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ABSTRACT
Between April 1820 and April 1822, stimulated by the restoration of the Cádiz Constitution, Bentham devoted himself to writing a number of works on the constitutional reform and colonial rule of Spain, which have been sources of a scholarly debate over Bentham's views on colony. By examining those works, this essay aims to supplement the scholarly debate by drawing attention to a thesis that Bentham developed in his criticism and evaluation of the Cádiz Constitution: a thesis concerning the irreconcilable incompatibilities of liberal constitution and colonisation. I focus on Bentham's critical analyses of the Constitution, and indicate that Spain's colonial rule of Ultramaria not only intensified the weaknesses of the Constitution, but also rendered its merits useless, if not harmful, to the public in both hemispheres. Moreover, I explore the tension that Bentham detected between liberal constitutionalism and colonialism. I maintain that, in Bentham's observation, the civil rights granted by the Cádiz Constitution to the Ultramarians stood to facilitate the enlightenment of citizens and the formation of civil society. As a consequence, the delusion of the Spanish ruling few would be exposed, and the Ultramarians’ discontent with exploitation by such foreign rulers would sow the seeds of disobedience and resistance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 John Fisher, ‘Absolutism and Liberalism in the Hispanic World, 1808–1814: The Background to and Significance of the 1812 Constitution of Cadiz’, in 1812 Echoes: The Cadiz Constitution in Hispanic History, Culture and Politics, eds. Stephen G. H. Roberts and Adam Sharman (Newcastle upon Tyne: Cambridge Scholars Publishing, 2013), 23–5.
2 Presumably this explains why some representative thinkers of the Spanish Enlightenment, including Gaspar Melchor de Jovellanos and José María Blanco White, adopted a moderate model of reformation that sought to strike a balance between liberal Spain and reactionary Spain, between Europeanising elements and traditional ones. See Joaquín Varela Suanzes-Carpegna, ‘Un precursor de la monarquía parlamentaria: Blanco-White y El Español (1810–1814)’, Revista de Estudios Políticos 79 (1993): 115. El Español, a Spanish-language journal published in London, was an important vehicle for liberal criticisms of the Cádiz Constitution and the Spanish Cortes and contributed significantly to spreading Bentham's influence in Latin America by reviewing and publishing his works. White was sympathetic to Bentham's attack on despotism and shared many of his criticisms of colonialism and the Cádiz Constitution. More recent scholars have endeavoured to re-explore and reassess White's contribution to Spanish constitutionalism and liberalism; for an example, see Ana M. Jara Gómez, ‘Blanco White: un militante contra el absolutismo. Del liberalismo a la cuestión colonial’, Espiral (Guadalajara) 21, no. 61 (2014): 87–107.
3 Scott Eastman, ‘Introduction: The Sacred Mantle of the Constitution of 1812’, in The Rise of Constitutional Government in the Iberian Atlantic World: The Impact of the Cádiz Constitution of 1812, eds. Scott Eastman and Natalia S. Perea (Tuscaloosa: University of Alabama Press, 2015), 1–2. See also Fisher, ‘Absolutism and Liberalism in the Hispanic World’, 27–28. As José María Portillo Valdés has pointed out, Spanish constitutionalism that emerged between 1808 and 1824 challenged the view of Montesquieu and Edmund Burke that Spain's ideal destiny was guardianship. For the historical context of Spanish constitutionalism and its impact on Latin America, see José Maria Portillo Valdés, ‘La constitución en el atlántico hispano, 1808–1824’, Fundamentos 6 (2010): 125–78; Marta Lorente, ‘Esencia y valor del constitucionalismo gaditano (Nueva España, 1808–1821)’ in La Revolución Novohispana, 1808–1821, ed. Antonio Annino (Mexico: Fondo de Cultura Económica, 2010), 293–383. Moreover, according to Hilda Sábato, with the collapse of the Spanish empire, Spanish America experienced a radical political transformation in the first two decades of the 19th century. In addressing the questions of how to reconstruct a political order based on people's sovereignty and how to shape new nations, political elites were inspired by the Cádiz Constitution to adopt republican forms of government and to break with the colonial political structure. See Hilda Sábato, ‘Political Citizenship, Equality, and Inequalities in the Formation of the Spanish American Republics’, desiguALdades.net Working Paper Series 16 (2012): 10–1. See also Hilda Sábato, ‘On Political Citizenship in Nineteenth-Century Latin America’, The American Historical Review 106, no. 4 (2001): 1295–6; Tomás Pérez Vejo, ‘La construcción de las naciones como problema historiográfico: el caso del mundo hispánico’, Historia Mexicana 53, no. 2 (2003): 275–311.
