THE SOURCES OF THE MEXICAN ACTA CONSTI-
TUTIVA
*
The Mexican scheme of government since the earliest days of
the republic has been regarded as but an ill adapted copy of that
of the United States. Within the United States this belief has
been largely founded upon the recognized influence of our form
of government upon the South American republics. Inasmuch
as we have been wholesale borrowers from the older eastern states
in the erection of our state governments, we have been led to
impute a similar character to the earliest governmental architects
of Mexico.
This deep rooted belief has had many able exponents. Foreign
publications, both American and European, during the troubled
times of 1824 and 1825 spoke of the new government as an imi-
tation of that embodied in the constitution of the United States.
1
No less a person than Henry Clay, in the instructions given to
Joel R. Poinsett, our first minister to Mexico, took this point of
view and counselled Poinsett to advise those in power as to the
manner in which a republic should be conducted.
2
Mr. J. Q. Dealey appears to have been the first student to
disagree with this attitude and to indicate anything of the ex-
tent of the Spanish influence.
3 In a brief comparison of the
constitution of Spain, promulgated at Cadiz, March 19, 1812,
with the Mexican constitution of 1824, Mr. Dealey has pointed
out a marked parallelism and an essential similarity. Mr. Dealey
concludes that, "the real basis of the Mexican constitution was
the Spanish constitution of 1812 and the departures from the
latter were due largely to the adoption of the form of a federal
republic, which compelled, to some extent, the imitation of the
American model. But even in so imitating, the framers of the
constitution endeavored to mould the unfamiliar institutions of
the North to the familiar institutions of Spain."
4
This study is based upon the Acta
Constitutiva,
which was
adopted January 31, 1824. This act was the basis upon which
the constitution of 1824, as well as all other Mexican constitu-
tions recognizing the federal principle, have been erected. Its
skeletal character enables one to see in it more clearly than in
the maze of detail of a more elaborate fundamental law the in-
tention of the makers of the constitution. Furthermore, those
responsible for the adoption of the Acta
Constitutiva
were like-
wise responsible for the adoption of the constitution of 1824.
Merely an inspection of the Acta
Constitutiva
and of the
Spanish constitution of 1812 reveals parallelism, of treatment
and, at times, the use of identical language. The Acta
Consti
-
tutiva,
being but a framework upon which the constitution of
Mexico was later to be constructed, does not contain all of the
titles to be found in the constitution of 1812 but the general
order of treatment is the same in all essentials. This similarity
is to be noted, not only in the broad general outlines of the two
documents, but descends to the sub-structure, as may be illus-
trated by the opening articles of both.
Capítulo I, Título I, of the
Spanish constitution of 1812
states,
Article 1. "The Spanish nation
is formed by the union of the
Spaniards of both hemispheres."
Article 2. "The Spanish nation
is free and independent and is
not, nor can it become the patri-
mony of any person or family."
The Ada
Constitutive!,
Título
I, states,
Article 1. "The Mexican na-
tion is composed of the provinces
included in the viceroyalty hith-
erto called New Spain, the Cap-
tain Generalcy of Yucatan and the
'provincias internas de oriente y
occidente.' "
Article 2. "The Mexican na-
tion is free and independent of
Spain and of other powers and is
not the patrimony of any person
or family."
Article 3. "The sovereignty re-
sides essentially in the nation
and to it belongs the right to
establish the fundamental laws."
Article 3. "The sovereignty re-
sides originally and absolutely in
the nation and to it belongs the
exclusive right to adopt and to
establish by means of its repre-
sentatives the form of government
and the fundamental laws that
appear most convenient for its
conservation and greater prosper-
ity, modifying and varying them
according to its convenience."
