Justice among Nations. A History of International Law - Stephen C. Neff

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New Worlds and Th eir Challenges 127

Regarding the Spanish and Portuguese monopolies, the rival govern-
ments, of course, denied that the papal grants could have any eff ect on them.
At most, they could only have the eff ect of committing Spain and Portugal
themselves to staying out of one another’s delimited zones. Th ey could not
prejudice third parties. King Francis I of France is said to have scornfully
remarked that he “should be very happy to see the clause in Adam’s will
which excluded me from my share when the world was being divided.”
Th e En glish government, not surprisingly, took much the same view. Queen
Elizabeth I, in the late sixteenth century, made it clear to the Spanish am-
bassador that she refused to acknowledge the right of the pope “to partition
the world and to give and take kingdoms to whomsoever he pleased.”
At the same time, it was generally accepted that Spain and Portugal were
entitled to undisturbed possession of areas that they actually possessed and
eff ectively ruled. Th at, however, immediately gave rise to the question of
how far the eff ective possession by those two countries really extended— an
issue on which opinions could (and did) easily diff er. An example of this
arose out of slave- trading activities by En glish seamen along the coast of
West Africa. Th e Portuguese ambassador to En gland lodged a formal com-
plaint against this conduct in 1562. En glish Queen Elizabeth I responded by
conceding that she would not allow her subjects to operate in areas where
Portugal actually had “obedience, dominion, and tribute.” But she insisted
that any areas not actually controlled and eff ectively ruled must be free to all
comers. She took much the same position when the Spanish ambassador
protested against Sir Francis Drake’s incursion into Spanish territory in the
course of his circumnavigation of the world in 1577– 80. Spain, she insisted,
did not have a suffi cient presence in the areas navigated by Drake to justify
the exclusion of others.
Th e essence of the En glish case was that the Spanish had a right to undis-
turbed possession of what ever lands they actually controlled, but that they
did not have a true legal title to other areas. Discovery of the lands did not,
on its own, confer title. Vitoria shared this opinion. Discovery “of itself,” he
insisted, “provides no support for the possession of these lands, any more
than it would if they [the native rulers] had discovered us.” King Francis I
of France was of a similar mind. “To pass by and eye,” he grumbled, “is no
title of possession.” Th e conclusion to be drawn from this was clear: that
until and unless the Spanish actually took permanent possession of lands

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