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Foreign Law Without Borders in the Early Vast America. Spanish Legal Literature in 19th Century North America

Angela Ballone

Résumés

Autour d’études de cas, cet article montre comment le travail de juristes espagnoles des xviie et xviiie siècles étaient réutilisés au xixe siècle en Angleterre et aussi outre-Atlantique (de Washington à la Californie en passant par la Floride), pour résoudre des conflits judiciaires. Le lecteur s’apercevra à quel point des sources du droit inattendues s’entremêlent dans la pratique quotidienne des tribunaux. Cet entrelacs est au cœur de l’analyse comparée menée dans le champ de l’histoire juridique.

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Texte intégral

This work is the result of a broader research project on the circulation of legal literature from the Hispanic world into the English-speaking one of early modern times. Its development has been possible thanks to a number of institutions that have welcomed me along the years : firstly, the John Carter Brown Library and its director Neil Safir, in Providence, US, and then the Centre d’Histoire Judiciaire in Lille, France. I wish to express my special thanks to Jim Muldoon, Jack Greene, and Amy Bushnell for their generous comments along the way. Finally, I wish to thank the several colleagues from Lille and beyond that have engageg with me in conversations about Spanish legal literature in North America during the last year.

  • 1 The Trial of Governor T. Picton for Inflicting the Torture on Louisa Calderón, a free mulatto and o (...)
  • 2 Full official records were published ten years after it ended, in 1812 ; A Complete Collection of S (...)
  • 3 For some examples, see Ibidem, cols. 512-513, for J. Castillo de Bobadilla, Política para corregido (...)
  • 4 Picton is renowned for his military career once he returned to Europe. Participating to the Battle (...)
  • 5 For an overview of the situation in Trinidad and an account of the trial, see J. Epstein, “Politics (...)
  • 6 Analyzed through the prism of the literature of sensationalism that acquired importance as a genre (...)
  • 7 Accordingly, the barrister questioning Gloster defended that “British character had been ‘stained’ (...)
  • 8 J. Matthews Glenn, “Mixed Jurisdictions in the Commonwealth Caribbean : Mixing, Unmixing, Remixing” (...)

1Sitting before the King’s Bench in 1806 London, the former attorney of Trinidad, Archibald Gloster, was questioned about his knowledge of Spanish legal literature by barrister William Garrow on behalf of the prosecution. “You are acquainted with the Bobadilla ? […] You likewise know the Elizondo and the Curia Philippica ? […] and another book called Recopilación de Leyes respecting the laws of the Indies?”1. The rest of the trial, which lasted several years2, included a number of questions like those, together with translations of direct quotes from these authors and their readings aloud to the court3. Such questions were quite relevant in the examination of the accusation of misdemeanors brought up against General Thomas Picton during his time as governor of the Caribbean island of Trinidad, from 1801 to 18034. While accusations against Picton were several and there were various trials going on at the moment5, this specific one was singled out and became a cause célèbre in the London of the time6. In particular, the colonial agent was being held responsible for ordering the torture of a young mulatto girl, Luisa Calderón, in order to get her confession for a theft in which, apparently, she had been involved as an accomplice. The core of the problem was that Picton, as an English officer, ought not to resort to such barbarous practice to extort a confession from a newly-acquired free subject – and one of such a young age – of the British crown7. Spanish from the 1530s, the first settlement in Trinidad dated to the late 16th century and, although the island had enjoyed little development initially, from the late 1780s with the royal decree allowing immigration from nearby islands regardless of nationality, its population had tremendously increased – together with its strategic importance within the Caribbean basin and as a link to the mainland. When the British seized Trinidad from the Spaniards in 1797, they had proceeded to install newly appointed officers, such as Picton, while the capitulations had let Spanish laws in place8. In the case of Luisa Calderón, then, the problem was to establish whether the use of torture was not only allowed during the Spanish domination of the island, but also implemented in the practice, or not. As it turned out, the London judges needed to have an in-depth knowledge of both the Spanish legal system in the Americas and its practical implementation in Trinidad, something for which both books and legal practitioners were needed.

I. Introduction

2The case of Luisa Calderón and Picton’s trial is not the main concern of this work, although it serves us as an excellent example of how legal literature coming from a different region and language – like in the case of Spanish America – acquired an increasing importance within the Atlantic, above all when allegiances and territories shifted from one European power to the other. The situation was further complicated when American territories gained independence from their mother countries, as in the case of the United States of America. Indeed, Picton’s case was so famous as to be directly quoted by the US Supreme Court in 1833, while deciding upon a land claim from Florida. Accordingly, also in that case, Spanish legal literature came at hand in order to help the court’s dealing with current issues in 19th century North America. Accordingly,

  • 9 The United States v. Juan Percheman, 32 US, 51 (7 Peters, 51).

Upon the subject of the power of Spanish governments, the court is furnished with translations from Solórzano’s Política Indiana. This author is one of the most celebrated of the Spanish commentators. His authority was considered unquestionable by lord Ellenborough in the court of the King’s Bench, in the trial of The King v. Picton, governor of Trinidad9.

  • 10 For the concept of “entangled history”, see E.H. Gould, “Entangled histories, entangled worlds : th (...)

3The truth to be said, Solórzano had not been so prominent as a legal authority in the Picton’s trial. Hevia Bolaños, Elizondo, and Bobadilla, happened to be quoted much more in the London of the years going from 1806 to 1812. However, the entangled history of the Atlantic presents a series of such examples and, in this study, I turn to English-speaking North America as a place of circulation for Spanish legal literature in the dealing of land claims during the 19th century10. In the process of contextualizing similar references to legal literature in Spanish by North American legal practitioners, I argue that contemporaries were well aware of such entanglement as it emerges, for example, from the several pages quoting and translating Spanish legal literature in the context of the abovementioned trial. Gradually, a number of collections and translations into English of Spanish legal sources appeared in North America as a way to fill an important gap in the continuously changing geographical and legal scenario of US.

  • 11 For a similar study, that considers 18th century North America, see A. Ballone, “Foreign Law Withou (...)
  • 12 For a critique of Atlantic history as a nationally compartmentalized field of research, C. Shammas, (...)

4The structure of this study develops around three case studies emerged during a broader research project on the circulation of the work by the Spanish jurist Juan de Solórzano Pereira (*1575, 1655) in North America11. The introductory section of this work focuses on 19th century North American legal literature and translations of Spanish legal literature. Section two discusses the case of Florida – the context of the land claim mentioning Picton’s trial in 1833 – and the work of translation and dissemination undertaken by Joseph M. White. Section three moves to California and another case of translations from Spanish into English by John A. Rockwell to conclude, in section four, with discussions taking place in Washington about California’s land and mining claims, during which the work of Solórzano – via the translation of White – was brought back to the attention of congressmen as a relevant source of legal literature important for the wellbeing and good administration of justice in some of North American territories. At the end, I draw some conclusions on the relevance of searching for intertwined processes of development of the law across today’s national boundaries in the Atlantic and defend the need to open up our views as scholars to a more consistent approach that must go beyond narrow national and language boundaries12.

  • 13 Identified by scholars Brian P. Owensby and Richard J. Ross as the gradual process by which “law be (...)
  • 14 K. Wulf, “Vast early America. Three simple words for a complex reality”, Humanities, 40.1, 2019, av (...)
  • 15 A number of aspects of this concept have been further analyzed in greater and more nuanced ways by (...)
  • 16 Gould, Entangled histories, op. cit., p. 764-786. For “entangled history” see also Cañizares-Esguer (...)
  • 17 Gould, Entangled histories, op. cit., p. 767.
  • 18 The need to go beyond today’s US national borders is becoming a pressing issue in research agendas. (...)

5Indeed, I contend that, if more attention is paid to unexpected circuits through which legal literature travelled, it is possible to unveil the extent to which legal practitioners engaged foreign literature from a truly early vast America in the effort to fill the gap of intelligibility between English-speaking people and Spanish-speaking legal authors13. While indigenous populations are obviously also involved in the process, here the focus is on how practitioners educated in the European framework of the law (albeit in its overseas implementation) engaged in a fluid exchange and on how translations of so-called ‘foreign’ legal literature become crucial in the context of shifting powers and land management during the 19th century. Defined by some US scholars as “a more expansive view of early America” during the past two decades14, the concept of early vast America has born from an emphasis on the contiguity between north, central, and south America15. In particular, scholars recurring to this definition refer to a geographical scenario that includes in the study of the history of early North America such territories as the Caribbean, Texas and California (which became parts of US only in the 19th century). The idea of stretching the history of today’s US beyond the original thirteen colonies of the 18th century has been supported by scholar Eliga Gould, who implements an interesting nuance : that of entangled histories16. Gould defends entanglement as “a more capacious form of borderland history”, one better suited to study the British and Spanish Atlantics17. In this sense, the early vast America cannot be limited to the sole North American nation but must include also Spanish America. In line with that thought, this study calls scholars’ attention to a number of lesser-known networks of circulation and translations of Spanish legal literature within the early vast America, above all because of their lasting influence on US legal history18. The presence of Spanish legal literature in books and courts from the US represent both a connection between different legal systems and it also enhances the entanglement of them, in a long narrative that still is in continuous development. Ultimately, this paper shows that much is left to study about the practical, generative, aspects of the legal history of early modern worlds, including Europe and the Americas – all of them – in a much more nuanced and equal level.

  • 19 Accordingly, “upon achieving independence both the US and Mexico inherited the territorial conflict (...)
  • 20 Cf. J. Locke, Two Treatises of Government, London, 1690, and, by the same author, the manuscript es (...)
  • 21 In Locke’s words, “political power, then, I take to be a right of making laws, with penalties of de (...)
  • 22 For an interesting overview of this, that encompasses French, British and Spanish America, see A. G (...)
  • 23 According to him, “it is hardly an exaggeration to say that the history of the laws of a country is (...)
  • 24 G. Schmidt, The Civil Law of Spain and Mexico, arranged on the principles of the modern codes, with (...)
  • 25 For an overview of the surviving catalogue of this library, albeit from a later period, such as 187 (...)

6The use and practical reading of Spanish legal literature in the daily running of life on North American soil become a pressing matter in the years following the Declaration of Independence in 1776. Particularly, with the expansion south and westward of the newly created United States of the Americas, large tract of land formerly under a different authority were added to the newly created confederation by force of international treaties19. These explicitly recognized the right to property of the inhabitants of the land that passed to the US, causing a number of problems in the delicate matter of titles of property, illegal appropriations (often with false documentation), conflicts among owners (but also with the central government), and exploitation rights over the land. The concept and right to own land had been one of the core aspects in the political and legal framework of British America well before the independence of North America, one defended by John Locke in his works20. Furthermore, the right to propriety was naturally completed with the duty of the government to defend it21. The definition of property had constituted a complex matter in Europe, which became further complicated with the Atlantic crossing and settlements22. Starting from the early 19th century – the period under research in these pages – and the purchase of Louisiana in 1803, which by then comprised the astonishingly grand area of today’s midwestern states of US – all the way from New Orleans in the south, up to the northern states of Montana and Minnesota – a number of additional complications emerged. Albeit it might have been a small community, North American jurists knew very well that the solution to these problems laid in getting an in-depth understanding of the ways in which the law had worked during the time of other dominations upon these lands, not least because of the international treaties signed by their government. A good example of this is represented by the work of Gustavus Schmidt (*1795, 1877), an attorney of New Orleans and Swedish expat. For him, the history of the laws was crucial to understand the history of a country23. Thus, in his compilation of Hispanic law regarding family, property, contract and inheritance law in Louisiana, he starts up with a long historical introduction to both the Spanish and Mexican law beginning from Roman times24. This interest in a broader view of the history of the laws applied in Louisiana – which comprised also French law – emerges clearly also from his library, which contributes to reconstruct the array of the legal literature physically available for use and consultation in early North America25.

  • 26 A renown author within the field of Spanish American history, Solórzano is fairly known also within (...)
  • 27 On the process of dispossession of the land suffered by indigenous population, Allan Greer makes an (...)
  • 28 A judge with lasting experience in the Americas (at the high courts of Quito and Lima), Lagúnez was (...)

7In such a long process of expansion and occupation as that experienced by US from the 18th to the 19th century, matters of property naturally came intertwined with the exploitation of natural resources and inheritance regulations, making it necessary to became acquainted with the Spanish and French ways to deal with these. As with regard to the Hispanic law, Solórzano and other authors appear as important sources of knowledge and practical information of both legal concepts and practices from the recent past26. The cases discussed in this work refers to the acquisition of Florida and the implementation of the treaty of Adams-Onís (originally signed in US in 1819, and confirmed by Spain in 1821). Due to their recent incorporation into US, in Florida as much as California, in-depth knowledge of Spanish ways dealing with the juridical and economic aspects of property and exploitation of natural resources were crucial, not least because international treaties and agreements had acknowledged and defended them before the law. Thus, not only Solórzano, but also other legal sources coming from the Hispanic world would attract the attention of legal practitioners and, judged useful for US, eventually appeared in translations and before courts. These were mainly concerned with land grants and their exploitation. As for indigenous interests, when those were involved, the main aspect was to assess the extent to which they had been acknowledged in terms of old continent laws and understandings27. Collections of translated sources contributed to the process of reverberation of legal literature from Hispanic America into North America. That is the case, for example, of the works by Matías Lagúnez (*1619, 1703) and Francisco Javier de Gamboa (*1717, 1794)28, referred to in a collection of sources published in California around the middle of the 19th century – that we discuss in section three of this study.

  • 29 According to the Spanish scholar Maravall, “Marina es el verdadero fundador de la Historia del Dere (...)
  • 30 See the discussions in senate of January 2, 1851, published in J.C. Rives, The Congressional Globe  (...)