In the proposed organization of the legislative branch of gov-
ernment, the displacement of the Spanish unicameral system by
the bicameral is at once noticed. From the debates in the con-
stituent assembly, which enacted the constitution of 1824, it is
apparent that the congress of the United States was the model
followed. In the constituent assembly it was proposed that there
be created a House of Deputies and a Senate which should be
upon an equal footing, save that financial measures should arise
in the lower house. In the attack made by Godoy and others, it
was pointed out that this proposal was but an adaptation of the
system in use in the United States.
5 Gómez, in defending the
measure, admitted the charge and proceeded to quote at length
from the constitution of the United States.
6
The actual provisions of the Acta
Constitutiva
are:
Article 10. "The legislative power of the federation shall re-
side in a Chamber of Deputies and a Senate which shall make
up the General Assembly."
Article 11. "The members of the Chamber of Deputies and of
the Senate are to be chosen by the citizens of the States in the
manner provided by the constitution."
Article 12. "The basis of election of representatives to the
House of Deputies shall be according to population. Each State
shall elect two senators to be prescribed by the constitution."
The Spanish constitution of 1812 reflects the leaven of the
French political thought of the time. Its recognition of the
right of the Spanish people to control their affairs through the
cortes caused the constitutions of Spain, Mexico, and the United
States to be very much alike in their grants of power to their
legislative bodies. An attempt at analysis of the powers to be
granted to the Mexican congress fails to reveal any marked lean-
ing toward either the Spanish or American precedent.
In some few details the Mexican congress was to possess less
power than the congress of the United States. No mention is
made of congressional power to create courts inferior to the
Supreme Court, to establish uniform laws regarding bankruptcy,
nor to establish postoffices or post roads. The most marked point
of difference lies in the absence of any grant that might be com-
pared with our "necessary and proper" clause.
In the power of congress to control all external commerce, to
regulate internal commerce, to regulate the finances of the nation,
to control the army and navy,--the influence of the United States
is seen. The Spanish constitution of 1812 still entrusted the
control of the army and navy to the king.
7 The Acta
Constitu
-
tiva,
like the constitution of the United States, attempted to re-
move powers with such tremendous possibilities as far as possible
from the hands of a single individual.
The executive to be created was not defined by the Acta
Con
-
stitutiva.
Article 15 states, "The supreme power of the execu-
tive is placed by the constitution in the 'individual' or 'indi-
viduals' who may be chosen, who are residents and native born
citizens of any of the states or territories of the federation."
This phraseology may be explained by the fact that, since the
abdication of Iturbide, the executive power had been lodged in
a triumvirate made up of Nicolás Bravo, Guadalupe Victoria and
Pedro Celestino Negrete. The opponents of those advocating the
federal scheme of government were led by Don Carlos Busta-
mante, who strenously advocated a multiple executive.
8 Dr.
Miguel Ramos Arizpe, chief draftsman of the Acta
Constitutiva,
however, admirably advanced the arguments favoring a single
executive.
9
The great powers of the President of the United States are
due largely to the lack of specific restriction. The Mexican
executive, as defined by the Acta
Constitutiva,
was to be restricted
by a careful definition of power.
10 The powers of the king of
Spain were similary enumerated by the constitution of 1812, the
example of which undoubtedly influenced the Mexicans.
11
The Mexican chief executive was to be granted full control in
the nomination and removal of cabinet secretaries. The respon-
sibility of these secretaries was to be to the chief executive, as
in the United States, and not to the national congress as in
Spain.
12 Similarly in the field of diplomatic and consular affairs
the United States was the model followed. The Mexican chief
executive was to have control of the appointment of diplomatic
and consular representatives, subject to the approval of the sen-
ate,
13 and of the negotiation of treaties, subject in all cases to
the approval of the General Congress.
14 The constitution of
1812 likewise granted to the King of Spain the direction of dip-
lomatic and commercial relations with other nations, but did not
restrain his action by the necessity of approval by the cortes.
15
The veto and ordinance power of the chief executive best illus-
trates the leaven of Spanish precedent. The chief executive was
to be granted the right of veto and the power to use this priv-
ilege at once or within ten days after a measure had been pre-
sented to him. A veto, following upon the dissolution of the
General Congress, was to suspend the measure until further action
had been taken at the next session.
