"Report on the Agrarian Law" (1795) and Other Writings' is the first modern English translation of perhaps the greatest work of the Spanish Enlightenment, Gaspar Melchor de Jovellanos’s 'Informe sobre la Ley Agraria' (1795). A major work of political economy and a beautifully crafted philosophical history of Spain’s political development until the eighteenth century, 'Informe sobre la Ley Agraria' is a classic work of the Spanish Enlightenment. Displaying the richness of Spanish Enlightenment writing on political economy emerging from a fecund conjugation of foreign writers (Smith, Ferguson, Condillac, Mirabeau, Genovesi) with Spanish writers (Ulloa, Olavide, Uztáriz, Campomanes), this masterpiece explores the lessons learned from the shortcomings of the Spanish Crown's economic policies in the eighteenth century.
About the Author
Gabriel Paquette is professor of history at The Johns Hopkins University.
Álvaro Caso Bello is a PhD candidate at The Johns Hopkins University.
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Report on the Agrarian Law (1795) and Other Writings
By Gaspar Melchor de Jovellanos, Gabriel Paquette, Álvaro Caso Bello, Yesenia Pumarada Cruz
Wimbledon Publishing CompanyCopyright © 2016 Gabriel Paquette and Álvaro Caso Bello
All rights reserved.
ON THE NEED TO COMBINE THE STUDY OF HISTORY AND ANTIQUITIES WITH THE STUDY OF LAW
Madrid, 4 February 1780
"Et illud in primis statuo frastra tentare plurimos inter perfectos, consummatosque jurisconsultos numerari, nisi una simul historiarum periti sint, et antiquitatis colligant memoriam."
Januar. in Rep J. C.
Today, standing here before you to acknowledge the distinction with which this illustrious Academy has honored me, is the most joyous and laudable of my life. The embarrassment of seeing myself adorned with a title that I did not deserve would diminish my pleasure of receiving it, if I did not recognize that when you granted me the right to sit among you, you are not honoring what I am today, but what I wish to become, rewarding my desire with a sort of anticipatory distinction. And to stimulate even further my love of wisdom, you award me the prize beforehand, even though it should only be given after wisdom has been attained.
Incorporated, then, into this assembly, the wellspring of erudition and learned criticism [crítica] in Spain; sitting among the wise, whose knowledge of history is enhanced by that of the useful sciences; part of this circle of select men who, fleeing idleness and dissipation, come to worship truth in its sanctuary while ignorance and preoccupations [preocupaciones] overpower the masses, I am beginning to regard myself as a different man, and, enthused by a powerful spirit of emulation, I wish to follow in your footsteps and imitate your zeal, because I am convinced that only by accompanying you in your vigils and labors might I justly aspire to share in your reputation and true glory.
Nothing satisfies me more than the hope of acquiring from your company and conversation a small portion of your learning; of enriching with it the limited patrimony of my own ideas; and thus making myself worthy both of standing beside you, and of my own profession. Because, gentlemen, if the science of history is, as I believe, entirely necessary for jurisprudence, where else but among you could I attain the knowledge that I confess to lack, and without which I cannot duly discharge my duties as magistrate?
Alas, confessing my ignorance of history does not take an extraordinary toll on my self-regard. I make this confession with the simple candor that characterizes both me and this place. After all, can I be blamed for not having undertaken a serious and profound study of history? In the first years of my education, I had no choice but to follow the route and methods set out by our preceptors, and, thus, according to the common method and curriculum of our schools, I turned to philosophy. I began my studies of jurisprudence without any preparation other than a barbaric logic and a sterile and confused metaphysics, and these I thought gave me the master key to penetrate the sanctuary of the sciences. My tutors regarded other studies as useless, including that of history; they spent their time analyzing Roman law, but considered it unnecessary to read the annals of that republic. And so, even the example of my masters contributed to distance me from the study of a subject that in time would prove indispensable.
After I finished studying Roman civil law, I turned to the laws of Spain, those laws that I would one day have to implement. The difficulties that I encountered in trying to grasp their spirit [penetrar su espíritu] made me seek to understand their origin, and this desire naturally guided me to history. But I then found myself suddenly elevated to the judiciary, enveloped in the tasks and duties of criminal justice. Young, inexpert and ill-taught, I was barely capable of understanding the extensive obligations that fell upon me. From that point on, I could only see before me the laws that I was meant to enforce, the risks of doing so badly and the absolute necessity of penetrating their spirit in order to enforce them well. It was then that I finally understood the true nature of the problem, for I found that legal codes were written in an enigmatic language whose mysteries could not be deciphered without the science of history. This was a useful, albeit belated, awakening from delusion that did more to reveal the risks I took than to free me from their peril.
Allow me, then, gentlemen, to take from this rude awakening inspiration for my speech; allow me to communicate some of the reflections that such an experience suggested, and that made me understand that the study of history is altogether indispensable to the jurist. This argument is not irrelevant to my present obligation, nor to your institution, and I undertake it not only to prove my commitment, but out of a desire to occupy myself in objects that truly deserve attention. I wish that I could make my words deserving of your wisdom!