8As both the official documents from the Spanish period and the sources of legal doctrine were not available in English, practitioners and politicians in North America had to find alternative ways to support their views in courts and before peers. A number of translations from those texts began to circulate and, among some of these, Solórzano appears as both an authority and a way to reach a better contextualized understanding of Spanish laws. As time goes on, and other territories were added to the US (such as California), authors from the Hispanic world acquired new relevance, the doctrine of which is deemed useful by legal practitioners dealing with the legal issues of property and exploitation in territories formerly under Spanish or Mexican authority. Examples of this, as we shall see a continuation, are the cases of Lagúnez and Gamboa, or that of the Spanish clergyman and enlightened historian Francisco Martínez Marina (*1754, 1833)29 – all quoted and referred to in the US collections and translations discussed below. The first, and perhaps most popular, of such translations is the 2-volume-work A New Collection of Laws, Charts, and Local Ordinances of Great Britain, France, and Spain by Joseph Mills White (Philadelphia, 1839). Not only White was an active member in the Congress, representing Florida for six years (albeit statehood and the right to vote would be achieved only years later), he also actively translated and circulated excerpts from Solórzano’s work before an ad hoc created land commission and among his fellow congressmen. References to Solórzano also appear in the context of legal practice in California and before the congress in Washington, as I discuss in section four. Together with that jurist, legal authorities from the Hispanic world, such as Gamboa and Lagúnez, were translated and mentioned in A Compilation of Spanish and Mexican Law in relation to Mines and Titles of Real Estate (New York, 1851), published by the Connecticut senator and attorney John Arnold Rockwell. Lagúnez, Solórzano, and Gamboa are also among the names of famous authorities listed in the preface of another collection of Spanish and Mexican mining laws, by the military officer and lawyer Henry Wager Halleck, A Collection of Mining Laws of Spain and Mexico (San Francisco, 1859). Finally, around the 1850 s Solórzano’s name went back to be heard within the walls of the congress (via White and his translations) thanks to California senator William McKendree Gwin30.

  • 31 I am most grateful to Jim Muldoon for his insightful comments all along the project and, most impor (...)
  • 32 J. Wasson, Compilation of the Laws, Regulations, Usages and Conditions of Spain and Mexico, Tucson, (...)

9It must be noted that, while these might seem a reduced number of authors, my argument is that, if more detailed studies are carried out about both this period in the history of North America and these types of sources produced by legal draftsmen31, more in terms of cross-cultural and cross-language connections may emerge for the field of legal history and beyond. Indeed, as we read the introductory texts of these publications from 19th century North America, we learn of the existence of a panoply of officers dealing with foreign legal doctrine on a daily basis, such as official translators among the staff of the US Congress, a US attorney general who supported the publication of translated Spanish sources, transatlantic correspondence with a professor of law at the university of Huesca in Spain, or the network of Mexican judges, lawyers and archivists, built up by North American legal practitioners during their research stays in Mexico City. Furthermore, a number of other publications appear as the 19th century goes on. These are more compilations of translated Spanish and Mexican laws, and they do not engage directly with a discussion of the doctrine therein, as it is the case of works mentioned above32. Nevertheless, all together they show that, as the US acquired more territories, a growing community of readers and legal practitioners became aware of the importance to know what today we might define as ‘foreign’ legal literature. To them, to be literate in it and to reach a deeper understanding of its historical development and internal logics was clearly crucial in dealing with the current issues of their own lands and times. In the process, they became literate in Spanish, translators and, eventually, passed on their knowledge and libraries to fellow practitioners in the rest of North America.

II. Joseph M. White and Florida

  • 33 My main source for the life of White is E.F. Dibble, Joseph Mills White : Anti-Jacksonian Floridian(...)
  • 34 Rumors reported by his biographer indicate a possible first marriage before the one with the daught (...)
  • 35 A series of anonymous letters appeared in the Baltimore Chronicle criticizing this president are at (...)
  • 36 For an excellent overview of land claims in this early period of US Florida, which includes also re (...)
  • 37 “Joseph M. White to the President [Monroe]”, April 15, 1822, quoted in Dibble, Joseph Mills White, (...)
  • 38 Another commission had been created for east Florida ; for an account of its first activities, char (...)

10Originally from Kentucky, from where he moved to Richmond, Virginia, to study law at the William and Mary College, by 1818 Joseph Mills White (*1781, 1839) was practicing law back home33. Then, well connected to the governor of Kentucky through his wife, he moved to Pensacola, Florida, in 1822. By that time, he apparently had already gained a good knowledge of Spanish and French, although we do not know more about the contexts within which he acquired these skills34. Known as an opponent to Andrew Jackson35 (first territorial governor of Florida and, then, US president in 1829-1837), White arrived to Pensacola with an appointment to the Florida Legislative Council and an interest in working within the Land Commission over there36, as he had openly stated to the then president James Monroe37. Soon after his arrival and thanks to his knowledge of Spanish – which the other two commissioners lacked – White was appointed as the third member of the West Florida Land Commission, allowing this body to start working38.

  • 39 The final decision by the commission was signed by White and Sam Overton, one of the other two memb (...)
  • 40 As the conquest and settlement of the America by the Iberian kingdoms developed, Spanish norms and (...)
  • 41 This information is given by Dibble, Joseph Mills White, op. cit., p. 108. Apparently, the practice (...)
  • 42 Instead of White, a number of other peoples were sent out for fishing expeditions in search of thes (...)
  • 43 Dibble, Joseph Mills White, op. cit., p. 116.
  • 44 Ibid., p. 121 and p. 131-132.

11The first issue to settle for the commission regarded British land claims before the 1783 treaty that had reverted Florida to Spain. Since original documents had been destroyed or were lost, and it seemed that these British claims had never been confirmed by Spain, the commission declared them void39. Next issue on the agenda had to do with land claims under the Spanish government in the period 1784-1821. Accordingly, those that had been deemed valid before the Spanish law and were in line with the derecho indiano were to be valid before US courts too40. As for White, he had started to gather material and to study the Spanish legal system even before joining the commission. Aware of the difficulty of having access to reliable primary sources about Florida land claims (also due to the fact that, when leaving for Cuba in 1819, the Spaniards had taken away some 730 bundles of records)41, he volunteered to go to Havana to look for what soon became known as the ‘lost Florida archives’42. While his offer was declined, over the years White continued with success to correspond with and request material to officials in Cuba43. Additionally, he searched for relevant sources in the European archives during two subsequent travels to Spain, France and Britain in 1833 and 183744. Indeed, references to those trips to Europe in the search of reliable legal sources and documents about Florida were often mentioned to further defend his views and arguments both in the political debate and in his legal practice.

  • 45 White himself recalls these circumstance in the “Introduction” to his 1839 work ; see White, New Co (...)

12Eventually, a new law in 1828 moved all the land claims from the two district courts in Florida to the Supreme Court in Washington. In the process, White’s knowledge and services were required by US attorney general William Wirt (*1772, 1834) to help out with the pending land claims from other newly-acquired regions (e.g. Missouri). Working as an assistant and counselling the General Land Office until 1831, White was asked to deposit at the State Department the collection of manuscripts and notes that he had gathered over the years, which he did, completing it with a detailed list of the single documents therein, and an index45. That collection was published several times since then, and eventually it came to be the seminal work behind a later, enlarged version of it, curated by White himself and published on the same year of his death, 1839, in two volumes, as the New Collection of Laws, Charts, and Local Ordinances of Great Britain, France, and Spain.

  • 46 He has been defined as “a consistent winner for his clients before the Supreme Court ;” see Mirow, (...)
  • 47 For a full list of these, see Dibble, Joseph Mills White op. cit., “Appendix Three. White’s Supreme (...)
  • 48 For an account of both White’s and these cases, see Dibble, Joseph Mills White, op. cit., “Chapter (...)

13During his career at the heart of US central administration, White was elected for six consecutive mandates as the representative of Florida to the congress, from 1825 to 1837. Although that appointment came without the possibility to vote, because Florida would acquire statehood only in 1845, White was quite active and well versed in disseminating among his fellow-congressmen his views on both the Hispanic legal system and Solórzano’s work regarding specific problematic cases arising from recently acquired North American soil (e.g. Louisiana and Florida). All the time along his career in the administration, White was also an active and quite successful litigator in courts46. Arguing in a total of twenty-four cases of land claims before the Supreme Court between 1832 and 1836, White lost only once47. In the process, he laid down the basis for a number of important precedents in US dealings with land and exploitation cases (e.g. the Arredondo grant of nearly 290,000 acres of land, the Percheman grant of 2,000 acres, the Mitchell grant of 1,250,000 acres)48.

  • 49 For the text of the treaty, signed in both the Spanish and the English version, see H. Miller (ed.) (...)
  • 50 As for him, “the commonwealth comes by a power to set down what punishment shall belong to the seve (...)
  • 51 Mirow, “The Supreme Court”, op. cit., p. 184.
  • 52 Accordingly, in a later session it is reported that “Mr. Joseph M. White laid before the House a pa (...)
  • 53 See US 22nd Congress, 2nd session, Ho. of Reps (1832-1833), Doc. No. 36, p. 1-5, quoted in J. Sabin (...)
  • 54 White, New Collection of Laws, op. cit., vol. 1, p. 367-372.
  • 55 While most of the excerpts are referred to by book, chapter and paragraph numbers (although these a (...)

14The core of the issue with regard to land grants in Florida revolved around the interpretation of the Adams-Onís Treaty, with which Florida had been ceded by Spain to the US. Signed in 1818 and become effective in 1821, its eighth article regulated land grants according to their date (if granted before January 24, 1818, they were valid ; if granted after that date, they were null)49. The matter was of great importance because, like the British government before, US had committed to defend the property rights of its newly acquired citizens the Floridians – something that probably Locke would have agreed upon50. Accordingly, by force of the treaty, approximately thirty million acres had passed to US, of which just three million accounted for private property51. To ascertain rightful land rights was a necessary preliminary step in order to begin disposing of the remaining newly acquired (public) land of Florida. While working on the defense of the Arredondo land grant from 1817, White recurred to Solórzano to support his argument that governors and viceroys in the Americas had full authority to award land under the Spanish monarchy, even when their grants were in contrast with decisions taken in Madrid. Comprising nearly 290,000 acres of land, White defended that the territory claimed by Arredondo had been granted by the local governor of Florida, which made it a lawful title of property and one that the US Supreme Court should confirm – as it finally did in 1832. The document White circulated as a core piece of his argument was a translation of excerpts from Solórzano’s 1648 Spanish treatise Política Indiana, which he also submitted to the House of Representatives in January 183252. A printed version of it, certified by the official translator of foreign languages at the Department of State, was then published among the documents attached to the reports of the 22nd US Congress, which sessions were held in Washington from December 1831 to March 183353. Of course, White included the same document in his main work published in 1839, with the title “Power of Viceroys, Captain-general and Governors”54. The reference system implemented in the translation – whereas a couple of page numbers are indicated55 – allows us to identify the edition consulted by White which, in turn, might have been physically present and available for consultation in Washington around the 1830 s. Otherwise, thanks to White, a good selection of Solórzano’s work – from which the most useful parts were selected for the congress – might have arrived to North America as a manuscript copy following White’s first trip to Europe in 1833.

  • 56 That is art. 13 from chapter 12, according to which “it is permitted that the ancient conquerors, a (...)
  • 57 Here White translates Solórzano’s “por ser unos como factores o institutores reales ;” White, New C (...)
  • 58 White, New Collection of Laws, op. cit., vol. 1, p. 368 [emphasis in the original], and Solórzano, (...)

15The excerpts aim at proving that the land grants made in the Americas (such as the Arredondo one), by the main representatives of the king’s authority (e.g. the governor of Florida), were fully effective, even in presence of contrasting decisions taken in Madrid (such as a contrasting grant or, perhaps, even a treaty of cession). White’s selection is mainly from books three and five of Solórzano’s treatise – with only one article from book six56. The former discusses the encomiendas de indios (royal grants of labor services by the indigenous population of the Americas), with which the Spanish king rewarded his subjects for their services. According to the derecho indiano, viceroys’ orders were to be obeyed and supported bylaw at all costs, even if in doubt of their rightness, “because – as in White’s translation – they [the viceroys] are in quality of factors or substitutes to royalty”57. Due to the great distance between the two sides of the Atlantic and the several problems and delays in communication, Solórzano – and White, with him – discusses the case of the same grant awarded to two different people both in the Americas and in Madrid, reaching the conclusion that the former – by the governor/viceroy – was to be binding by law, while the latter – by the king – was void. However, while the Spanish jurist highlights the chronological aspect of the grant (if viceroys had awarded it “immediately” after the land had become available, as opposed to the king who had awarded it later on, once news of the vacancy had reached Spain), the North American translator emphasizes that “viceroys or governor, who there is [in the Indies] as the king himself made the appointment lawfully”58. A reference to the Digest on the duties of the imperial procurator perfectly served this argument, by stating the following :

  • 59 Corpus Iuris Civilis, Dig. 1, 19, 1, “De officio procuratoris Caesaris,” translated into English in (...)

Ulpian, Edict, book 16 : Whatever acts and deeds are performed by the imperial procurator, they obtain the same force and validity from him as if they had been done by the emperor59.

  • 60 White, New Collection of Laws, op. cit., vol. 2, p. 704.
  • 61 Ibid., vol. 2, p. 703.
  • 62 An example of this is the way in which the British colonial agent James Abercromby referred to Soló (...)

