• 1 Amongst the numerous works of these historians Vid.: Fioravanti Mauricio, Appunti (...)

3According to the traditional view on the history of Latin America, this crisis has been interpreted as a clash between national identities and ideological struggles avant la lettre, promoted by caudillos through pronunciamientos. This perspective holds the failure of constitutionalism in Latin America throughout the XIXth. century. This essay seeks to unveil the underlying logic of this political process from a perspective related to the critical historiography of law. As it is well known, the renewal of legal history undertaken by Italian scholars around Quaderni Fiorentini, the fundamental works of Bartolomé Clavero and Antonio Manuel Hespanha for the Iberian world, and more recently the works of Marta Lorente and Carlos Garriga paved the way to a fundamental reconsideration of Mauricio Fioravanti’s classification of constitutional models by proposing the existence of a Hispanic model along with the continental and Anglo-Saxon models of constitutionalism1. These historians have emphasized the trend of the constitutions that were widely sanctioned during the Hispanic revolutions to adapt institutions belonging to the juridical corpus of the Monarchy. Their work has regarded the implications that keeping the ius commune tradition in force had on the republican legal and constitutional order.

• 2 María Teresa Calderón, Aquella república necesaria e imposible. Colombia, 1821 (...)

6It is difficult to determine the number of pronunciamientos that took place between the beginning of the crisis in 1826 and 1832 when it came to an end. We were able to trace over five hundred of them across the vast geography of Colombia2. Based on the documents we have come to believe that the pronunciamiento is the paradigmatic form of political action that took shape during the Hispanic revolutions. This phenomenon bears no equivalent in other Atlantic revolutions.

• 3 Antonio Annino, (coord.), La revolución novohispana, 1808-1821 México, Fondo d (...)
• 4 Alejandro Agüero, “Localización del derecho en la tradición jurídica hispana. (...)
• 5 Pietro Costa, Iurisdictio. Semantica del potere político medioevale (1100-1433), Milano, (...)

7The Hispanic pueblo was founded on the Aristotelian notion of a perfect community redefined by Catholic Theology (communitas naturalis perfectae). It referred to a natural and moral entity, subject to natural rights (and obligations), vested with legal and political capacity. Antonio Annino has drawn attention on the fact that the crisis of 1808 did not entail a horizontal transfer of sovereignty from the king to a national assembly3.The vacatio regis set forth a centrifugal process that multiplied sovereignty placing it in the moral and natural bodies of society, that is to say in the pueblos4. A fundamental feature of this phenomenon is that Fernando VII´s illegitimate abdications brought up a question regarding the subjects that were entitled to hold power in the name of the absent king. However, it did not imply a shift in the understanding of society, nor a change in the comprehension of the nature of government. This being the case, society maintained its corporate character and the exercise of public power continued to refer to the administration of justice (ruda equitas)5. We wish to stress the importance of this fact. Despite eighteenth-century reformism, the Catholic monarchy never asserted the exercise of political power outside of divine justice. During the revolutions and the first era of Latin American republics politics continued to be understood as government subject to justice, in a heteronomous understanding of the latter. As such, government – frequently referred to as “administration” – and justice (of divine origin) cannot be considered as two separate branches of power. Our interest in recalling these well-known facts is to draw attention on a distinctive feature of the Hispanic revolutions that Latin American republics inherited.

• 6 “Ley (1) (8 de octubre) sobre organización y régimen político de los departame (...)
• 7 “Ley (1) (25 de junio) que arregla la división territorial de la República”, 25 de (...)
• 8 “Ley (1) (11 de marzo) sobre la organización y régimen político y económico de (...)
• 9 Ibidem.

