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COMMISSIONERS APPOINTED TO INQUIRE
THE CULTURE OF TOBACCO, &c.
To his Excellency the President and members composing the
The commissioners appointed by this junta to present to them a report on the proceedings originated and continued in the department of the general superintendent of the royal finances since the year 1817, and for the purpose of investigating and ascertaining the right of property on the margins of the rivers, which the royal factory considered as crown lands appropriated to the culture of tobacco; have examined not only all the documents of said proceedings but many other documents and precedents. They have also taken into consideration, all the particular circumstances of this most delicate point; and well aware of its magnitude and importance, they have proceeded, in framing this report, with the most scrupulous circumspection. But the subject deserves it.
. In the examination of this question, the commissioners have found it necessary to investigate, on the one hand, the origin of an opinion which although traditional, claims much respect, in as much as it attributes to the crown certain rights of reservation on the margins of the rivers ; and, on the other hand, they have been obliged to listen to the complaints of a very useful and necessary class of people who seek protection under this very right to sustain their demands; and lastly, they have had to weigh the allegations of another class, who present themselves as parties in this intricate contest, shielded with the most sacred of all rights, that right to which human society owes its foundation, that right which more than
any other, consolidates the duration and prosperity of nations. The present question, in its object, is reduced to this; to know, in the first place if it is just : and in the second place, if it is expedient to oblige the owners of grazing-farms to give up or to rent their lands which may be situated on the banks of rivers, to whoever may want them to cultivate this precious leaf, in order to encourage its cultivation. For this purpose the commissioners will examine: 1st. Whether the king our lord from whom the decisions relative to this subject seem to proceed, has the domain or right of property on the banks of the rivers: 2d. Whether it is the interest of the nation and of the royal treasury to encourage through these means the class of our agriculturists: and, 3d. Whether in the actual state of affairs, an equitable expedient might be found, which without offence or injury to the graziers, could encourage both the culture and the cultivators of tobacco. These three points are those which are to settle all the difficulties, and into which the matter of this report seems naturally to divide itself.
The spirit to which these proceedings owe their origin, so proper to the sentiments of the enlightened chief who promoted them, manifests itself in their very title: Proceedings lo investigate and ascerlain the dominion on the banks of the rivers, considered by the royal factory as crown lands, and exclusively appropriated to the culture of tobacco. But this spirit of justice and noble impartiality which tried, at least, to investigate the reasons that the factory had to claim the banks of the rivers as belonging to the crown, and to appropriate them to the cultivation of tobacco, seems to have been extinguished, or, at least, much abated, in the course of these proceedings, through all the offices of that department; since even after the extinction of the factory, it gave signs of a very different feeling, the spirit of party, so often the rival of the public good; and this is so much more strange in this case, as it could not have an object of interest for the members of the factory.
Indeed, the first thing we meet with in the documents of the proceedings, is the certified copy asked by the factory itself of the royal cedulas and orders which have been either altered or repealed by late ones, as it appears by the report of his excellency the municipality to be found in the documents of these proceedings; some of which are intended for nothing less than to deny to the Jandholders, who had royal grants, the right of property in the same; and others to favour the tobacco planters against the true owners. These are the following: The royal cedula of 1627, declaring, that the possessors of lands by grants have not a direct dominion over them, but only the usufruct: that of the 23d of November, 1729, declaring, that the municipality of this city have no authority to grant lands, and therefore they are commanded to abstain in future from granting them : that of the 16th of February of the same year, ratifying the preceding one : that of the 22d of March, 1798, by which it is resolved, that the cognizance in particular cases does not belong to the ecclesiastical tribunals, but to the judges of the departments, and for this purpose it repeals the law 15th, tit. 1st, book 1st, of the Recopilation of the Laws of Indies, (America): and it enacts that all the lands of these dominions shall not lose their nature of crown lands, under any pretext whatever.
It seems that the royal factory ought not to, nor could it have made any mention of these resolutions; because, besides their having been repealed, no argument could be drawn from them against the right of property of the owners or of their lands: 1st, Because it is known that such lands have passed from one hand to another to third possessors through royal sales, for which the duties of alca. bala had been paid ; and we know that this duty is not paid but when the right of property, which they wish to deny now, is transferred. 2nd. Because we see that the factor himself, limiting himself in his report to this undeniable right, says, “ It is a fact, that after the death of the original grantees, their successors considered, and with foundation, these lands and the improvements on them as their own property; and they disposed of the same as their own, either transferring to their heirs, or selling to another said lands and improvements; but they always paid on such occasions the royal duty of the alcabala, with which they seem to have consolidated and proved the right of property:" and 3dly. Because it is an undeniable fact that his majesty, in his royal cedula of 16th July, 1819, has declared that a possession of 40 years is a good legal title of property with regard to those lands belonging really to the crown; and with greater reason this must be a title good for a longer possession, having in its favour a legal and authentic title. Your commissioners, therefore, will confine themselves to speaking of the other royal order added to the documents of the proceedings, and interpretable in favour of the domain of the crown on the banks of the rivers. These royal orders are two cedulas of the 15th March, 1798, in which the captain general is directed to prevent the landholders of the island from injuring the tobacco planters; and that of the 11th March of the same year, by which his majesty commands the captains general of Principe and of Trinidad to lend them all the assistance they may want, so as not to be injured by the powerful landholders. And the same cedula declares, that all the lands situated on the margins of the rivers, to the extent which said rivers cover when they overflow, are to be considered as the domain of the crown, and not the property of the landholders. Upon the two first cedulas and others, which, although amongst the documents of the proceedings are not herein mentioned because they are of the same tenor, your committee do not hesitate to say, that they have not been surprised at observing in those royal orders a fatal but very manifest prejudice evinced by his majesty against the rich landholders of the island in favour of the tobacco planters; because they are convinced that some of the directors of the factory, carried away (let your committee be allowed to say it) by a false or indiscreet zeal, and animated by that spirit which is generally to be found in all the corporations and jurisdictions, have succeeded in prejudicing the mind of his majesty against the landholders with a view to protect their subalterns or tenants; and for this purpose they get royal orders which were obtained through reports, such as the report of the late Don Rafael Gomez Robaud, (in which he
represented the landholders in the most insidious and alarming colours,) and many other reports of the same kind. And the tenants having been represented to his majesty as a class of citizens who are oppressed and ruined by the rich, (as your committee have every reason to believe by the documents that they have had in their hands); and as the most flattering hopes have been also excited by the monopoly of tobacco; it is not at all surprising that the kindness of his majesty's heart, and the interest of the exchequer, may have always dictated all such instructions and royal orders, which were obtained by the factory in favour of the cultivators of tobacco and against the rich landholders.
