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The Act Of Sovereignty In The Age Of Discovery

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The Act Of Sovereignty In The Age Of Discovery

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Content 5902942 SERVIN, MANUEL THE ACT OF SOVEREIGNTY IN THE AGE OF DISCOVERY. UNIVERSITY OF SOUTHERN CALIFORNIA, PH.D., 1959 University Microfilms International 300 N. Zeeb Road, Ann Arbor, M I 48106 18 Bedford Row, London WC1R 4EJ, England Copyright 1 9 6 0 by SERVIN, MANUEL All Rights Reserved PLEASE NOTE: In all cases this material has been filmed in the best possible way from the available copy. Problems encountered with this document have been identified here with a check mark v '' . 1. Glossy photographs______ , 2. Colored illustrations ______ 3. Photographs with dark background ______ '4. Illustrations are poor copy______ 5. °rint shows through as there is text on both sides of page _______ 6. 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Copyrighted by Manuel Servin I960 THE ACT OF SOVEREIGNTY IN THE AGE OF DISCOVERY by Manuel Servin A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (History) January 1959 U N IV E R S IT Y O F S O U T H E R N C A L IF O R N IA G R A D U A T E S C H O O L U N IV E R S IT Y PARK LO S A N G E L E S 7 , C A L IF O R N IA This dissertation, w ritten by under the direction of h±S—.Dissertation Com mittee, and approved by a ll its members, has School, in p a rtia l fu lfillm e n t of requirements fo r the degree of D O C T O R O F P H IL O S O P H Y Date Marxih-2 Q ,.. .195- 9- ............. DISSERTATION COMMITTEE Manuel Servin been presented to and accepted by the Graduate Dean Chairman v n 'Aio-a,' i /PS C - - L + TABLE OF CONTENTS PAGE PREFACE ............................................ iii CHAPTER I. EUROPEAN BACKGROUND OF THE SYMBOLIC ACT OF SOVEREIGNTY ............................. I II. THE SPANISH ACT IN THE AGE OF DISCOVERY. . . . 27 III. THE SPANISH POST-DISCOVERY A C T............ 62 IV. THE EARLY COUNTER ACTS OF EUROPEAN RIVALS. . . 92 V. NEW IMPERIALISM AND POSSESSION-TAKING..... 125 VI. THE CEREMONY OF POSSESSION-TAKING.......... 177 VII. THE NINETEENTH AND TWENTIETH CENTURIES ....... 237 VIII. ANTARCTICA AND THE ACT OF POSSESSION..... 283 BIBLIOGRAPHY.......................................... 318 PREFACE The act of possession is a subject that has inter ested me since the days of my first graduate work in history when I enrolled in my initial seminar in Western History. It was a seminar research project that whetted my appetite for learning more and more of this historical practice~‘ -so casually mentioned by historians— that I ex panded my research for my master*s thesis in 1954. Since that date I have been assiduously investigating and col lecting all information, documentation, and material deal ing with every possible aspect of possession-taking. This prolonged research, which I found most enjoyable, has led me not only to the libraries and archives of the United States and Mexico but also to those of Spain and England. Whereas my master* s research primarily considered only those acts which were performed in continental North America and which affected the course of United States history, my present study attempts to treat the over-all practice of possession-taking throughout the world. Thus, it investigates all the possession-taking activities and their repercussions of all the important colonizing powers of both Europe and America. Consequently, the study is not limited to any one area of colonization but extends to the Americas, the Pacific Area, Africa, and Antarctica. \ • XV Although such a study is extremely extensive in both area and period considered, it is my sincere hope that this factor has not weakened my investigation, but rather has made it as complete as possible. Unfortunately my research has not proved as com pletely fruitful as I have desired and desire, despite the years of arduous work and investigation. For there is still an aspect of the legal background of possession- taking that presents a minor problem of historical develop ment. Although it is obvious that possession-taking is based upon the principles of Roman Law and the symbolism of Germanic Law, I have been unable to find documentation which describes the step-by-step process by which these concepts of Roman Law were incorporated into the ceremony of possession-taking. However, the lack of documentation appears to me to strengthen the foundation of possession- taking upon Roman Law, rather than to weaken it. For I believe that the Europeans, who were then so thoroughly imbued by the precepts of Roman Law, failed to record its gradual incorporation because it was so obviously a part of their culture and legal tradition chat it was taken for granted. I am particularly grateful to my guidance committee, especially my chairman, for the encouragement, criticisms, and suggestions which it so graciously gave. Doctors Francis Bowman, Russell Caldwell, Donald Cutter, V Donald Rowland* and Laudelino Moreno have indeed been teachers and guides. For the opportunity to do research in Spain and England, I am indebted to the Del Amo Foundation which granted me a Del Amo Research Fellowship for the year of 1957. Manuel Servin Los Angeles, California March 20, 1959 CHAPTER I EUROPEAN BACKGROUND OF THE SYMBOLIC ACT OF SOVEREIGNTY Perhaps the most dramatic scene in modem world history, the one fraught with greatest consequences, was Columbus' discovery and solemn act of possession at Guana- hani on October 12, 1492. Not only is this act generally credited with separating the medieval and modem period, the opening of a new world to Western Europe, but also with giving Spain a preeminent claim to the Indies or New World. Yet, despite the innumerable descriptions and pictorial illustrations of the Admiral's symbolic act claiming the newly discovered territory for Spain, few historians have given consideration to the subject. Few, indeed, are the articles investigating symbolic acts. But fewer, however, are the historians who have written more than a few phrases about them. ^ If the symbolic act were just an "empty ceremony" of no historical consequence, such an attitude of neglect The writer has found only one article on symbolic acts written by a historian: Francisco Morales Padron, "Descubrimiento y Toma de Posesion," in Anuario de Estudios Americanos. Vol. XII, 1955. Although this author approaches the subject from a historical viewpoint, the article is deficient since it considers only a very limited number of acts and has some glaring historical inaccuracies. 