8Acting as a legislative body, the Cucuta Assembly of 1821 recognized all existing municipalities, thereby granting the pueblos provided with municipal councils the legal status of villas6. Let us recall that under the Monarchy, only villas and cities recognized as such by the Monarch were entitled to the right of self-government and were therefore endowed with the privilege to gather justice and regiment. Municipal bodies known as municipalidades, consejos municipales, ayuntamientos or cabildos appointed alcaldes. Cucuta established the territorial organization and the political regime of the republic on this network of municipalities and their jurisdictions which were maintained fundamentally intact7. Efforts to regulate the powers of officials and magistrates to separate government from justice failed to create two separate realms of power8. By 1826, the members of ayuntamientos designated as regidores or municipales as well as the alcaldes were elected. The executive officers at the municipal level had seen their attributions severely curtailed9. In 1826 they even lacked indicative functions and their right to vote in the municipalities they presided over was limited to cases of parity. Under these conditions, when the Colombian crisis broke, the pueblos enjoyed broad powers that they had acquired during the revolutions.

• 10 “El Senado de la República de Colombia”, Bogotá, 27 de marzo de 1826, 16º in S (...)
• 11 María Teresa Calderón, Aquella república, op.cit., Bogotá, Crítica, 2021, (...)

9In the first semester of 1826, General José Antonio Páez (1790-1873) was removed from office for overstepping his official duties in relation to the implementation of a government decree to create a national militia10. In the absence of the President (Simón Bolívar) who remained in Peru, Vice-president Francisco de Paula Santander (1792-1840) oversaw the executive power. In accordance with constitutional provisions, Santander notified General Páez of his dismissal and summoned him to face trial in Bogotá. In the eastern territories of Colombia, the Commander´s removal from office set into motion a process that has undeniable similarities with the crisis triggered by the abdications of Bayonne in 1808. The pueblos of Venezuela interpreted the general's deposition in terms of a vacatio11. They appealed to a state of necessity and proclaimed their sovereignty exactly in the same terms in which they had done two decades before. They claimed an “original” and “natural” power, restated Páez in office and drew actas or acuerdos to pronounce – hence the voice pronunciamiento – their sovereign will / opinion. By way of pronunciamientos, General Páez was conferred full powers to guarantee the imprescriptible (natural) rights of the pueblos.

• 12 Carl Schmitt, Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum (...)
• 13 Cruz Villalón Pedro, El estado de sitio y la Constitución, Madrid, Centro de Estudios Co (...)

13Let us focus on two additional aspects of the pronunciamiento. In all cases, the pronunciamiento is founded on the declaration of a “state of necessity” that activates the pueblos’ natural sovereignty. Modern constitutional theory continues to discuss the nature of the extraordinary powers that protect the State against internal or external risks threatening its existence and entail the suspension of rights12. Pedro Cruz Villalón has argued that this modern form of exceptionalism was born with the purpose of banishing the state of necessity rooted in tradition13. Nevertheless, in the Colombian crisis these two distinct figures coexist. Furthermore, the “necessitas” to which the pueblos appeal falls within the sphere of natural law and far from implying the suspension of liberties it serves to enact them. This fact further stresses the catholic grounding of the pronunciamiento. As such, invested with their “natural” and “original” sovereignties, the pueblos proceeded to exercise the indefeasible rights that nature bestowed upon them.

• 14 François-Xavier Guerra and Annick Lempérière. Los espacios públicos, op. cit., México, F (...)