16 Thus the "pocket veto"
was guarded against. A similar provision is to be found in the
constitution of 1812, save that the king is there granted a period
of thirty days within which to approve or disapprove any
measure.
17
The ordinance power granted the Mexican chief executive is
provided for as follows:
constitution and the federal laws."
Article 17. "All decrees and ordinances of the chief executive
shall be signed by the secretary of state affected by them and
without this signature they are not to be obeyed."
The Constitution of 1812 states:
Título IV, Capítulo I, Section 1. "The king may issue de-
crees, rules, and instructions which are considered necessary to
the execution of the laws."
Título IV, Capítulo VI, Article 225, provides that "All the
ordinances of the king shall be signed by the secretary of state
to whose department they correspond. No citizen or tribunal
shall give credence to them without the satisfaction of this re-
quirement."
Thus it would appear that in the definition of the powers to
be granted to the chief executive, in the character of the veto
power, and in the ordinance power, the framers of the Acta
Con
-
stitutiva
did not vary a great deal from the Spanish constitution.
The Acta
Constitutiva
says little with regard to the organiza-
tion of the judiciary. It provides that the federal judicial power
shall be vested in a supreme court and in "those courts which
shall be established in the states."
18 Judgments by special com-
mission, together with retroactive laws are to be abolished.
19 The
definition of the field of jurisdiction of the supreme court, to-
gether with the creation of inferior grades of courts, is left to
the succeeding constitutional convention.
The last two titles of the Acta
Constitutiva
deal with the or-
ganization of state governments. As the opening articles of the
instrument are but a copy of the provisions of the Spanish con-
stitution of 1812, so the closing articles are but a copy of the
provisions of the constitution of the United States. The tri-
partite division of powers of the federal government was to be
extended to the states.
20 The legislative power of the states was
to be vested in a body which was to be popularly elected after
the fashion to be set by the various state constitutions.
21 The
character of the executive, as in the federal government, was
not defined; it was merely stated that the exercise of this power
should he for definite periods established by the states.
22 The
constitutions of the states were to conform entirely to the federal
constitution and to the federal laws.
23
In the denial to the states of any control over foreign com-
merce, over the making of treaties with foreign countries, and
over the maintenance of military and naval forces, there is an
almost verbatim statement of the provisions of Section 10 of
Article I of the constitution of the United States.
24 The only
marked evidence of Spanish precedent in this connection is the
requirement that states should annually transmit to the federal
government a statement regarding their finances and regarding
the condition of industries within their boundaries.
25
Coupled with the assumption that Mexico was a wholesale bor-
rower from the United States there has gone another belief that
it was greatly influenced by the political changes within France,
and, nearer home, by those within Colombia. Such an assump-
tion does not duly consider the fact that, during the opening
years of the nineteenth century, Mexico did not have the same
intimate intercourse with Europe that the South American coun-
tries did. An examination of the debates of the constituent as-
sembly reveal surprisingly few references to French political
changes or to French political philosophy.
The Colombian constitution, adopted at Eosario de Cucuta in
1821, evidences clearly the influence of French political changes.
Narino had suffered imprisonment for his translation and publi-
cation of the "Eights of Man" in Colombia. Arosemena has
pointed out that these "were the sparklings of the French revo-
lution which arose in America in spite of the vigilance of the
'peninsulars' and prepared it for the shock of 1810."
26 Further-
more, the Colombian minister at this time occupied a particu-
larly influential position at Mexico City, since Colombia had been
the first to recognize the independence of Mexico. Under the
nom
de
plume
of Chinchilla he contributed articles to El
Sol
during the year 1823 dealing with local politics, and ridiculed
the ceremonies in connection with the Court of Augustin I.
