I HAVE WRITTEN THIS BIOGRAPHY OF FRANCISCO XAVIER DE GAMBOA primarily as a way to understand the legal culture of eighteenth-century New Spain. I have portrayed the jurist as an exemplary product of this culture and its most articulate defender. It should be emphasized again how different this world of law was compared to today’s. First, it fit into a larger Christian normative system. The laws made by state and society, whether royal legislation or unwritten custom, were always subject to this higher constitution of divine creation. No matter how absolute the power of the king might appear as earthly ruler, he was ultimately accountable to the higher norms of justice and fairness emanating from God. The Christian foundation of the legal order makes its pluralism easier to understand. Legislation issued formally by public institutions made up just one strand of a rich juridical tapestry. Lawyers still used the ius commune, the European common law derived from Roman jurisprudence, although less for specific rules than general principles of interpretation. The customs of the people, whether the uses and practices of indigenous villages or protocol formulated for public institutions, often overrode the prescriptions of royal law. And beneath it all was natural law, the universal principles inscribed in nature by God (according to Catholic doctrine) and discernible through human reason.
Legal pluralism then begat jurisdictional complexity. Various bodies, from the Catholic Church to the Consulado of Mexico, exercised jurisdiction, the power to make rules and adjudicate disputes. The boundaries between these public or quasi-public bodies were always subject to challenge. But what could seem like pointless skirmishes for jurisdictional turf, when aggregated, served to check and balance power. As Montesquieu recognized in The Spirit of the Laws of 1748, competition among institutions, a hallmark of early modern monarchies, protected against despotism. Finally, since the king was conceived as the supreme judge, the legal order was oriented towards justice (derecho), not law enforcement (ley). The king had extended his sovereignty to America by promising his new vassals the services of justice, to assure that each received what they were owed and that the weak were protected from the powerful. Law enforcement was just a means to this end, not an end in itself, and thus could be softened if justice required. In addition, since every vassal was promised justice, each needed access to legal processes, such as the right to send petitions to royal officials or bring suit before a judge. Subjects of the Spanish king in America should also enjoy the right to appeal unfavorable decisions to the audiencias, the high courts of royal justice. As Woodrow Borah put it, in his pioneering study of the General Indian Court, “for the Spanish . . . the idea of appeal and accountability was part of the very fabric of the state. . . . It was unthinkable to the crown bureaucracy that a civilized and Christian state should deny the right of appeal to any subject.”1 This legal order offered the flexibility needed to govern a sprawling, diverse empire in the absence of a state with much coercive power. Law provided the vocabulary, practices, and forums for the continual negotiations required to maintain Spanish rule from New Mexico to the Río de la Plata.
When attacking black legends there is always the danger of conjuring up white ones in their place. I am not arguing that the legal system of Spanish America somehow redeemed Spanish colonialism. It did not prevent small elites of white people from dominating people of indigenous, African, and mixed descent. Colonial oppression was real, and law greased its wheels from the beginning. People with money and influence got their way no matter what fine principles of justice the high courts invoked. Audiencia magistrates, typically Spaniards posted in alien lands, often shirked their responsibilities and put more effort into improving their social and economic standing than rendering justice fairly and impartially. But, again, by what standard do we judge the colonial justice system? Even the most sophisticated systems of justice today fail to live up to their ideals. For the early modern age, the legal order of Spanish America measured up surprisingly well to others in Europe and North America, especially considering the vast distances and social diversity of the Spanish Empire. Ordinary people, including the Native population, well aware of its limitations, still made abundant use of its instruments to improve their lives.2
Yet as the story of Gamboa reveals, this legal order came under unprecedented stress during the era of the Bourbon reforms. Rationalist jurists complained of its indeterminacy; regalist ministers found it a poor vehicle for the assertion of royal power. I have argued that José de Gálvez, as visitor general of New Spain and later minister of the Indies for Charles III, personified this challenge. In an era of increasing imperial competition in the Atlantic, it was his mission to strengthen Spanish control over the Indies in order to boost tax revenue and reinforce defenses. He can thus be seen as a principal agent for the attempted construction, for the first time, of a strong state for colonial government. This entailed a shift in authority from the judiciary to executive officials and military officers, whom the crown could more easily manage. It required the stricter enforcement of royal law over norms contained in the ius commune and local custom. But it did not necessarily mean centralization; one of the hallmarks of Galvesian reform was the fragmentation of jurisdiction, as the crown promoted exemptions from the ordinary jurisdiction to favor certain groups, such as police captains (the Acordada) and silver miners (the Mining Tribunal).