1 would be warranted. This, however, is not the case. For symbolic acts, as will be seen, were the very foundation upon which all European powers based their claims to their newly founded domains in the New World. Spain, England, France, Portugal, Holland, Sweden, and even the United States relied on some type of symbolic act for acquiring sovereignty of territory held by American aborigines. Samuel Eliot Morison, Columbus' biographer, makes us very aware of this practice when he states, in reference to the Admiral's second act at Marie Galante, that "Columbus began this fashion of making a legal record of every taking possession, with notary public, witnesses, seals, &c., and for two centuries thereafter no discoverer felt properly equipped without lawyer, wax, and inkhom."^ Yet, symbolic acts have an even greater historical importance. In some cases they were of themselves sufficient to acquire dominion over new territory; in others they were the pre text for claiming and securing lands previously claimed or even occupied by others. At times they were the prime movers in initiating some new counter-explorations and colonisations from rival powers. Finally, they led colonial powers to the brink of war, to war itself, and to national ^S. E. Morison, The Second Voyage of Christopher Columbus: From Cadiz to Hispaniola and the Discovery of the Lesser Antilles (Oxford: Clarendon Press. 1939). p. 40. humiliation or vindication. To consider that 1 1 such acts are, and were then con sidered empty pageants, securing no real rights to those by whom or in whose names they are performed" is indeed an assertion that will not bear historical scrutiny.^ The very fact that acts were performed disproves the statement. However, the falseness of the statement is more forcibly demonstrated by the persistence of the colonizing powers in performing possession-taking acts from Columbus1 discovery to the present period.^ Furthermore, the universality of possessory ceremonies, though found in various but related forms, indicates that such a practice was based upon common legal tenets and practices of Western European civiliza tion. Moreover, since Western Europe, at the beginning of the age of discovery, had a common background of Roman Law, Germanic customs, and medieval institutions, it is evident that these legal precedents regarding acquisition of property, land, and jurisdiction should be reflected in these acts. Thus, it becomes necessary to examine the precedents of this common legal and institutional ^Robert Greenhow, The History of Oregon and Cali fornia and other Territories on the North-West Coast of North America (3rd edition; New York: D. Appleton and Company, 1845), pp. 187-188, hereinafter cited as Greenhow, The History of Oregon and California. ^As late as 1936 the British performed an act of sovereignty on Canton Island. See Times (London), July 10, 1937, p. 11. background, and to determine its influence on the practice and theory of taking possession. Because Roman Law was and still is the basis of European legal theory upon which Germanic and medieval institutions developed, it is logical that the study of the legal background of acts of sovereignty start by consider ing the Roman practice of acquiring possession of property and land. This consideration, however, cannot be exclu sively concerned with only original acquisition of owner ship and jurisdiction. The reason for this is that the Roman jurists never conceived of discovering a new world where unoccupied land (terra nullius) existed. The only unowned objects (res nullius) which Romans considered capable of original ownership and jurisdiction were wild beasts, birds, fish; gems or precious stones, pearls; things abandoned; and newly arisen islands in the sea.-* On the contrary the number of objects, beings, and lands obtainable by derivative ownership was almost innumerable. Consequently, the laws governing the transfer of ownership necessarily were well developed while those concerned with original acquisition were still in an embryonic stage. ^Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, translated by James Crawford Ledlie (3rd edition; Oxford: Clarendon Press, 1926), pp. 316-317. W. W. Buckland, A Manual of Roman Private Law (Cambridge: Cambridge University Press, 1925), pp. 138-139. Despite the undeveloped nature of laws pertaining to the acquisition of original ownership, these laws and the legal precedents which they established in European society are essential to this study on the acquisition of sovereignty. This is necessarily true because symbolic acts of sover eignty were specifically performed to acquire original ownership and jurisdiction over unoccupied land. Notwithstanding that these laws of primary acquisi tion affected the Roman community to a lesser degree than those of derivative ownership, the Romans considered them to be of primary importance to man and to be essentially linked to his nature. Although such laws were sketchily formulated, they were nevertheless regarded as belonging to a higher and more universal plane, since according to Justinian they were proper to all people (jus gentium), and f l not just to Roman citizens (jus civile). Thus, there were no restrictions which prohibited acquisition of unowned beings and objects by free persons because of religious theories or governmental and national affiliations. Nor could there be, because of their universal application, many artificial, man-made, requirements and technicalities. Thus, in taking possession of wild beasts, birds, Justinian, The Institutes of Justinian, translated by J. B. Moyle (5th edition; Oxford: Clarendon Press, 1945), Book II, Title I, No. 11. and fish only two elements were necessary, the intention of possessing (animus) and the effective seizure (occupatio) of the animals. The intention was Mno more than a con sciousness and willingness" to own the res nullius, and therefore was not expressed nor proclaimed. Occupation or effective seizure in earlier times secured ownership only as long as control was maintained; however, at a later "7 period, this was modified in the case of bees and birds.