4 Eastman, ‘Introduction’, 2. See also Isabel Burdiel and María Cruz Romeo, ‘Old and New Liberalism: The Making of the Liberal Revolution, 1808–1844’, Bulletin of Hispanic Studies 75, no. 5 (1998): 65–80.
5 Spain had influenced the political transitions of those countries, each of which had established a constitution modelled on the Cádiz Constitution. However, it was not long before the old regimes were restored and the new constitutions were abolished. See Jeremy Bentham, Colonies, Commerce, and Constitutional Law: Rid Yourselves of Ultramaria and Other Writings on Spain and Spanish America, ed. Philip Schofield (Oxford: Clarendon Press, 1995), 125–6. See also Pamela Beth Radcliff, Modern Spain: 1808 to the Present (Hoboken: John Wiley & Sons, 2017), 22–35.
6 Gregorio Alonso, ‘Cádiz Reprised: The Liberal Triennium in Spain and Spanish America, 1820–1823’, in The Rise of Constitutional Government in the Iberian Atlantic World: The Impact of the Cádiz Constitution of 1812, eds. Scott Eastman and Natalia S. Perea (Tuscaloosa: University of Alabama Press, 2015), 245–63.
7 Bentham, Colonies, Commerce, and Constitutional Law, 125.
8 For the influence of Bentham's works on Spain and Latin America, see José J. Moreso, ‘Spanish Emancipation: Bentham on Law and Politics in the Spanish World’, Journal of Comparative Law 14, no. 2 (2019): 161–73; Annie L. Cot, ‘Jeremy Bentham's Spanish American Utopia’, Revue d’études benthamiennes, 17 (2020); Theodora L. McKennan, ‘Jeremy Bentham and the Colombian Liberators’, The Americas 34, no. 4 (1978): 460–75; and Alamiro de Avila Martel, ‘The Influence of Bentham in the Teaching of Penal Law in Chile’, Revista de Estudios Histórico-Juridícos 5 (1980): 257–65.
9 Those works are now collected in Bentham, Colonies, Commerce, and Constitutional Law. As an example of the debate, Harris refutes Braun and Schwartz's argument that Bentham's ‘Rid Yourself of Ultramaria’ was an incomplete work concerned more with the reform of the Spanish constitution than the relinquishment of the Spanish colonies. See Jonathan Harris, ‘An English Utilitarian Looks at Spanish-American Independence: Jeremy Bentham's Rid Yourselves of Ultramaria’, The Americas 53, no. 2 (1996): 217–33.
10 See, for example, John Stuart Mill, The Collected Works of John Stuart Mill, Volume XIX - Essays on Politics and Society Part II, ed. J. M. Robson (Toronto: University of Toronto Press, 1977), 413–9, 567. See also Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2006), 123–62.
11 Bentham, Colonies, Commerce, and Constitutional Law, 189.
12 Donald Winch, Classical Political Economy and Colonies (Cambridge: Harvard University Press, 1965). See also Elie Halévy, The Growth of Philosophic Radicalism, trans. M. Morris (London: Faber & Faber, 1972), 114–16, 510–2. For the criticism of the economic perspective, see Leonard John Hume, Bentham and Bureaucracy (Cambridge: Cambridge University Press, 1981), 184–5, 191–3.
13 Winch, Classical Political Economy and Colonies, 25.
14 Lea Campos Boralevi, Bentham and the Oppressed (Berlin: de Gruyter, 1984), 120–41. For Winch's response to Boralevi, see Donald Winch, ‘Bentham on Colonies and Empire’, Utilitas 9, no. 1 (1997): 147–54.
15 Philip Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford: Oxford University Press, 2006), 220.
16 Ibid., 210.
17 See Jennifer Pitts, ‘“Great and Distant Crimes”: Empire in Bentham's Thought’, in Jeremy Bentham and Philip Schofield, et al., Jeremy Bentham, Selected Writings, ed. Stephen G. Engelmann (New Haven: Yale University Press, 2011), 478–99; Stephen G. Engelmann and Jennifer Pitts, ‘Bentham's “Place and Time”’, The Tocqueville Review 32, no. 1 (2011): 43–66. See also Jennifer Pitts, ‘Legislator of The World? A Rereading of Bentham on Colonies’, Political Theory 31, no. 2 (2003): 200–34.