Gamboa, who understood the ins and outs of the old system as well as anyone, strongly resisted these changes. He defended the authority of the audiencias against the Acordada, the Mining Tribunal, the intendants, and a series of assertive viceroys. He argued that local custom continued to deserve a prominent place in the legal order, as it represented the needs and desires of people on the ground better than royal laws drafted in Madrid. To be sure, he was driven by self-interest; as an audiencia magistrate he stood to lose power with the erosion of the audiencias’ jurisdiction. But there was more to it than that. Gamboa was a loyal servant of the crown. He sincerely believed that the Spanish Empire was best served by retaining the old juridical order, with its multiple ways to accommodate the diverse interests of its subject communities. Without disruptive administrative changes, New Spain would continue to thrive economically and provide the Spanish crown with all the tax revenue it needed to compete with Britain. Many veteran officials with experience in America, notably Tomás Ortiz de Landázuri, Antonio María de Bucareli, and Antonio de Ulloa, agreed with Gamboa. They could appreciate better than reformers in Spain the real limitations of state power in America. They saw no need to test the loyalty of Spanish Americans by restricting their liberties. The old system did survive, even if many ilustrados considered it archaic and inefficient. There was simply no alternative to the old practices of consultation, negotiation, and conciliation it followed. Nevertheless, the fraying of ordinary jurisdiction was real and worrisome. It may have caused a deterioration in the quality of the administration of justice in the final decades of Spanish rule.
Gamboa’s career, as we have seen, was shaped by more than law. This study has also sought to untangle the complex nature of identity in the Spanish world. Gamboa was a Spaniard born in America, what we would now call a criollo, or creole. It might seem remarkable that the Spanish-born, or peninsular, merchants on the Consulado of Mexico would send a creole lawyer to represent them before the king in Madrid. But this is strange only if we assume the reality of a meaningful difference between creoles and peninsulares. They were all white Spaniards united by common privileges in a racially stratified, colonial society. In any case, Gamboa’s appointment as consulado deputy in 1755 might be better understood within the Basque context. Old ethnic and regional identities of Spain took root in America and could subsume whatever differences existed between European and American Spaniards. Within the Basque community in eighteenth-century New Spain, whether one was born in Guadalajara or Gipuzkoa hardly mattered. Gamboa, admittedly, was somewhat exceptional as a creole. He won an audiencia seat in 1764, in part due to his influential Basque connections, when the crown had essentially stopped appointing creoles to their local benches.3 In fact, in the famous 1771 representation by the city of Mexico complaining about the lack of opportunities for creole professionals, Gamboa was held up as an example—a creole official loyally serving the crown—to show why the discriminatory policy was unjust.
I have argued that there was more than common ethnicity and shared privileges uniting creoles and peninsulares in New Spain; they both wanted to retain as much as possible the viceroyalty’s economic autonomy within the empire. It was obviously in the best interests of the Spanish-born merchants of the Consulado of Mexico to maximize their economic opportunities in their new homeland. Although as a lawyer Gamboa was skilled at crafting arguments that might not accord with his own beliefs, in the case of his representation of the consulado in Madrid, he could in good conscience defend the old fleet system of imperial trade and pitch a consulado-led mining bank. Both would insulate the novohispano economy and promote domestic investment, not just in mining but also agriculture and manufacturing. But the Spanish crown believed that tightening its control over the American economy would best serve its interests; Gamboa argued throughout his career that looser ties, which would encourage the autonomous economic development of New Spain, would ultimately serve Spain and the monarchy as much as America.
