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"LINES OF AMITY"

187

resisted and based their claims to a monopoly on the grants of Alexander VI (Inter caetera), 1493 to Spain and of Julius II (Ea quae), 1506 to Portugal, and also on the ground of discovery. In the end the matter was excluded from the treaty and an oral agreement was arrived at limiting the operation of the treaty to the east of the prime meridian and the north of the tropic of Cancer. These were to be the "lines of amity", beyond them "might should make right and violence done by either party to the other should not be regarded as a contravention of treaties".2 The French and Spaniards subsequently disagreed as to the situation of the prime meridian; the latter recognised what corresponded roughly to that set forth in the Portuguese demarcation line of the bull of 1454 and the Spanish line of the bull of 1493. When James I came to the throne he was anxious to make peace with Philip III of Spain and the Treaty of London was concluded between the two monarchs in June 1604. The question of the exclusion of Englishmen from the New World was raised, as it had been with the French, and again the treaty failed to settle the question. The Spanish contention was that, as the "Indies were a new world", the doctrines applying to the Old World did not apply; this accorded with the principle that treaties did not apply beyond the "lines of amity". In practice, James and his successors adopted the principles which had been contained in the instructions to the English negotiators four years previously, that only places which were actually planted by the Spaniards in the New World should be immune from settlement. As has been already seen, the charter of Virginia and the other early charters to the New England colonies granted the colonists rights over portions "not actually possessed by any Christian prince or people". Against this charter Spain protested in 1609.3 Since 1559 the French and Spaniards had fought beyond the "line", without any violation of the treaty of that year, and Henry IV, speaking of the treaty of 1604, hoped that the English would continue to do as his subjects had done.

In the end an ambiguous phrase was used in the article which provided for general intercourse between the subjects of the two contracting Powers, that there should be free commerce between them "both by land, by sea and fresh water in all and singular their kingdoms, dominions, islands, other lands, cities, towns, ports and straits of the said kingdoms and dominions, where commerce existed before the war, agreeably and according to the use and observance of the ancient alliances and treaties before the war". The form of words is generally similar to that of older treaties which refer to the terms contained in the Intercursus Magnus of 1496,5 under which freedom of intercourse is provided for the subjects of the English and Burgundian rulers. Henry VII 1 Antunez de Portugal, Tractatus de Donationibus, 11, 53; Nys, E., Le droit international et le droit politique, la ligne de démarcation d'Alexandre VI, t. i, p. 193. 3 Ibid. p. 260. ▲ Ibid. p. 256.

2 Davenport, p. 220.

* Rymer, T., Foedera, XII, 583.

in granting the charter to the Cabots may well have interpreted the phrase as only limiting his grantees to occupy places not actually in the possession of the King of Spain, but otherwise allowing for freedom of intercourse, and in the Elizabethan period of expansion a like freedom of intercourse was claimed under this and similar treaties. The Spanish view throughout the period was clearly that the treaties of mutual intercourse were operative only within the "lines of amity" and that the proceedings of the English seamen in the New World were attempts to obtain by force what English statesmen contended was theirs by right. The Spanish kings were not prepared for many years to admit that any other States had rights of occupation or trade within the territories they claimed under papal bulls and discovery; at the same time neither they nor the English and French were desirous of treating as acts of war the forcible proceedings of the northern seamen in attacking and capturing the riches of Spain in the western hemisphere.1

There were many acts of force committed by the subjects of States at this and earlier times which were entirely indistinguishable from acts of war, but which were not regarded as creating a state of war between the States themselves. The line between peace and war was not so clearly defined as in modern times. Originally and in theory such acts remained forcible means taken against the subjects of another State or against their goods to constrain the foreign Power to do justice upon the questions in dispute. Under the name of "reprisals" they are provided for by treaties so far back as the middle of the thirteenth century. At first they appear to have been carried out by private persons without any public authority, when there was little if anything to distinguish them from piracy, but later, authorisation of the prince was recognised as necessary and became the rule. These were known as "special reprisals" to distinguish them from similar acts of a general character against all the persons or property of a foreign State, authorised by the Government, to which the name of "general reprisals" was given. A statute of Henry V only allowed reprisals after lettres de requête had been sent to the Privy Council, which if granted enabled the injured party to obtain letters of marque under the great seal. Treaties from the fifteenth century provided that no reprisals should be authorised until the prince of the subject despoiled had applied for redress to the prince of the alleged wrongdoer. The grant of letters of reprisals and of marque continued to be an important feature during the period of the Anglo-Spanish rivalry of the sixteenth century and during the Anglo-Dutch conflicts of the seventeenth century. During the latter conflicts "general reprisals

