Advocates for the Oppressed by Malcolm Ebright

Author:Malcolm Ebright [Ebright, Malcolm]
Language: eng
Format: epub
Tags: History, United States, State & Local, Southwest (AZ; NM; OK; TX), Law, Land Use, Indigenous Peoples of the Americas
ISBN: 9780826355065
Google: DUNuBQAAQBAJ
Publisher: UNM Press
Published: 2014-12-01T00:24:26+00:00

CHAPTER TEN

TOMÁS VÉLEZ CACHUPÍN AND HIS LAWSUITS

GOVERNOR TOMÁS VÉLEZ CACHUPÍN OFTEN USED HIS POSITION AS governor to protect the rights of oppressed minorities through the land-related lawsuits he decided. As a means of analyzing these cases, I will compare them with lawsuits decided by his successor, Governor Pedro Fermín de Mendinueta. The terms of the two governors spanned the period from 1749 to 1778. While Governors Vélez Cachupín and Mendinueta generally followed the same legal principles, sometimes they took different approaches and reached different results in similar cases. Vélez Cachupín was among the most legalistic and precise of all New Mexico governors in his handling of litigation, and both men generally tried to follow proper procedures. But Mendinueta was less strict, sometimes putting up with unfair procedures and siding with a corrupt alcalde without a proper hearing.1 Vélez Cachupín tended to deal more directly with the individuals involved in the lawsuits he decided and was often personally familiar with the facts of the dispute. Instead of leaving everything to the alcalde to decide, Vélez Cachupín often based his decision on a personal inspection of the land in question, providing a detailed decision crafted in precise legal language and following it up to be sure its provisions were carried out.2

Land and water rights litigation in New Mexico has often turned on questions of Spanish or Mexican law, yet there has been no systematic method of determining what that law is, and the courts have sometimes ignored what accurate evidence of Hispanic law has come before them.3 Within the past two decades or so, a number of books and articles have been published describing Hispanic law, particularly in the frontier provinces of California and New Mexico, and some of these publications have been cited with approval by the courts.4 In addition, reports rendered by expert witnesses, particularly in New Mexico water rights adjudications, have added to our knowledge of Spanish and Mexican law.5 Legal historians describing Spanish and Mexican law in the Southwest borderlands have divided between those emphasizing Spanish legal codes as the source and test of how Hispanic legal disputes were decided6 and those who believe that custom, especially as defined in lawsuits and governmental communications, bears the seeds of an understanding of Hispanic law.7 These views are not mutually exclusive, however, for the customs and the codes overlap substantially. Indeed, the earliest and most important codification of Spanish law, Las Siete Partidas, contains several laws based on custom.8

It is essential to review Hispanic judicial decisions to arrive at their underlying principles, for many errors made by U.S. courts in interpreting Hispanic law in New Mexico have arisen from a blind application of codified law or commentaries on codified law. Often, courts have reached erroneous results because they did not try to understand conditions in New Mexico so they could decide an issue of Hispanic law the way a judge in New Mexico would have done.9 Legal decisions taken as a whole, together with official governmental communications, are the best

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