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July, 1479, by which Ferdinand and Isabella authorized Admiral Columbus to grant lands, declares, that they do not reserve to themselves but the brazil * and the metals of gold and silver that should be found there ; leaving the full and absolute right of property in the lands to the grantees. The royal cedula of 12th April, 1752, declares likewise in very clear and positive words, and without any exceptions, that the lands possessed by grants from the cities, by virtue of authority given to them by the laws and ordinances, as well as those from the city of Havana in 1640, approved by the king, are not to be considered as fallow lands, or crown lands. This was one of the reasons that Don Jose Pablo Valientia had, when he said in his report made to his majesty on the 6th of September, 1797, that upon such grounds, he took it for granted that the land-holders had a good legal title to said lands. Therefore, if the laws and royal orders, all concurring, confirm the right of the landholders to the possessions on the margins of the adjacent rivers, it is evident, that a royal order issued in the name of the king contradicting them, without said laws having been previously and formally repealed, is a decision of the question against the clearest principles of the Spanish jurisprudence; and we may say this, without being accused of wanting the respect which is due to a royal order; because there are cases, like the present, in which there is a presumption that such orders are not the will of the sovereign; for they have been considered possible, and have been foreseen by the Spanish sovereigns, as they have declared by an express law, that royal orders that may be given against any general or municipal law, shall be obeyed but not executed.
Lastly, this question has been decided against the simplest notions of reason and justice; because the royal order says, that the margins of the rivers are considered as crown lands so far as these margins are covered by the rivers when they overflow: and it being a fact that these inundations spread over 4 and even 6 leagues from the rivers, covering all the lands and possessions on their way; nothing can be more against justice and reason than to consider such lands and possessions as belonging to the crown.
Perhaps they will present the question under another point of view and say, that the use of the rivers and their banks is common to all. Besides that the laws speak of public and navigable rivers which cross two different nations and separate their territories, (as we have said before,) we ask now what is the use meant by the law? No other but the common right to navigate and to fish in them, as it regards the rivers; and with regard to the banks, the laws mean the right to build a house a cottage for shelter or any other kind of building, provided the use, common to all, is not interrupted; it also means the right of making nets and drying them therein ; the right of repairing the vessels and tying them to the
A tree so called from brasa, (burning coals,) on account of the colour of this dye wood. Vol. 11.
trees; also, the right to put there the merchandise and fish, and to sell the same, with other things of this nature. And which of these rights had the law in view with regard to our far removed grazing. farms, that have never been visited by any navigator, nor perhaps by any fisherman ? On the other hand, how can we understand or combine this common use, (the only one which the laws seem to secure,) with the exclusive dedication of those lands to a particular kind of cultivation, and with the declaration that the banks of the rivers are for private use, claiming, and taking away these lands from the common use which the laws protect ? Such are the errors into which we are apt to fall, when we wish to give a forced interpretation to a law, or when we pretend to make error triumph over justice and reason.
Let us now see whether the principle of the right of the crown, is derived through the same hands that have erected it into a maxim of rare jurisprudence.
They have proclaimed it in the name of the king, declaring " that the lands situated on the margins of the rivers as far as these rivers inundate them, are the domain of the crown ;” and it has been said in the name of the king, in the royal order of 7th January, 1777, " that in order to avoid confusion, law suits and injuries to the families of this island, (who bona fide or with other title are in possession of lands, farms or houses,) occasioned by denunciations made in the department of the intendant against this kind of possessors, his majesty commands your excellency to collect all the documents of the proceedings in such cases, however voluminous they may be, with all possible despatch; and to add a clear and distinct report about them, so that his majesty may be able to find an equitable way to decide on the matter, and thus tranquilize and satisfy those concerned about their possession.” This principle has been proclaimed in the name of the king, and in the name of the king the royal order which established it has been repealed, as we are going to see.
