for sale in the ports of southern Europe. The circumstances of the trade are obscure, but there is no doubt that during the Civil War that association began between the commerce of Newfoundland and New England which was to be of such rapidly increasing importance after the Restoration. In the Caribbean colonies the interval between the outbreak of the Civil War and the execution of the King was a mere prologue to the events of the Protectorate and was most remarkable for the beginnings of a complete change in the economic interests of the colonists. The introduction of the sugar industry set the West Indian colonies on the path to a prosperity that made the "Sugar Islands" the greatest prize in the wars of the following century, but the consideration of the changes that ensued belongs to a later period of their history. CHAPTER VI INTERNATIONAL LAW AND THE OUTER WORLD, 1450-1648 THE fifteenth century marks the culminating period in the age of discovery which had commenced three centuries previously, and which with the year 1492, when Columbus discovered America, entered upon its most important stage. The previous centuries had been of little, if any, interest to England in this respect, though Spain and Portugal were adding vast areas to their respective Crowns. Gradually and by slow stages the coast of Africa had been discovered, and in 1486 Bartolomeu Diaz, the Portuguese navigator, had rounded the Cape of Good Hope, the "Tempestuous Cape". Six years after the voyage of Columbus to America, Vasco da Gama reached India, and anchored off Calicut on 20 May 1498. Spain and Portugal had thus been steadily expanding their possessions, and they had obtained a title or recognition of their title to their new dominions by papal grants or bulls. Popes had claimed in the time of the Crusades to dispose of lands inhabited by infidels, though this claim was not conceded by all writers. However, in 1344 Clement VI granted the Canary Islands to Luis de la Cerda on condition that they were converted to Christianity; in 14541 and 14552 Portugal received from Nicholas V the exclusive right as against Spain to trade and acquire territory south of Capes Bojador and Não (Nam or Naon) through and beyond Guinea, with power to conquer all barbarous nations, and all the faithful of Christ, secular or lay, no matter what their condition or nation, were prohibited from trading there or entering those seas. Alexander VI by the famous bull Inter caetera of 4 May 1493 granted to Spain all islands and mainlands not possessed by Christian princes to the west and south of a line drawn from the North to the South Poles at 100 leagues towards the south and west of the Azores and Cape Verde.3 Between 1455 and the issue of the bull Inter caetera. there were serious controversies between Spain and Portugal, the former claiming Guinea, notwithstanding the papal decree; a compromise was effected whereby Guinea, the Azores and Cape Verde Islands were recognised as Portuguese, while Portugal acknowledged 1 The bull Romanus pontifex: text in Davenport, F. G., European treaties bearing on the history of the United States to 1648, p. 9. The bull Inter caetera (Calixtus III), Davenport, p. 27. See on these bulls Bollan, W., Colonia Anglicane Illustrate and the bibliography given by F. G. Davenport under the headings of each bull in the collection. For the history of the line of demarcation see also Bourne, E. G., Essays in historical criticism, p. 193; Harrisse, H., Diplomatic history of America. See Davenport, p. 79, and Linden, H. Vander, "Alexander VI and the Demarcation of the Maritime and Colonial Domains of Spain and Portugal," Amer. Hist. Rev. (Oct. 1916), XXII, 1-20. Spain's right to the Canaries, and this compromise was confirmed by Sixtus IV in 1481. The line drawn by the bull Inter caetera was modified in favour of Spain by another bull of the same year, 25 September 1493, and subsequently a new line was agreed to by the two monarchs by the Treaty of Tordesillas in 1494, when Portugal obtained from Spain the concession that the line, instead of being 100 leagues west of the Cape Verde Islands, should be 370 leagues1 west and provisions, which were never executed, were made for determining the position of this line. Julius II confirmed this treaty by a bull of 24 January 1506. These lines become of importance later on as part of the "lines of amity" beyond which treaties with Spain and Portugal lost their force. Thus to Spain by papal decree and treaty was assigned the western hemisphere with the exception of Newfoundland and Brazil. It does not appear that at the time any monarch protested against this division and allocation of newly discovered territories, though theologians such as Victoria and the great missionary Las Casas refused to admit the papal claim to dispose of lands belonging to barbarians. Certainly, the King of England raised no protest, and on a Portuguese embassy coming to Edward IV in 1481, the object of which was the confirmation of the "ancient leagues" of Portugal with England and the recognition, by Edward, of Portugal's title under the papal bull to her West African possessions, the English King acceded to the King of Portugal's requests and in 1482 concluded a treaty. But opposition to the claims of the Iberian Powers based on papal grants was soon forthcoming. Henry VII, though busy consolidating his kingdom, was at first averse from oversea adventures, yet in 1496 he granted a petition preferred by John Cabot, a Venetian citizen, and his three sons, praying the Crown to sanction a voyage in search of unknown countries beyond the ocean in northern latitudes, and a charter granted at the same time authorised the grantees "to navigate in any seas to the east, north or west, and to occupy and possess any new found lands hitherto unvisited by Christians". Whether there was an intentional disregard of the papal division of the newly found lands between Spain and Portugal is not clear; the omission of any reference to the southern seas, the only ones so far entered by Columbus, suggests that the King had no desire to raise the question. By the middle of the next century not only English, but French and Dutch, navigators were found disputing the claims of the Iberian Powers under the papal bulls, and Protestant monarchs and writers such as Grotius denied that the Pope had any authority to divide newly found lands, or to give away countries which did not belong to him. We shall see, therefore, that the papal grantees soon fell back upon other grounds for the validity of their title, the chief of which was that of prior discovery. Thus Mendoza, Philip II's ambassador, 2 Ibid. p. 107. 