CHAPTER TWO

Courtroom Combat

Gamboa, courtrooms and Parnassus

For you the same I judge;

Here you resemble Papinius;

There a cultured Papinian.

Of the buckles that you wear

To cinch your buskin,

Do not fear the spur,

For that is your sharpest talent.

—SAN ILDEFONSO POETRY CONTEST, 1748

NO JUDGE ON THE REAL AUDIENCIA OF MEXICO IN THE LATE eighteenth century had more practical experience at the bar before rising to the bench than Francisco Xavier de Gamboa. From the time he entered legal practice in 1740 to when he departed for Madrid in 1755, he did everything a lawyer could do in New Spain. In his 1757 résumé, he boasted that he “gained such credit as an astute, eloquent, and wise jurisconsult that in recent times hardly could there be an important matter in which one party did not benefit from my prudent advice.”¹ He represented religious orders, notably the Discalced Carmelites, on all matters of property and estates. His work on behalf of silver miners made him an expert in this lucrative field for lawyers, not only on the intricacies of the Royal Mining Ordinances of 1584 but also on the technical and economic problems of the industry. Just when the Spanish crown was pushing to strengthen its leverage over the church in America, he handled a case for the new college of canons at the Basilica of Nuestra Señora de Guadalupe, Mexico City’s holiest shrine, which plunged him deep into the fraught jurisdictional politics of throne and altar. His most famous case, his representation of the merchant Manuel de Rivas Cacho, touched not only the law of wills and estates but also the delicate matters of honor and reputation in novohispano society. He also served the Inquisition as an official defender of those accused of religious offenses. His work therefore touched on many of the most vital social, economic, and religious issues in eighteenth-century New Spain.

Although the arguments a professional lawyer makes for clients obviously do not necessarily conform with his personal beliefs, we can detect in Gamboa’s briefs in the 1740s and 1750s certain themes that recur again and again in his thinking as a jurist. Most conspicuously, even before he was appointed to the bench, Gamboa believed in the vital importance of protecting the broad jurisdiction of the audiencias over ordinary civil and criminal matters. This was the key to the health of the administration of justice in his eyes. His arguments also reveal his mastery of the prodigious pluralism of Spanish American law. He studded his briefs with erudite references to a vast array of juridical, historical and even theological material. He epitomized what the late seventeenth-century Spanish jurist Melchor Cabrera Núñez de Guzmán had written about legal practice in his Idea de un abogado perfecto: “the main part of the craft and skill consists in looking at and handling many and diverse books.”² But even with the flurry of citations, something expected then in legal writings, Gamboa crafted tight and logical arguments, which brought clarity to difficult areas of the law while also highlighting the equitable considerations in his clients’ favor. In this sense, he would also have agreed with his contemporary, the Spanish jurist Juan Francisco de Castro, who wrote in 1765 that ultimately “the operations of law are always guided by the light of reason.”³

In the eighteenth century, university-trained lawyers like Gamboa did not dirty their hands in routine legal matters. Notaries handled transactions like property transfers, wills, loans, and contracts. Unlicensed legal agents did the paperwork for lawsuits and advised on litigation strategy. Scribes and crown attorneys handled courtroom proceedings. A letrado like Gamboa might provide an initial opinion about the merits of a case but typically only became involved near the end, either to write the formal brief for a litigant or to instruct the judge, who might not have legal training himself, on underlying questions of law.⁴ In addition, in the Spanish inquisitorial system, there were no public trials featuring cross-examinations and emotional addresses to a jury. Rather, lawsuits generated reams of paper, starting with the initial plea for justice and continuing on with notarized witness statements, copies of interlocutory writs, summaries of previous proceedings, the opinions of the letrados, and finally the decisions of the court. As Bianca Premo aptly put it in her study of eighteenth-century litigation, “law was conceived as a circulation of texts.”⁵ Ironically, one of the only things not reduced to writing was the reasoning behind judicial decisions, what formed the foundation of English common law.

The Discalced Carmelites

In 1740, as an aspiring lawyer, Gamboa started off on the right foot by landing a clerkship in the law office of José Méndez Meléndez, one of the top letrados in Mexico City. Born in the early 1680s, Méndez enjoyed the reputation as “a truly learned subject, respected as the master of lawyers.”⁶ The highlight of his career was acting as the official legal counsel to Juan de Acuña, the Marqués de Casafuerte, the much-respected Peruvian-born viceroy of New Spain from 1722 to 1734. This would have made him, in effect, the most influential lawyer in New Spain during the years of Gamboa’s early education. Méndez had a busy practice when Gamboa joined the office, representing clients from every branch of novohispano society.

