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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. II (1920), 48-98. * 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".

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. I, cap. xvii.

2 "Alienum territorium securitatem praestat", De jure belli, lib. 11, 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).2 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 2 Ibid. p. 363.

1 Davenport, p. 313.

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

strongly held in the sixteenth century, especially in England and other countries which rejected the scholastic views of which St Thomas Aquinas was the chief author. It seems clear that the great Spanish authorities of the sixteenth century held the view that the newly discovered lands in America were not territoria nullius. This doctrine was emphatically enunciated by Franciscus à Victoria and Dominic Soto, the latter declaring that there was no difference between Christians and pagans, for the law of nations is equal to all nations. Las Casas and Ayala, Gentilis and Grotius followed in the same line of thought, maintaining that the discovery of unknown lands already occupied did not give the discoverers the right to deprive the inhabitants of their territory.1

The reasons which led both Spanish and Portuguese navigators to undertake their hazardous adventures were complex, though emphasis is laid in the papal bulls on the spread of Christianity, and the conversion of the heathen. Ferdinand and Isabella and their successors were actuated by a desire to extend the power and influence of the Church and their personal pre-eminence as its bulwarks, and they found in the papal claims to overlordship of the infidel world valuable assistance to their own aims. The writings of the theological jurists of Spain gave them an immense moral support, and their insistence on the claims of humanity, emphasised in the bulls themselves, strengthened the claims of the Portuguese and Spanish monarchs. Unfortunately, the teachings of these writers were not observed in practice. The secular advantage accruing from discovery of lands with illimitable potentialities for wealth led to an easy disregard for the doctrine of the sovereignty of the local chiefs and leaders. The expeditions were invariably accompanied by ecclesiastics and notaries who not only assisted in, but controlled, the process of occupation and the preparation of treaties with the Indian chiefs. These treaties gave practical advantages as against rivals of the western world, and almost invariably led to acquisition of sovereignty either by the unconscious and indefinite development of events or by the breach which afforded a just cause for the desired war of conquest. Such a casus belli, according to many of these theological jurists, was necessary before a just war could be undertaken, while, according to others, the passive or obstinate resistance by the aborigines to the preaching of the Gospel was itself a casus belli giving rise to a justum bellum.2

But, while these methods were being followed in the East and West by the Spanish and Portuguese, England remained indifferent. The bulls were not accepted either here or in France3 as excluding the

1 Nys, op. cit. chap. vii; Lindley, M., The Acquisition and Government of Backward Territory, p. 12.

2 Cf. the circumstances of the Spanish occupation of Luzon in 1570, Blair and Robertson, Papers relating to the Philippine Islands, п, 169.

3 Margry, P., Navigations françaises, p. 221.

SOVEREIGNTY OF NATIVE RACES IGNORED

193 search of other nations for new lands and islands. The charter to the Cabots enunciated a principle not dissimilar from that of the papal bulls, that lands hitherto unknown to Christians were open to occupation by the adventurer. But the Cabots were sailing under the flag of England, and the lands they discovered were to come under the sovereignty of the English king. Before long, the cruelties of the Spaniards in America raised a righteous indignation in England and urged her seamen to desperate vengeance, but this was mainly due to the religious struggles of the period and the danger to England of the Spanish power. The great Spanish theologians and missionaries protested in vain against the excesses of their countrymen, who were ignoring their humanitarian claims. Elizabeth in her instructions to Fenton on his expedition to the East Indies and China warns him not only against despoiling Christians but also to deal with the pagans as a good and honest merchant, but there is no pretence at discovery for the purpose of conversion. Still it must be remembered that in the earliest charters of the colonies in the New World, one of the reasons given for the grant is "the propagating of Christian religion to such people as yet live in darkness and miserable ignorance of the true knowledge and worship of God”,1 and "the conversion of such savages as remain wandering in desolation and distress to civil society and Christian religion". The law of Nature and nations had acquired in England a new meaning. A new interpretation was placed upon it in accordance with Protestant thought and English interests. The sovereignty of the native races was ignored, a decided, though unconscious tribute to the genius of Wycliffe. Discovery followed by settlement, thus leading to occupation, or, more rarely, the simple right of conquest, was relied on as a title. There was no real agreement as to the legal basis on which claims should rest at this time, and modern authorities are similarly in disagreement. States were feeling their way towards a juridical basis for their acts, so that they might defend them against others and against the aborigines.

Later writers have enunciated the principles on which they deemed the discoverer or conquerors might base their title. Thus Blackstone says, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only by finding them desert and uncultivated, and peopling them from the mother country; or where, when they are already cultivated, they have been either gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations". He further adds that our American Plantations were obtained "either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties".3

1 Art. 3 of the first charter of Virginia, 1606.

* Patent of Council for New England, 1620; cf. also the first charter of Massachusetts, 1629. 3 Commentaries, 1, 107, 108

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