27
However, the Centralist faction met with defeat in the constitu-
ent assembly in 1824, and, inasmuch as they were the exponents
of the Colombian system of government, it appears reasonable
to conclude that such French influence as entered into the for-
mation of the Acta
Constitutiva
came indirectly through the
influence of France in the formation of the Spanish constitution
of 1812.
The influence of Dr. Miguel Ramos Arizpe, chief draftsman
of the Acta
Constitutiva
and of the constitution of 1824, has,
hitherto, been almost entirely neglected. Arizpe was chairman
of the committee on the constitution and the moving spirit in
the adoption of the Acta
Constitutiva.
He had previously been
the most active of the Mexican delegates in the adoption of the
Spanish constitution of 1812. Inasmuch as so little has been
written in English about this interesting character, a brief re-
view of his life may not be out of place.
Arizpe was a native of Coahuila and was born February 15,
1775. He was educated at the seminary in Monterey and later
received the degree of Doctor of Canon Laws at the seminary in
Guadalajara. He then became the parish priest of the villa of
Borbón in Nueva Santander. He was elected as a deputy from
Coahuila to the Spanish cortes, September 1, 1810, and entered
upon his duties March 22, 1811. Because of his ardent support
of the constitution of 1812 he was imprisoned in Madrid for
twenty months and was subsequently banished for four years to
Cartuja de Arachrista in Valencia when Ferdinand VII re-
turned to power. With the return to power of the constitution-
alists in 1820, he was released and became a diputado
suplente
in the new cortes. In the same year he became precentor of the
cathedral of Mexico City and returned to his native land. By
reason of his political experience he was appointed president of
"La Gran Commission" following upon the abdication of Itur-
bide, and presented the Acta
Constitutiva
to the assembled dele-
gates, November 23, 1823. He subsequently took a leading part
in securing the adoption of the constitution of 1824.
28
Bancroft says of Arizpe and his connection with the constitu-
tion of 1812, "Among the American delegates there was one
particularly bright man, the deputy from the 'provincias internas
de oriente,' Dr. Miguel Eamos Arizpe, parish priest of the villa
of Borbón in the colony of Nueva Santander, now state of
Tamaulipas. ... He was full of spirit, fond of talking and
one would never suspect, either from his manner or his dress,
that he was a priest. He thought his countrymen too gentle and
would often say, 'I am not a Mexican, I am a Comanche,' and
he came to be known by that name."
29
Into the fabric of any constitution there enter many diverse
elements, but it would appear to be clear that in the Acta
Con
-
stitutiva,
and in its offspring, the constitution of 1824, the most
prominent influences were those of the United States and of
Spain. The natural influence of the Spanish connection, to-
gether with the bias of the draftsman, have given great promi-
nence to the Spanish element. The direct influence of France
and of Colombia at this time were of minor importance, although
they were to be of great importance within a decade. There
seems little room for agreement with Señor Solórzano, who be-
fore the constituent assembly May 25, 1824, declared, "This
mania for following others results in the greatest errors. The
errors of the Spanish were taken from the French, and those of
Venezuela from Spain, and in ours (proposed constitution) we
have the errors of Venezuela. In this way instead of one error
we have three, and in this I see nothing new, nor useful."
30
The Acta
Constitutiva
appears, rather, to be the attempt to inject
the federal principle of government, as borrowed from the United
States, into an instrument of government essentially Spanish in
character.
FOOTNOTES:
of California.
system of government instituted in imitation of that of the United
States is quite uncertain and on the whole may be considered as rather
an unfortunate step at so early a stage. The affairs of Venezuela, be-
fore the union, went on very indifferently under this system."
América latina, I, 28.
How to cite:
Marion John Atwood, "Sources of the Mexican Acta Constitutiva", Volume 20, Number 1, Southwestern Historical Quarterly Online, http://www.tsha.utexas.edu/publications/journals/shq/online/v020/n1/contrib_DIVL446.html
[Accessed Sun Nov 23 3:06:52 CST 2008]