Yet shortly after he took Gamboa on as associate, Méndez dropped dead, reportedly in court while arguing a case.⁷ If the death of his father in the 1720s had been an unmitigated tragedy, at least until Mesía de la Cerda came to the rescue, the sudden death of Méndez proved to be something of a lucky break. As Gamboa explained it, the day after the death of Méndez, he had to appear in court in his principal’s place and proceeded to make such “an effective argument that I won justice for the party and the applause of the court.”⁸ This early success convinced the existing clients of Méndez to stick with the young Gamboa, who immediately had a thriving practice. As he later put it, “I began my career where other lawyers ended theirs.”⁹

One of the mainstays of his legal practice from the start was the Discalced Carmelites. This austere order, founded in Spain in the 1560s, lived a cloistered life devoted to prayer. They nevertheless needed a lawyer to handle their worldly affairs, such as the management of income-producing properties. Gamboa likely inherited the Carmelite file from Méndez and the early triumph of 1742 might have been the case of a bequest gone wrong in San Luis Potosí.

The facts were the following: In 1732 Nicolás Fernando de Torres, a prosperous Spanish immigrant, died and left two large agricultural estates or haciendas, the Pozo and Peotillos, to the Carmelites with the proviso that they use the income from them to fund a new convent and a beaterio, a home for single women. If the Carmelites were unable to start work on these projects within six years, the haciendas would go to the Jesuits. In the meantime, his widow would continue to occupy the two properties. The Carmelites immediately applied for the requisite royal approval for their new convent building. The beaterio, which only required local approval, went ahead without complication. Three years after Fernando de Torres’s death, while still waiting for an answer from Madrid, his widow passed away and the two haciendas went to her brother, Francisco Zapata, a secular priest. Zapata evidently had no desire to see the properties go to the Carmelites. He dragged his heels in providing Madrid with the documentation requested to approve the convent. In 1738, after the six-year limit stipulated by the will had expired but before the crown had given its approval for the convent, the Carmelites took legal action against Zapata. They asked the Real Audiencia of Mexico to order the sequestration of the two haciendas on the grounds that Zapata had deliberately sabotaged their efforts to build the convent. The court took this action and then appointed an independent appraiser who found that Zapata had grossly mismanaged the two properties, with their value declining from 650,000 pesos at the time of Torres’s death in 1732 to just 200,000 in 1738. Zapata next exercised his right to request a revista, or review, of the decision. He argued that since the six years had expired without any progress on the new convent, the haciendas of Pozo and Peotillos should go to the Jesuits. They had incidentally promised Zapata a generous annual payment in the event they got their hands on the haciendas. This was in many ways a classic novohispano case. It featured competitive religious orders, the frustrated last will of a pious Spanish immigrant, an unscrupulous secular priest, and the standard delays in transatlantic decision-making.

Gamboa handled the revista at the audiencia on behalf of the Carmelites. He had a number of tricky legal questions to address. Did the Real Audiencia of Mexico have jurisdiction since the dispute concerned an ecclesiastical body? If so, had the court acted properly in the first place in ordering the sequestration of the properties? Were the Carmelites at fault because the six-year limit had expired without the start of construction on the convent? Spanish legislation furnished no answers to these questions. Gamboa had to turn to the ius commune, beginning with Roman jurists digested in the Corpus Juris Civilis. He cited the Italian jurists Giacomo Menochio on procedural matters and Antonio Peregrino on trusts. He drew upon the authority of the Spanish jurist Francisco Salgado de Somoza, whose 1646 Labyrinthus creditorum concurrentiae remained the leading text on debtor-creditor law throughout Europe and America. And he referenced the work of Antonio Gómez, the sixteenth- century Spanish juridical expert on marriage and inheritance. Yet what counted at the end of the day was finding a logical path to a just outcome. According to Gamboa’s analysis, the Carmelite friars had done everything in their power to fulfill the wishes of Torres. They had set up the beaterio without delay and applied immediately for crown approval of the new convent. They were just the victims of the dilatory Spanish bureaucracy and especially the duplicity of Zapata. Justice would therefore be best served by ignoring the expired six-year limit and recognizing Carmelite title on the properties.

