Plagiarism: A 19th Century Story

Researching legal history can frequently lead to the reframing of old debates, the discovery of new ways of reading a past text, and even the foregrounding of erased or invisibilised histories. It is a very rewarding kind of research. Other times, however, it simply leads to curious stories. These stories are probably not well-suited for a journal article, but – I think – they make for great blogging. In this post, I want to share one such story I stumbled across while reading about a completely unrelated topic – the story of José María de Pando y Remírez de Laredo (1787-1840).

Don José María de Pando was a 19^th century Peruvian royalist with strong ties to Spain’s government. He had had a long career in Spanish bureaucracy and, after some political squabbles with his rivals (including the future Prime Minister of Spain, José María Calatrava), he travelled back to his native Peru, in June, 1824, late into the independentist process (Bolivar won his final battle against Spain in December of that year). He would eventually become Peru’s fifth Finance Minister, but was never a committed republican.

De Pando is an unlikable character in this story. One of de Pando’s most famous works, the 1833 pamphlet, Reclamation of the Rights of Plantation Owners Violated in the Coastal Provinces of the Department of Lima, is a brazen defence of the right of slavers to keep their slaves in the newly created Peruvian republic, arguing that timing just wasn’t right. “Property is the creature of civil society”, he said, “and there has been absolutely no civil society that has not recognised as property that which the master has over the serve: sad, repugnant, abominable property, but one that must be respected like any other; – property that will one day be extinguished by the progress of reason, if the perfectioning of humanity does not find obstacles or stumbles with any sort of great global catastrophe”. Abolitionism, de Pando says, will have to wait for a less convulsive time than the early republic: “no other class within the state has suffered losses as considerable nor grievances as manifest as that of the plantation owners”, he sentences. For de Pando, Slavers “ask and believe themselves to have the right to demand (…) not to incur in the inequity of wanting a single social class – meritorious, useful, and innocent – to be the only one to sustain the harms that a general measure may cause” (meaning the “general” abolition of slavery).  

This post, however, is about another one of de Pando’s works – a less famous treaties written in the final years of his life and published posthumously, called “Elements of International Law”. Ever the unlikable character, where his 1833 pamphlet was an unapologetic defence of slavery, his 1843 treaties was, to put it bluntly, a shameless case of plagiarism. Not just any plagiarism, though. De Pando plagiarised Andres Bello’s Principles of the Law of Nations – one of the most well-known books of Latin American international law.

Bello is a towering figure in the history of Latin American law. He has been called the “American Grotius” and “The Great Codifier”, in reference to his influential work on both international and civil law. He single-handedly drafted the Chilean Civil Code of 1853 and was directly responsible for the establishment of the University of Chile. While less well known in Europe than his Paris-based and French-writing contemporary, Carlos Calvo, Bello and his writings still exert an arguably greater foundational influence in the history of Latin American law within Latin America itself.

Plagiarising such a book was, therefore, pretentious, to say the least. To give a sampling, here is a comparison of two random paragraphs from Bello and de Pando, as translated by me, with plagiarised content highlighted in bold:

Bello (page 4): “Rights (and therefore obligations) are perfect or imperfect. A perfect right, also known as external, is that which can be vindicated by force: in the state of nature, by individual force; and in civil society, by public force, as wielded by the justice system. An imperfect or merely internal right is that which cannot be carried out without the consent of the obliged party. This difference is explained depending on how determined are the laws in which these rights and obligations are founded on”.  

De Pando (page 7): “Rights (and therefore obligations) are usually divided in perfect and imperfect. A perfect or external right is that which can be vindicated by force: outside of society, by individual force; and in the bosom of society, by the public force, as wielded by the justice system. An imperfect or merely internal right is that which cannot be carried out without the consent of the obliged party. This difference (as Bello states) is explained depending on how determined are the laws in which these rights and obligations are founded on”.  

Bello (page 6): “We speak of a natural, universal, common, primitive law of nations when it has no other foundation than reason or natural equity, and of an arbitrary, special, conventional, positive onewhen it is formed by the express or tacit conventions, and whose force is only moderately derived from that reason which prescribes to nations, as a rule of supreme importance, the inviolability of agreements”.

De Pando (page 8): “We speak of natural – common – universal – primitive law of nations when it has no other foundation than reason or natural equity; and of an arbitrary – special – conventional – positive onewhen it is formed by conventions, express or tacit, and whose force is only moderately derived from that reason which prescribes to nations as a rule of supreme importance, the inviolability of agreements”.     

De Pando’s book was published posthumously, in 1843, by his surviving widow, Mrs. Rufina Álvarez de Acevedo y Salazar. She explains in the prologue that the publication was only possible because of a “miracle”. In 1838, de Pando, then back in Spain, was travelling from Valencia to Madrid, where he was mugged and kidnapped by a band of brigands. The kidnappers demanded a payment of 20 thousand Spanish reals. They allowed one of de Pando’s companions to continue the trip to Madrid to secure the payment. This person, whose name remains unknown, went by the place of the kidnapping once again and saw de Pando’s belongings spread all over the ground, including the pages of his manuscript – the only copy de Pando had.