16The second aspect of the pronunciamiento that we wish to consider refers to the nature of the decisions it entailed. The pueblos drafted actas or acuerdos. These documents trace the structure of laws. They state motivations – considerandos – followed by provisions, frequently listed in a numerical order. This structure unveils a fundamental aspect of the pronunciamiento: As the expression of the pueblos’ sovereignties, the pronunciamiento was a source of law. In other words, the pueblos´ decisions were mandatory. As such, their enactment required publication. Two implementation patterns bear importance for the purpose of this reflection. When the pueblos' decisions were addressed to the authorities, they took the form of petitions. At a first glance, these gracious pleads seem to contradict the mandatory nature of the pueblo´s decisions. This concern will be re-addressed in the conclusions of this paper. When the decisions were communicated to other pueblos, the pronunciamiento set into motion a consultation. The pueblos accounted for this procedure in terms of “ruling” – “regularizar” – their opinions. As aforementioned, the voices “public opinion” (in singular) or “general opinion” appear as the equivalent of the "general will" in these documents. This fact emphasizes the monolithic character of the opinion the pueblos sought to realize. This procedure bears great interest because it recalls the communis opinio doctorum that had traditionally served for the administration of justice. This phenomenon cannot be thought solely in terms of consent. It attempted to incite an agreement among the pueblos, but above all it intended to stage a common unity – a “communion of opinion” – that ultimately served to reveal the justice of the pueblos´ cause. Namely, the righteousness of their demands. This form of opinion bears no relationship whatsoever to the illustrated public sphere and it´s idea of opinion14.

• 15 “Proyecto de ley que convoca a la Gran Convención. Objeciones del presidente Santander”, (...)
• 16 “El Congreso convoca a la Gran Convención”, palacio de gobierno en Bogotá, 7 de agosto d (...)

17In July of 1827, acting as the sole interpreter of the Constitution, Congress convened to anticipate the Convention. The text of the congressional decree summoning the constitutional assembly for January of 1828 was initially based on the recognition that the pueblos’ pronunciamientos had given expression to the nation’s opinion. Vice-president Santander objected the project of the congressional decree arguing that pronunciamientos were nothing but commotions and uprisings and requested they be duly criminalized15. Congress did not accept Santander´s thesis. In the decree it finally passed in August of 1827 the pronunciamientos were not forbidden most likely because they enjoyed wide legitimacy. However, Congress took a step back from its initial position: instead of the singular voice “public opinion” included in the first draft of the decree, it turned to the plural voice “opinions” implying that the pronunciamientos had a private character16. In this way, Congress offered a solid base for the anticipation of the Convention that Santander couldn´t disregard while meeting the pueblo´s requests. Furthermore, Congress transferred to the Convention that was summoned in the villa of Ocaña the ultimate decision regarding the need to check -thoroughly or partially- the Constitution of 1821.

• 17 Gaceta de Colombia n^o 304, domingo 12 de agosto de 1827, Bogotá, Biblioteca Nacional.

20Article 64 of the Constitution emphasized the national character of representation in Congress by stating that both senators and representatives held their positions on behalf of the nation and not of the department or province that appointed them. The Constitution expressly prohibited electoral assemblies to provide instructions to all deputies. The wording of the article brooked no doubt: to guarantee the general will of law, the imperative mandate was prohibited. The Constitution did not include any reference to petitions. Yet in 1825, Congress recognized the capacity of municipalities to “admit projects, petitions and reports” in all matters that were legally recognized to these bodies. This allocation was extended to the juntas of policia that exercised the same duties of ayuntamientos at the parish level. Although the Law of 11 march of 1825 did not specify the nature of these petitions, nor did it regulate them regarding their content or their procedure, one can infer that this authorization was limited to the processing of petitions that could not be binding. A reason for the latter can be accounted for by references that appeared in the Gaceta de Colombia, the official newspaper, where the editors invoked the old adjective of gracious to emphasize the character of political petitions. In September of 1826, the Gaceta stated17:

• 18 Carlos Garriga, “La ley de Estilo: sobre la construcción de la mayoría de just (...)

22Historians of Hispanic law have stressed that graceful petitions – peticiones graciosas – didn´t emerge as something other than the call for justice – peticiones de justicia –18. As it is well known, the ductility of this figure overlaid certain binding dimensions: the monarch could not withdraw his obligation to conduct justice iudicando. However, in the Catholic monarchy the original expression of the petition of rights as a gracious plea was preserved to the dawn of the revolutions. In the Colombian legal and constitutional order, the right of petition retained this ubiquitous nature in the form of a right of claim as a guarantee against grievances (Art. 157 of the Constitution), and in the ability to petition to juntas parroquiales, ayuntamientos and to Congress on local and general matters (Law of March 11, 1825). Some would argue that there is nothing specific in this understanding that is conceivable within the dual nature of this right. However, in the hands of the pueblos, petitioning deployed a new character.

