also to follow the French model, which is what they themselves
wanted. In the wake of the Regency’s procrastination in summoning the Cortes it
had been left to two liberals (Count Toreno and Guillermo Hualde) to approach
the Regents in order to request, once and for all, that their demands be met.
The fact is that on 24 September 1810 the Cadiz Cortes began their delibera-
tions without the three-estate representation and with no bicameral organization.
In the end, the Liberals had won, and Jovellanos’s plan had failed:

My wish was a Constitution using the British system as a model … And the plan we
had for the Cortes was aimed at achieving it … but now … I am very sad about the
Cortes organization … they have been established with one only Chamber.99

97
Suárez (n 5) 427. The Decree did not appear until 31 October, 1810, in other words, a
month after the Cortes had assembled. Even so, José María Blanco-White, the liberal
poet exiled in London, published it in his newspaper, El Español 6 (30 September 1810)
447–52, six days after the Cortes’ assembly.
98
Gaspar Melchor de Jovellanos, ‘Último decreto de la Junta Central sobre la celebración de
las Cortes (January 29, 1810)’ in Jovellanos, Obras completas vol 11 (Escritos políticos)
725–832.
99
Jovellanos to Lord Holland (Muros de Noya, 5 December 1810) in Jovellanos, Obras
completas vol 5 (Correspondencia 4°) 423.
 Comparative Legal History 77
Jovellanos was in no doubt that those responsible for the failure to go along with
his ideas were the ‘young liberals’, who were in turn influenced by the revolution-
ary theories of ‘Rousseau, Mably, Locke, Milton and other theorists who had
done nothing but rate on about politics’.100 He sensed that the Regency would
regret taking notice of the liberals, because the Cortes would become a national
Assembly that would make a democratic Constitution like that of France in
1791. He was by no means wide of the mark. Those ‘extraordinary’ Cortes
would eventually draw up the first Spanish Constitution which arose from
popular sovereignty: the Cadiz Constitution (1812). It was not the one Jovellanos
would have agreed with, but it became the most legendary of all Spanish consti-
tutions, translated in its lifetime into English, French, Italian, Portuguese, German
and Russian.101
Unfortunately, Jovellanos was already too frail to fight for his political the-
ories. He never even considered the possibility of accepting a seat in those
Cortes which had been convened in a way which disgusted him. It was his
nephew, Alonso Cañedo Vigil who would have to stand for his ideas in the new
body.102 Meanwhile, Jovellanos returned to Gijón. He would be forced to flee
in November 1811 after the French occupied his home town. He reached by
ship Puerto de Vega, also in Asturias, while suffering from pneumonia, an
illness which would eventually lead to his death at the age of 67. His last and dis-
connected words were not at all frenzied: ‘Junta Central … la Francia … ¡Nación
sin cabeza! … ¡Desdichado de mí!’ (‘Junta Central, France … A headless
nation! … I am wretched!’).103 Indeed, without a King, without an English-mod-
elled Parliament, Jovellanos could only see a decapitated political nation sunk by
war.
The Cadiz Cortes, that Parliament which had worried Jovellanos so much, was
deeply grieved to learn of the death of the illustrious Asturian. On Count Toreno’s
initiative (Toreno was Asturian, like Jovellanos, though very distant from him in
his political principles) the Cadiz Cortes praised him and bestowed upon him the
nation’s distinguished citizen accolade, awarded posthumously. In one statement,

100
Ibid 427.
101
With reference to the international dimension of the Cadiz Constitution see Sarasola (n
78) 271–308. Likewise, the section of the Historia Constitucional journal, 13, devoted to
‘The Impact of the Constitution of Cadiz in Europe’, including studies by Nere Basabe
(France), Ignacio Fernández Sarasola (England), Horst Dippel (Germany), Joaquín Varela
Suanzes-Carpegna (Portugal), Gonzalo Butrón Prida (Italy), Susanna Rabow-Edling
(Russia) and Derek Offord (Russia). A fascinating but barely researched aspect is that of
the differences between the original and its translations. See also David Hook, ‘The
Textual Status and Relationships of the Italian Translations of the Consitución política de
la monarquía española (Cádiz, 1812)’ (2013) 1 Romance Studies 12.
102
Marta Friera Álvarez, ‘El realismo jovellanista de Alonso Cañedo’ (2013) 14 Historia
Constitucional 24.
103
Julio Somoza, Las amarguras de Jovellanos (Imprenta de Anastasio Blanco, 1889) 216.
78 I.F. Sarasola
at least, the liberals admitted ‘the care and diligence that an always energetic Jovel-
lanos displayed in order to speed up the convening of Cortes’.104