History, in Cicero's phrase, is the best witness of times past, our guide in daily life, and brings us tidings of antiquity. There is no profession to which men can devote their talents that would not benefit from its study. The statesman, the military man, the ecclesiastic can learn great lessons from history to better fulfill his obligations. Even the private man, whose only place in the public order is that of a simple citizen, can learn his rights and his obligations from her. And, finally, every member of political society can gain from history useful and salutary teachings to help him remain constantly on the path of virtue and away from vice.
But among all the professions, that of the magistrate is the one that would most profit from the study of history. The magistrate must, in his profession, govern men. But to govern them, he must know them, and to know them, he must study them. What better way to study men than to study history, which represents men in all stations of life: in subordination or independence; given to virtue, or lost to vice; raised up by prosperity, or overcome by misfortune? On the other hand, what other study is as relevant as history for the science of jurisprudence? I truly believe that this science cannot be considered complete if it does not include other branches of knowledge. A jurist must learn grammar to speak properly, rhetoric to move and persuade [his listener], logic to reason, critical thinking to discern, metaphysics to analyze, ethics to evaluate human actions, mathematics to calculate and proceed in order from one fact to another; but only history can teach him to know men, and therefore to govern them according to the dictates of reason and the precepts of the law.
Cicero himself, whose vast talent comprised all of the aforementioned studies, used to say that those who ignored history were like children, no doubt because the sphere of their knowledge occupied such a brief span of time. He added that a man's life was but an atom, if it was not expanded with the knowledge of times past. Alas! What would Cicero say if those ignorant about the past were those who studied the law? The great scholar Aurelio de Januario has insightfully asked, how is it possible that a man who lives in perpetual puerility, according to Cicero's argument, can be an accomplished jurist? Men who do not know of the revolutions and occurrences of past times? Indeed, the wisest jurists — Gravina, Heineccius, d'Aguesseau and all the proponents of the historical methods — have recommended this study, because it is in the history of each people that the best commentary on its laws can be found. And this is why Januario himself ridiculed all those jurists who, slaves to their own obsession, dared to proclaim that the study of Roman law was all the learning that scholars needed to acquire, all the knowledge that could adorn the spirit and rectify the heart of man.
So far we have used general arguments to show that the study of history must be united with that of the law; but the most conclusive evidence is to be found in the intimate and unique links that exist between each country's history and its legislation. Let us, then, go from the general to the particular; and, to avoid infinite and useless musings over strange laws, let us center our reflections on Spanish law. We shall seek the bonds that tie our laws to the history of our nation, and thus demonstrate that those who strive to know the former must inevitably understand the latter. Having proven this, we should not believe that we have uncovered a hidden, unknown truth; this is instead an admonishment of those who, aware of this maxim, fail to practice or follow it.
We, gentlemen, are today governed by laws that were written in our monarchy's remotest past, and even by laws that preceded its foundation. The most authoritative code used by our tribunals is a collection of ancient and modern laws in which the most recent additions are confusedly nestled alongside those written in the most distant antiquity, for it reformulates and renovates various collections written in the Middle Ages [siglos medios]. But the primitive authority of the laws that did not make it into the collection is also valid, for they are to be consulted when there are no relevant recent judgments. Thus, good jurists must continually delve into our ancient and modern codes, studying in the immense accumulation of our country's laws the civil system that the nation has followed in the last three centuries, if they want to understand Spanish law.
Evidently, describing each of these codes would be an arduous task; and an analysis of each of their laws even more tedious. But the object that we have set out obliges us to at least look at the most important of these, however briefly, to find the sources of the rights that underlie them, and discover the relationships between these rights and the constitution and customs of its contemporary society. This simple revision will reveal the need to make the study of history part of the legal discipline more than the most strongly argued reasoning. Let us, then, commence with the primitive source of our law, and discover the ancient spring from which the laws that govern us came forth, laws written under the domination of the Goths from the fifth to the eighth century and which are still obeyed by Spaniards of the eighteenth century.
The Goths, a ferocious and bellicose people that the north wind expelled from its bosom, became successively enemies, allies, subjects and destroyers of the Roman empire. Unhappy with the scarce fortune that the lords of the world, in their decadence, could bequeath to them, they sought their own fortune, one that they owed solely to their own efforts and victories. With this aim they invaded various provinces of the empire, and while some of their tribes occupied other parts of Europe, the Visigoths overran Spain and part of Gaul, and founded here one of the most brilliant monarchies of that time. Their rule brought their laws and their customs, and though relations with the Romans had led them to adopt their religion and partake of their culture, they did not entirely renounce the natural ferocity of their character, nor their inclination toward independence and warfare. Valor was their most prized virtue, and liberty their idol.