‘ However, in either case the theory of occupation was far from satisfactory because the laws regarding derivative ownership did not demand that a person continually have corporeal control over his property in order to own it. Concerning the acquisition of a newly arisen island in the sea, an even greater problem arose regarding occupa tion. According to the Institutes, the acquisition of terra nullius was very simply done, and therefore was treated very briefly. In fact, only one sentence was devoted to the topic. It simply stated that "when an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied it is Q held to belong to no one." Despite the clarity of the W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian (2nd edition; Cambridge: Cambridge University Press, 1932), pp. 199 and 205-206. ^Justinian, The Institutes of Justinian, Book II, Title I, Nos. 21-25. statement, the question of what is meant by occupation immediately arises. Does it mean a definitive occupation as represented by a permanent settlement by the first dis coverer or his representative, or does it mean temporary control at the time that the intention of possessing it is expressed? Unfortunately, the question was left unanswered by Justinian. Later, as will be seen, it came forth to plague not only the great medieval legists but also the lawyers, jurists, and diplomats of the sixteenth, seven teenth, eighteenth, nineteenth, and twentieth centuries. The importance of the failure of Roman jurists to delineate clearly what occupation meant in reference to acts of land possession is recognized only when the his torian realizes that acts of sovereignty have incorporated the two elements of original acquisition, the animus and occupatio. as the basis of ceremony. In the acts which are contained in the text and appendix of this study, it can be seen that, regardless of how the symbolic ceremonies vary, the intention of possessing and the occupation are always present. The intention was proclaimed aloud, the occupa tion, whether of a temporary or permanent nature, is evident as the person who is taking possession has control of the area at the time. However, the question, whether temporary or permanent occupation is necessary, also arises since at a later period it is the basis of acceptance or rejection of the validity of the ceremony by rival powers. Although acts of sovereignty have a primary relation to the Roman practice of original ownership, nevertheless they have some aspects which resemble Roman procedures of derivative acquisition of property. Whether this resem blance is casual or coincidental is difficult to determine; but, in either case, it is necessary to consider how land and property were transferred in the Roman state in order to have a more adequate background of the ceremony of possession-taking. The Roman manner of transferring ownership consisted of two forms: mancipatio for land, slaves, and cattle; and traditio for the remaining types of property. In order to transfer land or moveables, mancipatio required the pres ence of five witnesses as well as symbolic ceremony. This ceremony or formal investiture demanded that the purchaser lay his hand on the object purchased, or if it were land, on a symbolic representation of it. Furthermore, the buyer stated that the thing was his because he was purchasing it with the price.^ Traditio. the form used for conveying property other than land, slaves, and cattle, also possessed symbolic elements. For instead of delivering the property 9 W. W. Buckland and Arnold McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge: Cambridge University Press, 1936), pp. 86-87. to the purchaser at the time the transaction took place, the buyer was presented with a key where the object was located.^ In both the cases of mancipatio and traditio by the fourth century it was required that a document of the transaction (acta) be drawn up. Obviously, the use of symbolic ceremonies in these ancient modes of conveyance is what is important to the student of acts of possession. The laying of the hand of the object or its symbol (mancipatio) or the reception of the object symbolizing jurisdiction (traditio) are cere monies that are generally found in some form in the earlier acts of sovereignty of the three great colonial powers of Spain, England, and France. The acts of Cortes, Balboa, Ohate, Gilbert, Harcourt, and La Salle clearly attest the fact.11 Yet, the symbolic aspect found in such acts was not the only element common to both possession taking of un occupied territory and Roman methods of conveying deriva tive ownership. The use of documents was also utilized by explorers and navigators. This was particularly true of the Spaniards and French, who drew up legal documents which 1®Buckland, A Textbook of Roman Law from Augustus to Justinian, p. 227. 11 See Chapter VI for these acts of possession. 10 are still called by their technical names: escritura de posesion and proces-verbal. Naturally, such a practice demanded the presence of notaries whom the Spaniards called escribanos and the French, notaires. While there is no chain of proof that the symbolism of the Romans directly influenced the ceremonies of the symbolic act, there is no doubt that the office of a notary was a direct descendant of the Roman tabellines as Henrique da Gama Barros so authoritatively explains in his Historia da Administracao Publica em Portugal nos Seculos XII a XV. ^ An important reason why symbolic ceremonies cannot be attributed directly to Roman antecedents, like the office of notaries, is due to the ancient Germanic practice of utilizing symbolic representations in the sales of their lands. According to Fustel de Coulanges, the Germans already practiced the sale of lands prior to their amalga mation into the Roman Empire. Furthermore, they utilized a clod of turf, the twig of vine, and the branch of a TO tree to represent the property purchased. J Therefore, •^Edited by Torquato de Sousa Soares (2nd edition; Lisboa: Livraria sa da Costa, 1949), III, 355-361 and 363-375. Also see Numa Denis Fustel de Coulanges, Histoire de Institutions Politiques de L*Ancienne France, edited and revised by Camille Jullian (Paris: Libraire Hatchette, 1929), III, 24-25. •^Fustel de Coulanges, Histoire de Institutions Politiques de L*Anclenne France. IV, 130-131. 11 Coulanges believes that the symbolism practiced in the sale of lands by the Merovingian Franks was Germanic and not Roman in origin. Eduardo de Hinojosa, the outstanding historian of Spanish jurisprudence, categorizes the trans fer of property in Leon, Castile, and Portugal as falling within the circle of Germanic practices as a clod and branch were used to symbolize respectively the purchase of land and orchards.^ In so far as the act is concerned, there is no question that representatives of the three colonial powers relied preponderantly upon the Germanic tradition. While the British and French exhibited a pre dilection toward holding and even throwing a clod of turf, the Spaniards enjoyed cutting branches as much as grasping 1 s the earth. The Germanic symbolic forms, however, were not directly introduced into the symbolic act of sovereignty from the ancient method of land sales which the early barbaric tribes used. For the ancient forms were first in corporated into the feudal system of investiture as the Germanic lord distributed the land to his vassals. This ceremony, by which the vassal took possession of his fief, •^Eduardo de Hinojosa, El Elemento Germanico en el Derecho Espanol (Madrid: Junta para la Ampliacion de Estudios e Investigaciones Cientificas, 1915), p. 24. 