According to Charles Cutter—and contrary to what is commonly posited by Borderland scholars—typically justice on the northern frontier of colonial Mexico was not abusive, arbitrary, and corrupt. As over 600 criminal and civil cases from New Mexico and Texas repeatedly demonstrate, defendants had several opportunities to state and recast their positions in the course of a trial; the courts systematically provided legal counsel; defendants successfully challenged the acceptability of potential witnesses; magistrates aggressively sought out the “facts” of the case; and they seldom called for corporal and capital punishment, relying instead on sentences that generally sought compromise and conciliation. How could this be, particularly in that region of New Spain in which the local judiciary had no formal training? Such judicial practices, asserts Cutter, are testimony to the strength of the Hispanic legal culture, a belief system shared and put into practice by the state and subjects alike, and that reached beyond the major urban and administrative centers to the peripheries of Spain’s colonies.
This highly flexible and adaptive legal culture, especially on the frontier and other rural areas of the Spanish American empire, was shaped by the notion of derecho vulgar, a Hispanic version of popular or common law through which subjects from all social strata constructed a judicial system based more on local custom and sense of community-defined fairness (equidad) than on royal legislation and juridical texts. Cutter’s detailed analysis of judicial procedure in cases of ordinary (i.e., neither military nor ecclesiastic) royal justice reveals a legal system that repeatedly met the needs of most colonists and the crown, thereby fostering and embodying a “convergence of community expectations and royal law” (p. 144). Such conclusions will undoubtedly spark debate with historians who tend to emphasize social conflict over social harmony and who focus on colonial subjects who confront or resist the state and other dominant institutions and groups. Cutter is no apologist, however, for a system designed to uphold the prescribed social order and community, rather than individual, aspirations. Through a careful reading of contemporary judicial discourses and extant court cases, he offers an understanding of the legal culture on its own terms, not ours.
This important monograph challenges historians to rethink their views of the colonial judiciary. Although Cutter does not explicitly situate his study in the theoretical literature on issues of power and authority, he does recognize and amply documents the key role that the legal system played in fostering the hegemony of the Spanish colonial state. His meticulously researched study is indispensable reading for those who wish to envision Hispanic colonial law as it was articulated and used by royal officials and by many colonists from all walks of life.