Silver mining, as the anchor of New Spain’s economy, was central to Gamboa’s career as a lawyer, author, and judge. The Comentarios a las Ordenanzas de Minas allows us to see the industry from a perspective that challenges several conventional historiographical notions. He did accept the widely held assumption at the time, which has survived to this day, that American mining lagged European mining in technical matters. He had little positive to say about the silver miners of New Spain. He took pride in his role of diffusing through the Comentarios the latest ideas about mining and metallurgy from Saxony and France. But he also gave ample evidence to the contrary; he filled a whole chapter of the Comentarios with descriptions of the numerous innovations that enterprising individuals in New Spain and Peru had devised since the sixteenth century to improve smelting and refining. It was only in the 1780s, when European experts arrived to educate the ignorant miners of New Spain, Peru and New Granada, that the truth came out. American techniques beat out European techniques, especially taking into account the more difficult geographic conditions faced by miners and refiners in America. The artisanal production of knowledge proved superior to what formal science could come up with. A scavenger in New Spain might not have made it as a professor at the College of Freiberg, as Alzate cheekily suggested, but we should not disdain the knowledge accumulated by humble and even illiterate practitioners in colonial Spanish America.4
The Comentarios also allows us to see the weakness of the claim made by many economic historians and social scientists that Spanish law impeded the economic development of America.5 Gamboa set out clearly how the ordinances of 1584 encouraged individuals of all social ranks to pursue opportunities in mining. The statute and the customs that developed around it protected private property rights while laying out a supportive role for the government. There were clear procedures for anyone wanting to stake a claim and a variety of incentives to maximize production. Meanwhile, the state lowered transaction costs through an efficient distribution of mercury and blasting powder and kept fiscal charges moderate. At least in the case of eighteenth-century New Spain, the infamous Laffer curve actually worked: by lowering the royalty rate from 20 to 10 percent and then cutting the official price of mercury, the Spanish government reaped higher fiscal revenue overall because of the stimulus lower taxes had on production. It is clear from what Gamboa wrote about the regulation of silver mining in the 1760s that the Spanish crown did not need lessons from Adam Smith on the finer points of liberal economics. Even the Mining Tribunal, which complicated adjudication and diverted capital from the mines to the crown, was unable to brake the dynamic mining sector in the decades before 1808.
Finally, does this history of the most prominent jurist in eighteenth- century New Spain hold any lessons for Mexico today? The country may be more open and democratic than ever, thanks to the economic and political reforms of the past few decades, but its administration of justice remains deeply troubled. The state can neither contain the violent drug cartels operating on its territory nor provide reliable justice to the victims of everyday crimes. The rich and well-connected continue to flout laws with impunity. No one has been found guilty for such atrocities as the femicides of Ciudad Juárez or the disappearance of forty-three students in Ayotzinapa. On the other hand, innocent people are convicted on the basis of falsified evidence.
Gamboa’s World illustrates that a healthy system of justice requires, first of all, robust and independent legal institutions. Mexico had a higher degree of judicial independence in the eighteenth century than it does today. The audiencias represented the king in matters of justice, a huge grant of power. Audiencia magistrates, as we have seen, could initiate action on their own, as Gamboa did in freeing the Native prisoners of Mexico City bakeries, and challenge viceregal decisions, as Gamboa did throughout his long judicial career. He and his colleagues on the bench were intensely aware, however, of the fragility of this independence. It rested on the broad but contested jurisdiction, defined as much by custom as written law, that the high courts exercised over ordinary civil and criminal matters. Executive-style officials, whether the viceroy or the minister of the Indies, were always trying to trim this jurisdiction, usually for considerations of cost and efficiency. The Acordada, for example, which might be considered Mexico’s first national police force, was favored over the police captains appointed by the Sala de Crimen because it was cheap to operate, answered directly to the viceroy, and dealt with criminals expeditiously by ignoring procedural rights. The erosion of ordinary jurisdiction, especially through the proliferation of exemptions, did not just curtail the power of the audiencias, it also arguably exacerbated inequality under the law. As the second Revillagigedo noted in 1794, more and more people in New Spain brandished special privileges to escape the force of the general laws. While he often came across as stubborn and arrogant, Gamboa’s defense of the jurisdiction, power, and prerogatives of audiencia magistrates should be viewed in a positive light. He did not think that the administration of justice should be sacrificed for the sake of administrative efficiency, economic reform or tighter colonial control.
As Mexico knows today, once the rule of law is broken, it is excruciatingly hard to rebuild. A basic problem is that people wielding power, such as elected officials, cabinet ministers, bureaucrats, and the rich, never want to surrender it, especially not to prosecutors and judges who could hold them to account. There is also limited public support for the long-term policies needed to fix Mexico’s much maligned police forces, such as increased spending on salaries and training. Yet reforming the administration of justice is not impossible. It will require, first of all, the recognition by Mexican leaders that economic reform, whether neoliberal or populist, is never enough to make a happy and secure society if the system of justice is neglected. Making the promise of justice a reality again will require long-term investment and steady pressure from a wide range of civic actors. It will require international cooperation, especially from the United States, whose insatiable appetite for illegal drugs and uncontrolled gun industry makes corruption and violence in Mexico next to inevitable. And it will require lawyers and judges in Mexico willing to fight—as ruthlessly as Gamboa did, if necessary—to restore the autonomy and honor of legal institutions.