15 For examples of the various usages see Chapter VI. 12 was in England called livery of seisin. It was in many respects reminiscent of the Roman mancipatio. but its symbolic manifestations were not Roman but Germanic, as the lord delivered a clod of turf, twig, or hasp to the tenant.^ An example of livery of seisin, and therefore of the Germanic symbolism that was used during feudal period, is available in the first volume of The Law Quarterly Review. A graphic description of the ceremony in its latest days has been placed on record by one who, while having as an apprentice of the law occasionally taken part in it, was capable of fully appreciating the significance of its details. The pecuniary transaction being con cluded, and the feu-charter signed, the Investiture follows: — fA small group of men appear on the ground itself. One takes from his pocket the actual feu- charter; he is the attorney or representative of the purchaser or vassal. He hands it to another, and desires him to read from it the precept of sasine, or the direction which the superior therein gives for giving his new vassal seisin or absolute possession of the land. The receiver of this document— who, like the giver of it, is probably a clerk in the office where the business is transacted represents the bailie, bailiff, or executive officer of the superior1s seig- norial court. He receives the precept of his lord and master with due reverence and obedience. Giving effect to its directions, he would stoop down, and lifting a stone and a handful of earth, hand these over to the new vassal*s attorney, thereby conferring on him "real, actual, and corporeal possession" of the fief. The next duty of the purchaser's attorney was what was termed to "take instruments," to enter a solemn protest that his client’s infeftment, infeofment, or placing in a fief, was completed, and this he did by handling •^Buckland and McNair, Roman and Common Law: A Com parison in Outline, p. 86. Frederick William Maitland, "The Seisin of Chattels," The Law Quarterly Review, I (July, 1885), 334-335. 13 a piece of njoney--the canonical sum was a shilling--to a notary public in attendance.1 This was not the least significant part of the ceremony, as bearing it back into the furtherest recesses of the feudal system, when it acted in conjunction with the Imperial. The Empire left to its spiritual half the functions of the scribe with the preservation of records. To carry out this function, certified notaries were distributed over Christendom, and divided into districts according to the organization of the Church. The gentlemen who receives the shilling in this instance is a Notary Public of the Holy Roman Empire.* - 7 Although seisin tended to become a matter of form and ceremonies, it was an essential point of law for exercising jurisdiction over the fee or benefice.^ So strong was this legal concept of obtaining jurisdiction by symbolic taking of possession that in a later period sym bolic acts of possession were required by both canon and civil law before either an ecclesiastical or lay official could exercise the jurisdiction of his office. There can be but little doubt that it was this very point of obtaining jurisdiction of land, chattels, and official positions that led explorers, especially the early Spaniard, Englishman, and Frenchman to perform symbolic acts of possession on the newly discovered lands. It was the method and formality by which they acquired juris diction (but not total ownership) of their medieval home, ■^Robert Campbell, 1 1 Land Tenure in Scotland and England,'1 The Law Quarterly Review. I (April, 1885), 182- 183. ^Maitland, "The Seisin of Chattels," The Law Quarterly Review, I (July, 1885), 334-335. 14 arid it would be the manner by which they would obtain similar jurisdiction over strange lands. That at home it was used to obtain derivative jurisdiction, and in the New World, total sovereignty, did not perturb them. Symbolic acts of sovereignty, as far as these European explorers were able to understand, were the bases for acquiring jurisdiction. And, in retrospect it must be admitted that such acts, whether performed during a temporary or perma nent occupation, met all the requirements which the laws of Western Europe demanded at that time. Although the forms of derivative acquisition had changed with the Germanic conquest, the Roman laws on original acquisition had not, despite the work of the medieval glossators and jurists. Men of the caliber of Portius Azo, Henry de Bracton, Alfonso X of Spain, and Bartolus de Sassoferrato made great contributions to jurisprudence, but unfortu nately failed to exercise enough authority to promulgate a theory of occupation which was strong enough to remove the question whether temporary or permanent occupation was necessary to acquire title to terra nullius. The contributions which the medieval jurists and legists made to Roman Law, in so far as original ownership is concerned, have more than just an antiquarian value to the subject of possession-taking. For it is upon the doc trines of some of these men, particularly Bartolus de Sassoferrato (1314-1357), that disputed claims to former 15 terra nullius are now being contested. It is preponder antly upon BartolusT interpretation--that occupation must be of a permanent nature, and not of a fictitious or temporary type— that Julius Goebel, Jr. bases Argentina’s right to the Falkland Islands.^ In presenting his reasons for the Argentine claims, this noted scholar argues that Bartolus1 interpretation of permanent occupation was the preeminent legal theory in the early period of discovery, and therefore it follows that any act of sovereignty based upon temporary possession or occupation was against the legal precedents of the period, as well as being invalid.20 While only a few modem jurists, such as Sir Travers Twiss, have propounded the universality of the doctrine of perma nent occupation during the medieval period, there are many, however, who have firmly expressed similar views.21 Thus, among the proponents of permanent or effective occupation Julius Goebel, Jr., The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History ("New Haven: Yale University Press, 1927), pp. 74 and 87. Bartolus de Saxoferrato, Consilia Questiones et Tractatus Bartoli cum Additionibus Novis (Venetiis: Baptista de Fortis, 1495), 1 3 T * 111". 20goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History, pp. 74, 87, and 95. 91 ^xTravers Twiss, The Oregon Territory, Its History and Discovery (New York: D. Appleton and Company7 T84"6) , pp. 11-126. 16 for acquiring sovereignty are found such illustrious names as Elizabeth 1 of England, Hugo Grotius, Emmerich de Vattel, Albert Gallatin, and the majority of the nineteenth century writers on international law.