Book Review

By comparison with the elegance and complexity of legal culture in Spain's colonial urban centers, legal procedures on the far northern border of New Spain have long seemed an arbitrary exercise of frontier justice. The absence of trained legal professionals, the relative scarcity of legal texts, and a legal system that forbade written explanation of a magistrate's decision all contributed to the impression that judicial administration in remote provinces bore little relation to the system developed in established centers of jurisprudential study and painstakingly adapted to the colonial regime. First expressed by disdainful contemporaries, the negative view of the legal culture of northern New Spain has proved a deterrent to systematic historical study.	1
Charles R. Cutter's meticulous work at once fills this void in legal history and argues that the civil and criminal procedure of the frontier provinces, while admittedly simplified, partoo k of the standard colonial practices and sources of law to a significant degree. Rather than ignore the law and dispense impressionistic rulings, the Texas and New Mexico officials who form the subject of Cutter's inquiry utilized their knowledge of received law and custom modified by arbitrio judicial, or judicial discretion, to achieve a level of justice consistent with community norms. This focus on community expectations and the interaction between rules and justice underlies Cutter's decision to include only those courts with the broadest personal jurisdiction, the royal courts, rather than to incorporate ecclesiastical and military courts as well. Although the study is limited to documents available from two remote provinces during the period between the beginning of the Bourbon regime in 1700 and the first stirrings of Mexican independence in 1810, the common absence of formal legal expertise throughout all but the urban centers of the empire indicates the potential for wide applicability of Cutter's conclusions.	2
The Legal Culture of Northern New Spain is divided into three sections, with the first describing the social, geographic, and legal elements that selectively combined to form the legal culture of the region. The remote location and lack of technological sophistication meant that much of the population was engaged in agricultural production for local consumption, with the addition of surplus livestock for trading purposes. Despite formal adherence to an economically and racially based class system, the general poverty of the region led to somewhat blurred distinctions. Constant interaction with native peoples, whether hostile or friendly, independent or westernized through servitude or the mission system, was also a fundamental incident of border society. These cultural elements limited the range of litigation and burdens of judicial administration that appeared on the frontier. In addressing those legal disputes or violations that did arise, officials had recourse to several fonts of jurisprudence, a simple English-language outline of which appears in this section. In addition to written law originating in Castile or in the New World, the derecho indiano incorporated juridical commentary, established local custom, and equity (which the author defines as a "communally defined sense of fairness" [34]). Using specific cases to illustrate his claims, Cutter observes that while written law and commentary might have played a greater role in the decision-making processes of the educated urban judiciary, local officials trained through practice and observation were more likely to have recourse to the equally valid legal sources of custom and equity. Cutter refrains from expressing a preference for the local derecho vulgar, noting that the centralized, fixed sources of law provided an overarching governmental structure, but he emphasizes that the local reliance on custom and equity provided access to justice across social classes and races and a forum for negotiating harmony within the community.	3
The second and third sections of the book respectively address judicial personnel and judicial procedure. In a manner similar to the early chapters, Cutter sets forth the formal standards for qualification as a member of the elite legal profession and describes the full complexity of available procedure. He then goes on to assert that the presence of untrained officials and abbreviated proceedings on the frontier were not only well within the established tradition, but were also in some ways better suited to the social needs and financial constraints of the provincial citizens. Particularly important in assessing the competence of local officials is the description of their varied backgrounds, which often included previous administrative as well as practical experience and consequent familiarity with the written law. With respect to the adequacy of criminal and civil procedure, Cutter acknowledges that the use of the summaria, the juicio plenario, and the sentencia were quite irregular and were interpreted through a wide range of judicial styles. He concludes, however, that the combination of judicial and administrative function, the ties between official and community, and the incorporation of local values into the judicial process safeguarded the proper administration of justice. Thus provincial legal activity was less a ragged copy of the judicial administration present in the urban centers of the empire than a vital example of the potential for flexibility and responsiveness within the Spanish colonial legal regime as a whole.	4
Through his chronicle of legal sources, actors, and procedures in northern New Spain, Cutter has established a history of continual interaction between royal law and local customs and values in the border provinces, eliminating the impression that formal jurisprudence was irrelevant or that local justice was capricious. Given the additional claim that the law served as a vehicle for negotiation and cultural formation within the society, a lengthier work of social history might have traced significant changes over the course of the seventeenth century. Likewise, a more complex analysis of legal procedure could have highlighted the traditional understanding of custom and equity as applied by formally trained magistrates, in contrast to provincial officials, or compared the relative professionalism of provincial ecclesiastical and military courts with that of royal courts. Nevertheless, Cutter has produced a solid procedural history and highlighted its cultural significance. Armed with this concise volume, historians of the Borderlands may step into the Spanish colonial past confident in their understanding of its legal culture.	5
Susan Scafidi Saint Louis University School of Law

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