Having thus corrected, with only these hints, the wrong impression which the mere isolated reading of those royal orders, might have left on the mind, your committee will proceed now to analyze that which serves as the principal ground of the report of the royal factory, of 17th November, 1817, in favour of the old possession of the cultivators of tabacco, and against the right of the landholders; the one that the cultivators quote as the foundation of their claims, the one, indeed, which has most appearance of reason in their favour, is the royal order of 11th March, 1798, by which it seems to have been decided in the name of his majesty, " That the lands situated on the margins of the rivers as far as said rivers overflow them, are the domain of the crown.” If your commissioners succeed in demonstrating the evils of the aforesaid order ; the nullity to which it is reduced by the tenor of another order that repeals it; and, above all, an error in point of fact into which the mind of his majesty has been led, and upon
which erroneous fact, the traditional opinion is founded, that natural margins are the domain of the crown, the ground of the report of the factory is destroyed, the fallacy of the rights of the cultivators of tobacco, founded on the principles of the report, is proved ; the principal question of this subject is settled ; and the first and most important part of this report will be fulfilled as far as their knowledge will permit.
The royal order of 11th March, 1798, consists of two parts, (see No. 1, of the documents.) The one is commandatory, and is limited to ordering the governor of Trinidad to protect the cultivators of tobacco on the river Agabama, (within the jurisdiction of Trinidad,) in their possession, to prevent them from being molested in the cultivation of said plant: and to give them the assistance which they may want, &c. And the other, we may call explanatory, in as much as it declares “ that the margins of the rivers, as far as said margins are overflowed by the rivers, ought to be considered as the exclusive domain of the crown, and not as the property of the landholders, as they pretend, &c. As to the first part, which is the commandatory, your committee will content themselves with saying, that to protect a person who is in possession, not to molest the tenants, and to give them the necessary assistance is one thing; and that to distribute new lands to new colonists, which is the point the landholders resist the most, is another matter. And with regard to the second, let us see what conclusion can be drawn from the terms in which the royal order is conceived; or rather let us see the evils of said order, (if its words are to be taken literally) against the intentions, always just and always beneficent, of the king our lord.
It is undeniable, that where it is said, that the lands situated on the margins of the rivers as far as they are overflowed by the rivers, are to be considered as the exclusive domain of the crown, and not the property of landholders, as they pretend, an important question of jurisprudence has been decided in two words. And how has it been decided ? It has been decided without hearing the parties, by an incompetent judge, against the principles of our jurisprudence and the laws of the kingdom on this point: and in short, against the simplest principles of reason and justice: and your committee, not wishing to be too diffuse in unnecessary reasons and proofs, where it is enough to confine themselves to the most conclusive and incontestible, do not hesitate to add, against the principles of the jurisprudence of Rome, and of many of the civilized nations.
It has been decided without hearing the parties. It is a fact that the landholders have never had a hearing, when the question was about depriving them of that to which they have the right of property, with a much older title, as we shall see.
It has been decided by an authority not competent to decide. It cannot be denied that, however respectable may be the authority of a minister of the king our lord, it is not he who is called by the laws, to decide upon matters, reserved, by the very nature of the questions, for the tribunals and councils of the king.
It has been decided against the clearest principles of the Spanish jurisprudence. On this point your commissioners are going to pass over a very important consideration. It is this, that our laws in speaking of rivers do not mean the interior but the public and navigable streams; as the author of La Curia Filipua observes, very properly, in his commentary on this subject. And how could the laws, in speaking of rivers, confine themselves to those of the Island of Cuba which only deserve the name of small brooks, which do not empty into the sea, and which are caused merely by the waters from the mountains during the rainy season, forming canals that evaporate when the rains cease, and leave the ground perfectly dry. But your committee will grant (though they will not admit) that the laws speak of rivers in general, in order to give more strength to their arguments.
The law 6th, tit. 28, page 3d, declares positively that the margins of the rivers, as to dominion, belong to those whose possessions are adjacent thereunto. The next one, in order to corroborate this idea, says: All the trees which are on the banks of the rivers belong to those who own the possessions, and they can cut the same and do with them what they please. The fourth cedula (order) dated 22d