16It must be noted that, if White was working with the 1739 edition of the Política Indiana – as suggested by his references to page numbers in two of his translations – he must have seen the additional comment added by Francisco Ramiro de Valenzuela in 1736, according to which the king’s grant had to be preferred instead. As this addition is not included in the translation offered to the congress, we might wonder about White’s not-so-hidden agenda behind the translation. With regard to his way to push to the fore sources that supported his views, in another section of his main work from 1839, he defined Solórzano’s Spanish treatise as one “of approved authority in all the Spanish courts and dominions”60. Unfortunately, right after discussing the 1680 Recopilación de Leyes de las Indias (the very base of the derecho indiano as it was codified by the Spanish crown), White referred again to the Política Indiana – published in 1648 – as “a more recent work” than the Recopilación, making clear that the extent by which he had studied Spanish law might have been not so accurate61. Whether the problem was White’s level of Spanish, his selective reading of the long treatise by the Spanish jurist, or perhaps the fact that his access to the work was by way of borrowing it for a limited amount of time during his trip in Europe, we do not know. However, this sort of chronological confusion and lack of contextualized reading indicates a particular approach to foreign legal literature that could have been common (mal)practice at the time62. Then again, without direct access to foreign books, how could a legal practitioner be in a position to challenge White’s translations and/or theories ? This aspect too must be taken into account when studying the broad circulation of legal literature across geographical and language regions. In particular, a detailed study of the records of the trials in which White was involved – something that goes beyond the purposes of this study – might help us reconstruct the dynamics of the debate before courts and, in turn, whether his opponents took the time to study or discuss Solórzano as a source in their counter-argumentation.

  • 63 Ibid., vol. 1, p. 369 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 5, (...)

17Going back to Solórzano’s excerpts from book five on the administration of the Americas, White’s interest lays in further defending the strong power and authority of viceroys and governors in the Americas. He does so by likening them to Roman consuls – following the Spanish jurist’s argumentation – and by defining them as “images” of the kings “who should represent them to the life” – “viva y eficazmente” in Solórzano’s words63.

  • 64 White, New Collection of Laws, op. cit., vol. 1, p. 369 [emphasis in the original], and Solórzano, (...)

Looked upon as their own person – to be their substitutes : for this is properly signified in the Latin word Proreges or Vice Reges, which in the common language we call Viceroys ; and in Catalonia and other parts they are called Alterego, on account of this ubiquity of likeness or representation64.

  • 65 White, New Collection of Laws, op. cit., vol. 1, p. 370 [emphasis in the original], and Solórzano, (...)
  • 66 Not translated by White, for Valenzuela’s summary of this chapter, see Solórzano, Política Indiana (...)
  • 67 White, New Collection of Laws, op. cit., vol. 1, p. 372 [emphasis in the original], and Solórzano, (...)
  • 68 For an account of the exchange of ratifications in 1820-1821 with references to state papers and th (...)

18Stressing the geographical scale of the Spanish empire, the translation continues by stating that “this representation is more resplendent when the viceroys and magistrates are further removed from the masters”65. Excerpts of the next chapter discuss what viceroys/governors can do and what they cannot. To quote from Valenzuela’s added sub-titles to the 1736 edition of the Política Indiana – with which White seems to agree even thou he doesn’t include it in his translation – “[they] can do all that is not expressly forbidden to them”66. Indeed, all eventual limitations are expressed in the instructions they are given when appointed but, as often these are secret, subjects on the ground have either no way to read these nor obligation to know them (White, p. 367, and Solórzano, book 3, ch. 5, § 31). To finish up the long dispute on whether Spanish governors had the right to grant land in North America or not, when the king in Spain was in the process of ceding whole portions of that same land, “we must almost presume in favor of the viceroys [and governor, and captains general] ; and what they do we must consider as done by the king who appointed them”67. Therefore – and to conclude in favor of the Arredondo claim – the land awarded by Florida’s Spanish governors in the early 1800 s was to be fully recognized by the US law, even after the cession signed in Washington in 1818, which was formally recognized by Spain in 1820 and made effective by US in 182168.

  • 69 See J.M. White, “Documents relating to the eighth article of the Treaty with Spain of the 22nd Febr (...)
  • 70 The United States v. Juan Percheman, 32 US, 51 (7 Peters, 51).
  • 71 See for example, Ibid., “Extract from the opinion of the Supreme Court in the case Arredondo”, p. 1 (...)
  • 72 Foster & Elam v. Neilson, 27 US, 253, No. 236 (2 Peters, 253).
  • 73 White, “Documents relating to the eighth article”, op. cit., p. 2.

19Having resulted successful in defending the Arredondo grant, in 1833 White went back to the eighth article of the treaty. Thus, he submitted to the Supreme Court a lengthy report which, like for the translation, was referred to the Committee on the Judiciary and published – like the translations discussed above – among the additional documents to the 22nd Congress69. This time White was overseeing the case of the Percheman grant of 2,000 acres, then under discussion before the Supreme Court70. Like for the Arredondo one, also in the Percheman case White would be successful in getting the court to recognize it. As for the report he submitted to the court, that includes a number of copies from the documentation linked to land claims in Florida and Louisiana71. After a brief summary of the recent history on the creation of land commissions, and the 1828 act making the Supreme Court the court of appeal to decide upon larger grants, White advocates for the judiciary as the competent body to settle claims arising from the Adams-Onís Treaty. Such opinion was in contrast with a recent decision taken by the court in 1829 stating that the matter of the treaty addressed the political and not the judicial department, hence making the latter unable to enforce it in its decisions72. However, if that was the case – White wondered – what was the point in submitting a problem to a court if, at the same time, that same problem was considered as a political matter and, therefore, the court was “incapable” of deciding upon it73?

  • 74 According to his biographer, the court’s opinion, written by justice Henry Baldwin, “clearly reflec (...)
  • 75 White, “Documents relating to the eighth article”, op. cit., p. 2.

20White’s argument – which would be successful in convincing the US attorney – was that the treaty did not need a specific legislation to be enacted before courts74. On the contrary, elaborating on the law of nations, “absolute and perfect grants” were to be protected independently from the treaty and there was a “national obligation” of the US to acknowledge them, even in courts. In White’s words, “its effect was to make binding on all that would have been valid against Spain, and to oblige us to complete whatever she, in good faith, had begun”75. As with regard to treaties, their interpretation must be built upon the motives of the parties signing them and, as the Florida inhabitants who had decided so, had become US citizens, their rights to property were to be safeguarded. Indeed,

  • 76 Ibid., p. 3-4.

in the eighth article, two parties were stipulating for the security and advantage of a third, whom both had the strongest reasons to cherish and protect. It is submitted, therefore, with some degree of confidence, that, so far as the motives and policy of the parties afford a key to the meaning of their words, the construction most favorable to the claimants is permitted to, nay, is enjoyed upon the court76.

  • 77 Ibid., p. 14. Indeed, Locke would have agreed, as for him “no political society can be, nor subsist (...)
  • 78 White, “Documents relating to the eighth article”, op. cit., p. 15.

21Although formally absent from the official document, that “third party” was crucial. As the people of Florida had changed allegiance – from the Spanish monarch to US – the “relation to their ancient sovereign is dissolved, but their relations to each other, and their rights of property, remain undisturbed”. Furthermore, White stressed that even in the case that Florida had been ceded to the US without a specific clause on land grants in the treaty, its people and their right to property would have still been protected77. Accordingly, the expression “neither party could so understand the cession [of land]” meant that land grants awarded under the Spanish government ought to be acknowledged by the US and defended by the judiciary, regardless of the existence of a specific clause in the treaty78. The main problem was, then, to establish which ones were genuine and perfect grants by the law.

  • 79 Accordingly, on p. 6-9 White discusses the negotiation papers between the Secretary of State and th (...)

22As the 1833 report gets into greater detail in the case of Percheman, another issue was discussed at length therein : the Alagón, Puñonrostro, and Vargas grants (see map below). These grants had been made in Spain while conversations between John Quincy Adams and Luis de Onís about the cession had already started in Washington. As it can be seen in the map below, in extension, they included a great part of both east and west Florida and therefore, by being private property, would constitute a serious limitation to US rights to dispose of that land in case they were confirmed as lawful. In line with his analysis of what the parties considered as the reasons behind the treaty, these grants were the ones that had been taken into greater consideration for the establishment of the cutting-edge date of January 24, 1818, for the recognition of titles of property in Florida79.

The Floridas in relation to the treaty with Spain of 1819

The Floridas in relation to the treaty with Spain of 1819
  • 80 I am grateful to Marco Cortopassi for the elaboration of this map.

Map elaborated on the basis of the one published in H. Miller, Treaties and Other International Acts of the United States of America (Washington, 1933), vol. 3, p. 4180.

  • 81 White, “Documents relating to the eighth article”, op. cit., p. 5.
  • 82 For the text of the ratification, see Miller (ed.), Treaties, op. cit., vol. 3, p. 18-20, in partic (...)
  • 83 J.M. White et al., Legal Opinions of the Honorable Joseph M. White of the House of Representatives, (...)
  • 84 White et al., Legal Opinion, op. cit., p. 11.

23Puñonrostro and Vargas had been awarded big portions of lands but the date of their confirmation decrees was after the cutting-edge date established by the treaty. However, it was more complicate for the Alagón grant, which covered a great part of east Florida (as shown in blue in the map above). Its date of confirmation by the king of Spain had been December 17, 1817, so before the date indicated in the treaty. With regard to this grant White’s opinion in 1833 had been to consider it null, like for the other two81. In doing so, he was acknowledging the royal declaration included in the Spanish ratification of the treaty from 1820, where the king had reiterated that all of the three grants were to be considered null82. However, later on in 1836, White changed idea. His reasoning, completed by an insightful discussion about the mixed legal system that ought to be considered in the case of Florida’s land grants, was published together with the opinions of other well-known protagonists of legal debates of the time83. White’s (new) Legal Opinion on the Alagón grant discussed both the chronology of the grant (adding to the picture its confirmation by the governor of east Florida in June 27, 1818), its perfect nature (as that confirmation had taken place before the ratification of the treaty in 1820) and, finally, the fact that when the king had decided to cede Florida – in January 24, 1818 – he could dispose of “only that which belonged to him. [Thus, the] Lands he had previously granted were not his to cede”84. Accordingly, White made clear his change of mind with the following words :

  • 85 Ibid., p. 11.

When I first heard of this case, I was under the impression, without examination, that by the fundamental laws of Spain, the king had power, in virtue of his unrestricted prerogative, and absolute power, to vacate or annul the rights of property of any of his subjects. […] I held the opinion for some years, that the title was invalid. Having, however, thoroughly examined, at Madrid, the Spanish laws, I am satisfied that the king has no such power of revocation, and never had under the municipal laws and Constitution of that monarchy85.

  • 86 Ibid., p. 8-9.
  • 87 Included among the legal sources mentioned by White there is the Fuero Juzgo, the Fuero Real, the S (...)
  • 88 Ibid., p. 15.
  • 89 Ibid., p. 14.
  • 90 Ibid., p. 15.
  • 91 The text of the ratification is reproduced literally by Daniel Webster, the argument of which follo (...)

24Despite the fact that, at the time in which the cutting-edge date had been agreed upon, no reliable information about the date of the grant was available, that was of no concern for the duke of Alagón, whose right to property was then full and guaranteed bylaw86. Summarizing the development of the Spanish legal system from the Roman Empire to the Novísima Recopilación de Leyes de Castilla in 1805, in a few-page-argument White defended that “the property of a Spanish subject granted to him by the monarch, cannot be taken away”87. His final point recalls the 1812 Constitution of Cadiz, by which “sovereignty resides in the nation”, which was then represented by the king and the Cortes (the Spanish parliamentary institution) together88. Originally proclaimed in 1812, “rescinded” in June 1814 and, finally, “re-established” in March 182089, the constitution was formally not binding in the years 1814-to-1820 – when the Adams-Onís Treaty had been recognized by Spain. However, when the latter was confirmed by Spain, in October 1820, the constitution was again effective, thus by then “no act of the king is valid without the consent of the Cortes”90. If on one hand, the recognition of the treaty by Spain had made express reference to the “consent and authority of the General Cortes” representing the Spanish nation as stated in the Constitution of Cadiz, that was not the case for the declaration that followed it because that one had been signed by the king alone, who announced the annulation of all of the three grants involving Florida. In short, to White and for the law, the king’s annulation of these grant was void because it lacked the express support (and signature) of the Spanish Cortes. At the same time, while the cutting-edge date of the treaty had the effect to annul the Vargas and Puñonrostro grants, it was not so for the Alagón one because of the date of confirmation of the latter. As one of the other contributors to the volume specified, the declaration by King Ferdinand VII lacked that crucial “consent and authority” to be expressed by the Cortes and, as a consequence, should not be taken into consideration by the US and its Supreme Court91.

  • 92 For an overview of the historical background of the acquisition of California, see M.K. Saunders, “ (...)

25While this is a brief overview of White’s activities and publications, by the end of his life he was unanimously considered as ‘the’ expert in Spanish law and he would remain a reference as far as US legal history is concerned – as we will see in section four of this work. Around him, we find not only an increasing number of individuals who demanded US recognition of their land grants but also a growing community of legal practitioners with an increasing knowledge of what, by then, could be easily considered as ‘foreign’ legal literature (such as Solórzano’s works). That knowledge was crucial in the running of the newly created US republic, above all in consideration of its expansion westward. Among the vehicular authors being read and discussed in and around US courts, Solórzano was indeed a leading figure thanks to White. Things will not change in the following years, and with the addition of new territories and states to the US. Furthermore, as the level of complexity of both the debate and the practice of referring to Spanish law increased, so did the specificity of compilations and translations that were published in US. As we now move to the second half of the century and to newly acquired California92, we can see how discussions focused on the field of mining exploitation which, albeit closely linked to that of property, would also lead legal practitioners to reinforce their need for an in-depth knowledge of the Spanish legal system.

III. John A. Rockwell and California

  • 93 For the biography of Rockwell, I rely mainly on P.L. Reich, “Introduction”, in J.A. Rockwell, A Com (...)
  • 94 Ibid., p. v.
  • 95 The author himself gives a brief overview of the “subsequent volumes”; Rockwell, “Preface”, op. cit (...)
  • 96 Cf. J.A. Rockwell, A Compilation of Spanish and Mexican Law in Relation to Mines and Titles to Real (...)