• 19 “Reglamento de las elecciones de los diputados a la Gran Convención” Francisco de (...)

23A few weeks after summoning for the Convention of 1828, Congress issued the law regulating the electoral process to the constitutional assembly19. Further exceptions in the exercise of political rights were established. The electoral law of 1827 increased the obligation of uninterrupted residence in the territory where elections were to take place to vote and to be elected. Voting was prohibited for the military under the rank of sergeant, and limitations for civil employees, military officials, and religious authorities were established to band their election by the territories where they exercised public office. The consequence of this law was an extraordinary petitioning activity that ultimately compromised the fate of the Convention.

• 20 “Exposición del comandante del circuito y oficiales del batallón número 6”, San (...)

24We couldn´t find the Book of the Commission of Petitions of the Convention. Nevertheless, we were able to trace over a hundred of these documents dated as early as August of 1827. Most of these petitions are collective (87 %). Amongst them, three quarters were drafted by pueblos and the great majority of the remaining by military corporations. In other words, the bulk of these petitions were produced by the two actors who had emerged strengthened from the revolutions: the pueblos and the military. These documents reveal a series of interesting issues. Firstly, the capacity of petitions to counteract the limitations on political rights. The petition of the commander and the officers of the Nº 6 battalion of the city of San Carlos, dated March of 1828, expresses this matter in the following terms 20:

• 21 “Acta de la municipalidad de San Felipe”, ciudad de San Felipe, 10 de marzo de (...)

25This phenomenon might help to explain why the debates surrounding the extension of political rights did not deserve special attention in the Colombian constitutional assemblies. These documents also shed light on the dilemmas of representation in the Hispanic world. In March of 1828, when the constitutional assembly was beginning its works, the militia of San Felipe petitioned to the constitutional assembly. It stated that the Ocaña Convention was flawed because the procedure leading to its gathering had breached "the established principles and rules" and because the debates in the Convention did not reflect the wishes of the pueblos and their understanding of ´common interest`21.

• 22 “Veinte diputados se retiran de la Gran Convención”, La Cruz, 12 de junio de 1828 in CO, (...)
• 23 “Pronunciamiento de Caroni”, cabecera de cantón de Caroní, 21 de agosto de 182 (...)

27In July 1828, three months after the Convention was installed, and after the assembly had ruled on the pertinence of reviewing completely the Cucuta Constitution, the intense polarization within the assembly committed its representation when a group of twenty-two delegates rose from the Convention. The deputies held account for their decision to withdraw from the assembly compromising its quorum in a public statement. They pointed out that the Convention could not be considered representative of the nation because the deputies had dismissed "the clamors of the pueblos" and the "petitions of the military"22. For these men, the petitions of citizens and corporations served to “rule” the constitutional process. This idea bespeaks to the concept of “ruling opinions” to which we referred to earlier in this essay. It suggests that these procedures shared elements. This matter propounds the thesis that political representation was sought to reflect a broad consultation. If this is so, as we believe, petitions and pronunciamientos were part of a single consultative process that was intended to ensure that the laws and the Constitution fully expressed the opinion of the bodies of society or as the pueblo of San Felipe put it, the true wishes of society. The fact that springs from this phenomenon is that political petitions had a binding character. The withdrawal of the delegates from the Convention of 1828 unleashed the pronunciamientos of the pueblos that proceeded to revoke the mandate they had bestowed on their deputies on the account that they had distanced themselves from the pueblos’ will. The radicalization of this dynamic was such that it led the pueblos whose deputies had not attended the Convention to deprive them from a representation they had not exercised. The pueblo of Caroni stated it in its pronunciamiento23:

• 24 “1829. José Antonio Arroyo, prefecto del departamento escribe al señor secreta (...)