^2 Notwithstanding the overwhelming number of jurists and diplomats who have followed Bartolus' interpretation within the last two centuries, it cannot be stated that his doctrine was the dominant theory of the medieval period. The fact that the common ceremony of seisin secured deriva tive possession and jurisdiction by symbolic or fictitious occupation put his doctrine of original acquisition on a purely theoretical basis which found no counterpart in the customs of time. But even more important in the realm of jurisprudence was the doctrine championed by Portius Azo in the early thirteenth century. According to Azo, the occu pation or possession of res nullius need not be an effec tive or permanent one, but a temporary one which could be ^William Camden, Annales Rerum Anglic arum et Hibernicarum (London: 1615), p. 309. Hugo Grotius, De Jure Belli ac Pacis Libri. translated by Francis W. Kelsey (London: Oxford University Press, 1925), Book II, Chap. Ill, No. 1. Hugo Grotius, Freedom of the Seas or The Right Which Belongs to the Dutch to Take Part in the East Indian Trade, translated by Ralph Van Deraan Magoffin, edited by John Brown Scott (New York: Oxford University Press, 1916), Chap. II. Emmerich de Vattel, The Law of Nations or the Principles of Natural Law, Applied to the Affairs of Nations and Sovereigns, translated by Charles G. Fenwick (Washington, D.C.: Carnegie Institution of Washington, 1916), Book I, Chap. XVIII. "Counter-Statement Annexed to the Protocol of the Seventh Congress by Mr. Gallatin, the Plenopotentiary for the United States" in Greenhow, The History of Oregon and California, p. 463. 17 performed by simply viewing the object with the intention of possessing it. 23 This doctrine, which has strangely been ignored by writers of international law, is of utmost importance for understanding the acts of sovereignty of the New World. Not only is it in consonance with the acts of seisin, which were the predecessors of acts of sovereignty, but also it was written by a jurist whose influence upon European jurisprudence was very strong, if not preponder ant. Azo’s influence upon Henry de Braeton, the foremost systematizer of English Common Law, is particularly great since "the first three chapters of Book II, 'De Acquirendo rerum dominium' are taken almost literally from A z o . " 2 ^ Furthermore, Azo had a similar effect upon Alfonso X's Siete Partidas, the influential Spanish medieval compila tion, which incidentally merely paraphrased Justinian's Institutes on the acquisition of an unoccupied island with out defining occupation.25 However, as Spanish practice of taking possession is treated in this study, it will be evident that explorers, settlers, and both colonial and JPortius Azo, Azonis Jurisconsultissimi in Jus Civili Surna (Lugduni: 1564), p. 199. 2^T. E. Scrutter, "Roman Law in Bracton," The Law Quarterly Review. IV (October, 1885), 434. 25John Thomas Vance, The Background of Hispanic- American Law (New York: Central Book Company, 1943), pp. 97-98. 18 home officials constantly adhered to AzoTs theory of occupation. As the study and influence of Roman Law was reaching its height, the Age of Discovery was beginning. As early as 1341, the first documentary evidence of the discovery of the Canary Islands by the Portuguese was written by 9 6 Giovanni Boccacio. ° However, despite the Spanish- Portuguese dispute over ownership of the Canaries as well as the subsequent Portuguese discoveries of Madeira, the Azores, and numerous other islands, there is no indication that any act of sovereignty was carried out by the early Lusitanian navigators.^ Nevertheless, there is incontro vertible evidence that the Portuguese considered these early discoveries as their property simply on the basis of first discovery. For in protesting Pope Clement VI*s grant of the Canaries to Don Luis de la Cerda of Spain in 1345, 96 "Boccacio (Giovanni)--Noticia de ums expedicao a llhas Canarias, que partiu de en 1 de Julho de 1341, a regressou a misma cidade em Noembro deste ano," in Joao Martins da Silva, Descobrimientos Portugueses: Documentos para a Sua Historia (Lisboa: Edicao do Instituto para a Alta Cultura, 1944), I, 77-80. 97 James Stainer Clarke cites^an act of sovereignty at Madeira in about 1420 where Gonzalez Zarco supposedly took possession in the name of King John 1 of Portugal and of his son, and also had an altar erected. However, the documentary evidence of the period fails to reveal that any such act was performed. See James Stainer Clarke, The Progress of Maritime Discovery (London: T. Cadell and W. Davis, 1803), p. 174. Dom Affonso IV, the Portuguese monarch, stated that they were the prior discoverers of the i s l a n d s . Although the protest was ineffective, it is important from the juridical viewpoint because the Portuguese claim, which was based on temporary, if not just visual, occupation, was founded upon Azo's and not on Bartolus' interpretation of occupation. Furthermore, the grant could not be considered as a re jection of Azo's doctrine and an approbation of Bartolus' since Don Luis de la Cerda had neither established settle ments nor even cast his eyes upon them. The grant was simply setting a new precedent in the medievalist's con ception of jus gentium (the law of nations). Not only was the ancient law of original acquisition being substituted for by ecclesiastical fiat, but also the meaning of terra nullius was being changed. From this date terra nullius would no longer mean uninhabited lands, but lands occupied by heathen who were too weak to defend themselves ade quately.^ Carta de D. Affonso IV, Rei do Portugal, a Papa Clemente VI,” in Martins da Silva, Descobrimientos Portu- gueses: Documentos para a Sua Historia, I, 87. Florentino Perez Embid, Los Descubrimientos en el Atlantico v la Rivalidad Castellana-Portueuesa hasta el Tratado de Torde- sillas (Sevilla: Escuela de Estudios Hispano-Americanos, 1948), pp. 73-76. ^B. A. Hinsdale expressed a similar view as early as 1888, but he placed the origin of the new doctrine with the issuance of the Alexandrine bulls of 1493. See B. A. Hinsdale, "The Right of Discovery," Ohio Archeological and Historical Quarterly. II (December, 1888), 348-349. 20 However, even the papacy found it difficult to alter the ancient concept of acquiring terra nullius. Not only did it restrain itself from granting newly discovered land to other than the first discoverers, but it also waited until it was requested by them. Moreover, the governments of the early European national states did not rely upon the papacy for securing dominion over their discoveries, but merely sought it as a confirmation of the rights which they considered themselves to have acquired by first dis covery.