1 For other references to the history of the line of demarcation see Payne, E. G., in Camb. Mod. Hist. vol. 1, chap. i; Bourne, E. G., Essays in historical criticism, p. 175; Harrisse, H., Diplomatic history of America, passim.

2 4 Hen. V, c. 7.

Dumont, Corps universel diplomatique, vol. iv, pt п, p. 12.

VAGUE IDEAS OF NEUTRALITY

189

were introduced and letters of marque were freely given irrespectively of whether the grantees had received injury or not. By the end of the seventeenth century "special reprisals" were dying out.

The writers of the late sixteenth and early seventeenth century generally conceived of war as a dispute by force, or dealt with the status or condition of the belligerents. They failed to envisage the existence of the legal condition which arises from war and to distinguish it from the use of forcible means of obtaining redress, such as reprisals, where a state of war is not in existence. There was not, in fact, the same necessity for the modern conception of war as there is to-day, since the modern notion of neutrality with the rights and duties of neutrals which it involves was non-existent. The belligerents had but little concern or theoretical respect for third parties, their rights and obligations, and the latter had no modern sense of their duties and rights in relation to the belligerents. The quarrel might be and possibly ought to be the concern of their neighbours, a state of things in keeping with the cosmopolitanism of the times and the absence of the sentiment of nationality. But this is not to say that the condition of neutrality was unknown. The neutrality of particular territory in the sense of its immunity from acts of hostility was recognised in the sixteenth century. The Act given by Francis I in 1536 for the protection of the territories of the Duke of Lorraine recognised the lands as "neutres".1 The subjects of States not engaged in war were termed non hostes or medii in bello. The conception of neutral duties appears, indeed, alien to the thought of the period, and especially is this true during the wars of religion, when the assistance of belligerents of his own communion was felt to be the duty of a Christian prince. The Dutch and French Protestants both received aid from bodies of English and Scottish soldiers even where there was no state of war between the English and Spanish monarchs. Henry IV allowed regiments of French soldiers to enter the service of the United Provinces, and when, in 1631, the Marquis of Hamilton took 6000 men to the assistance of Gustavus Adolphus, with the consent of Charles I, the expedition was exceptional only in its size. If States wished to be neutral, they entered into treaties for this purpose, and even such treaties were not necessarily violated where limited aid was given to a State under pre-existing conditions. So, too, treaties not infrequently gave States a right to raise forces in countries which were not parties to the war. The meagre condition of the law may be seen from the fact that Grotius in 1625 has but one short chapter in his De jure belli ac pacis on "De his qui in bello medii sunt", in which he lays it down that "it is the duty of those who stand apart from a war to do nothing which may strengthen the side whose cause is unjust, or

1 Walker, T. A., Hist. of Int. Law, p. 195; see also "Neutrality and neutralisation in the sixteenth century-Liège", by Knight, W. S. M., Journ. of Comp. Legislation, 3rd ser. I (1920), 48-98. 2 Hall, § 208.

which may hinder the movements of him who is carrying on a just war; and in a doubtful case, to act alike to both sides in permitting transit, in supplying provisions to the respective armies, and in not assisting persons besieged".1