26Born in Norwich to an English family moved to Massachusetts in the 1630 s, senator John Arnold Rockwell (*1803, 1861) was equally active – like White – within the public sphere, the practice of the law and the dissemination of translations of legal literature from the Hispanic world into North America. Graduated at Yale in 1822, after a period practicing law in Connecticut, in 1838 he was elected to the senate as a representative for the Whig party. Judge at the New London County Court in 1840, from 1845 to 1849 he served for two mandates at the Congress, to then settle down in Washington to litigate claims involving Mexico before the US special arbitration court created in 185593. According to his biographer, his success in litigation and in public office contributed to give credibility to his treatise, A Compilation of Spanish and Mexican Law in relation to Mines and Titles of Real Estate (New York, 1851)94. A work of some 700 pages announced as a first volume – to which it appears no other volume followed95 – the link of continuity with the early part of the century and the acquisition of both Louisiana and Florida is clear from the title96. This time, however, the focus lays on the exploitation of the resources in the newly acquired lands of California.

  • 97 Rockwell, “Preface”, op. cit., p. 7. The historical overview of the sources of the Hispanic legal s (...)
  • 98 While working on the collection of law relating to family, property, contract and inheritance law, (...)

27By providing a compilation of Spanish and Mexican laws concerned with mines and land titles, Rockwell seeks “to aid in the investigation and decision of questions affecting the titles to land, and in relation to mines, arising under Spanish grants within the territory ceded to the United States”97. News of the forthcoming work circulated ahead of its publication, with a broad interest spreading all along the US98. The practical need behind Rockwell’s work was clear : to help out peoples dealing with the problematic issues of property and exploitation in relation to former Spanish and Mexican laws before US courts. This first instalment of the work originally envisioned by Rockwell was structured in three parts, of which the second one is entirely devoted to reproducing a translation of Gamboa’s commentaries to the 1567 Recopilación de Leyes de Castilla in its sections about mining. Part one provides us a translation of Gálvez’ 1783 Ordinanzas about mines, and part three a selection of excerpts from the Recopilación de Leyes de Indias, some of the decrees of Ferdinand VII with the Spanish Cortes, plus a number of legal sources from the period after the independence of Mexico. Finally, an exhaustive glossary of Spanish terms and a table of Mexican land measure is provided – a tool of extraordinary utility to his fellows North Americans dealing with land and exploitation matters. In a word, despite the fact that Rockwell’s ambitious plan included what would have been a more exhaustive English translation of the Recopilación de Indias, already in this first volume there is a basic toolbox of Spanish legal sources needed to any North American lawyer in order to navigate the difficult years following the acquisition of California and the troublesome conflicts surrounding its mines and lands.

  • 99 Ibid., p. 8.
  • 100 Cf. J.A. Escudero, “Martínez Marina, Francisco”, Diccionario Biográfico Español, online http://dbe. (...)
  • 101 See Rockwell, “Preface”, op. cit., p. 8, in which a long quote provides the North American reader w (...)
  • 102 Cfr. J.L. Bermejo Cabrero, “Tríptico sobre Martínez Marina”, Anuario de historia del derecho españo (...)
  • 103 In particular, the Ensayo was published in full by the periodical El Español ; see Escudero, “Martí (...)

28To fully understand the laws in place at the moment in which he is writing, in his preface Rockwell states that it is “appropriate, and almost necessary” to provide “a brief history of the Spanish codes, and their relative authority”, above all because these authorities were referred to and cited not only in Mexico, but also in the US99. Such historical overview is summarily evocated, first, for the Spanish legal system, then for the Spanish-American and Mexican ones. Starting from ancient times, the North American compiler recalls the Gothic invasion of the Iberian Peninsula all the way down to the medieval fueros. In his explanation of those, he relies on the work of Francisco Martínez Marina, a clergyman from Spain whose interest in the legal history of his country had become well-known at the turn of the century. An exponent of the liberal party in Spain and member of the committee that had worked on the project for a penal code over there, in his works Marina had focused on the institutional history of the Spanish monarchy100. In particular, Rockwell quotes from Marina’s Ensayo histórico crítico, published in Madrid in 1808101. Together with the Teoría de las Cortes (Madrid, 1813), the Ensayo circulated broadly within English-speaking audiences of the time and also among the communities of Spanish expats. Not only there are reviews and discussions around those works in prestigious journals, such as the The Edinburg Review102, but they also circulated through the political press in Spanish outside the Iberian Peninsula, thanks to the periodical El Español printed in London103.

  • 104 E. Trabulse, Francisco Xavier Gamboa. Un político criollo en la ilustración mexicana (1717-1794), M (...)
  • 105 Rockwell, “Preface”, op. cit., p. 16-18.
  • 106 According to the English scholar David Brading, Gamboa was “the mining jurist” par excellence ; D. (...)
  • 107 Cf. Rockwell, A Compilation, op. cit., p. 116-380.
  • 108 See R. Heathfield, Commentaries of the Mining Ordinances of Spain : dedicated to his Catholic majes (...)

29Going back to the North American compiler under research in this study, Rockwell also referred to various compilations of the law in Castile (the Fuero Juzgo, the Ordenanzas de Alcalá, the Siete Partidas). As for the Spanish American and the Mexican legal systems, he offered a second overview which starts with a reference to the 17th century Recopilación de Leyes de Indias and then moves to the late 18th century codes for mines promulgated by minister José de Gálvez in 1783. At this point, a great deal of the work is occupied by translations from the Comentario a las Ordenanzas de Minas, published in 1761 by Gamboa104. Then it follows a section on the constitution of Cadiz and one on the independence of Mexico105. In terms of mining laws, Gamboa seems to have been the leading source for Rockwell106, who provides full passages in translation107. Accordingly, he refers to the first translation of that commentary by the London lawyer Richard Heathfield (published in 1830) and includes a long extract of several pages from the preface to it108. By expressing an implicit agreement, Rockwell echoes Heathfield with these words :

  • 109 Heathfield, “Translator’s Preface”, op. cit., p. vi, as quoted in Rockwell, “Preface”, op. cit., p. (...)

[…] the work of Señor Gamboa, which was, previous to the year 1783 [and the Gálvez’ code of mines], the paramount authority in all doubtful cases in mining affairs, continued, after that date, to be regarded with the highest respect, and was and is still, constantly referred to in the courts of Mexico, and as is presumed, of the other new republic of America also, as a great authority on such subjects109.

  • 110 M. Burkholder, “Gamboa, Francisco Javier de”, Diccionario Biográfico Español, online http://dbe.rah (...)
  • 111 According to his biographer, that work “cerró una época y abrió otra a la minería en México”. The c (...)
  • 112 Accordingly, Gálvez had decribed Gamboa as “the Ulpian of the Americas” and, as he was highly impre (...)
  • 113 See Trabulse, Francisco Xavier Gamboa, op. cit., p. 127 and following.
  • 114 Accordingly, “… desde la aparición de su obra, fue patente su utilidad práctica como manual de técn (...)
  • 115 For some examples, see Rockwell, A Compilation, op. cit., p. 155 (reference to Solórzano’s Política (...)

30Born in the northern Mexican region of Guadalajara, Gamboa had graduated in canon and civil law in Mexico City. At the age of 23, his career had started as a lawyer within the local high court, where he had a discrete success. Supported by the Mexican corporation of merchants, he travelled to Madrid, where he spent some years before returning to the Americas with a post as a judge at the criminal bench of the high court in Mexico City110. While in Madrid, he had published his most famous work, the Comentario a las Ordenanzas de Minas, which was praised as a work of great erudition and knowledge by contemporaries111. When he met him in Mexico, the soon-to-be minister and later promulgator of the new code of mines, José de Gálvez, was greatly impressed by Gamboa’s skills and library112. From a positive start in their relation, soon Gálvez and Gamboa clashed over a number of subjects, which has been seen as a possible explanation for the appointment of the latter to the high court of Saint Domingue (far from Mexico City). After the death of Gálvez, Gamboa managed to return to Mexico with the appointment of regent of the high court there113. The main objective of the Comentarios, according to his very author, was to help lawyers win all disputes relating to the mining sector. In order to do so, Gamboa stressed that a lawyer had to know all aspects of his main subject, from the juridical ones, to those linked to economic aspects, and also the technology implemented in the mines. Hence, a great deal of illustrations explaining it were included in the Comentarios, which greatly contributed to the success of the work114. Like for Solórzano’s usefulness to White, here again it appears that the utility of knowing Gamboa’s work lies on the use that could be done of it on North American soil as, in Rockwell’s words, “in all doubtful cases in mining affairs”. Reinforcing the relevance of a consistent understanding of the legal framework of Spanish America, a number of Gamboa’s references include Solórzano among the authorities cited in support of his commentaries115. Furthermore, from an initial study of these, there is another name that emerges as vehicular in the broad circulation of legal concepts beyond the Spanish Atlantic, that of Matías Lagúnez.

  • 116 For a short biography of Lagúnez, see M. Burkholder, “Lagúnez, Matías”, Diccionario Biográfico Espa (...)
  • 117 These events are briefly discussed in T. Herzog, La administración como un fenómeno social : la jus (...)
  • 118 See I. González Casasnovas, Las dudas de la Corona. La política de repartimiento para la minería de (...)
  • 119 M. Lagúnez, Tractatus de fructibus in quo selectiora jura ad rem fructuariam pertinentia expenduntu (...)
  • 120 M. Lagúnez, Memorial sobre fraudes tributarios (Madrid, 1686), and Discurso sobre la mita de Potosí(...)
  • 121 The juicio de residencia was a judicial review on an officer’s mandate undertaken when he left his (...)
  • 122 For an example from Rockwell, in which Lagúnez is used to refer to Solórzano, see Rockwell, A Compi (...)
  • 123 The most extensive one I could find is part of a section in González Casasnovas, Las dudas, op. cit (...)

31Originally from Spain, Lagúnez had exercised as a royal judge in both Quito and Lima116. His time in Quito had been without doubts a formative one for both the practical implementation of the derecho indiano and the knowledge of the economic aspects of the administration in the Americas. As an indication of his strong character, at times troublesome, in Quito he happened to have some contrasts with his fellow-judges at the local royal court, and was even the target of a severe beating in the very street of the city (probably promoted by Augustinian friars) for which, quite surprisingly, no-one was ever charged117. Lagúnez has been described as a convinced defendant of the legislation in place for the Americas, with a sincere interest in the defense of its indigenous population, not exempted from a hint of paternalism118. In discussing the theoretical and practical knowledge linked to the natural resources of the Americas in his legal treatise, Tractatus de fructibus (Madrid, 1686), he had included among these the indigenous population and the work of the Indians as yet another natural resource to exploit119. Despite such views, Lagúnez was an active officer and a sharp observer, as it emerges first from his inspection of the royal mint in Quito and, then, from both his dissertation about the system of forced labor for the indigenous population at the Potosi mines, and the report on the corruption of the tributary system in Peru120. His legal expertise was certainly acknowledged by the crown, as the metropolitan court eventually appointed him judge of the juicio de residencia of the leaving viceroy in 1689121. Like for Gamboa, also Lagúnez did make frequent references to the works of Solórzano, which are then duly reported by Rockwell in his translations122. Unfortunately, like most of the legal practitioners discussed along the pages of this study, also about Lagúnez there are few studies at the moment123.

  • 124 Cf. Rockwell, A Compilation, op. cit., p. 595-620.
  • 125 These are the reports by the member of the Pennsylvania bar and tax collector in San Francisco Thom (...)
  • 126 See H.W. Halleck, Report in relation to public lands in California (March 1, 1849), in Rockwell, A (...)
  • 127 See H.M. Halleck, A Collection of Mining Laws of Spain and Mexico, San Francisco, 1859, 649 p. Avai (...)
  • 128 Ibid., Halleck, “Preface”, p. iii.

32While Rockwell might have been busy in litigating before US courts for a number of clients, he must also have enjoyed a broad network of contacts within the Mexican community (we do not know if locally in California or transnationally in Mexico itself). Therefore, he included in the final part of his compilation several extracts from Mexican laws after the independence, as well as extracts from the official publication of laws in the newspaper of Mexico City124. As for the local Californian environment of civil and military servants, in his preface he refers to a couple of reports that had been published in pamphlet form, which he was not able to retrieve125. He did manage, however, to gather some of the documentation forwarded by the Brevet Captain and Secretary of State, H.M. Halleck, to General Bennett C. Riley at the State Department of the Territory of California. Comprising some sixty pages of both official reports and translations made by the government official translator126, these excerpts are relevant because some years later the same author would publish yet another collection of Spanish and Mexican laws127. Unfortunately, Halleck does not provide the specific reference to the legal sources he translates in his 650-page-collection of ‘foreign’ laws. However, what appears relevant in the effort to unveil the lively ‘legal intercourse’ between North America and its Hispanic neighbors is Halleck’s preface, in which he enumerates a reduced number of important commentators for the Spanish legislation on mining. Among these, not surprisingly, we find once more Lagúnez, Solórzano, and Gamboa128.

IV. Solórzano Pereira back at the US Congress

  • 129 On this, see D.E. Hargis, “The Great Debate in California : 1859”, The Historical Society of Southe (...)
  • 130 For Gwin’s biography, see the first part of the introductory text to his memoirs, in Ellison, “Memo (...)
  • 131 See account of the debates for December 19, 1851, in J.C. Rives, The Congressional Globe : New Seri (...)
  • 132 Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 14.
  • 133 Ibid., p. 17.
  • 134 For a detailed list of these, see Rives, The Congressional Globe, op. cit.., p. 1791-1792, quoted i (...)
  • 135 A brief account of these discussions, linked to a bitter conflict between the senator of Mississipp (...)