^® Thus, Portugal considered Madeira and the Azores as her possessions resulting from the discoveries of her navigators, and only sought papal confirmation when rival Spain cast her envious eyes upon and proclaimed her dis covery of them. ^ Whether the symbolic act originated to preclude such rival claims of prior discovery, or to avoid future dis putes concerning a discoverer’s intention to acquire the newly discovered terra nullius, is a matter which the Ibid., pv 347. Mario Gongora, El Estado en el Derecho Indiano, Epoca de Fundacion, 1492-1570 (Santiago de Chile: Universidad de Chile, 1951), p. 36. Antonio Rumeu de Armas, Piraterfas y Ataques Navales contra las Islas Canarias (Madrid: Instituto Jeronimo Zurita, 1945), l 7 24. ^Jaime Cortesao, Los Portugueses, Volume III of Historia de America, edited by Antonio Ballesteros y Beretta (Barcelona: Salvat Editores, S. A., 1947), p. 538. 21 documentary sources of the period fail to reveal. Although the sources of the first Portuguese acts are very obscure with respect to the exact date and place when such acts were performed, there seems to be no question that initial symbolic acts of sovereignty were made during the period of the Spanish-Portuguese controversy over the ownership of • 3 9 the Canaries and Guinea. ^ The early Portuguese acts of sovereignty are out standing for their simplicity. This lack of complexity is particularly striking when they are compared with the con temporary Spanish act of possession on the Isle of Fuerte- ventura in 1474 when Diego de Ferrera secured jurisdiction over the Island belonging to his monarch. While Ferrera stamped upon the ground, cut branches, and loudly pro claimed his possession-taking in front of witnesses and notary; the Portuguese navigators merely erected wooden crosses or cut similar inscriptions on trees in order to mark out their discoveries.*^ As far as the documentation OO ^Antonio Galvano, The Discoveries of the World from Their First Original unto the Year of Our Lord 1555, edited by C. B. Bethune (London; Hakluyt Society, 1862), Series I, No. 30, p. 71. Joao de Barros, Asia de Joao de Barrios: Dos Feitos Que os Portugueses Fizeram no Pescobrimiento e Conquista dos Mares e Terras do Oriente, edited bv Hemani Cidade and Manuel Murias (Lisboa: Republica Portuguesa, 1945), Decada I, Livro II, Capitulo 2. 99 ^ J Juan Nunez de la Pena, Conquista y Antighedades de las Islas de la Gran Canaria (Madrid: La Imprenta Real, 1676), pp. 70-73. Gomes Eannes de Azurara, The Chronicle of the Discovery and of the Conquest of Guinea, translated 22 of this era is concerned, there is no indication that any proclamation was delivered, nor that a formal instrument of possession was written. However, the religious ceremony, such as the celebration of mass, may have been performed in some instances, as Diego Azambuja's act of possession in behalf of the Portuguese monarch on the coast of Guinea in 1482 testifies. There 1 1 the royal Arms were immediately displayed upon a tree and an altar being raised beneath, the whole company proceeded to join in the first mass that was celebrated in Guinea.”^ Although the erection or inscription of the cross constituted the essential symbolism of the earliest Portu guese acts, it is a mistake to consider that such an action was always meant to be an act of sovereignty. According to the chronicler Gomes Eannes de Azurara, the cross erected at Cape Branco by Diego Affonso was placed there only to and edited by Charles Raymond Beazley and Edgar Prestage (London: Hakluyt Society, 1896), Series I, No. 95, p. xxxi. Galvano, The Discoveries of the World from Their First Original unto the Year of Our Lord 1555, p. 7. ■^Clarke, The Progress of Maritime Discovery, p. 323. Whether Azambuja claimed only an area or the whole of coast of Guinea cannot be determined from the sources. However, even when explorers minutely record their possession-taking activities, it is impossible in many cases to determine the size of the area claimed as quite often they, themselves, have no idea of the extension or size of the country included in their act. 23 35 notify his other ship ’ ’that he was going on before them/ It is evident, therefore, that such a simple symbolism, which could lead to international disputes due to the lack of national insignia or documented declaration of posses sion taking, was insufficient. However, during the period of Prince Henry, the Navigator, the practice evolved of placing or carving the prince's emblem on trees. By 1484 King John ordered that stone pillars (padroes) six feet high be erected with the names of the reigning monarch and of the discoverers inscribed.37 This new practice, it should be noted, came after the papal donation of the lands south of Gape Bojador and of Africa. Yet, there is no indication that there is any connection between the two events. While the Portuguese were performing their acts on the African Coast and adjacent islands, the Spanish were carrying out a similar activity in Spain as they reconquered those lands that Iberian Christians had lost to the Moors. As lands were wrested from the decadent Moorish kingdoms, 33Azurara, The Chronicle of the Discovery and of the Conquest of Guinea, p. 103. ■^Barros, Asia de JoSo de Barros: Dos Feitos Que os Portugueses Fizeram no Descobrimiento e Conquista dos Mares e Terras do Oriente. Decada iV Livro II. Capitulo 2. 37Ibid. 24 the Spanish monarchs would enter the conquered areas and take possession. Keeping very much in line with the His panic flair for pageantry and ceremony, the acts of the Reconquest contained extended religious as well as pro- OQ longed symbolic ceremonies. Among such acts, the one performed in 1492 at Granada, the last of the Moorish king doms on the Peninsula, is a classic example of Spanish pageantry.^ This act, however, has a greater importance to us for reasons other than its ceremonies. It was the last act to be performed on the Peninsula, and therefore was a pre decessor of the future Spanish acts in the New World. In certain respects, this act is also closer to the act of sovereignty to be performed in America by the Spaniards, than it is to the act of seisin* For unlike seisin, it does not secure derivative jurisdiction, but reasserts sovereignty. Notwithstanding the essential difference between the 38ttj)e Cronica de Don Juan Segundo,'1 in Claudio^ Sanchez-Albornoz y Meduina, ed., La Espana Musulmana segun los Autores Islamites y Cristianos Medievales (Buenos Aires: Libreria y Editorial ME1 Ataneo,"1946), II, 461. "Bachiller Bemaldez, De la Historia de los Reyes Catolicos Don Fernando y Dona Isabel,” in Sanchez Albomoz y Meduina, La Espana Musulmana, II, 508. Bachiller Bemaldez, De la Historia de los Reyes Catolicos Don Fernando y Dona Isabel," in Sanchez-Albornoz y Meduina, La Espana Musulmana. II, 508. 