The audiencia accepted Gamboa’s reasoning in full and turned the haciendas over to the Carmelites, pending final approval for their convent. This came soon enough, and construction of the new convent complex finally commenced in the late 1740s. In 1764, more than thirty years after the death of Torres, the convent finally opened, with its magnificent baroque Templo de Nuestra Señora del Carmen, which remains one of the architectural splendors of San Luis Potosí.¹⁰

With victory in the Torres case, the Carmelites entrusted Gamboa with a lot of legal work in subsequent years. A significant number involved bad estate managers, a problem that religious orders, especially those confined to monasteries and convents, continually faced. Perhaps the most intriguing case concerned the internal government of the Carmelites. According to the order’s sixteenth-century rules, the members of each province elected from among themselves a definidor, or provincial administrator. When the Carmelites first came to New Spain in the late sixteenth century to form the new province of San Alberto, they lacked local candidates to serve as definidor. So the pope approved an exception to this rule allowing the Carmelite friars of San Alberto to elect an outside candidate. Over time, this exception hardened into a custom; a Spanish monk always served as head of the order in New Spain. Gamboa was asked to determine, presumably at the behest of American-born Carmelites, whether it was time to return to the original rule favoring local candidates.

As a Spanish American himself, Gamboa would have likely sympathized with the local Carmelites. He also knew well the patriotic apologetics of Juan José Eguiara y Eguren, the author of Bibliotheca Mexicana, as well as the long history of American complaints against peninsulares for taking jobs and opportunities from worthy locals. In his opinion, however, Gamboa did not refer to these arguments. Instead, he stuck to a neutral natural law argument, citing Francisco Suárez, the influential Spanish Jesuit theologian and jurist. In De Legibus (1612), Suárez had explained that any positive law or rule could become unjust over time if circumstances changed. This was obviously the case here: the exception might have made sense in the sixteenth century, but now there were many local candidates who could serve as definidor. Justice thus demanded that the Carmelites revert to their original rule. We know little more about the case, including the outcome.¹¹ It might just have been an internal legal opinion Gamboa wrote for the Carmelites. But it is noteworthy for Gamboa’s deployment of a natural law argument to defend the right of people born in America to occupy leadership positions. Personally, he was one of the few novohispanos of his era to rise above this discrimination, although he obviously understood the frustration of his less fortunate paisanos.

Gamboa also represented a rather famous Franciscan friar, José Torrubia, considered one of Spain’s first paleontologists. In 1749 Torrubia found himself imprisoned in the Morro Castle in Havana, accused of embezzlement and neglecting his duties while serving as a missionary in the Philippines in the 1720s and early 1730. Torrubia, like many churchmen of the eighteenth century, found a stronger vocation in science than preaching the Gospel. With a microscope at hand, he scoured the countries where he was sent by his order to look for fossils. On his behalf, Gamboa wrote a letter to the viceroy of New Spain, Juan Francisco de Güemes y Horcasitas, Conde de Revillagigedo, arguing that the charges against Torrubia were spurious.¹² It was a straightforward plea that Torrubia had indeed fulfilled his evangelical duties, not a defense of his paleontological endeavors. We don’t know if it was Gamboa’s defense that sprung Torrubia from jail in Cuba, but the friar did manage to return to Spain. In 1754 his groundbreaking Aparato para la historia natural española was published. He explained that the fossils of sea creatures found in high mountains far from oceans must have been carried there by the Great Flood of Noah.¹³ Even in the mid-eighteenth century, the biblical chronology for the history of the earth remained rock solid. Natural scientists may have been collecting the necessary data to shatter the old paradigm, but it held firm until the late eighteenth century.¹⁴

A Gold Mine for Litigators

The search for silver drove Spanish conquest and settlement, and silver mining powered the novohispano economy, stimulating ranching, farming, and manufacturing. It encouraged the migration of indigenous groups from the settled farming villages of the center to the irrigated haciendas of the Bajío to the rangeland of the northern plateau. It juiced commerce, both domestic and overseas. Demand for silver came not just from Europe but also from China, whose government demanded tax payments in silver.¹⁵ After a slowdown in the seventeenth century, part of a global phenomenon tied to the Little Ice Age, mining bounced back beginning in the late seventeenth century. The first great mining center of Zacatecas revived, Guanajuato took off, and the new camp of Bolaños experienced a bonanza. New Spain produced around half of the world’s silver in the eighteenth century. As the viceroyalty’s chief export, silver linked New Spain to the global economy, paid for imports, and generated the tax revenue necessary to uphold Spanish sovereignty in the Indies. For a young lawyer looking to make his mark and restore his family’s economic standing, mining offered Gamboa opportunity.