In the year 1797 the factory proposed to the king to purchase lands on his majesty's account in the south western part of the department of Guanes, on those margins which are supposed to belong to the crown; and in a royal order, (the copy of which we annex) dated 25th January, 1801, No. 2, relative to said project, his majesty was pleased to say, amongst other things, the following: “ The proposal of the factory comes unaccompanied by proofs, necessary for the correct decision of his majesty on this matter, since the information now stated relative to the grants and their derivations to the actual possessors, the conditions of the original grants, and the reservations in favour of the crown with which said grants were made, are facts, which if well proved, could lead to a correct decision in a point in which the respectable right of property being concerned, the king, with his invariable sense of justice, thinks his whole attention called. Yet we cannot overlook the royal prerogative of taking from the subjects or retaking from them their possessions,
rights, and property which the king may think proper, his majesty giving them an equivalent compensation, called by the law fair exchange, [buen cambro) when there are evident reasons of necessity or public utility for so doing; and the use and exercise of this prerogative is more clear on those lands and possessions from grants given by the crown, to which class the lands mentioned by the factory belong. In conformity, then, to these principles, the king wishes the factory to purchase on account of the royal treasury, all the lands in the department of Guanes which they can obtain, and to divide the same into lots to be cultivated and rendered productive; endeavouring to do it in the manner most applicable to the circumstances of the absolute or partial dominion of the owners: and for this purpose it will be very important that the junta should apply themselves, without loss of time, to the examination of the original grants, the reservations of said grants, and the use or abuse which may have been made of them, and to prove the facts mentioned in the proposal of the factory; so that guided by such investigation the sovereign intentions of his majesty may be safely carried into effect. It will greatly serve to induce the possessors to come into a reasonable arrangement, should the junta observe a perfect impartiality towards all, taking from each one those margins which their possessions will permit, according to their extent and situation, and to leave sufficient ground for the pasture of their cattle.”
There is scarcely a period, there is scarcely a phrase in this royal order in which his majesty does not virtually deny the false principle of the royal dominion over the lands situated on the margins of the rivers ; instead of counting it amongst his prerogatives. Because, if these lands situated on the margins of the rivers should belong to the crown, his majesty would not have been pleased to say that this point could not be decided according to justice, without proving the facts and precedents quoted by the factory relative to the conditions and reservations which the primitive grants contained. If these lands should belong to the crown, his majesty would not have deigned to declare that the question in which the important right of property was concerned, deserved the first attention of his impartial justice. If these lands should be the property of the crown, his majesty would not have deigned to explain that he could retake such lands in case of an urgent necessity; giving to the owners a just compensation. If these lands should belong to the king's patrimony, his majesty would not have deigned to order that the junta should immediately purchase on account of the royal treasury all the lands they could obtain in the way most applicable to the circumstances of absolute or partial dominion on the part of the owners. If these lands should belong to the crown, for what purpose are the junta directed to apply themselves without loss of time to examine the original grants, and the reservations which said grants might contain ? And, lastly, if the lands and margins should belong to the crown, would his majesty have said, that the
junta ought to endeavour to take from the owners those very margins which are supposed to belong to him?
So that, although we might wish to pass in silence what the laws have established, and to forget every principle of justice and reason, with the mere analysis of the royal order, we shall have proved and fully demonstrated, that, if it has been said in one place, in the name of the king, that the lands situated on the margins of the rivers belong to the crown, his majesty has afterwards, by repealing said order, proclaimed the contrary; and has been pleased to express himself in exactly opposite terms. But in order to explain farther the proofs of the repeal, your committee cannot help mentioning the first three articles of the royal order of 6th July, 1819, herein annexed and marked No. 3, of which the following is the tenor. " 1st. The grants of lands by the municipalities as late as the year 1729 shall be respected and considered as a good legal title of property, with full liberty on the part of the possessors to alien, transfer and otherwise dispose of and use the same, as they may think most convenient. 2nd. In the absence of other title a just prescription, that is, 40 years possession duly proved according to law, shall be admitted and respected. 3. Those persons who may have acquired lands by grants, purchases, or prescription, shall be at liberty to dispose of the same whether the lands be in a state of cultivation or otherwise.” All this has been said to prove that the royal order of 11th March, 1798, is virtually repealed by that of 25th January, 1801, and by the royal cedula of July 16th, 1819. But it yet remains for your commissioners to demonstrate the palpable error into which the mind of his majesty has been let—that error which gave origin to the opinion that the margins of the rivers are the property of the crown. . And this error will be demonstrated by the mere review of two of the paragraphs from the royal order of 25th January, 1801 ; compared with a document the most important and decisive on the present question.