25 significance of the acts of reconquest and of seisin, the Granadine act not only embodied most of the symbolism and mechanics of livery of seisin, but also did it in a most colorful manner. The ceremony at Granada, indeed, was worthy of the climactic point of the Reconquista when one pictures how the King Don Fernando took the keys and gave them to the Queen, and the Queen gave them to the Prince, and the Prince gave them to the Count of Tendilla, whom with the Duke of Escalona . . . he sent to enter into the Alhambra and to take possession of it. And, they entered and took it and took possession of the high places and the low places. And, they went and entered and exhibited in the highest tower first the insignia of Jesus Christ, which was the Holy Cross, which the King always had with him on the holy conquest. And, the King, the Queen and the Prince and all the troop humbled themselves to the Cross, and gave many thanks and praises to Our Lord. And, the Archbishop and the clergy recited the Te Deum Laudamus. And, then they showed to those inside the banner of Santiago, which the grandmaster of the Order of Santiago was carrying with his troop, and together with it the royal banner of the King Don Fernando. And, the King's heralds proclaimed in loud voices "Castile, Castile." And, these heralds did here and said here what was demanded by their office, and they gave their proclamations. And, present at this act and blessed victory with the King and Queen, were the Prince Don Juan, and the Infanta Dona Juana, their children; the Cardinal of Spain; the Archbishop of Seville; the grandmaster of the Order of Santiago; the Duke of Cadiz; and so many others that it would be prolix to write, and many others who remained guarding the camp and who did not come here.40 40"Bachiller Bemaldez, De la Historia de los Reyes Catolicos don Fernando y dona Isabel," quoted in Sanchez- Albornoz y Meduina, La Espana Musulmana, II, 508. 26 With this ceremony the Spanish period of performing acts of reconquest on the Peninsula came to an end. Yep, within a few months, a similar, if less formal ceremony was performed on the Island of Guanahanf by which the Spanish monarchs would lay claim to the New World. This act not only opened a New World, but also a new era of inter national relations and complications in which the act it self would many times be the center of controversy and dispute. CHAPTER IX THE SPANISH ACT IN THE AGE OF DISCOVERY October 12, 1492 was a fateful day for both Europe and the New World. As Columbus landed on the Island of Guanahani (San Salvador), the New World would no longer belong without question to its aboriginal inhabitants. For on landing the Admiral took the royal standard, and each of two captains took one of the green-crossed banners. . . . Jumping upon land, the Admiral and all the members knelt down, gave great thanks to the Almighty God and Lord who had brought them to safety. . . . Then the Admiral— in front of the two captains, and of Rodrigo de Escobedo, the notary for all the fleet, and of Rodrigo Sanchez de Segovia, the overseer of it, and of all the Christian people that were with him-- jumped on land, and stated that they be his witnesses: how he before all of them was taking, and in fact did take possession of the said island which he named San Salvador for the king and queen his lords, by making the requisite protestations which are recorded in By this act at San Salvador as well as by the Admiral's other act on Espanola, the Castilian Crown, ignoring that Columbus claimed only two islands by possession-taking, asserted its claim to all the New 1 Bartolome de las Casas,^ Historia de las Indias (Mexico: Fondo de Cultura Economica, 1951), I, 201-202. in the testimonies which were written there 27 28 o World. Beyond this grandiloquent claim, which would shortly be confirmed by Alexander VI, these acts of Columbus are unique from two viewpoints. First, there is no evidence that Columbus was ever instructed to take formal possession. The Capitulaciones and Titulo of the Spanish monarchs to the Admiral make no mention of possession-taking although discovery and conquest play a prominent part in the instruments.^ And, secondly, the ceremony of the act, as described at San Salvador, presents a striking similarity to the final act of the Reconquista at Granada; for the religious, martial, and legal aspects are obviously visible on both occasions. Thus, there are religious acts of thanksgiving, the hoisting of the colors (both spiritual and temporal), and the solemn proclamations of possession-taking as well as the legal recording of the ceremony performed. Therefore, it can be said that Columbus' act embodied many of the precedents and cere monies of the peninsular practices of possession-taking Bartolome de las Casas, "Este es el Primer Viage y las Derrotas y Camino que Hizo el Almirante D. Cristobal Colon Cuando Descubrio las Indias, Puesto Sumariamente," in Martin Fernandez de Navarrete, Coleccion de los Viages v Descubrimientos, que Hicieron por Mar los Espanoles desde Fines del Siglo XV (Madrid: La Imprenta Real. 1825). I. 86. hereinafter cited as Navarrete, Viages y Descubrimientos. ^Navarrete, Viages v Descubrimientos. II, 7-11. 29 for the acquisition of sovereignty and that his first act was not merely an attempt to introduce the feudal practice into the realm of international relations. If Columbus' acts were in accordance with Spanish tradition of obtaining sovereignty, so were Ferdinand and Isabel's petitions to Rodrigo Borgia, Pope Alexander VI, for confirming their title to all the lands of the New World. As in the case of Luis de la Cerda, who had secured the Canary Islands for Spain, Ferdinand and Isabel also turned to the papacy in order to outgain their rival, the Portuguese monarch, Dom Joao.^- However, the circumstances were different. While Don Luis had never seen the Canaries and was solely dependent upon the papal donation for acquiring title to these islands, Ferdinand and Isabel obtained their title through Columbus' finding and taking possession of the New World, or by prior discovery as the Spaniards called these combined actions."* That their title was derived from discovery was a fact deeply ingrained in Charles Edward Nowell, "The Treaty of Tordesillas and the Diplomatic Background of American History," in Greater America: Essays in Honor of Herbert Eugene Bolton (Berkeley: University of California Press, 1945), pp. 3-5, hereinafter cited as Nowell, "The Treaty of Tordesillas." ^Antonio Herrera y Tordesillas, Historia General de los Hechos de los Castellanos, en las Islas, v Tierra-Firme de el Mar Oceano (Madrid: 1726-1730), Dec. I, Lib. II, Cap. IV, hereinafter cited as Herrera, Historia General. 30 the minds of these rulers; for in both their Capitulaciones and Titulo to Columbus they considered themselves as sover eign rulers of any lands the Admiral might discover since they appointed him as their viceroy and governor.