Like his work for the Discalced Carmelites, Gamboa inherited from his deceased mentor his first big mining case, the representation of Antonio de Arrieta, a miner from Chihuahua.¹⁶ The basic facts of the case might have been straightforward, but the path of its litigation was tortuous. In Santa Eulalia, a new mining district in Chihuahua, Arieta and his neighbor Manuel de San Juan both claimed title to a vein of silver that lay between their mines. In 1735, in accordance with ordinance twenty-eight of the 1584 statute governing the industry in New Spain, Arrieta received permission from the local alcalde mayor to restake his claim. He enjoyed this right as first registrant. Naturally, Arrieta’s new stakes incorporated the dispute vein. San Juan appealed to the Audiencia of Guadalajara, the high court for the district. To clarify any doubts as to property lines, the court ordered a new survey of the entire area. On the basis of this, on December 4, 1736, the audiencia confirmed the local judge’s decision in favor of Arrieta. To ensure enforcement of its decision, the court asked the viceroy of New Spain, Juan Antonio de Vizarrón, to send an army officer to Santa Eulalia. By April 30, 1737, Arrieta was back at work on his mine, beginning the excavation of the promising vein of silver ore.

San Juan however did accept defeat easily. He managed to convince Viceroy Vizarrón to intervene on his behalf. Viceroys often grabbed jurisdiction over mining cases, with the argument that mining was more a matter of government, for its importance to royal revenue, than of justice. Mining cases also offered viceregal officials opportunities to plunge their beaks into rich waters, although that did not seem to be the case here. It is not clear why, but the viceroy evidently helped San Juan obtain from Madrid a real cédula, a royal order confirmed by the Council of the Indies, dated November 12, 1737, which recognized San Juan’s title to the disputed property. For two years, however, San Juan did not try to enforce this order. He knew that the local judge favored Arrieta. But when a new royal official arrived in June 1740, San Juan moved quickly to present the cédula and managed to get Arrieta evicted from the mine. San Juan then sent workers to chase Arrieta and his local legal representative out of town. Such was justice in a northern novohispano mining town in the eighteenth century. San Juan took over the mine with access to the rich silver vein and soon hit pay dirt.

Arrieta came south in the summer of 1740. Local justice had failed him, so he looked to the authorities in Mexico City for relief. He sought the advice of Méndez, who evidently recommended a direct appeal to the new viceroy of New Spain, the Duque de la Conquista. With little experience in America, Conquista refused to reverse the decision of his predecessor Vizarrón in assuming jurisdiction over the matter. Arrieta then sought justice at the Real Audiencia of Mexico, which had the authority to contest viceregal decisions that violated law. On May 12, 1742, the high court in Mexico City ruled in Arrieta’s favor. It declared that Vizarrón had had no legal right to intervene in a judicial matter before its sister court in Guadalajara and the original 1736 decision in favor of Arrieta should be enforced.

Meanwhile, San Juan, whose pockets must have now clanged with silver, somehow managed to secure a second cédula from Madrid that reaffirmed his title to the mine. The only way to stop him, therefore, was to convince another new viceroy, Pedro Cebrián y Agustín, Conde de Fuenclara, to recognize the jurisdiction of the high courts.¹⁷ With the death of Méndez, Gamboa, just twenty-five years old, took over the representation. On January 14, 1743, he submitted an extensive brief to the legal advisor of Fuenclara. The alegato summarized the complicated proceedings so far and laid out the reasons to support Arrieta’s claim. First and foremost, the Audiencia of Guadalajara retained jurisdiction and thus its ruling on December 4, 1736, in favor of Arrieta still stood as determinative. On this point Gamboa cited both royal law and the revered Solórzano: “This is the principal spirit of the Jurisdiction of the Royal Audiencias, of which our Recopilación is clear, especially in laws XXXVI and XXXVII of Title III, Book III, that in matters of civil or criminal justice the Viceroys leave it to the Audiencias, without being able to intervene in any way (as Sr. Solórzano teaches as well in Book V, Chapter III of his Política Indiana).”¹⁸ Here was a bedrock principle of the Spanish American justice system that Gamboa never forgot: viceroys had no power to interfere in judicial matters before the courts. Gamboa argued Arrieta was right to seek justice in the Real Audiencia of Mexico since, as Solórzano also taught, only the senior court could overturn a viceregal decision.¹⁹ As for the two cédulas of 1737 and 1742 in favor of San Juan, Gamboa argued they must have been obtained fraudulently and thus lacked legal force. He wrote that San Juan had tried “to win by malice, what he could not win by law.”²⁰ Finally, Gamboa ended his defense of his client with an emotional invocation of equity. Poor Arrieta, he wrote, “after imponderable expenses and difficulties, won judgments in Chihuahua and Guadalajara, obtained possession of his old measurements for three years, only to see them suddenly stripped from him again at a time of bonanza.”²¹ In the period that San Juan occupied the mine illegally, he had extracted the huge sum of 150,000 pesos in silver. Gamboa’s arguments persuaded Viceroy Fuenclara to give up the claim for jurisdiction assumed by his predecessor Vizarrón and recognize that of the Audiencia of Guadalajara. At the end, Arrieta won back his mine but whether there was any silver left after San Juan’s unlawful occupation is unknown.