33As a last indication of how Californian issues of land and exploitation went together with the increasing number of publications linked to Hispanic legal literature, let us consider debates taking place at the US Congress around the 1850s. During these, Solórzano became once more a useful legal reference and happened to be put ‘into use’ by the senator for California, William McKendree Gwin (*1805, 1885). Originally from Tennessee and with an open ambition – that eventually would be successful – to make a fortune, also political, in the recently annexed California, Gwin participated to the state convention that wrote the Constitution of that state in 1849129. Next, he was elected US senator for two mandates. Thus, up to 1861 he spoke before his fellow senators on behalf of Californians’ needs and interests130. For example, at the 31st US Congress – the first to which representatives of California were admitted – he proposed to have the president’s annual speech translated into Spanish and printed out in two thousand copies for those Californians – the majority, by then – who did not speak English yet131. While the proposal was probably rejected, it caused an interesting debate on whether translations in different languages had to be provided for the variegated human panorama of the growing US republic (e.g. in Norwegian and German for the ninety thousand people in Wisconsin originally from these countries). Elected senator right after the first Californian legislature assembled at the end of 1849, Gwin arrived in Washington with the other delegates to the congress in early January 1850132. Later on, in September of that same year, the bill of admission of the state of California to the US was finally passed by the two houses133. Out of the eighteen bills that were proposed by California representatives more than half were concerned with land titles and exploitation of the natural resources through mining134. The discussion that followed was characterized by bitter conflicts among some of the senators, not all directly linked to the bills for California, which eventually led to postponing the decision to the congress’ second session135.

  • 136 W.M. Gwin, “Land Titles in California. Speech of Mr. Gwin of California” (February 5, 1851), in Riv (...)
  • 137 Land titles in California were discussed several times between January and February 1851, with sena (...)
  • 138 Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 20. For the full speech of this senator, s (...)
  • 139 See the senate session of January 4, 1851, in Rives, Congressional Globe, op. cit.., p. 159.
  • 140 For the full speech of Gwin, see W.M. Gwin, “Speech of Mr. Gwin of California… on land titles in Ca (...)
  • 141 Gwin, “Land Titles in California”, op. cit., p. 130.

34When activities were adjourned in December 1850, Gwin urged several times the president and his colleagues to decide on the bills proposed for California as – he said – there was a “urgent necessity for speedy legislation in this matter, so important to my constituents”136. Unfortunately, discussions were quite alive around the land titles of the newly purchased state and the several disputes that surrounded them137. Among the opponents to the proposed system to settle these, General Thomas H. Benton (senator of Missouri) was quite active. He defended private land claims in California by proposing a bill alternative to that proposed by Gwin, with a somehow simplified process for their recognition – one that lacked the core characteristics of the certainty of the law, according to some of his fellow-congressmen – up to the point of suggesting their confirmation nearly without investigation138. As Gwin’s fellow senator, General John C. Frémont (son-in-law of Benton), deserted the session, the position of the former appeared weaker before the assembly. Nevertheless, he was adamant in defending a more consistent and legalistic approach, than Benton’s one, to land disputes in California. In particular, he proposed to follow examples from Louisiana and Florida, setting up local commissions and appointing the Supreme Court as the court of appeal for contentious titles139. He denounced Benton’s proposed solution as a too generic one140, with no clear indication on how things should actually be done in the practice (e.g. the activities by the recorder of land titles, which Gwin defined with a Spanish term, the archivero)141. Accordingly, he claimed that such a scheme proposed by the senator of Missouri

  • 142 Ibid., p. 130-131.

would led to doubt, distraction, and tumult, leaving the whole titles of the country in conflict, confusion and chaos. […] the bill [proposed by Benton] lacks that certainty and technical precision of terms which should characterize every law, and more particularly those relating to real estate. […] The bill in this respect is loose and defective : but its demerits and evils do not stop here. In a new country like California, rich in the precious and other metals, with new cities and towns springing up, as if by the touch of Aladdin […] with so feeble a barrier, if, indeed, it [Benton’s proposal] may be called a barrier at all, which is set up in the Senator’s bill, the country may be deluged with a flood of spurious titles142.

  • 143 See White, New Collection of Laws, op. cit., vol. 1, p. vi. Echoing the Spanish language and the 17(...)
  • 144 Benton had referred to the colonization laws promulgated under Iturbide who, as Gwin remarked, had (...)
  • 145 For the whole reasoning of Gwin bridging those two legal sources and period, ibid., p. 132-133.
  • 146 Cf. “The viceroys reflected the power and majesty of the monarchs, according to Solórzano’s Polític (...)
  • 147 That is what happened after a third reading and yet a final discussion on the bill ; see the senate (...)

35Indeed experiences from the past had shown that, even in the presence of a better system than the one proposed by Benton, the risk of fraud was high. Calling for a consistent approach to the matter, Gwin referred to White’s account about Louisiana land titles, which had been confirmed by the US even thou they lacked a lawful right to it, something that had emerged later (as White himself had noted in his work)143. In his speech, Benton had referred back to the Mexican laws from 1823 but – Gwin noted – these were not valid as they had been repelled by the Mexican government itself afterwards144. In practice, Gwin was at once challenging Benton’s knowledge of the legal history of Mexico and showing off his better understanding of it – which ultimately laid behind the fact that his proposal for California land titles was better. In order to ascertain whether these titles were “perfect titles” or not, Gwin goes back to the general law of Spain in settling up the province during the 1770 s, which was influenced by both the 1680 Recopilación de Leyes de Indias (which he quoted from the translation provided by White) and the 1786 royal order that had created the intendencies145. More interestingly with regard to the use of references from the legal doctrine for Spanish America, Gwin also includes a quote from Solórzano’s Política Indiana – once more, making use of White’s famous translations146. Of course, the use of Solórzano by Gwin is not enough to prove whether he had effectively read or not the work of that Spanish jurist. What it does prove, however, is how the collection of laws published by White had travelled to the west and contributed to enhance the relevance of certain authors from the legal literature of the Hispanic world before North Americans. Gwin’s strategy to mention Solórzano as a source of authority showed an in-depth knowledge of what, by then, was regarded as foreign legal literature and, at the same time, was deemed useful in gaining legal disputes in North America. Furthermore, we wonder how much among Gwins’s fellow senators might have known Solórzano or the Recopilación de Leyes de Indias. Probably they did know White and his compilation of Spanish legal sources thou. What remains as a fact, ultimately, is that the bill proposed by the California senator did eventually pass before the 31st US was over, while that by his Missouri opponent, which lacked a consistent knowledge of foreign legal literature, did not147.

V. Conclusions

  • 148 T. Donaldson, The Public Domain. Its History, with Statistics, […] Public Land commission. Committe (...)
  • 149 For a copy of this, see the University of Michigan, Law Library ; a digital version of Wasson’s com (...)
  • 150 For a short account of the story, see C.W. Kenyon, “Legal Lore of the Wild West : A Bibliographical (...)
  • 151 A copy of this is at the New York Public Library ; a digital version is available online at https:/ (...)
  • 152 Ibid., p. v.
  • 153 Ibid., p. iii.
  • 154 Cf. Mirow, “The Supreme Court”, op. cit., p. 190.

36Compilations about foreign laws and doctrines coming from the Hispanic world did not end in the 1850 s. Struggling to settle a dispute on a land claim covering a great part of Arizona and New Mexico in the 1880 s, the Surveyor-general of that state – after “a thorough examination of Spanish and Mexican land laws”148 – published one of his reports as a brief compilation of some sixty pages with the title Compilation of the Laws, Regulations, Usages and Conditions of Spain and Mexico (Tucson, 1880)149. Known as the case of the ‘Baron of Arizona’, the dispute itself lasted for some years, with various accounts of additional documentation arising from archives in US and Mexico, and even in Seville150. Another collection of laws, this time from Mexico, was published later on, by the attorney and journalist active in California and Mexico, Frederic Hall (*1825, 1898), as The Laws of Mexico : A Compilation and Treatise (San Francisco, 1885)151. Mainly a collection of laws, Hall does not really engage with the doctrine, but he makes an interesting reference to Charles Thompson Esq. as the London translator of the Mining Code in 1825. From his critics to the translations of that by both Thompson and Rockwell, we can infer that Hall had analyzed and read them both in Spanish and in English. As for Halleck’s work from 1859 (to which Rockwell had referred to), Hall praises it by writing that “he did better […] but he was too limited in his construction while the other abovementioned authors were without limits”152. In considering the task he had set up to undertake, in his preface Hall considered that there were “many questions arising under Mexican laws” in the yet unsettled US territories. Indeed, despite the several works of translation that had appeared before his time, by the 1880 s “the history of Spanish and Mexican jurisprudence” was still “difficult of access, in a great degree, to [North] American lawyers, from the fact that much of it has been clothed in a foreign language, of an ancient form, and without sufficient precedents of judicial interpretation”153. Probably things did not change for the time to come, as it emerges from some of the reference to a case concluded in the 1920 s by the US Supreme Court154.

  • 155 Cf. Ballone, “Foreign Law… in 18th Century North America”, op. cit.

37A study of both the legal history of North and Spanish America offers the advantage point of view of showing how legally intertwined these two geographical areas were, something that is mentioned in current scholarship but not actively pursued in research. We might think this is still due, as remarked by Hall, to the clothes of different languages that make difficult for the global academic community to discuss theories and share sources. At the same time – as I hope I have showed in both this work and its companion on 18th century North America155 – many of these 19th century collections of translated sources from the Hispanic world that were put into use in North America are now available online in open access and ready to be studied in greater detail. As this work has shown, a number of them were brought before courts by legal practitioners in order to support their clients’ claims, often resulting successful in the task. By taking Solórzano as a starting point in search of traces of the circulation of his works in North America – as this study has done – a number of other authors (such as Lagúnez, Gamboa, and Marina) have emerged as attracting the attention of US legal practitioners. Good laws and doctrine were read beyond their time and space, because of the force of their own authority and in search of practical solutions to current issues on the ground. That is a mechanism that should not be limited to the 19th century, the Spanish or the British Atlantic. Instead, it ought to be studied in a much more consistent way by today’s scholars and legal historians. While the recourse by North Americans to authorities from the legal doctrine of Spanish America were natural and necessary, much remains to be done in today’s field of comparative legal history beyond national divides. What is a bit surprising, then, is the fact that there are still few studies – above all in languages other than Spanish – with regard to authors such as Solórzano, Gamboa, or Lagúnez, who seems to have enjoyed a lasting circulation a long time after their own time and well into the history of the vast early America.

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Notes

1 The Trial of Governor T. Picton for Inflicting the Torture on Louisa Calderón, a free mulatto and one of his Britannic Majesty’s subjects, in the Island of Trinidad… taken in short-hand during the Proceedings on the 24th of February, 1806, London, B. Crosby, 1806, p. 86-87. Available online through https://www.nypl.org/ [accessed May 2021].

2 Full official records were published ten years after it ended, in 1812 ; A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors […] compiled by T.B. Howell, Esq. and continued […] by Thomas Jones Howell, Esq., vol. XXX, London, 1822, cols. 225-960. Available online through https://www.hathitrust.org/ and https://books.google.it/ [accessed May 2021].

3 For some examples, see Ibidem, cols. 512-513, for J. Castillo de Bobadilla, Política para corregidores, Madrid, 1597 ; cols. 514-515, for F.A. Elizondo, Práctica universal forense de los tribunales superiores de España e de las Indias, Madrid, 1769 ; and cols. 511-512, for J. de Hevia Bolaños, Curia Philippica, donde breve y compendioso se trata de los juicios, mayormente forenses, eclesiásticos, y seculares, Lima, 1603.

4 Picton is renowned for his military career once he returned to Europe. Participating to the Battle of Waterloo, he was among the highest-ranging officers who got killed there and his heroic death was commemorated ever since. Cf. R. Havard, “Picton, Sir Thomas”, Oxford Dictionary of National Biography, available online at https://www.oxforddnb.com/ [accessed May 2021].

5 For an overview of the situation in Trinidad and an account of the trial, see J. Epstein, “Politics of Colonial Sensation : The Trial of Thomas Picton and the Cause of Louisa Calderon”, The American Historical Review, 112.3, 2007, p. 715 and following. Although in 1806 Picton was initially found guilty, the final outcome of the trial left the question unresolved and he was never sentenced ; id. p. 724. For a different perspective on the case, based on subalternity studies and on the appropriation of the legal practice of religious invocations when suffering torture (like in Spanish America), see C. Taylor, “‘Most Holy Virgin Assist Me’: Subaltern Transnationalism and Positively Possible Worlds”, History of the Present, 4.1, 2014, p. 75-96.

6 Analyzed through the prism of the literature of sensationalism that acquired importance as a genre in that period, “the trial was notable for several reasons. First, since Picton was never brought to court on the more serious charges, the trial acquired significance as the occasion of bringing him to justice. […] Second, Picton was found guilty, although he was never sentenced”; see Epstein, “Politics of Colonial Sensation”, op. cit., p. 719. Furthermore, coverage by the press was massive ; Daily Adviser and Oracle, December 26, 1803, p. 2, quoted in Epstein, id.

7 Accordingly, the barrister questioning Gloster defended that “British character had been ‘stained’ by the infliction of the cruelties of torture” and that, by resorting to it, Picton had perverted the British character ; quoted in Epstein, “Politics of Colonial Sensation”, op. cit., p. 719. In addition to that, several extracts from Bobadilla, Elizondo, and Bolaños were brought before the King’s Bench to defend the fact that torture was not in use in Spanish Trinidad and, therefore, Picton had been twice wrong in resorting to it. First, because Spanish law would have not implemented it in Trinidad but would have, instead, referred the cause of Luisa Calderón to the high court of Caracas (something impossible after the island had ‘become’ British). Second, torture was considered absolutely contrary to the English law in such cases of theft and when dealing with a free British subject.