18 Jeremy Bentham, Panopticon versus New South Wales and Other Writings on Australia, eds. Tim Causer and Philip Schofield (London: UCL Press, 2022). https://www.uclpress.co.uk/products/169767#.
19 Barbara Arneil, ‘Jeremy Bentham: Pauperism, Colonialism, and Imperialism’, American Political Science Review 115, no. 4 (2021): 1155.
20 Ibid., 1152–7.
21 See Laidlaw's and Schofield's chapters in Jeremy Bentham and Australia: Convicts, Utility and Empire, eds. Tim Causer, Margot Finn, and Philip Schofield (London: UCL Press, 2022): 243, 248–71.
22 One of the articles that Bentham repeatedly refers to is Article 4: ‘The Nation is obliged to preserve and protect, by wise and just laws, the civil liberty and the property, besides all other legitimate rights, of all individuals belonging to it’; see The Political Constitution of the Spanish Monarchy proclaimed in Cadiz 19th of March 1812. [The translator's dedication is signed, “Philos Hispaniæ.”] (Coppell: British Library, 2021), 3 (hereafter The Cadiz Constitution). The other is Article 13: ‘The object of the Government is the happiness of the nation; since the end of all political society is nothing but the welfare of all individuals, of which it is composed,’ see The Cadiz Constitution, 6–7. See also Bentham, Colonies, Commerce, and Constitutional Law, 31, 110, 155, 185, 192, 325, 339 n.
23 Article 106 states, ‘The session of the Cortes shall continue three months in each year, beginning on the first of March’; while Article 107 states, ‘The Cortes may, moreover, put off their sessions to another month in two cases only; the first, at the request of the king; secondly, if they shall think it necessary by a resolution of two thirds of the deputies’. See The Cadiz Constitution, 34.
24 Jeremy Bentham, On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal, eds. Catherine Pease-Watkin and Philip Schofield (Oxford: Clarendon Press, 2012), 17–21, 106.
25 Jeremy Bentham, Constitutional Code, Volume I, eds. Frederick Rosen and James Henderson Burns (Oxford: Clarendon Press, 1983), 48–56.
26 Bentham, On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal, 102–3, 107; Bentham, Colonies, Commerce, and Constitutional Law, 183.
27 Bentham, Colonies, Commerce, and Constitutional Law, 184.
28 According to John Bowring, in December 1821 he had discussed with Bentham the Cádiz Constitution's clause of non-reeligibility of representatives, and had persuaded Bentham to cease attacking the rule. See Jeremy Bentham, Memoirs of Jeremy Bentham; Including Autobiographical Conversations and Correspondence, in The Works of Jeremy Bentham, ed. J. Bowring (Edinburgh: W. Tait, 1838–1843), vol. X, 528–30 (hereafter ‘Bowring’). See also Courtney Kenny, ‘A Spanish View of Bentham's Spanish Influence’, Law Quarterly Review 11, no. 1 (1895): 53.
29 Jeremy Bentham, First Principles Preparatory to Constitutional Code, ed. Philip Schofield (Oxford: Clarendon Press, 1989), 140–1.
30 Ibid. For Bentham's elaboration of the significance of aptitude, see also Frederick Rosen, Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code (Oxford: Clarendon Press, 1983); Schofield, Utility and Democracy, 272–303.
31 Bentham, Colonies, Commerce, and Constitutional Law, 156.
32 Jeremy Bentham, ‘A Plan for an Universal and Perpetual Peace’, in Bowring II, 548.
33 Jeremy Bentham, Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, ed. Philip Schofield, Catherine Pease-Watkin, and Cyprian Blamires (Oxford: Clarendon Press, 2002), 293.
34 Even so, the Cádiz Constitution's distribution of citizenship and civil rights was highly exclusive. As Bartolomé Clavero has pointed out, the Constitution managed to construct a constitutional identity based on cultural diversity, one encompassing an anthropology absent in the current constitutionalism of the same European matrix. According to Clavero, at least women, the labouring class, and slaves were excluded not only from citizenship but also from independent personality. See Bartolomé Clavero Salvador, ‘Cádiz 1812: antropología e historiografía del individuo como sujeto de constitución’, Quaderni fiorentini per la storia del pensiero giuridico moderno 42, no. 1 (2013): 201–79.
