126 Law and Morality Abroad (to ca. ad 1550)
Prescription
A fi nal possible basis of Spanish title was prescription. Th is was the thesis
that rights claimed and exercised for extended periods of time— even if they
had no legal foundation initially— ripen, with the passage of time, into true
legal rights that other parties are obligated to respect. Th at is to say, the pas-
sage of time alone can transform usurpation into right. Th e most prominent
expounder of the prescription thesis was Solórzano. It has been observed that
he insisted on the validity of the papal grants as the basis of Spanish title in
the Americas. But he also endorsed the validity of the prescription thesis.
Reliance on prescription as a basis of title, however, had some weak points.
For one thing, there was doubt as to how long the time interval needed to be
to cut off prior titles and claims. Perhaps more serious (especially as the
length of time of occupation drift ed steadily forward) was the objection of
some that prescription was simply not part of natural law at all. It is true that
it was a feature of some legal systems, such as the Roman one— but that made
prescription an institution only of civil law, not of natural law. And in deal-
ings with exotic foreign peoples, it was natural law that governed.
It should not be thought that Spain was the only Eu ro pe an power in search
of legal bases for the acquisition of territories in the New World— although
the Spanish were the most obsessive in that worthy quest. In the course of
time, Eu ro pe an rivals established their own settlements in the Western Hemi-
sphere, where they faced many of the same legal challenges as the Spanish did.
Rivals and Interlopers
Th e Eu ro pe an maritime powers that had been left out of the Spanish-
Portuguese division of the world were not disposed to remain as mere pas-
sive observers in the race for overseas trade and dominion. Th e principal
would- be colonial rivals to the Spanish and Portuguese were France, En-
gland, and the Netherlands. Th e governments of those countries had two
distinct legal tasks facing them. Th e fi rst was to refute the Spanish and Por-
tuguese monopoly claims. Th e second was to decide on what legal bases
their own claims to territorial possession could rest. A few preliminary ob-
servations on each of these are in order.