8 J. Matthews Glenn, “Mixed Jurisdictions in the Commonwealth Caribbean : Mixing, Unmixing, Remixing”, Electronic Journal of Comparative Law, 12.1, 2008, p. 7. See also Taylor, “‘Most Holy Virgin’”, op. cit., p. 76.

9 The United States v. Juan Percheman, 32 US, 51 (7 Peters, 51).

10 For the concept of “entangled history”, see E.H. Gould, “Entangled histories, entangled worlds : the English-speaking Atlantic as a Spanish periphery”, The American Historical Review, 112.3, 2007, p. 764-786, and J. Cañizares-Esguerra (ed.), Entangled Empire : the Anglo-Iberian Atlantic, 1500-1830, Philadelphia, University of Pennsylvania Press, 2018. Also relevant to the main argument put forward here is the concept of “connected histories”. Indeed, to use the words of the scholar who initiated the field of connected histories, my aim is to look at how “ideas and mental constructs […] flowed across political boundaries” in order to better see “that what we are dealing with are not separate and comparable, but connected histories”; cf. S. Subrahmanyam, “Connected histories : notes towards a reconfiguration of early modern Eurasia”, Modern Asian Studies, 31.3, 1997, p. 735-762.

11 For a similar study, that considers 18th century North America, see A. Ballone, “Foreign Law Without Borders in the Early Vast America. Spanish Legal Literature in 18th Century North America”, The Legal History Review, 89.1-2, 2021, p. 212-241. As for the works of the Spanish jurist Juan de Solórzano Pereira, his main treatises are the Disputationem de Indiarum Iure, sive de iusta Indiarum Occidentalium inquisitiones, acquisitione, et retentione tribus libris, Madrid 1629, 751 p., and its second part, the Tomum Alterum de Indiarum Iure, sive de iusta Indiarum Occidentalium Gubernatione quinque libris, Madrid 1639, 1076 p. To these must be added the treatise in Spanish, Política indiana, Madrid 1648, 1040 p., and the Emblemata Centum, Regio Politica, Madrid 1651, 844 p. An online search gives back several digital editions of these works available in full open access ; see for example, https://books.google.com/ [accessed May 2021].

12 For a critique of Atlantic history as a nationally compartmentalized field of research, C. Shammas, “Introduction”, The Creation of the British Atlantic, ed. C. Shammas and E. Macke, Baltimore, The Johns Hopkins University Press, 2005, p. 1-7.

13 Identified by scholars Brian P. Owensby and Richard J. Ross as the gradual process by which “law became intelligible as historical actors began to appreciate the values and history behind a legal idea”, intelligibility is relevant here because of the strong evidence of how British judges and other legal practitioners (e.g. from Picton’s trial) were struggling to grasp the full array of Spanish laws in the Americas. See B.P. Owensby and R.J. Ross, “Making Law Intelligible in Comparative Context”, Justice in a New World. Negotiating Legal Intelligibility in British, Iberian, and Indigenous America, ed. B.P. Owensby and R.J. Ross, New York, New York University Press, 2018, p. 13.

14 K. Wulf, “Vast early America. Three simple words for a complex reality”, Humanities, 40.1, 2019, available online at https://www.neh.gov/article/vast-early-america [accessed May 2021].

15 A number of aspects of this concept have been further analyzed in greater and more nuanced ways by various essays recently published ; see Forum : Situating the United States in Vast Early America, ed. E. Gould and R. Zagarri, William & Mary Quarterly, 78.2, 2021.

16 Gould, Entangled histories, op. cit., p. 764-786. For “entangled history” see also Cañizares-Esguerra (ed.), Entangled Empire, op. cit.

17 Gould, Entangled histories, op. cit., p. 767.

18 The need to go beyond today’s US national borders is becoming a pressing issue in research agendas. See for an example, the recent essay by Caitlin Fitz. According to this scholar, we need “more histories that situate the US in the hemisphere as a whole – not simply for what these stories tell us about the more self-evident transnational arenas of diplomatic, imperial, military, and economic history, but also because they illuminate ostensibly domestic matters of democratic governance”. Furthermore, “the US’ entanglement with the rest of the Americas was not limited to geographically proximate regions”. C. Fitz, “Nation, Continent, Hemisphere : Situating the United States in the Vast Early Americas”, Forum, op. cit., p. 208.

19 Accordingly, “upon achieving independence both the US and Mexico inherited the territorial conflicts of Spain, France and England over what is now the US southwest”; O.J. Martínez, Troublesome Borders. Revised edition, Tucson, University of Arizona Press, 2006, quoted in P.L. Reich, The Law of the United States-Mexican Border : A Casebook, Durham, Carolina Academic Press, 2017, p. 5.

20 Cf. J. Locke, Two Treatises of Government, London, 1690, and, by the same author, the manuscript essay Some of the chief grievances of the present constitution of Virginia, in Bodleian Library, Oxford, Locke MSS, e.9.

21 In Locke’s words, “political power, then, I take to be a right of making laws, with penalties of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and in the defense of the commonwealth from foreign injury, and all this only for the public good”; Locke, Two treatises op. cit., second treatise, chapter I, “Of political power”, § 3.

22 For an interesting overview of this, that encompasses French, British and Spanish America, see A. Greer, Property and Dispossession. Natives, Empires and Land in Early Modern North America, Cambridge, Cambridge University Press, 2018.

23 According to him, “it is hardly an exaggeration to say that the history of the laws of a country is, in many respects, a complete history of the country itself”, quoted in K.A. Modéer, “Transatlantic Intercultural Legal Communication in the 19th Century : K.J.A. Mittermaier and the Schmidt Brothers Carl and Gustavus”, Journal of Civil Law Studies, 8.2, 2015, p. 433.

24 G. Schmidt, The Civil Law of Spain and Mexico, arranged on the principles of the modern codes, with notes and references, preceded by a historical introduction to the Spanish and Mexican law ; and embodying in an appendix some of the most important acts of the Mexican Congress, New Orleans, 1851, 376 p.; for the historical introduction, see p. 1-102 ; this work is available online at various repository, see for example https://books.google.com/ [accessed November 2020].

25 For an overview of the surviving catalogue of this library, albeit from a later period, such as 1877 when it was published for sale, see M.H. Hoeflich and L. de la Vergne, “Gustavus Schmidt : His Life & his Library”, Roman Legal Tradition, 1, 2002, p. 115-116. On Schmidt see also A. Parise, “Gustavus Schmidt, The Civil Law of Spain and Mexico”, Journal of Civil Law Studies, 2.1, 2009, p. 183-193 and, by the same author, “Las bibliotecas jurídicas como herramientas fundamentales del Derecho Comparado : El caso de Schmidt en la Luisiana del siglo XIX”, Revista de Derecho Comparado, 15, 2009, p. 195-241.

26 A renown author within the field of Spanish American history, Solórzano is fairly known also within the English-speaking academic community, although monographic studies in English are still missing. For some excellent classic studies about him, see J. Torre Revello, “Ensayo biográfico sobre Juan de Solórzano Pereira”, Publicaciones del Instituto de Investigaciones Históricas, 44, 1929, p. 15-25 ; M.A. Ochoa Brun, “Estudio preliminar”, Política Indiana compuesta por el señor don Juan de Solórzano Pereira, AA. VV., Biblioteca de Autores Españoles, vol. 252, Madrid 1972, p. xiii-lxiv. For monographic studies on Solorzano, see F. de Ayala, Ideas políticas de Juan de Solórzano, Seville 1946 ; D. Bonnett Vélez and F. Castañeda (eds.), Juan de Solórzano y Pereira. Pensar la Colonia desde la Colonia, Bogotá 2006 ; S. Hierro Anibarro, Economía y Derecho mercantil en la obra de Juan de Solórzano Pereira, Madrid 2008 ; and C. Sánchez Maíllo, El pensamiento jurídico-político de Juan de Solórzano Pereira, Pamplona 2010. For more recent overview about this jurist, A. Ballone, “Contextualizando o trabalho do jurista espanhol Juan de Solórzano Pereira”, Fronteira & debates – Dossiê Direito Colonial no Mundo Moderno, 4.1, 2017, p. 29-53, online at https://periodicos.unifap.br/index.php/fronteiras [accessed May 2021].

27 On the process of dispossession of the land suffered by indigenous population, Allan Greer makes an excellent comparative study ; see A. Greer, Property and Dispossession op. cit. However, in this study I am mainly concerned with what happened in the chaotic moments when a territory changed hands among European and newly emerged North American ones – a situation that further complicated the settlement of land claims between Europeans and colons. Legal practitioners were then forced to become literate in the ways of the laws written in another European language or coming from a different legal system (e.g. common law and civil law), as well as their different stages of development and implementation overseas and locally.

28 A judge with lasting experience in the Americas (at the high courts of Quito and Lima), Lagúnez was the author of a treatise on the natural resources of the Americas, within which he included the work of the indigenous population ; see M. Lagúnez, Tractatus de fructibus, in quo selectiora jura ad rem fructuariam pertinentia expenduntur, ac difficiliora referantur. Opus e summis theoricae, et practicae jurisprudentiae penetralibus eductum ; jure canonico, civili, regio, feudali, Venice, 1701, p. 592. As for Gamboa, his career developed on both sides of the Atlantic, with a place of judge in the high courts of Mexico and Santo Domingo, and two stays at the court in Madrid as the representant of the merchant corporation in Mexico. During his first stay in Madrid he published one of his most important works on the extraction of metals in the Americas ; see F.X. de Gamboa, Comentarios a las ordenanzas de Minas, Madrid, 1761, 534 p. Both works are available online ; for Lagúnez, see https://biblioteca.ucm.es/ and, for Gamboa, https://archive.org/ [accessed May 2021].

29 According to the Spanish scholar Maravall, “Marina es el verdadero fundador de la Historia del Derecho español”; see J.A. Maravall, “El pensamiento político en España a comienzo del Siglo XIX : Martínez Marina”, Revista de estudios políticos, 81, 1955, p. 31.

30 See the discussions in senate of January 2, 1851, published in J.C. Rives, The Congressional Globe : new series : containing sketches of the debates and proceedings of the second session of the 31st Congress. Volume XXIII, Washington, 1851, p. 157-160.

31 I am most grateful to Jim Muldoon for his insightful comments all along the project and, most importantly here, for helping me single out a particular type of agents within the legal history of early America, that of “legal draftsmen” (as opposed to great theorists from Spain, such as Francisco de Vitoria or José de Acosta).

32 J. Wasson, Compilation of the Laws, Regulations, Usages and Conditions of Spain and Mexico, Tucson, 1880, and F. Hall, The Laws of Mexico : A Compilation and Treatise relating to real property, mines, water rights, personal rights, contracts, and inheritances, San Francisco, 1885. In particular, in his preface Frederic Hall refers to a research stay in Mexico, during which he got in touch with local justices, members of the bar, and the director of general archives in Mexico City.

33 My main source for the life of White is E.F. Dibble, Joseph Mills White : Anti-Jacksonian Floridian, Cocoa, Florida Historical Society Press, 2003. According to Dibble, there is no academic literature specifically dealing with White, being the only reference of note that he indicates an unpublished thesis that, unfortunately, I have been unable to access ; D.E. Hill, Joseph M. White : Florida Territorial Delegate, 1825-1837, MA thesis, University of Florida, 1950. As for White’s appearance, there exist a 1831 portrait by Samuel Lovett Waldo (apparently sold in an auction held in New York in 2009) and a marble bust from 1834-1835 by Horatio Greenough (part of the Inventory of American Sculpture of the New York Historical Society Museum & Library). Both pieces are indicative of the fact that White was included in the most important networks of art commissions and cultural heritage of the time. Lovett was a prolific author of several portraits of elite members and had his studio in New York. Greenough was the first North American artist that made neoclassic sculpture his main focus ; he worked mainly from his studio in Florence, from where artifacts were then shipped back to US.

34 Rumors reported by his biographer indicate a possible first marriage before the one with the daughter of the Kentucky governor, and a number of Joseph Whites in the 1820 census of that state. Additionally, it seems that “some Joseph White” was involved in the 1810 s west Florida revolt against Spain or present in New Orleans. See Dibble, Joseph Mills White, op. cit., p. 7-8. In short, it appears that nothing is certain about his first forty years of life before moving to Florida.

35 A series of anonymous letters appeared in the Baltimore Chronicle criticizing this president are attributed to White in the catalogue of the Library of Congress (which refers to bibliographers Joseph Sabin and Ernest Cushing Richardson as its references) ; see [J.M. White], The Presidency (Baltimore?, 1831?) – available online through https://archive.org/ [accessed November 2020].

36 For an excellent overview of land claims in this early period of US Florida, which includes also references to White’s activities during these years, see M.C. Mirow, “The Supreme Court, Florida Land Claims, and Spanish Colonial Law”, Tulane European and Civil Law Forum, 31, 2017, in particular p. 185-187 for the Land Commission and p. 200-203 for White. Implicitly confirming Dibble’s claim of a lack of scholarly studies on White, Mirow mainly relies on that author for the biography of White.

37 “Joseph M. White to the President [Monroe]”, April 15, 1822, quoted in Dibble, Joseph Mills White, op. cit., p. 12.

38 Another commission had been created for east Florida ; for an account of its first activities, characterized by a high conflict among its members, see G.C. Whatley and S. Cook, “The East Florida Land Commission : A Study in Frustration”, The Florida Historical Quarterly, 50.1, 1971, p. 39-52.

39 The final decision by the commission was signed by White and Sam Overton, one of the other two members of the commission. See “Report on British Claims”, in Land Commission of West Florida, Proceeding of Commissioners with Claims Presented, 1822-1824, Record Book 2, p. 260, quoted in Dibble, Joseph Mills White, op. cit., p. 107.