Despite this “miracle”, de Pando never actually tried to publish “his” book. He spent the final two years of his life suffering due to illness and eventually died in 1840, with the manuscript still unpublished. Doña Rufina, unaware of his husband’s plagiarism, decided that this “miracle” could not be for nothing and set out to publish it herself. “There are a few small gaps of little importance”, an unnamed prologue states (that, I presume, she writes, writing in the third person and referring to herself as “el editor” – the male editor), “due no doubt to the fact that the wind carried away some pages of the manuscript, taking them to where they could not be found”. “In light of this disaster”, the “editor” concludes, “the illustrious reader will surely look upon these faults in a posthumous work (…) with indulgency. The editor has not dared to alter a single word of the manuscript’s text which is here printed as it was found among the papers of the author at the time of his passing”.

Being a plagiarism of such a famous work, de Pando’s posthumous book did not go unnoticed. In an extremely graceful move, Bello himself wrote a very forgiving review (see page 537), saying it is basically a “new edition” of his own book, but one that incorporated “interesting interpolations and instructive notes”. Speaking in the third person, referring to himself as “the author of the Principles”, Bello treats de Pando’s plagiarism as a showing of respect: “It is true that [de Pando] does the author of the Principles [meaning Bello] the honour of frequent citation, and sometimes in the most flattering ways (…) [b]ut the best compliment that [de Pando] has made to him is the faithful transport of his [Bello’s] ideas and phrases, even when he forgot to give him [Bello] a spot among his numerous references”. Ironically, though, and perhaps not without some sass, Bello’s review is not without its own plagiarism to Doña Rufina’s prologue, particularly when he retells the story of “the miracle”.

Trying to follow up on this story, I then came across yet another twist, this time involving Bartolomé Herrera, an influential Peruvian historical figure, conservative cleric, and Dean of the prestigious College of San Carlos. Today, there are streets, stadiums, schools and parks bearing his name. In the 1840s, Herrera started an aggressive campaign to combat what he saw as the pernicious liberal ideas that had arisen from the independentist movement. In 1846, for instance, he pronounced his famous Sermon on the Occasion of the Anniversary of Independence, where he rallied against liberal democracy, arguing that “governments and citizens have turned into slaves of what some call the people’s will”. Instead, he says, “supposing that sovereignty or public authority is a right, its origin lies in nature, or speaking with more exactitude, in God”. He therefore complains that, once independent, instead of “prostrating itself before God”, the new and independent Peru “had the disgrace of falling prey to the ruinous preoccupations, the impious and antisocial mistakes that the French Revolution spread”.     

As Dean of the College of San Carlos, Herrera sought to use education as a means for bringing back true conservative values into Peruvian society. One of his key steps to achieve this was to translate new materials to be used by San Carlos’ professors. With this in mind, he produced an annotated translation of Précis d’un Cours de Droit Pubic interne et externe, from Portuguese author Silvestre Pinheiro Ferreria.

The book was immensely influential in early Peruvian legal education and was widely read. Among Herrera’s annotations to Ferreira’s work, there is a quote to de Pando’s Elements of International Law. While usually conservative, Pinheiro was a proponent of open immigration, and quoted approvingly of the United States’ system, which, at the time, had no immigration rules. Herrera, a strong supporter of restrictive border control, quotes de Pando saying that the trend in the US is changing, “no doubt as a consequence of the nasty results produced by the arrival of landless proletariats with no industry” (see page L).

Being fully aware of the controversy surrounding de Pando’s work, Herrera adds a disclaimer:

“While we cannot guarantee that this assertion comes from Mr. Pando himself, we refer to it with confidence because there is nothing in this book that is not a faithful copy of a noteworthy writer. (…) We do not deny that Mr. Pando did these annotations to save himself the trouble of having to search within several books (…) [b]ut that he would think of publishing this and make it pass as an original work such as has been made after his death, we cannot believe. (…) We cannot believe that Mr. Pando could publish such a work as his; and the people who have given birth to it without discerning, from among Mr. Pando’s papers, between his own writings and the copies, have incurred in very grave a responsibility”.

It is because of this annotation in such a highly influential book that some Peruvian historians argue that the matter has been authoritatively settled. In essence, they imply, this was all Doña Rufina’s fault for not knowing enough about international law!  

Of course, one can only speculate as to why de Pando did not publish his manuscript once he recovered it or why Doña Rufina was adamant about this being a manuscript that de Pando wanted to publish. It is reasonable to conceive that de Pando was aware of his overreliance on Bello and just did not think he had enough energy to fully paraphrase the whole thing in the final years of his life. Throwing Doña Rufina under the bus seems an easy way out to spare de Pando from his poor research ethics and preserve his reputation as a giant of Peruvian conservative thought. In any case, considering the references to Bello and the strategic and nuanced changes done to the original text, as seen above, Herrera’s hypothesis that this was only a set of loose notes to use for reference only, not a manuscript meant for eventual publication (after significant paraphrasing!), seems less convincing to me.        

In the end, as noted by Jacobini, de Pando’s poor research practices paid him little favours. “It may be concluded, then”, he says, “that Pando is much less clear than Bello, because, in his plagiarism he is somewhat selective and often omits selections in which Bello clarifies his generalization. Whereas Bello seems clear, consistent, and logical in his development, Pando impresses one as being somewhat vaguer, as having less command of his subject, and as being less sure of his own theoretical and practical convictions”.

Perhaps therefore there is more than just a curious story in de Pando’s cautionary tale. I am very sure everyone would hate knowing that people are still writing and speculating about their poor research ethics 182 years after their deaths!