Gamboa represented miners in all the major mining districts of New Spain. Perhaps no case had higher stakes and a more intriguing connection to his later work as an audiencia magistrate than his early 1750s representation of Agustin Moreno y Castro, the Marqués de Valle Ameno, in his fight with Pedro Romero Terreros over title to a mine in Real del Monte. This district close to Mexico City and adjacent to the town of Pachuca was the site of the most ambitious rehabilitation project in the eighteenth century. In 1739 José Alejandro de Bustamante negotiated an agreement with the viceregal government that guaranteed him a number of valuable concessions, including tax relief, discounted mercury, and government-supplied draft labor. In return, he promised to dig a tunnel that would drain the flooded Vizcaína vein, well known as one of the richest in New Spain. He brought in Pedro Romero Terreros, a young Spanish merchant based in Querétaro, as his principal financial backer.²² The first tunnel they dug, however, came in at the wrong angle to fully drain the water-filled mines. In 1747 Bustamante sought additional investors, including his brother-in-law Valle Ameno, a fellow Andalusian who already owned the Todos Santos mine in Real del Monte, to fund a second tunnel. In exchange for his investment, Valle Ameno received the title to the already registered San Vicente mine along the vein. In 1750 Bustamante died after he fell from his horse and contracted gangrene from his injury. Terreros, the merchant-financier, assumed control over the project. His first move was to get rid of Valle Ameno. In proceedings that commenced in 1753, Terreros claimed that Valle Ameno’s title to San Vicente was revocable upon his decision. In the alternative, Terreros argued that Valle Ameno had forfeited his title to the mine by failing to keep at least four men at work continuously as the 1584 mining statute stipulated.²³

Gamboa handled Valle Ameno’s case before the Real Audiencia of Mexico. He made short work of Terreros’ arguments. First, why would Valle Ameno invest his hard-earned money in a risky venture without secure title to the mine? It was ridiculous for Terreros to argue that Valle Ameno’s title over San Vicente was revocable. Terreros’ second argument was equally specious. According to the terms of the 1739 agreement with the viceregal government, ordinance thirty-seven of the 1584 statute, which stipulated that four men had to work a mine for the title to remain good, had been suspended for as long as work continued on the drainage tunnel. Terreros himself benefited from this concession; it was the height of hypocrisy for him to deny the same privilege to his fellow investor Valle Ameno. The Real Audiencia of Mexico accepted Gamboa’s arguments and validated Valle Ameno’s title to the San Vicente mine.²⁴

Like San Juan in Chihuahua, Terreros would not let an adverse judicial decision stand in his way. Rather than seek the intervention of the viceroy, however, Terreros went directly to the Council of the Indies, the supreme judicial authority for America. Only an extremely deep-pocketed litigant could consider this option. By this time, Valle Ameno had died, and Gamboa had moved to Madrid to represent the merchants of the Consulado of Mexico. But he kept an eye on the litigation, maintained by the widow and children of Valle Ameno. The Council of the Indies rejected Terreros’s plea, since “if the appeal were admitted, the greatest inconvenience would ensue, as everyone would abandon the courts of first instance, and the ordinary remedies of law, and would have recourse to new and extraordinary remedies, tending to bring the superior courts into disrepute, to detract from the authority of decisions, which ought to be regarded as definitive, to prejudice the interests of the public, and to bring irreparable injury upon the parties concerned.”²⁵ Terreros still had the right to request the Real Audiencia of Mexico to review its decision.

The story did not end there. Terreros had not become one of New Spain’s most successful capitalists by accepting no for an answer. In 1759 after the audiencia refused his application to reopen the case, he sent a crew of armed men to occupy the San Vicente mine by force. The Valle Ameno family responded by sending their own men to defend it. Fighting broke out in the streets of the neighboring town of Pachuca. The audiencia fined Terreros 5,000 pesos for his illegal seizure of the mine, a pittance considering the wealth then flowing from his other mines in Real del Monte. In January 1766, the Valle Ameno family, worn down by almost fifteen years of litigation, surrendered the title of the San Vicente mine to Terreros.²⁶ Then at the peak of his powers in 1766, Terreros was about to push his luck again, this time trying to squeeze the wages of his workers. As we shall see, Gamboa once again was required to provide his legal expertise to forestall violence.