As regards the rights of the non-belligerents there seems to have been a curious conflict in practice between the claim for inviolability of neutral territory and the complaints when it was enforced. Perhaps herein is to be seen the well-known change in the point of view which has invariably characterised the attitude of States according as they are belligerent or neutral. In the sixteenth century respect for neutral territory appears to have been slight, and Elizabeth's action in 1588 in instructing her ambassador to complain to Henry III of the conduct of French officials in preventing the capture by her ships of Spanish property in French waters was scarcely in accord with the opinion of Gentilis.2 The theory of neutral right became more pronounced at the end of the sixteenth and in the early part of the seventeenth century. James I in 1604 issued a proclamation forbidding belligerent acts within any places in his dominions "or so near to any of our said ports and havens as may be reasonably construed to be within that title, limit or precinct". He further defined the lines of neutrality at sea as "a straight line drawn from one point to another within the realm of England". The areas so enclosed were called "The King's Chambers". But even in the next year the Dutch and Spanish fleets fought in Dover harbour, and innumerable instances occurred during the next half century showing that the doctrine was more honoured in the breach than the observance.3 It was not until the eighteenth century that neutral rights were better respected. The principle of contraband, involving the capture of neutral goods destined for the enemy, was coming into being and Elizabeth defended Drake's capture in 1589 of Hanseatic vessels in the Tagus which were laden with stores for a new Armada. She laid down the proposition: "The right of neutrality is in such sort to be used, that while we help the one, we hurt not the other".4

The practice of warfare in the period under consideration was cruel and savage, though it must be borne in mind that the general customs of the age were such as would in many respects revolt modern ideas.

It is not easy to define the position of many of the great seamen of the Elizabethan age in their attacks on Spanish trade in the New World. That there was lawlessness, there is no doubt, cruelty also in many cases. But Englishmen would not be denied commerce in the New World, and trade merged into war. These proceedings, if not always authorised, were connived at by the Queen and her advisers;

1 De jure belli ac pacis, lib. m, cap. xvii.

2 "Alienum territorium securitatem praestat", De jure belli, lib. ¤, cap. 227.
For examples see Hall, § 209.
4 Walker, p. 200.

RIGHTS OF ABORIGINES IN NEWLY FOUND LANDS 191

if the adventurers were successful, they shared in the spoils; if not, the adventure failed; but in both events the peace between the nations remained unbroken. Religion was doubtless a strong compelling force, but economic forces were also at work with equal power. The New World was the main source of the gold supply of Spain, and this was being used to overwhelm the Protestant movement in Europe, and French Protestants joined with English in endeavouring by way of reprisals to cut off Spanish supplies at their source and to found colonies in those parts of the world which Spain claimed as her own. To attempt to pass judgment on the actions of the pioneers of naval expansion in the light of such international law as could be said to exist at the period appears to be a vain task. Treaties there were, but the interpretation of the terms relating to the intercourse of the subjects of the contracting States was disputed. Beyond the "lines" might was right.

To return to the Spanish claims; the most important event occurred in the making of the Treaty of Madrid, 1630, between England and Spain. The principles underlying the treaty are similar to those of the treaty of 1604, freedom of commerce being allowed "where there was commerce between the said kingdoms before the war between Philip II, King of Spain, and Elizabeth, Queen of England, according as it was settled in the treaty of peace of the year 1604”.1 There is no specific mention of what these places were; the matter was left as equivocal as before. In one respect, however, the treaty registers a change. The view that treaties lost their force in places "beyond the lines of peace" was abandoned as regards prizes, for it was agreed that those taken "beyond the line" should be restored. At length, in the Treaty of Münster, 1648, Spain formally acknowledged that the Netherlands had the right of navigation and commerce both in the West and East Indies (Art. 5). The long struggle for freedom of navigation and settlement in the New World was ending, and treaties were now operating "beyond the line".

Something more should be said of the rights of the original inhabitants in the newly discovered lands, as strongly opposed points of view manifested themselves on this subject. Later opinion tended to deny to pagan inhabitants the possibility of sovereign rights over their territories; but writers of the fourteenth, fifteenth and sixteenth centuries generally inclined either to the opinion that such peoples had complete rights as against all others, or that they had conditional or restricted rights. The contrary opinion followed from the principles advocated by Wycliffe; this was condemned by the Council of Constance (1414-18) and by Richard Fitzralph, Archbishop of Armagh, in regard to Poles and Lithuanians. But this condemnation did not prevent the view from reappearing and being 1 Davenport, p. 313. 2 Ibid. p. 363.

3

Nys, E., Le droit des gens et les anciens jurisconsults espagnols, p. 65.

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