40 As the conquest and settlement of the America by the Iberian kingdoms developed, Spanish norms and exceptions would converge into what became known as derecho indiano. Dealing with how the Crown ought to treat the Americas and its diverse populations, this body of laws considered a huge array of variables. Its development was a gradual process, by which norms were initially designed and then, step by step, perfected thanks to contributions from both sides of the Atlantic. The 16th century witnessed an increasing number of ad hoc directives regarding the inhabitants of the New World. Then, gradually a need for systematisation emerged, leading to the Recopilación de leyes de las Indias (published in 1680). Nevertheless, a codification in the modern sense of the terms never happened, and the recopilacion was far from being considered the ending point of the process of development of a code for Spanish America. For an excellent in-depth discussion about the derecho indiano, see V. Tau Anzoátegui, Casuismo y sistema. Indagación histórica sobre el espíritu del Derecho Indiano, Buenos Aires, Instituto de Investigación de Historia del Derecho, 1992. Very recently, in 2021, this work has been made available in online and open access at https://e-archivo.uc3m.es/handle/10016/32572 [accessed May 2021]. On the derecho indiano, see also B. Bernal, “Las características del derecho indiano”, Historia Mexicana, 38.4, 1989, p. 663-75 ; T. Duve and H. Philajamäki, “Introduction : New Horizon of Derecho indiano”, ed. T. Duve and H. Philajamäki, New Horizons in Spanish Colonial Law : Contributions to Transnational Early Modern Legal History, Berlin, Max Planck Institute for European Legal History, 2015, p. 1-5 ; A. Dougnac Rodríguez, Manual de Historia del Derecho Indiano, Mexico, UNAM, 1994.

41 This information is given by Dibble, Joseph Mills White, op. cit., p. 108. Apparently, the practice of removing the archives was a regular feature in the changing scenario of Atlantic politics from the period. For example, with regard to the Picton’s trial evocated at the beginning of this work, it appears that “one Trinidad historian laments, ‘at the capture of the island by the British, in 1797, most of the old records were carried off to Caracas, or destroyed’”, E.L. Joseph, History of Trinidad, 1838, quoted in Taylor, “‘Most Holy Virgin’”, op. cit., p. 87.

42 Instead of White, a number of other peoples were sent out for fishing expeditions in search of these archives, such as James Grant Forbes in 1816, captain James Biddle in 1822, judge Thomas Randall in 1823, attorney Richard Keith Call in 1829, and US consul in Cuba Nicholas P. Trist in 1833. For a brief account of this search, see Dibble, Joseph Mills White, op. cit., p.108-113, and A.J. Hanna, “Diplomatic Missions of the United States to Secure the Spanish Archives of Florida”, ed. A. Curtis Wilgus, Hispanic American Essays. A Memorial to James Alexander Robinson, Chapel Hill, University of North Carolina Press, 1942, p. 223 and following, quoted ibid. The role played by both authorized and unauthorized consulship – inevitably involved in these missions to rescue the Florida archives – is discussed in S.A. Simeonov, “’With What Right Are They Sending a Consul’ Unauthorized Consulship, US Expansion, and the Transformation of the Spanish American Empire, 1795-1808”, Journal of the Early Republic, 40.1, 2020, p. 19-44. For Nicolás Trist and his life in the British and the Spanish Atlantics, see A. Sobarzo, Deber y consciencia. Nicolás Trist, el negociador norteamericano en la Guerra del 47, Mexico City, Fondo de Cultura Económica, 1996.

43 Dibble, Joseph Mills White, op. cit., p. 116.

44 Ibid., p. 121 and p. 131-132.

45 White himself recalls these circumstance in the “Introduction” to his 1839 work ; see White, New Collection of Laws, p. iii-v. See also Dibble, Joseph Mills White, op. cit., p. 117, and Mirow, “The Supreme Court”, op. cit., p. 201-202. In one of his texts published later on, White seems to refer back to what could have been this first collection of foreign legal literature as White’s Land Laws, in 7 volumes ; quoted in J.M. White, “Documents relating to the eighth article of the Treaty with Spain of the 22nd February 1819”, US 22nd Congress, 2nd session, 1832-1833, Washington, 1833, p. 10.

46 He has been defined as “a consistent winner for his clients before the Supreme Court ;” see Mirow, “The Supreme Court”, op. cit., p. 201.

47 For a full list of these, see Dibble, Joseph Mills White op. cit., “Appendix Three. White’s Supreme Court Cases,” p. 173-181. Mostly all of these cases, with White as the appellee, are also presented in the appendix of Mirow, “The Supreme Court”, op. cit., p. 212-218.

48 For an account of both White’s and these cases, see Dibble, Joseph Mills White, op. cit., “Chapter 8. Lawyering for Land Claims”, p. 119-132. These land claims are also discussed in Mirow, “The Supreme Court”, op. cit.

49 For the text of the treaty, signed in both the Spanish and the English version, see H. Miller (ed.), Treaties and Other International Acts of the United States of America, Washington, Government Printing Office, 1933, vol. 3, doc. No. 41, p. 3-18, in particular p. 9 for art. 8 ; available online through https://books.google.com/ [accessed November 2020].

50 As for him, “the commonwealth comes by a power to set down what punishment shall belong to the several transgressions they think worthy of it […] and all of this for the preservation of the property of all the members of that society”; Locke, Two treatises op. cit., second treatise, chapter VII, “Of political or civil society”, § 88.

51 Mirow, “The Supreme Court”, op. cit., p. 184.

52 Accordingly, in a later session it is reported that “Mr. Joseph M. White laid before the House a paper containing Extracts from Zolorzano’s Política Indiana, which paper was directed to be printed for the use of the House ;” see Journal of the House of Representative of the US. 1832-33, p. 158 – available online through the database A Century of Lawmaking for a New Nation. US Congressional Documents and Debates 1774-1875 at https://www.loc.gov/ [accessed May 2021].

53 See US 22nd Congress, 2nd session, Ho. of Reps (1832-1833), Doc. No. 36, p. 1-5, quoted in J. Sabin, Bibliotheca Americana, No. 86544. The 22nd Congress had two sessions : the first one running from December 5, 1831, to July 16, 1833, and the second from December 3, 1832, to March 2, 1833.

54 White, New Collection of Laws, op. cit., vol. 1, p. 367-372.

55 While most of the excerpts are referred to by book, chapter and paragraph numbers (although these are translated as “articles”), two of them includes page numbers. So, for example, White, New Collection of Laws, op. cit., vol. 1, p. 371, “Book 5 – Chapter 13 – Page 372” corresponds to the exact page number of Solórzano’s 2-volume-edition printed in Madrid by Gabriel Rámirez in 1739. The same happens with the other page number indicated by White (p. 482) which corresponds to the Rámirez edition – available online at https://books.google.com/ [accessed November 2020].

56 That is art. 13 from chapter 12, according to which “it is permitted that the ancient conquerors, and other well deserving persons in the Indies, be remunerated and accommodated with lands and possessions there, and that, among these, the most worthy (sic) should be preferred ;” White, New Collection of Laws, op. cit., vol. 1, p. 372 [emphasis in the original].

57 Here White translates Solórzano’s “por ser unos como factores o institutores reales ;” White, New Collection of Laws, op. cit., vol. 1, p. 367, and Solórzano, Política Indiana op. cit., book 3, chapter 5, paragraph 31.

58 White, New Collection of Laws, op. cit., vol. 1, p. 368 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 3, chapter 10, paragraph 26.

59 Corpus Iuris Civilis, Dig. 1, 19, 1, “De officio procuratoris Caesaris,” translated into English in A. Watson (ed.), The Digest of Justinian, Philadelphia, University of Pennsylvania Press, 1985, vol. 1, p. 37.

60 White, New Collection of Laws, op. cit., vol. 2, p. 704.

61 Ibid., vol. 2, p. 703.

62 An example of this is the way in which the British colonial agent James Abercromby referred to Solórzano’s Latin treatise from 1639 as his “last book” when writing in England in the 1750 s ; see Ballone, “Foreign Law… in 18th Century North America”, op. cit., p. 231-232.

63 Ibid., vol. 1, p. 369 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 5, chapter 12, paragraph 3. Here White at once exaggerates and summarizes Solórzano’s final references as “an infinity of authors” and does not include in the translation the names of the two famous jurists André Tiraqueau and Justus Lipsius.

64 White, New Collection of Laws, op. cit., vol. 1, p. 369 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 5, chapter 12, paragraph 6. White translates Solórzano’s “vicarios” as “substitutes” and “Alter Nos” as “Alter ego.”

65 White, New Collection of Laws, op. cit., vol. 1, p. 370 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 5, chapter 12, paragraph 9.

66 Not translated by White, for Valenzuela’s summary of this chapter, see Solórzano, Política Indiana op. cit., book 5, chapter 13, p. 365.

67 White, New Collection of Laws, op. cit., vol. 1, p. 372 [emphasis in the original], and Solórzano, Política Indiana op. cit., book 5, chapter 13, paragraph 5.

68 For an account of the exchange of ratifications in 1820-1821 with references to state papers and the correspondence of these years taking place on both sides of the Atlantic, see Miller (ed.), Treaties, op. cit., vol. 3, p. 49-52.

69 See J.M. White, “Documents relating to the eighth article of the Treaty with Spain of the 22nd February 1819”, in US 22nd Congress, 2nd session, 1832-1833, Washington, 1833, Doc. No. 80, p. 1-25, University of Michigan, Law Library, available online at https://www.hathitrust.org/ [accessed November 2020].

70 The United States v. Juan Percheman, 32 US, 51 (7 Peters, 51).

71 See for example, Ibid., “Extract from the opinion of the Supreme Court in the case Arredondo”, p. 11 (as in 31 US, 691, Nos. 79-81 – also 6 Peters, 691), and “Copy of the Protest”, p. 23-24.

72 Foster & Elam v. Neilson, 27 US, 253, No. 236 (2 Peters, 253).

73 White, “Documents relating to the eighth article”, op. cit., p. 2.

74 According to his biographer, the court’s opinion, written by justice Henry Baldwin, “clearly reflected White’s arguments”; see Dibble, Joseph Mills White, op. cit., p. 124.

75 White, “Documents relating to the eighth article”, op. cit., p. 2.

76 Ibid., p. 3-4.

77 Ibid., p. 14. Indeed, Locke would have agreed, as for him “no political society can be, nor subsist, without having in itself the power to preserve the property”; Locke, Two treatises, op. cit., second treatise, chapter VII, “Of political or civil society”, § 87.

78 White, “Documents relating to the eighth article”, op. cit., p. 15.

79 Accordingly, on p. 6-9 White discusses the negotiation papers between the Secretary of State and the Minister of Spain.

80 I am grateful to Marco Cortopassi for the elaboration of this map.

81 White, “Documents relating to the eighth article”, op. cit., p. 5.

82 For the text of the ratification, see Miller (ed.), Treaties, op. cit., vol. 3, p. 18-20, in particular p. 19 for the direct reference to the annulation of the Alagón, Puñonrostro and Vargas grants.

83 J.M. White et al., Legal Opinions of the Honorable Joseph M. White of the House of Representatives, U. States, Honorable Daniel Webster Senator in Congress, and Edward Livingston Esq., L.L.D. and late Secretary of State of the U. States, in Relation to the Title of the Duke of Alagón, New York, H. Cassidy Printer, 1836, p. 1-27.

84 White et al., Legal Opinion, op. cit., p. 11.

85 Ibid., p. 11.

86 Ibid., p. 8-9.

87 Included among the legal sources mentioned by White there is the Fuero Juzgo, the Fuero Real, the Siete Partidas, the ordinance of Alcalá ; see White et al., Legal Opinion, op. cit., p.12-14.

88 Ibid., p. 15.

89 Ibid., p. 14.

90 Ibid., p. 15.

91 The text of the ratification is reproduced literally by Daniel Webster, the argument of which followed that by White ; see ibid., p. 19.

92 For an overview of the historical background of the acquisition of California, see M.K. Saunders, “California Legal History : The California Constitution of 1849”, California Legal History Law Library Journal, 90.3, 1998, p. 448-450.

93 For the biography of Rockwell, I rely mainly on P.L. Reich, “Introduction”, in J.A. Rockwell, A Compilation of Spanish and Mexican Law in Relation to Mines and Titles to Real Estate (1851), New Jersey, Lawbook Exchange, 2011, p. v-xvi. I am grateful to James Muldoon for mentioning to me the case of Rockwell as something similar to White’s work and someone who must have read Solórzano too.

94 Ibid., p. v.

95 The author himself gives a brief overview of the “subsequent volumes”; Rockwell, “Preface”, op. cit., p. 18-19.

96 Cf. J.A. Rockwell, A Compilation of Spanish and Mexican Law in Relation to Mines and Titles to Real Estate, in force in California, Texas and New Mexico ; and in the territories acquired under the Louisiana and Florida treaties, when annexed to the United States (New York, 1851).

97 Rockwell, “Preface”, op. cit., p. 7. The historical overview of the sources of the Hispanic legal system occupies a long section of the Preface ; id., p. 7-16.

98 While working on the collection of law relating to family, property, contract and inheritance law, Louisiana attorney Gustavus Schmidt wrote to Rockwell manifesting his other project on a collection on land and exploitation. Informed on the on-going work of the latter, he ended out putting at one side his own project, possibly out of redundancy ; Reich, “Introduction”, op. cit., p. xi.

99 Ibid., p. 8.

100 Cf. J.A. Escudero, “Martínez Marina, Francisco”, Diccionario Biográfico Español, online http://dbe.rah.es/ [accessed May 2021] and, by the same autor, “Francisco Martínez Marina y el liberalismo español del XIX”, Anales de la Real Academia de jurisprudencia y legislación, 29, 1999, p. 379-389 ; M.C. Castrillo Llamas, “D. Francisco Martínez Marina : el hombre y su obra”, Medievalismo, 2,1992, p. 220-225.