It is necessary, in the first place, to show the origin of the error. It is necessary to know that the factory passed, as has been seen, a resolution, dated September 6th, 1799, with regard to the purchase of lands in the department of Guanes, and the cultivation of tobacco in said lands; and amongst other things, Don Pedro Antonio Gamon said in his report, although in rather vague terms;" supposing that the exclusive right to cultivate tobacco on the banks of the rivers has been declared and acknowledged by the crown from an early date, as I have heard, or at least as it is confirmed by the proceedings commenced in favour of the cultivators of tobacco," &c. “ The most advantageous system would be the purchases agreed upon by each one of the possessors of lands on the southwest of those pieces of ground on the banks of the rivers which after a due examination shall be considered fit for the purpose of cultivation of tobacco." And in another place he adds: “ The king granted permission in times past, to this city, to grant in his royal name all those lands to honest and deserving persons, to be used by
them in feeding and raising cattle; reserving for the crown the timber for the navy; and it is also said, that he reserved the margins of the rivers for plantations of tobacco."
The vague and insignificant expressions in the report of the factory, when they speak of the dominion of the crown on the margins of the rivers, is the best proof of their bad position, because, if his majesty had been pleased to declare in the most remote terms, the supposed exclusive right, as the director of the royal factory calls it (and in one sense it is very corrrectly called so ;) it is certain that he would not have contented himself with saying, in the vague way in which he expresses himself, I have heard, and it is said ; he would have quoted at once, and in a positive manner the royal order that declared it. But what was the result of such report or or resolution ? His majesty said (we must here repeat it), “ The resolutions do not come accompanied with the necessary statement of facts, to enable his majesty to decide correctly, because the facts and information now quoted, relative to the grants of the lands, their derivation by the actual possessors, the conditions of the primitive grants, and the reservations of the crown, in giving the said grants, are facts which are yet to be proved ; and, if fully proved could serve as so many sure grounds for the decision of the case.” And farther on—" It would be very important that the junta should employ themselves without loss of time to the examination of the original grants, the reservations contained in said grants, and the use or abuse that might have been made of them.”
We may at once observe, that the king our lord, in accordance with his justice and prudence, did not consider the facts and information contained in the report as well proved. And what are we to conclude from the whole tenor of the royal order? That his majesty was under the impression that the primitive original grants contained some conditions and restrictions on the absolute dominion of the grantee, and that in giving said grants, there have been some reservations in favour of the crown added to such concessions. And what is to be inferred from the original document hereunto annexed ? That the mind of his majesty has been led into the most gross error; that there have been no such conditions or reservations; and that not a single grant containing said conditions or reservations can be found in the archives of the municipality. Therefore, if the royal order was given by the king, under the false impression, that such conditions and reservations existed, it follows that said order in this point of view alone, is null and void. And, if the object of these proceedings has been, as Mr. Ramirez said in his circular of 3d October, 1817, to ascertain whether the margins of the rivers are or are not the property of the crown, and consequently, whether the distribution and concessions made by the factory are right or not; or whether the owners of the lands overflowed by the rivers ought to recover their full and absolute dominion, in order to improve said lands themselves, and to eject the tobacco planters, or to enter into some arrangements with them; then the question