VI. Jovellanos’ political theory legacy

Jovellanos’ political theory was by no means an absolute failure. He had managed
to get the Cortes assembled. Some liberals like Isidro de Antillon or Agustin
Arguelles, despite being among Jovellanos’ admirers, considered that his pro-
British stance regarding political ideas was not fully appropriate for the revolution
Spain demanded.105
Nevertheless, after his old friend Jovellanos’ death, Lord Holland attempted to
persuade the Spanish liberals to take up the baton from Jovellanos. He found
willing followers in Andrés de la Vega Infanzón and José Maria Blanco-
White,106 who scrupulously defended the need to implement the chief character-
istics of British constitutionalism.
Both of them harshly criticized the Spanish liberals for their excessively revo-
lutionary ideas and tried to promote constitutional harmony based on a British
system of checks and balances. However, they were not successful. Andrés
Angel de la Vega, a member the Cadiz Cortes, was too isolated in the liberal
ranks and almost went unnoticed, to the extent that only two of his speeches
were recorded in the Cortes Journals.107 His sudden death in 1813 added to all
this.108 Blanco White, who then lived in London, tried to contribute to the
effort, but his correspondence was poorly regarded by the Spanish liberals, par-
ticularly because they blamed him for promoting the independence of the
Spanish colonies through the newspaper El Español, of which he was then the
editor in London.

104
Parliamentary Debates 441 (17 December 1811) 2433–34; Parliamentary Debates 462 (8
January 1812) 2582–83.
105
Agustín Argüelles, Examen histórico de la reforma constitucional que hicieron las
Cortes Generales y Extraordinarias desde que se instalaron en la Isla de León el día 24
de septiembre de 1810, hasta que cerraron en Cádiz sus sesiones en 14 del propio mes
de 1813 (London, 1835) vol I, 217; Antillón (n 9) 32.
106
Andrés Ángel de la Vega Infanzón (1768–1813) was like Jovellanos Asturian as well as
being a good friend of his. Although he admired the English regime from the eighteenth
century, direct personal contact with it was established in 1811, a time during which he
resided in London. José María Blanco White (1775–1841) was a Sevillian of Irish
descent. Ecclesiastic and poet, he had published a revolutionary liberal newspaper in
Seville entitled Semanario Patriótico. Andrés Angel de la Vega’s influence as well as
that of Lord Holland made him renounce French revolutionary thought in favour of the
British model. In 1810, he was exiled in London, where he published the newspaper El
Español, in which he spread the word of British Constitutionalism and especially sought
after a greater degree of independence for Spanish colonies in America.
107
Ignacio Fernández Sarasola, Los constituyentes asturianos en las Cortes de Cádiz. Anto-
logía de discursos (Trea, 2012) 13, 114–117.
108
Alicia Laspra Rodríguez, ‘Andrés Ángel de la Vega Infanzón: un reformista anglófilo’
(2013) 14 Historia Constitucional 57.
 Comparative Legal History 79
Lord Holland also tried to convince two other very influential liberals: the
aforementioned Asturian, Agustin Arguelles, who held a special allure for Jovel-
lanos himself, and the Sevillian, Manuel José Quintana. Holland had a close
relationship with both of them. Later as an exile in London, Arguelles would even-
tually become the librarian in Holland House. But both Spanish intellectuals were
of French revolutionary persuasion and rejected Lord Holland’s ideas regarding
bicameralism. When Lord Holland reproached Quintana on the issue of unicamer-
alism for the Cádiz Cortes, Quintana disagreed. The most important thing, he said,
was to convene parliament, the only hope for Spain for an activity that could carry
out national policy,109 an undertaking of which unicameralism would be a part.
Nor did Lord Holland convince Agustin Arguelles. In a letter sent by the latter
to his British friend years later he was to admit that the model that had been
pursued in order to formulate the Cadiz Constitution had effectively been the
French revolutionary one, without ever contemplating an alternative that could
have brought Spain closer to British parliamentarianism.110
Nevertheless, after the fall of the Constitutional regime in 1814, even the
liberal Francophiles found themselves having to rethink their position. In 1820
when the Cadiz Constitution was once again proclaimed in Spain on occasion
of the Trienio Constitucional (1820–23) several liberals known as moderados
[moderates] showed full respect for the British parliamentary model. The figure
of Jovellanos, unlike those of Lord Holland and Allen, who would remain
largely forgotten, would then be recovered. His political ideas favouring bicamer-
alism and the British model were published in the moderate liberal press, for
instance in El Censor.111
In 1823, the moderates even managed to secretly prepare a constitutional
Project which recovered Jovellanos’s ideas, combined with new influences, par-
ticularly those of Benjamin Contant, Destutt de Tracy and French doctrinaires.112
However, all this was bound to remain hidden. In 1823, the Holy Alliance brought
the curtain down on the Spanish constitutional regime. After a further ten years of
absolutism (1823–33), up to the death of Fernando VII, the Spanish Constitutional
regime was reborn again and so, with the Estatuto Real of 1834, a British-mod-
elled bicameral regime was finally established, which would certainly have
pleased Jovellanos.

