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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 1506.2 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." 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

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.

Ibid. p. 25.

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.

"LINES OF AMITY"

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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.1 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. 4 Ibid. p. 256.

Davenport, p. 220.

5

Rymer, T., Foedera, XII, 583.

3 Ibid. p. 260.

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.3 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.

3 Dumont, Corps universel diplomatique, vol. IV, pt п, p. 12.

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