1 Davenport, p. 84. 3 Williamson, J. A., Maritime Enterprise, 1485-1558, p. 53. DISCOVERY AS A BASIS OF TITLE 185 when complaining of Drake's expedition, based his claim on discovery. Elizabeth's reply denied the title of the donation by the Bishop of Rome as well as that based on mere discovery, contending that the latter title needed completion by some definite act of settlement. "For that their [the Spaniards'] having touched only here and there upon a coast, and given names to a few rivers or capes, were such insignificant things as could in no ways entitle them to a propriety further than in the parts where they actually settled and continued to inhabit."1 James I continued the policy of Elizabeth. He, moreover, enjoyed the advantages of the newly born literature of international law in the Protestant interpretation of the law of Nature and nations. Thus in granting the first charter of Virginia in 1606 he empowered the grantees to "make habitation, plantation and to deduce a colony" on lands and islands which are "either appertaining to us, or which are not now actually possessed by any Christian prince or people". So too in the charter of the New England Council of 1620 the grant is made of lands where there are "no other the subjects of any Christian king or state by any authority from their sovereigns, lords or princes actually in possession of any of the said lands", and thanks are given to God "for his great favour in laying open and revealing the same unto us, before any other Christian prince or state". The concern of the monarch was only with the possession of the territory by any Christian king or State. The fact of the territories in question being inhabited by others than such subjects is immaterial to the title. The charters assume the absence of settlers of Christian princes and do not assist in the solution of the question whether discovery could be relied on as a basis of title. There was in fact no international law to which appeal could be made; Roman law was certainly not conclusive on the point, even if it can be said to be applicable at all. Res nullius could be acquired by occupation, but could a country inhabited by people organised into a political society be compared to a chattel? As between the members of the Catholic Church yielding allegiance to the Pope, it may well be that papal grants should suffice as a root of title, but with Protestants it was otherwise, and even for the Catholic Powers, some other basis was sought, and out of the dispute, based often on abstract and contradictory principles, arose the doctrine which later found its way into international law under the name of occupation involving the planting of settlements. Discovery was held to confer at most an inchoate title "to be completed by occupation within a reasonable time",4 3 No definite rule appears to have developed by the middle of the 1 Camden's Annals, year 1580. Cited by Twiss, Sir Travers, The Oregon Question, p. 161. * Macdonald, W., Select Charters, p. 2. 3 Ibid. p. 25. 4 Westlake, J., Collected Papers, p. 161. For bibliography see Fauchille, P., Droit international public, t. 1, 2o partie, § 534. seventeenth century as to what constituted sufficient occupation after discovery. Spanish operations usually consisted in a formal act and declaration of occupation made before civil and religious authorities, but there was no publication to the world. In fact secrecy was the rule, not publicity. The discoverer wished to keep the newly found lands to himself; there appears, therefore, to have been no need felt for a definite assertion of sovereignty with a publication of the fact. So long as agents of the State remained on the territory no difficulty would arise, for where they were, there would be the national flag, the symbol of the State's sovereignty. It is probably the truth to say that down to the time of Vattel (1758) there was no necessity recognised for effective possession in order to give a title by occupation. But in this matter, as in many others, States laid the emphasis sometimes on discovery, sometimes on occupation, as best suited the exigencies of the moment; nor, as Westlake points out, is there any State "which has maintained a perfectly uniform attitude on the questions of detail into which the general question resolves itself”.1 It was natural that Spain and Portugal should emphasise discovery as a root of title, and that England, France and Holland should require not only discovery but effective occupation by settlement. The case of St Lucia which occurred at the end of the period under consideration raises interesting questions regarding the settlement of newly discovered lands, and the abandonment of the same. In 1639 an English colony settled in the island of St Lucia, but was exterminated by the Caribs in the following year. Ten years elapsed and then a French colony was founded by royal charter, the English in the meanwhile having done nothing to re-establish themselves in the island. In 1664 the settlers were attacked by Lord Willoughby and driven to the mountains where they remained until he withdrew after three years, when they reoccupied their lands. At the Treaty of Utrecht the island was viewed as a neutral island in possession of the Caribs, so that probably this settlement had either died down or shared the fate of its English predecessors. During the negotiations for the Treaty of Paris, 1763, the French laid claim to the island and urged that the English had abandoned it and that it was therefore vacant in 1650 when their colonists took possession. The island was by this treaty assigned to France. It is generally agreed that the French contention was sound, that the inactivity of England for ten years was sufficient to justify the assumption of the abandonment of the island.2 During the negotiations for the Treaty of Cateau-Cambrésis of 3 April 1559 between France and Spain a question which was later to prove of the greatest importance to England was discussed. The French claimed the right to go to the Spanish Indies, the Spaniards 1 Westlake, p. 161. 2 Phillimore, International Law, vol. 1, § 241; Hall, W. E., International Law, § 34; Oppenheim, L., International Law, vol. 1, § 247. |