109
Manuel José Quintana to Lord Holland (Isla de León, 10 March 1810) in Moreno Alonso
(n 91) 328.
110
Agustín Argüelles to Lord Holland (8 February 1823) in Manuel Moreno Alonso, ‘Con-
fesiones políticas de don Agustín de Argüelles’ (1986) 54 Revista de Estudios Políticos 250.
111
Anónimo, ‘De la exageración de principios’ El Censor (26 March 1820) 54–55.
112
The 1823 constitutional project has a great importance for Spanish historical constitui-
conalism and it has been recently published, together with a study by Clara Álvarez
Alonso in Ignacio Fernández Sarasola (ed), Constituciones en la sombra. Proyectos consti-
tucionales españoles (1809–1823) (CEPC, 2014).
80 I.F. Sarasola
By 1820, many liberals had begun to acknowledge that the plan designed by
Jovellanos would have allowed for a calm transition from absolutism to a consti-
tutional regime. Writers such as Ramón de Salas, Antonio Alcalá Galiano or
Modesto de la Fuente vindicated the Asturian’s political thought more than ten
years after his death.113 Even Count Toreno, one of those liberals who had
firmly promoted the single chamber system of the Cadiz Cortes, later on paid
tribute to Jovellanos’s political ideas (‘the most sensible’ in Toreno’s words)114
and regretted not having followed his plan, modelled on the British system.

VII. Conclusions
Supported by Lord Holland and John Allen, Jovellanos had a decisive role in the
convening of the Cadiz Cortes. In fact, his prominence is far greater than any his-
toriographer has afforded him. Jovellanos has been overlooked in such an impor-
tant phase of Spanish constitutionalism partly because many of the reports,
regulations and drafts of his writings during his Junta Central experience had
been lost for almost two centuries. It was thanks to those texts being uncovered
that evidence has been found that Jovellanos only actually considered the need
to re-establish the old Cortes system during Charles IV’s reign and, later, during
the Peninsular War. Faced with the vacancy of the throne, with Ferdinand VII
held by Napoleon in Bayonne, Jovellanos not only considered it vital to assemble
a Regency Council that would perform its duties on behalf of the King, but also to
optimize the state of affairs by convening the Cortes so that serious reforms in the
Spanish Fundamental Laws might be undertaken. The fact that Jovellanos was a
member of the Junta Central, the aforementioned institution which acted as
interim government of the nation between 1809 and 1810, enabled him to take
measures intended for the fulfilment of his proposals.
Jovellanos had a thorough historic awareness, which was linked to his political
beliefs, which in turn, had a twofold orientation. His theory of the state was decid-
edly rationalist, based on the theories of ius naturale and ius gentium devised by
authors such as Grotius, Puffendorf or Wolff. Yet his constitutional thought was
profoundly historicist. Thus, at an early stage, he made an attempt to convene
the Cortes in the light of the medieval Castilian model, though with certain modi-
fications, for example, changing which cities could elect representatives, allowing
Latin-American representation in the new Cortes, or entrusting the latter with full
legislative power.
Lord Holland and John Allen’s influence enabled Jovellanos to approach the
idea of Cortes in a mature way. They both proved the virtues of relying on a

113
Ignacio Fernández Sarasola, ‘La imagen del Jovellanos político en la historiografía’
(2010–11) 4–5 Cuadernos de Investigación del Foro Jovellanos 205.
114
Conde de Toreno, Historia del levantamiento, guerra y revolución de España (1837)
(CEPC, 2008) 541.
 Comparative Legal History 81
bicameral parliament, as in Britain, with a view to avoiding the superfluity of the
French national assembly. Jovellanos did not overlook the British model in any
way. He knew what British authors like Blackstone, Bolingbroke, Hume and
Burke had said about it, but he was also aware of some French-speaking
writers’ different views, as among the latter were Montesquieu, Voltaire and De
Lolme. Nevertheless, Jovellanos’s whole reading had not been enough for him
to realize that the British model, duly adapted, could be of use in Spain. It was
left to Lord Holland and John Allen to convince him of that. With that in mind,
they put together for him two texts in which they outlined how the Cortes
could be convened without flouting historic Castillian tradition and at the same
time following the British two-chamber system.
Jovellanos optimized his position at the head of the Junta Central in order to
ensure, through a Decree passed on 29 January 1810, the assembly of the Spanish
Cortes. His proposal embraced the two-chamber system in such a way that the
people would be represented in a lower house and the aristocracy and clergy in
an upper house. Hence, the British constitutional pattern would have been success-
fully exported to Spain in the same way that, in 1812, it was adopted by the Sici-
lian constitution and likewise in France in 1814, when the Charter was granted by
Luis XVIII.
Nevertheless, once removed from power, Jovellanos did not succeed in guar-
anteeing the fulfilment of his plan. The Spanish liberals, devotees of French revo-
lutionary thought, eventually achieved their goal of a unicameral Cortes. The first
modern Spanish parliament, the Cadiz Cortes, assembled on 24 September 1810,
followed the French revolutionary model. Spanish constitutionalism was therefore
marked by conflict between French revolutionary beliefs, mainly supported by the
liberals, and the British constitutional model, supported exclusively by Jovellanos
and some faithful reformists that followed his instructions.

Acknowledgements
I would like to express my warmest thanks to Dr A. Laspra, an expert on the period
from Oviedo University, for her accurate revision of this text and also for her sen-
sible remarks.

Disclosure statement
No potential conflict of interest was reported by the author.