101 See Rockwell, “Preface”, op. cit., p. 8, in which a long quote provides the North American reader with a definition of the Spanish fueros ; cf. F. Martínez Marina, Ensayo histórico-crítico sobre la legislación y principales cuerpos legales de los Reinos de León y Castilla especialmente sobre el código de las ‘siete Partidas’ de don Alfonso el Sabio (Madrid, 1808). According to Escudero, the Ensayo histórico-crítico was “sin duda la mejor [obra] del autor, fue recibida calurosamente por los amigos eruditos de Marina, entre ellos Jovellanos, y fue reproducida en Londres en el periódico El Español”; Escudero, “Martínez Marina”, op. cit.

102 Cfr. J.L. Bermejo Cabrero, “Tríptico sobre Martínez Marina”, Anuario de historia del derecho español, 65, 1995, in particular p. 238-239.

103 In particular, the Ensayo was published in full by the periodical El Español ; see Escudero, “Martínez Marina”, op. cit. Published in London between 1810 and 1814, it is highly possible that El Español reached as far as English and Spanish speaking audiences in North America. For this kind of political press in London, see D. Muñoz Sempere, “Cultural Identity and Political Dissidence : The Periodicals of the Spanish Liberal Exile in London (1810-41)”, ed. C. Bantman and A.C. Suriani da Silva, The Foreign Political Press in Ninenteenth-Century London. Politics from a Distance, London, Bloomsbury Academic, 2018, p. 33-50.

104 E. Trabulse, Francisco Xavier Gamboa. Un político criollo en la ilustración mexicana (1717-1794), Mexico City, Colegio de México, 1985.

105 Rockwell, “Preface”, op. cit., p. 16-18.

106 According to the English scholar David Brading, Gamboa was “the mining jurist” par excellence ; D. Brading, 1970, quoted in Trabulse, Francisco Xavier Gamboa, op. cit., p. 101.

107 Cf. Rockwell, A Compilation, op. cit., p. 116-380.

108 See R. Heathfield, Commentaries of the Mining Ordinances of Spain : dedicated to his Catholic majesty Charles II. By Don Francisco Xavier de Gamboa […] translated from the original Spanish (London, 1830), 2 vols. For Rockwell’s long quotation, see his “Preface”, op. cit., p. 19-23.

109 Heathfield, “Translator’s Preface”, op. cit., p. vi, as quoted in Rockwell, “Preface”, op. cit., p. 21.

110 M. Burkholder, “Gamboa, Francisco Javier de”, Diccionario Biográfico Español, online http://dbe.rah.es/ [accessed May 2021].

111 According to his biographer, that work “cerró una época y abrió otra a la minería en México”. The commentaries were based on an extensive bibliographical apparatus, including Latin, French, German and Castilian sources, wisely mixed with authors from New Spain ; as such it had been designed by his author as “a trabajo integral que abarcara todos los problemas de la minería”; Trabulse, Francisco Xavier Gamboa, op. cit., p. 48-53.

112 Accordingly, Gálvez had decribed Gamboa as “the Ulpian of the Americas” and, as he was highly impressed by his library (one of the best ones in Mexico and mainly focused on juridical matters), bought part of it after the death of the latter ; cf. J.R. Méndez Pérez, “El licenciado don Francisco Xavier de Gamboa en las Juntas de Arreglo de Mineria de la Nueva Espana, 1789-1790”, Estudios de historia novohispana, 47, 2012, p. 165.

113 See Trabulse, Francisco Xavier Gamboa, op. cit., p. 127 and following.

114 Accordingly, “… desde la aparición de su obra, fue patente su utilidad práctica como manual de técnica minera […] Fue más bien todo un tratado de minería y del beneficio de los minerales, sobre todo la plata”; cf. Trabulse, Francisco Xavier Gamboa, op. cit., p. 73.

115 For some examples, see Rockwell, A Compilation, op. cit., p. 155 (reference to Solórzano’s Política Indiana), p. 212 (ref. to Solórzano’s De Indiarum Iure), and p. 249 (with a long quote from Solórzano’s Tomum Alterum).

116 For a short biography of Lagúnez, see M. Burkholder, “Lagúnez, Matías”, Diccionario Biográfico Español, available online at http://dbe.rah.es/ [accessed November 2020].

117 These events are briefly discussed in T. Herzog, La administración como un fenómeno social : la justicia penal en la ciudad de Quito (1650-1750), Madrid, Centro de Estudios Constitucionales, 1995, p. 144-145.

118 See I. González Casasnovas, Las dudas de la Corona. La política de repartimiento para la minería de Potosí (1680-1732), Madrid, CSIC, 2000, p. 269-270.

119 M. Lagúnez, Tractatus de fructibus in quo selectiora jura ad rem fructuariam pertinentia expenduntur, ac difficiliora referantur. Opus e summis theoricae, et practicae jurisprudentiae penetralibus eductum ; jure canonico, civili, regio, feudali, Madrid, 1686 (1st ed.), and Venice, 1701 (2nd revised ed.), 592 p. For the section about the indigenous population in the 1702 edition printed in Lyon, see part I, chapter 15, argument IV, p. 149-169, available through https://digibug.ugr.es/ [accessed May 2021]. The work went through several editions, in 1702, 1726, 1756, and 1757.

120 M. Lagúnez, Memorial sobre fraudes tributarios (Madrid, 1686), and Discurso sobre la mita de Potosí (1692), in Archivo General de las Indias (Seville, Spain), Charcas 272, 1,200 f., and Charcas 273, respectively.

121 The juicio de residencia was a judicial review on an officer’s mandate undertaken when he left his post ; the main objective was to establish whether he had performed his mandate according to the law or not. Of course, as the viceroy was the highest officer in charge, his juicio represented a delicate moment for both his career and the current state of the viceroyalty he had administrated. Often a juicio lasted for several years, representing at once an important tool of complaint for the subjects and of knowledge for the metropolitan court.

122 For an example from Rockwell, in which Lagúnez is used to refer to Solórzano, see Rockwell, A Compilation, op. cit., p. 128 and p. 155.

123 The most extensive one I could find is part of a section in González Casasnovas, Las dudas, op. cit., p. 259-304.

124 Cf. Rockwell, A Compilation, op. cit., p. 595-620.

125 These are the reports by the member of the Pennsylvania bar and tax collector in San Francisco Thomas Butler King and the esquire William Carey Jones, which were both “valuable and able reports ;” Rockwell, “Preface”, op. cit., p. 24.

126 See H.W. Halleck, Report in relation to public lands in California (March 1, 1849), in Rockwell, A Compilation, op. cit., p. 431-444, followed by a series of additional translations as appendixes, id., p. 444-484. According to scholar William Ellison, “Captain Halleck was a gentleman of intellect and great capacity for labor, and devoted all of his energies and all of his time in assisting in the formation of the Constitution [of California]. He had thoroughly studied the Constitution of the State of New York and proposed to make it the basis upon which we should frame our Constitution”; W.H. Ellison, “Memoirs of Hon. William M. Gwin”, California Historical Society Quarterly, 19.1, 1940, p. 6.

127 See H.M. Halleck, A Collection of Mining Laws of Spain and Mexico, San Francisco, 1859, 649 p. Available online through the library of the University of Michigan, at https://www.lib.umich.edu/ [accessed November 2020].

128 Ibid., Halleck, “Preface”, p. iii.

129 On this, see D.E. Hargis, “The Great Debate in California : 1859”, The Historical Society of Southern California Quarterly, 42.2, 1960, p. 150-160. For an account of the state convention, see also Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 5-14.

130 For Gwin’s biography, see the first part of the introductory text to his memoirs, in Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 1-4. For a recent study of Gwin, albeit one concerned with the latest year of his life and his activities lobbying for US expansion southward into Mexico, see R. St. John, “The Unpredictable America of William Gwin : Expansion, Secession, and the Unstable Borders of Nineteenth-Century North America”, Journal of the Civil War Era, 6.7, 2016, p. 56-84.

131 See account of the debates for December 19, 1851, in J.C. Rives, The Congressional Globe : New Series : containing Sketches of the Debates and Proceedings of the Second Session of the 31st Congress. Vol. XXIII, Washington, 1851, p. 66 et sgt.; available online through the database A Century of Lawmaking for a New Nation. US Congressional Documents and Debates 1774-1875 at https://memory.loc.gov/ammem/amlaw/ [accessed May 2021]. Once more, I wish to express my thanks to Jim Muldoon, who called my attention to this important source of the activities of the US congress.

132 Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 14.

133 Ibid., p. 17.

134 For a detailed list of these, see Rives, The Congressional Globe, op. cit.., p. 1791-1792, quoted in Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 18-19.

135 A brief account of these discussions, linked to a bitter conflict between the senator of Mississippi and that of Missouri is recalled in Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 20-21.

136 W.M. Gwin, “Land Titles in California. Speech of Mr. Gwin of California” (February 5, 1851), in Rives, Congressional Globe, op. cit., p. 130.

137 Land titles in California were discussed several times between January and February 1851, with senators from different states taking part such as, beside Gwin and Benton, senators Berrien from Georgia, Ewin from Ohio, Hale from New Hampshire ; cf. senate session of January 28, 1851, in Rives, Congressional Globe, op. cit.., p. 359-363.

138 Ellison, “Memoirs of Hon. William M. Gwin”, op. cit., p. 20. For the full speech of this senator, see T.H. Benton, “Speech of Mr. Benton of Missouri… on land titles in California” (January 3, 1851), in Rives, Congressional Globe, op. cit.., “Appendix,” p. 48-53.

139 See the senate session of January 4, 1851, in Rives, Congressional Globe, op. cit.., p. 159.

140 For the full speech of Gwin, see W.M. Gwin, “Speech of Mr. Gwin of California… on land titles in California and in reply to Mr. Benton” (January 8, 1851), in Rives, Congressional Globe, op. cit.., “Appendix,” p. 53-61.

141 Gwin, “Land Titles in California”, op. cit., p. 130.

142 Ibid., p. 130-131.

143 See White, New Collection of Laws, op. cit., vol. 1, p. vi. Echoing the Spanish language and the 17th century code for the Americas (Recopilación de Leyes de las Indias), Gwin defined that work as White’s “New Recopilación appeared in 1839 ;” Gwin, “Land Titles in California”, op. cit., p. 131.

144 Benton had referred to the colonization laws promulgated under Iturbide who, as Gwin remarked, had been expelled as “emperor” and “usurpator” (sic) ; Gwin, “Land Titles in California”, op. cit., p. 131.

145 For the whole reasoning of Gwin bridging those two legal sources and period, ibid., p. 132-133.

146 Cf. “The viceroys reflected the power and majesty of the monarchs, according to Solórzano’s Política Indiana – Recop., vol., p. 368, 369,” in which Gwin is referring to White’s section on the “Power of Viceroys, Captains General, and Governors” (which he had submitted to the US congress in 1833 – see above) ; cf. White, New Collection of Laws, op. cit., vol. 1, p. 368-369.

147 That is what happened after a third reading and yet a final discussion on the bill ; see the senate session of February 6, 1851, in Rives, Congressional Globe, op. cit.., p. 451.

148 T. Donaldson, The Public Domain. Its History, with Statistics, […] Public Land commission. Committee on codification…, Washington, 1884, vol. III, p. 1122.

149 For a copy of this, see the University of Michigan, Law Library ; a digital version of Wasson’s compilation is available online at https://www.hathitrust.org/ [accessed November 2020].

150 For a short account of the story, see C.W. Kenyon, “Legal Lore of the Wild West : A Bibliographical Essay”, California Law Review, 56.3, 1968, p. 700. Apparently, the ‘baron’ had visited the archives in Spain in order to plant there false records ; see D.M. Powell, “The Peralta Grant : A Lost Arizona Story”, The Papers of the Bibliographical Society of America, 50.1, 1956, p. 50.

151 A copy of this is at the New York Public Library ; a digital version is available online at https://www.hathitrust.org/ [accessed November 2020]. For a modern edition, see P.L. Reich (ed.), The Laws of Mexico : A Compilation & Treatise relating to Real Property, by Frederic Hall, Clark, Lawbook Exchange, 2016. According to Hall, the work had originated from recent discussions in the Supreme Court, during which there had been doubts on “whether all of the laws of the Novísima Recopilación are in force here by virtue of their being within said code, or whether only such laws therein are in force as were communicated to the viceroy, by order of the king, through the Council of the Indies, and promulgated there see Hall, “Preface”, in The Laws of Mexico, 1885, p. iii.

152 Ibid., p. v.

153 Ibid., p. iii.

154 Cf. Mirow, “The Supreme Court”, op. cit., p. 190.

155 Cf. Ballone, “Foreign Law… in 18th Century North America”, op. cit.

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Titre The Floridas in relation to the treaty with Spain of 1819
Crédits Map elaborated on the basis of the one published in H. Miller, Treaties and Other International Acts of the United States of America (Washington, 1933), vol. 3, p. 4180.
URL http://journals.openedition.org/cliothemis/docannexe/image/1946/img-1.jpg
Fichier image/jpeg, 209k
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Angela Ballone, « Foreign Law Without Borders in the Early Vast America. Spanish Legal Literature in 19th Century North America »Clio@Themis [En ligne], 21 | 2021, mis en ligne le 09 novembre 2021, consulté le 18 août 2022. URL : http://journals.openedition.org/cliothemis/1946 ; DOI : https://doi.org/10.35562/cliothemis.1946

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Auteur

Angela Ballone

Univ. Lille, UMR 8025 – CHJ – Centre d’histoire judiciaire, F-59000 Lille,
France
angela.ballone@gmail.com
ORCID https://orcid.org/0000-0002-0027-4779

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