35 Radcliff characterises that feature as perhaps the most innovative part of the Cádiz Constitution. According to her, the Cortes of Cádiz, while pursuing a political transition in Spain, also wanted to preserve the nation's overseas territories. Initially, most of the American representatives and elites struggled to determine how they could be integrated into the new nation. Following failed integration, they adopted a separatist strategy and pursued independence from Spain. That turn of events highlighted a critical challenge, especially in the context of colonial rule, faced not only by Spain but also by 19th-century European liberalism – that is, a gap between abstract inclusion and practical exclusion that rendered the implementation of the ideal of equality fruitless. See Radcliff, Modern Spain, 24–5.
36 Bentham, Colonies, Commerce, and Constitutional Law, 93–4; Constitutional Code, 69, 131.
37 Bentham, Colonies, Commerce, and Constitutional Law, 37.
38 Ibid., 29.
39 Bowring II, 548.
40 The Cadiz Constitution, 11, 51. The main functions of the Permanent Committee were to keep a watchful eye on the observance of the Constitution between two sessions of the Cortes and to convoke the extraordinary Cortes in the conditions prescribed by the Constitution. See The Cadiz Constitution, 52.
41 The Cadiz Constitution, 76.
42 Bentham, Colonies, Commerce, and Constitutional Law, 29.
43 For how the ruling few used delusion to manipulate the public and thereby consolidate their own privileges and the status quo, see Peter Cain, ‘Bentham and the Development of the British Critique of Colonialism’, Utilitas 23, no. 1 (2011): 19–21. See also Bowring II, 556 and the discussion in Section 3 of this essay. The issue has also attracted attention in recent studies on Bentham's democratic theory; for examples, see Schofield's and Chen's chapters in Bentham on Democracy, Courts, and Codification, eds. Philip Schofield and Xiaobo Zhai (Cambridge: Cambridge University Press, 2022), 21–43, 134–56.
44 Bentham, Colonies, Commerce, and Constitutional Law, 26. See also Bowring II, 558.
45 Bentham, Colonies, Commerce, and Constitutional Law, 29–30.
46 See also Pedro Schwartz and Carlos Rodriguez Braun, ‘Bentham on Spanish Protectionism’, Utilitas 4, no. 1 (1992): 125; Philip Schofield, ‘Jeremy Bentham and the Spanish Constitution of 1812’, in Happiness and Utility: Essays Presented to Frederick Rosen, eds. Georgios Varouxakis and Mark Philp (London: UCL Press, 2019): 41–9. By contrast, Bartolomé Clavero questions Bentham's argument for emancipating colonies while preserving constitutionalism and suggests that the Cádiz Constitution was nothing but ‘ancient colonialism embedded in modern constitutionalism’. Therefore, even if able to eradicate colonialism, constitutionalism could not be sustained given the inherent similarity of the two systems. See Bartolomé Clavero Salvador, ‘¡Libraos de Ultramaría! El fruto podrido de Cádiz’, Revista de Estudios Políticos 97 (1997): 45–69.
47 Bentham, Colonies, Commerce, and Constitutional Law, 40–1.
48 Ibid., 47–9.
49 Ibid., 50.
50 Ibid., 288.
51 Ibid., 197–8.
52 Ibid., 28–9.
53 For example, in Bentham's initial plan for his ‘Constitutional Code Rationale’ (1822), he may have intended to use his manuscripts written in 1820 for ‘Emancipation Spanish’ in the chapter titled ‘Corruption’. See ‘Editorial Introduction’ in Bentham, First Principles, xxxii–xxxiii. Bentham was also encouraged to initiate his long-term scheme for writing Constitutional Code following the invitation of the Portuguese Cortes in April 1822, shortly after he had completed ‘Rid Yourselves of Ultramaria’. See ‘Editorial Introduction’ in Bentham, Colonies, Commerce, and Constitutional Law, xvii–xviii, and ‘Editorial Introduction’ in Bentham, Constitutional Code, xi–xiv.