28A year later, in August 1829, Bolivar issued a communication to the nation regarding the Colombian Constitutional Assembly that was to meet in January 1830 in Bogotá. The failure of the Convention of Ocaña had destroyed the legitimacy of the Constitution of 1821. Bolívar accepted to govern under full powers but in the same decree by which he assumed the government in October of 1828, he summoned a new constitutional assembly. Bolívar called it "Admirable" due to the quality of its members. However, the Congress of 1830 was unable to hinder the republic´s disintegration. It is important to take into consideration the process leading to this Convention because it sheds light on the understanding that the contemporary gave to political representation and helps to unveil the new meaning that petitions had acquired during the revolutions. Bolivar´s communication reads as follows24:

• 25 “Carta de Bolívar al jefe superior de Venezuela, general José Antonio Páez”, L (...)

29This document ascribes the Constitution explicitly to pronunciamientos and petitions and to the instructions – instrucciones – with which it openly invited the pueblos to bind their representatives. For the Bolivarian government these devices had to ensure that the Constitution fully and faithfully reflected the opinion/will of the pueblos. In short, the legitimacy of the Constitution depended on its capacity to reflect a broad consultation to citizens, pueblos, and the corporations of society. In a communication to the pueblos of Venezuela, Bolivar stressed that citizens and corporations should attend the consulta25:

• 26 Ibidem.

30Bolivar´s formulation betrays the foundation of this process on natural law, exactly in the same way we acknowledged for the pronunciamiento. The vitality of catholic natural law raises a set of problems. In the first place, it requires a deeper clarification of the understanding that contemporaries gave to the notion of constitutional power. As many of the fundamental political references, constitutional power was hardly under discussion at the time. The exegesis of the documentary corpus produced during the crisis seems to suggest that the qualification of “constitutional” was only attributed to the assemblies that were meant to "verify”, that is to acknowledge a political association between territories based on common opinion. In the second place, the new shape of society to which Bolivar referred to in his Communication, – as it explicitly says –, had to reflect26:

• 27 AGN., Sección: República, Fondo: Historia, T. 5, fo. 531-534.

31The association of “regularized opinion” to the “general will” of Congress not only explains the binding nature of representation, but also accounts for two additional features. The first is that the general will was attached to custom, so that consuetudo continued to serve as a source of law as it had done traditionally. Moreover, the legitimacy of the Constitution depended ultimately on its capacity to reflect local conditions and customs. The second aspect that springs from these documents refers to the common good. In the same understanding of the town of San Felipe in 1828, the city of Pasto claimed that the definition of the common good was solely a matter of the pueblos27.

• 28 Antonio Annino, prologue to María Teresa Calderón (coord.), Política y Constit (...)

32The reference to justice is certainly not fortuitous: the rights that the Constitution had to guarantee remained objectified in justice, rooted in nature, local practices, and customs. Ultimately, the fact that arises from these documents is that the will manifested by the Constitution and the law was never affirmed outside natural law. Annino has called attention to the centrality of the concept of pact with regards to the limited references to the notion of contract in the Hispanic world at the time28. This does not imply a doctrinarian neo-scholastic view. Pactism was certainly traditional, but its reinterpretation by new territorial actors -the pueblos- gave shape to a profound rupture with respect to the pre-revolutionary monarchical order. The `constituent pact´ created and reflected new power relations, both vertically and horizontally. It expressed a political equality between pueblos that was not linked to a theological tradition. What is undeniable is that the constitutional pact created horizontal ties between the pueblos and vertical links between the pueblos and the authorities. When defining the form of government, the pact sealed a process of association between pre-constituted territorial subjects. As Bolívar said, the purpose of the constitutional process aimed at the reconstitution of society, precisely because society had already been established naturally. The notion of "verification" that appears systematically in these documents thus appears as the conceptual core of the constitutional act. The constitutional juncture was the moment to establish the accuracy of an agreement, whereby it fully deployed its legal effects.