By representing silver miners in the 1740s and 1750s, Gamboa gained a comprehensive knowledge of New Spain’s anchor industry. He learned the intricacies of its laws and the troubles that ensued when litigants and other authorities did not respect the jurisdiction of the audiencias. Along the way he learned about how mines were financed and how operators contracted labor. Not least, he came to understand the technical questions, such as how mines were drained and ventilated and how raw ore was turned into shining bars of silver. And by representing miners in court, he gained a feel for their psychology. These were men willing to put everything at risk for the slim chance of great fortune. They were unlike his father and other Basque merchants, who understood caution and diversification.

The Colegiata de Guadalupe

By the early 1750s Gamboa had reached the top of the legal community in Mexico City. He was the lawyer that took on the highest profile cases, such as the representation of the colegiata at the Basilica of Nuestra Señora de Guadalupe against the archbishop of Mexico, Manuel José Rubio y Salinas. The colegiata was the college of canons, a residential community of secular clergy, first proposed for the basilica in 1709. After decades of fundraising and organizing by Father Juan de Alarcón, the colegiata was ready to open in the late 1740s. Alarcón had raised an impressive endowment of 500,000 pesos, enough to support himself as abbot, ten canons, six prebendaries, and six chaplains.²⁷ It would be the most important canonical chapter in New Spain after that of the cathedral itself. On May 27, 1749, the crown approved its creation, issuing a cédula that put the new ecclesiastical institution under royal patronage. This would exempt it from the jurisdiction of the archdiocese of Mexico controlled by Rubio.

It seemed the perfect time to seek royal protection for a church body. The Spanish crown in the mid-eighteenth century was determined to strengthen its power over the church. In Europe it was negotiating a new concordat with the Papacy that would reinforce the real patronato, the crown’s historic rights over church appointments and financial matters in Spain and America. And in New Spain and Peru the crown had already launched the secularization of the doctrinas, which would strip the regular orders of control over Native parishes, putting secular priests under episcopal authority in charge. Such a move, it was hoped, would help assimilate Natives into Spanish culture while enhancing the crown’s control over crucial matters of religion.²⁸ While a contentious time in church-state relations, it seemed that the crown definitely had the upper hand. Thus the prospect of the Colegiata de Guadalupe opening under royal patronage and thus exempt from episcopal control looked like a sure bet.

Rubio y Salinas, the archbishop of Mexico, a canon lawyer before his appointment in 1748, refused to relinquish his authority over the college of canons of Guadalupe. He simply ignored the royal cédula granting the colegiata independence and refused to carry out the investiture ceremony to allow the college to open. He demanded that Alarcón, as the new abbot, inform him regularly on the “status of the sanctuary; its rents, collected and what should be collected; its expenditures, for what ends and with what powers.”²⁹ He must have considered it absurd that a college of canons attached to the sanctuary of Guadalupe, so closely associated with the archdiocese since the apparition of the Virgin to Juan Diego in December 1531, would not come under his full control.

Alarcón came to Gamboa for advice. The lawyer recommended enlisting the support of the viceroy of New Spain, the Conde de Revillagigedo. Gamboa wrote a long alegato addressed to Revillagigedo, which put forth a full-throttled defense of the real patronato. “The high powers of kings,” Gamboa wrote, “do not need defenses among the vassals, as they rest on the throne of His Majesty as attributes of his sovereignty, and do not only oblige veneration and respect but demand all of the vassals’ attentions.”³⁰ Here Gamboa sounded more like a Spanish regalist than a novohispano jurist steeped in the pluralism of American law. This was an argument, however, designed to appeal to a viceroy with a heightened sense of his own authority. Revillagigedo, an assertive military commander, had few qualms about trespassing on established jurisdictions, as the audiencia and consulado of Mexico knew well. Gamboa prudently avoided accusing Rubio of any misconduct or disloyalty but did go after the archbishop’s legal advisor, Antonio Medina, who had questioned the legitimacy of the royal cédula. This charge was extremely dangerous, according to Gamboa, since it impugned royal authority itself. All officials in America had the responsibility, he asserted, to “conduct themselves with honor as well as to validate the royal rights and authority in the kingdom, where there are no arms but the yoke of obedience.”³¹ Again, to win the support of Revillagigedo, he argued that royal power was at risk in America if the cédula was not enforced in favor of the colegiata.