54 The Cadiz Constitution, 105.
55 Ibid., 43.
56 Ibid., 110.
57 Bentham, Colonies, Commerce, and Constitutional Law, 67.
58 Ibid., 103.
59 The Cadiz Constitution, 103–4.
60 Bentham, Colonies, Commerce, and Constitutional Law, 181.
61 Ibid., 317–8
62 The Cadiz Constitution, 107.
63 Bentham, Colonies, Commerce, and Constitutional Law, 311.
64 Ibid., 105.
65 See also Stephen Conway, ‘Bentham on Peace and War’, Utilitas 1, no. 1 (1989): 82–101.
66 Bentham, Colonies, Commerce, and Constitutional Law, 86.
67 The Cadiz Constitution, 60.
68 Ibid., 42–3.
69 Ibid., 108–9.
70 Bentham, Colonies, Commerce, and Constitutional Law, 166–9, 291.
71 The Cadiz Constitution, 40.
72 Bentham, First Principles, 21.
73 Ibid., 21–2.
74 Bentham, Colonies, Commerce, and Constitutional Law, 89.
75 Ibid., 249.
76 Ibid., 320.
77 Ibid., 321.
78 Ibid.
79 Ibid., 320.
80 Ibid., 47.
81 Bentham, First Principles, 261–7. See also Xiaobo Zhai, ‘Bentham's Natural Arrangement and the Collapse of the Expositor–Censor Distinction in the General Theory of Law’, in Bentham's Theory of Law and Public Opinion, eds. Xiaobo Zhai and Michael Quinn (New York: Cambridge University Press, 2014), 153.
82 Bentham, Colonies, Commerce, and Constitutional Law, 213.
83 Ibid., 274.
84 Kaino argues for the importance of public discussion and free press in Bentham's Pannomion and international political thought. See Michihiro Kaino, ‘Bentham's Concept of Security in a Global Context: The Pannomion and the Public Opinion Tribunal as a Universal Plan’, Journal of Bentham Studies 11, no. 1 (2009): 1–29.
85 Bentham, Colonies, Commerce, and Constitutional Law, 63 (emphasis added).
86 Bentham, On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal, 34.
87 Ibid., 30–1.
88 The Cadiz Constitution, 116.
89 According to Hilda Sábato, under the rein of the Bourbons, all printed material was subject to censorship, meaning that precious few authorised papers were published in major cities such as Mexico, Veracruz, Lima, and Buenos Aires in the late 18th century. Even so, ‘in this, as in many other issues, the Cádiz Constitution made a difference’. The freedom of the press established by the Cádiz Constitution spread fast, and the expansion of printed materials such as newspapers, leaflets, and pamphlets shaped public affairs and ultimately influenced the outcome of politics. See Hilda Sábato, Republics of the New World: The Revolutionary Political Experiment in Nineteenth-Century Latin America (Princeton: Princeton University Press, 2018), 147–8.
90 The Cadiz Constitution, 117.
91 Bentham, Colonies, Commerce, and Constitutional Law, 113, 352 n.
92 Ibid., 215.
93 Ibid., 214.
94 Ibid., 215.
95 A feature of Bentham's proposed public opinion tribunal is that it is transnational and open to the participation of any foreigners with cognizance of any political questions. See Bentham, Constitutional Code, 35.
96 Bentham, Colonies, Commerce, and Constitutional Law, 216. Cello suggests that Bentham's ambitious scheme of codification for various countries sought to propagate liberal democratic constitutions able to compensate for the weakness of international law and an international public opinion tribunal as non-coercive mechanisms. See Lorenzo Cello, ‘Jeremy Bentham's Vision of International Order’, Cambridge Review of International Affairs 34, no. 1 (2021): 46–64. Bourcier also argues that in Bentham's revised theory of internationalism, the legal and moral sanctions of representative democracy are important mechanisms to make rulers accountable both in the international and domestic realms. See Benjamin Bourcier, ‘Bentham's International Political Theory: Taking States’ Responsibilities Seriously’, Utilitas 33, no. 3 (2021): 287–303.
97 For the connection between cultivating people's civic literacy and the development of civil society, see, for example, C. David Lisman, Towards a Civil Society: Civic Literacy and Service Learning (Westport: Bergin & Garvey, 1998). For Bentham's view on the education of citizen, and the difference between his view and the theory of deliberative democracy, see Kayoko Komatsu, ‘Jeremy Bentham and “Citizenship Education”’, Revue d’études benthamiennes 16 (2019).
98 The Cadiz Constitution, 115.
99 Ibid., 115–6.
100 Bentham, Colonies, Commerce, and Constitutional Law, 327–8.
101 Ibid., 118–20.
102 Ibid., 218–9.
103 Ibid., 219.
104 Ibid., 332.
105 Ibid., 225 (emphasis added).
106 Ibid., 115–6.
107 Ibid., 92.
108 Ibid.