The politics of the first princes who dominated Spain sought to reconcile the interests of the conquering people with those of the conquered. The former was given two-thirds of the seized lands, and allowed to live according to their customary, unwritten rights; and the latter were allowed to retain the remaining third of the lands and the use of Roman laws. Curcio compiled the Gothic laws [costumbres góticas] and Alaric II had Roman laws gathered and published in a code. Spain, thus, lived divided, such that though there was a single dominating force, the condition of the subjects varied. Not only did they differ in the laws that they obeyed and the rights they consequently enjoyed, but also in the protection and shelter that such laws granted, and even in their names, for the victors were called Goths and the vanquished Romans.
Visigothic domination was thus constructed upon a precarious dual system until the princes began to fear the inconveniences that it produced and the risks to which it exposed them. Believing that the distinctions between victors and vanquished were as dangerous for the rulers as they were odious for the ruled, the princes sought to make the two peoples into one by eliminating these distinctions. First, they gave them the one and the best belief to unite their spirits, separated as they had been between the true religion, idolatry and Arianism; they also allowed intermarriage, to mix the two peoples in their very families; they banished the name Romani, so that all would thenceforth be called Goths; and, finally, all subjects were governed by the same laws, making their political condition equal. Thus, by making government uniform, the princes consolidated their authority and secured their domination.
After this initial period, a unified people was indeed formed, and even those two great wills that always arise, separated less by conflicting interests and more by the conflict between those who held them, were forced to concur, united and in accordance with the proper conduct of public business. Indeed, frequent assemblies, that were both Cortes and councils, decided matters concerning to the governance of church and state. In these assemblies, presided over by the prince, palace officials, great lords of the court, bishops and prelates debated and examined what evils should be remedied and dictated laws to address them. Such laws truly expressed the general will, insofar as they were passed by the most important representatives of the church and the state, an admirable union that gave Spain security and repose in a period of confusion and civil discord, when many of those who aspired to rule or to counsel juvenile or imbecilic kings, endangered the state with their edicts and ambitious pretensions. The ultimate remedy was thus found in the Cortes, which could attract some of these men into their fold; or intimidate, estrange or restrain others; and could strictly enforce a law's observance, or temper its rigors, all to conciliate the contending parties and secure, through constant exercises of firm prudence, the kingdom's inner peace and tranquility, which were unattainable using any other means.
But the laws passed in these august assemblies concerned, for the most part, matters related to public right and the kingdom's higher politics. The dealings and business of individuals were decided by the Gothic customary norms that Curcio had compiled, or by the laws of their successors, gathered and published in the times of Leovigild and added to the Codex Euricianus; or by the Roman laws that the clergy and the Spaniards had obeyed, some of which were gathered in Egica's compilation. In sum, Visigothic conciliar laws simply complemented this assortment. Chindasuinth, Recceswinth and Wamba successively added laws to Leovigild's compilation, until Egica, who seemed selected by fate to perform this glorious task, formed the admirable code that we know today as the Fuero de los jueces.
When one considers the diverse sources of the laws that are gathered in this precious collection; when one examines the system of civil government that it informed; and, finally, when one wonders at the causes and the hidden relations between the Fuero's decrees and the genius, the customs and the ideas of the people for whom its laws were written, one cannot help but ask, who would dare sustain that it is not necessary to study history to penetrate the spirit and the essence of these laws?
Indeed, their first source is constituted by the unwritten consuetudinary rights brought to Spain by the Goths. But who could know what these were without knowing the ancient history of these peoples? How they governed themselves when they lived on the other banks of the Rhine; their religion; their culture; their customs and usage? And such a study would be incomplete if it did not add to the analysis of the northern codes the analysis of the historians who have written about those peoples. Caesar and Tacitus, says Montesquieu, were so taken by the laws of the northern peoples, that, when reading their books, one will constantly encounter the northern codes, and when reading those codes, one will see Tacitus and Caesar everywhere.
And why would things be any different regarding the institutions established in Spain by the predecessors of Reccared I, the second source of Visigoth law? Who would understand the spirit of these laws without first understanding how Gothic domination came to pass in Spain; what shape Goths gave to their government; the political, civil and military hierarchies of their society; the rights and obligations of the Goths and of the Spanish; or the degree to which the character of the former was influenced by the constitution that they adopted, the climate in which they lived, the religion that they professed and the new ideas, practices and customs that they learned from the latter? Let there be no doubts, says Montesquieu again, that these barbarians kept the inclinations, uses and customs that they brought from their own country to the lands that they conquered for quite some time, because a nation cannot alter its way of life overnight. And yet, who doubts that a nation that moves to a distant climate, under a different government, in new and unknown regions, would not slowly change its ways?
I regard Roman law as the third source of the Visigothic laws; and I will not tire in insisting that in order to truly understand the laws of that famous republic, it is necessary to study its history. Others have happily carried out the relevant analyses, and maybe someday I will make this the object of another speech presented for your consideration.
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Table of Contents
Preliminaries; Introduction; Report on the Agrarian Law (1795); On the need to combine the study of history and antiquities with the study of law (1780); Eulogy in Praise of Charles III (1788); Inaugural Address to the Royal Asturian Institute (1794); On the Need to Combine the Study of Literature with the Study of the Sciences (1797); Index.