Revillagigedo refused to bite. He did not want any trouble with Rubio at the time as they both grappled with the contentious implementation of the secularization decree. Removing Native parishes from the control of the Franciscans, Dominicans, and Augustinians was a higher priority than giving a new college of canons at the Basilica of Nuestra Señora de Guadalupe royal protection from episcopal control. Without viceregal support, Alarcón had no choice but to accept defeat. On October 25, 1752, Rubio carried out the investiture ceremony under his own terms, and the colegiata opened under his jurisdiction. The archbishop’s victory in the case made it clear to Gamboa and his friends in the Basque community of Mexico City that they faced a formidable defender of episcopal jurisdiction. If Rubio would not accept an independent college of canons, would he accept an independent school for girls?

The Case of Manuel de Rivas Cacho

By the early 1750s Gamboa was the lawyer of choice for wealthy merchants in Mexico City, and not only those of Basque descent. Manuel de Rivas Cacho, the leading montañés merchant on the Consulado of Mexico, hired Gamboa to represent him in a case not only with significant financial consequences but also social and reputational. It involved the estate of Rivas Cacho’s deceased wife, Josepha María Franco Soto.

Don Manuel de Rivas Cacho married Doña Josepha in the early 1730s, a second marriage for both. Don Manuel had at least one child from his first marriage, a daughter Ana. Doña Josepha, childless but rich, brought significant assets to their union. After almost twenty years of marriage, Doña Josepha died following a lengthy illness on March 2, 1751. On the night of her death, Juan José de la Roca, her confessor and spiritual advisor, stunned the family by presenting a will, dated February 4, 1749, and notarized on April 22, 1750, that declared him her sole heir and executor. On March 24, 1751, three weeks after Doña Josepha’s death, Roca launched proceedings in the Real Audiencia of Mexico to have this will recognized and enforced. Don Manuel responded by submitting to the court another will, dated February 24, 1751, dictated by his wife on her sick bed a week before her death. Although an oral or nuncupative will, seven people had witnessed its making, and a notary, Juan Antonio de Arroyo, had recorded its contents. This document recognized her husband as her sole heir and executor and expressly revoked all previous testamentary instruments.

Gamboa’s old mentor, José Mesía de la Cerda, heard the case in first instance, as one of the responsibilities of alcaldes del crimen on the Real Audiencia of Mexico was to hear local civil cases of consequence. Mesía de la Cerda ruled in favor of Roca, the priest. Don Manuel then appealed this decision to the full panel of the Sala de lo Civil of the audiencia, the civil law chamber of the high court. At this stage, Roca came up with two more testamentary instruments, one dated May 15, 1750, which divided Doña Josepha’s estate into three equal parts: one for Don Manuel, another for Roca, and the third for the construction of a church; and another, a letter purportedly signed by Doña Josepha just before her death, that repudiated the will of February 24, 1751, in favor of her husband. It said her true intention was to leave everything to Roca. The basic question facing the court in this confusing mess was whether the will of February 4, 1749, in favor of Roca should be preferred over the will of February 24, 1751, in favor of her husband, Don Manuel de Rivas Cacho.

Gamboa’s alegato in defense of Rivas Cacho was a tour de force of juridical erudition.³² In order to work out which testamentary instrument should prevail, he cited ius commune authorities on such questions as the freedom to dispose of one’s assets, the requirements for the validation of oral or nuncupative instruments, and the scope of revocatory clauses in testamentary documents. He referenced the medieval commentators Bartolus and Baldus; leading Spanish juridical authorities of the sixteenth century, such as Diego de Covarrubias, Antonio Gómez, Gregorio López, and Martín de Azpilcueta; and the canonist Cardinal Luca, who commented on the decisions of the Roman Rota, the church’s highest court of appeal. On the question of the priest’s duty to avoid influencing women and other inherently weak persons in the making of wills, Gamboa referred to the Codex Theodosianus, a fifth-century Roman law collection that predated the Corpus Juris Civilis. He also referred to the Gospel of Matthew and the writings of church Fathers Jerome and Ambrose. Gamboa did not ignore Spanish legislation either, citing Las Siete Partidas, the 1505 Leyes de Toro, the 1569 Recopilación de leyes de Castilla, and a recent judicial decision of the Council of the Indies.

