Today’s blog is written by Dr. Michael Brescia, Arizona State Museum’s Associate Curator of Ethnohistory, who is on sabbatical. A Fulbright-Carlos Rico Award for North American Studies has taken him to Canada and Mexico. Last fall, he wrote about his teaching and research activities in Canada. This post focuses on his research on water rights in Mexico’s Biblioteca Palafoxiana, a rare book library founded in 1646. He returns to ASM later this summer.
It’s the ultimate of intellectual sensations, standing in the library that was founded in 1646 by the Spanish bishop, Juan de Palafox y Mendoza, and surrounded by a beautifully crafted three-tiered cedar bookcase that holds over 50,000 volumes. Take just a few moments to gaze at the impressive collection of books, manuscripts, incunabula, and ephemera, and you’ll understand why the celebrated Italian author, Umberto Eco, could imagine old manuscripts conversing with one another in a medieval monastery. In the Biblioteca Palafoxiana, located in the city of Puebla, I have eavesdropped on some of those conversations taking place between books—sometimes not so discretely, I might add—and they have informed my research on the living legacies of Spanish and Mexican water rights in the greater Southwest. In many ways, therefore, part II of my Fulbright adventure has been a scholarly exercise in how to pay attention to what old books have to say about even older approaches to natural resource management in a judicial system whose roots are found in Roman and Visigothic law rather than English common law.
With no formal teaching duties attached to the Mexican portion of my North American Fulbright, I am able to spend much of my time in that baroque jewel of a library, trying to tease out the nuances of Spanish jurisprudence in legal treatises that have their fair share of esoteric language. I suspect that Shakespeare’s Spanish contemporary, Miguel Cervantes, author of Don Quixote, might have empathized with the bard’s exhortation in Henry VI about getting rid of lawyers. Over time, however, scholarly frustration with “legalese” turns into grudging admiration, for the law reflects a specific web of circumstances—social, cultural, environmental—that simultaneously fashions and is fashioned by the human condition. In short, law is too important to be left solely in the hands of lawyers and jurists. Water law, in particular, remains the purview of farmers, ranchers, and irrigators of all cultural backgrounds here in our Southwest, not to mention community activists, governments of all sizes, big business, and yes, this historian who is trying to make sense of a very complex issue. As has often been attributed to Mark Twain—and without much evidence I might add—”whiskey is for drinking, water is for fighting over.”
Visitors to ASM since November 2010 have seen how two exhibits—Many Mexicos and The Treaty of Guadalupe Hidalgo—have contextualized the important role played by Spanish and Mexican water law in places such as New Mexico, Colorado, and our backyard. The largely Hispanic and Native American heirs to the conflict between Mexico and the United States often call upon the Spanish colonial civil law of property to protect their rights to natural resources. And they do so because international law and certain U.S. Supreme Court decisions have recognized the doctrines of prior sovereigns and state succession in the adjudication of property rights, including water rights. The American judicial system, however, shaped as it is by the common law traditions bequeathed by Great Britain, has had an imperfect understanding of the nature and scope of property rights under the laws of Spain and Mexico. In many cases historians are called upon as expert witnesses to inform the courts of the statutory and case law as it appears in the archives and libraries of Spain and Mexico. We don’t always agree, of course, on the finer details of the law and the particular circumstances that promoted litigation in the first place, or what it all meant to the average farmer trying to eke out an existence in the deserts of southern Arizona or the semi-arid stretches of northern New Mexico. On the other hand, we tend to agree that Spanish law–and the historical and ecological contexts that fashioned its broader contours–defined access to and control of water sources differently than the common law.
As our time in Puebla slowly winds down, my family and I have started to reflect upon our year away from Tucson. We have lived in the three countries of North America in the span of twelve months. And we have taken planes, trains, buses, and automobiles in an effort to see the continent. We saw snow fall in Canada, the volcano Popocatépetl rumble and spew ash in Puebla, while an earthquake in central Mexico pushed us outdoors for a few moments where we got to know our neighbors better. Mother Nature has her own way of reminding us that we are subject to forces more powerful–and more unpredictable–than human agency. At the end of the day we need to do a better job of taking stock of the resources we have used and the manner in which we have used them. If we put off the pointed discussions that are needed to address important issues such as availability of and access to water sources in the Southwest, we will find out the hard way what Benjamin Franklin once warned: “When the well is dry, we learn the worth of water.” The conversations taking place between those old law books in the Biblioteca Palafoxiana tell us that other cultures in time have approached natural resource management in thoughtful ways.