The core question was whose reputation would survive, that of merchant or of the priest? Both sides held back nothing in trying to destroy the honor of the other. Roca produced witness statements that described Rivas Cacho as an abusive and miserly husband. Angel Franco, Doña Josepha’s cousin, testified that Rivas Cacho was “a subject full of hate, unaccustomed to work, who dissipated his fortune because he hadn’t made it himself.”³³ Agustín de Jauregui, a Jesuit friend of Roca, swore that “the public fame of the Colonel, as he was commonly called, was of a miserly spirit.”³⁴ He allegedly tried to prevent his wife from spending on such good causes as dowries for poor girls and feast days at local parishes. Other witnesses swore that she had to sell off her jewelry in secret to fund her beneficiaries. Roca’s lawyer also brought up an earlier lawsuit in which Rivas Cacho apparently tried to gain control of Doña Josepha’s assets even before she died. Finally, in what Gamboa called “the most ignominious calumny” of them all, several witnesses testified that Rivas Cacho and his wife occupied separate bedrooms, thus demonstrating allegedly a lack of spousal love and affection.³⁵

To defend Rivas Cacho, Gamboa amassed twenty-three witness statements. One declared that there was always “an abundance of clothes and food in the house, not only for the masters but for all the relatives and servants.”³⁶ Whenever Doña Josepha needed money, she just sent a leather pouch to her husband’s bookkeeper who filled it immediately, no questions asked, with up to 400 pesos. According to this testimony, in the course of the marriage, Doña Josepha had paid for nine thousand masses, an annual expenditure of around 500 pesos. As for sleeping in separate bedrooms, there was nothing suspicious about that. Doña Josepha was often sick, she liked to pray in private, and wanted extra space to play with her step-grandchildren, the children of Ana and her husband Francisco de la Cotera, who lived next door.

In his presentation of the evidence, Gamboa portrayed Roca as a greedy scoundrel in cahoots with an unscrupulous legal agent, Nicolás de Rivera Ortuño, whom he described as “not a lawyer, not a notary, not versed in procedure . . . just a poor man, without money, trade, or any known occupation.”³⁷ It was hardly credible, Gamboa argued, that a woman of such high social standing as Doña Josepha would go against nature and leave her entire estate to an outsider rather than her own husband. He pointed out the suspicious circumstances of the will of February 4, 1749. It appeared on the night of her death and was printed on ordinary paper, which was enough to cast doubt on its provenance. Gamboa even adduced the evidence of two handwriting experts, who testified that the signature of Doña Josepha on the deathbed will of February 28, 1751, in favor of Roca, had been forged. As for Roca, his self-interest in profiting from the estate was obvious. As a capper, Gamboa reminded the court, as a matter of both civil and canon law, a woman’s confessor could not play any role in the making of a will. He could certainly not be its beneficiary.

Gamboa won the case for Rivas Cacho. The definitive ruling came down on February 6, 1754, less than three years after Doña Josepha’s death. Considering the complexities of the legal issues, the speed of the proceedings was remarkable. This was no Jarndyce v. Jarndyce, the interminable English estate case lampooned by Charles Dickens a century later in his novel Bleak House. Litigation, almost always slower than at least one of the parties would like, was not delayed unreasonably, it would seem, in eighteenth-century New Spain. Gamboa wrote a book about the case. More specifically, to restore the reputation of his client Rivas Cacho and, perhaps more importantly, to burnish his own standing as a jurist of note, Gamboa arranged for the publication of his thick alegato in the Rivas Cacho case.

The Courtroom Experience

No other audiencia magistrate of the late eighteenth century knew New Spain as well, both practically and legally, as Gamboa. His experience as a private lawyer for almost fifteen years, from his graduation at the University of Mexico to his departure to Madrid in 1755, gave him first-hand knowledge of the jurisdictional frontiers of New Spain, the ins and outs of mining law, and the place of the ius commune, local custom, and royal legislation in defining the rules of everyday life in America. He realized quickly the importance of respecting the jurisdiction of the audiencias to assure the expeditious and authoritative administration of justice. Viceroys could fulfill their own responsibilities to the king by allowing the courts to do their work without interference. To be sure, like any lawyer, Gamboa made arguments at times solely to serve a client. His strong regalist argument for the Colegiata de Guadalupe went against his position later in his career that royal authority had clear limits, especially if opposed by local custom. He pulled out all stops for Rivas Cacho, even if the merchant only won because the priest was even less trustworthy than Gamboa’s client.³⁸

This survey of Gamboa’s years as a private lawyer suggests that the administration of justice in mid-eighteenth-century New Spain, at least at the audiencia level, was not nearly as bad as often assumed. People went to court to resolve their difficulties and used other legal processes available to them, like writing letters to royal officials. The high courts moved quickly once proceedings commenced, with the complicated Rivas Cacho litigation completed within three years. On the other hand, a judicial decision, like a royal cédula, did not guarantee compliance. Losing parties, at least those with sufficient wealth, could ignore contrary rulings, as San Juan did in Santa Eulalia and Terreros in Real del Monte. Violence could still erupt. This was, however, hardly unique to New Spain at the time and remains common today, even in the most outwardly law-abiding societies.