^ But realizing that the lands discovered lay south of the Canaries, and therefore within the sphere which the Treaty of Alcapovas as well as the papacy had granted to the Portuguese monarch in 1481, the Catholic Monarchs sought papal confirmation to strengthen their claims which the powerful Dorn Joao rejected from the moment Columbus landed in Portugal on his return from the Indies.^ Alexander1s response to the Spanish request was as prompt as could be expected from a man who was deeply in debted to the Aragonese king for the numerous ecclesiasti cal titles that he had received. The bull Inter caetera of May 3, 1493 was issued. By this bull the Spanish Crown was granted "all and each of the aforesaid countries and islands thus unknown and until now discovered by your en- O voys and to be discovered hereafter." At the same time, f i Navarrete, Viages v Descubrimientos. II, 7-11. ^Nowell, "The Treaty of Tordesillas," pp. 1-2. Ferdinand and Isabella to the Duke of Medina Sidonia, Barcelona, May 2, 1493 in Navarrete, Viages v Descubri mientos. II, 22-23. Herrera, Historia General. Dec. I, Lib. II, Cap. V. ^Inter caetera of May 3, 1493 in Navarrete, Viages y Descubrimientos, II, 23-27. 31 any lands belonging to any Christian king were exempted from the donation, and the Portuguese donations by previous Popes were confirmed, notwithstanding that the Spanish dis- covery and grant lay within the Portuguese sphere. As far as the confirmation of Spanish title to the islands of San Salvador and Espanola, where Columbus had taken possession, the Pope was adhering to the principles of Roman Law. But in granting the lands to be discovered, the supreme pontiff was, as in the case of the Canaries, acting arbitrarily and contrary to the legal precedents which even the Spanish crown asserted as the basis of their title. Furthermore, the very contradiction of granting to the Spaniards lands in the territories already donated to Portugal accentuated the lack of true respect for principle in the Pope's action, and gave both nations a quasi-legal basis for dis puting the future ownership of the Indies. As could be expected, such a bull failed to please the Spanish monarchs, and soon it was followed by two sub sequent bulls: Eximae devotion!s and Inter caetera. both dated May 4, 1493. In the first bull the provisions of Inter caetera of May 3, 1493 were more strongly presented; in the second the line of demarcation dividing the Spanish and the Portuguese spheres of discovery at the Azores and ^Ibid., p. 26. 32 Cape Verde Islands was introduced.^ If these three bulls were detrimental to the Portuguese expansive movement, the final bull Dudura siquidem of September 26, 1493 would extinguish it. By this bull the Spaniards were really empowered to gain and rule all terra nullius existing in the world. For it granted the Spaniards the right of acquiring India itself or lands east, west, or south of 11 it. Furthermore, it abrogated the Portuguese grants without specifically referring to them by n a m e . For those who champion the pervading authority of the papacy on international questions during the early period of the Age of Discovery, the Portuguese reaction to these bulls is most interesting. Dom Joao simply prepared for war with Castile.^ In doing this, the Portuguese monarch was not initiating a new method of receiving papal Inter caetera of May 4, 1493 in Navarrete, Viages v Descubrimientos, II, 28-35. Eximiae devotionis of May 4, 1493 in Frances Gardiner Davenport, ed., European Treaties Bearing on the History of the United States and its Depend- encies (Washington, D.C.: Carnegie Institution of Washing ton, 1917), I, 64-70. Hpudum siquidem of September 26, 1493 (Bula de Ex tens ion) in Coleccion de Documentos Ineditos Relatives al Descubrimiento, Conquista y Organi^Tcion de las Antiguas Posesiones Espanolas de America v Oceania (Madrid: Imprenta de Manuel G. Hernandez, 1882), XSWIII, 242, hereinafter cited as Coleccion de Documentos Ineditos de America v Oceania. ^2Ibid., p. 243. •^Nowell, "The Treaty of Tordesillas," pp. 2-3. 33 grants which were considered unjust. He was simply follow ing both Portuguese and Spanish precedents, established in the Popef s donation of the Canaries and Guinea to Spain and Portugal respectively.^ However, since Dom Jo3o's naval strength was potent and the stakes were great, it is not strange that Ferdinand and Isabel chose to negotiate a treaty with him rather than to try to maintain the so- called rights granted by the Borgian Pope. Thus, the Treaty of Tordesillas, 1494, which divided the world of exploration between Spain and Portugal, resulted. By the treaty both nations agreed that the line of demarcation would be moved 370 leagues west of the Cape Verde Islands, that neither nation would send ships into the other’s territory (excepting the Spanish vessels which had to cross Portuguese waters in sailing to the Indies), and that neither kingdom would prevail on the Pope or any other high ranking prelate to release it from the treaty.^ Furthermore, as a protection against future encroachments by other European nations, Spain and Portugal petitioned the Pope to pronounce the penalty of excommunication upon any nation which violated the rights of either Iberian Supra, pp. 18-19. •^"Capitulacion de la Peticion del Mar Oceano, Hecha entre los Catolicos Reyes D. Fernando y Dona Isabel, y D. Juan Rey de Portugal1 1 in Navarrete, Viages y Descubri mientos , I, 130-143. 34 monarch. This request was promptly granted by Rome. But despite this ecclesiastical sanction it must be noticed that the negotiations at Tordesillas were carried on with out papal intervention nor representation.^ For all practical purposes they were negotiations between two temporal states which sought to settle their international problems without acknowledging any superior arbitrator whose decisions were final and binding. If these two states petitioned the papacy to excommunicate the violators of the agreement, this must be conceived as a request that would solely benefit them, and not impose any supra national restrictions upon themselves. Naturally, the importance that both the Alexandrine bulls of donation and the Treaty of Tordesillas have for this study, concerns the effect which they had upon the practice of acquiring terra nullius. Since the papacy had given the New World to Spain and had approved the Hispano- Portuguese division of uninhabited lands, it would seem that the practice of acquiring newly-found terra nullius by means of first discovery would come to an end, at least, as far as Spain is concerned. The reasons for such a conclu sion are obvious. First, discovery, meaning the first •^Silvio A. Zavala, Las Instituciones Jurxdicas de la Conquista de America (Madrid: Centro de Estudios His- toricos, 1935), pp. 28-29. 35 finding and possession-taking, was based upon the tenets of Roman Law and could in some cases be in complete contra diction to papal grants. Secondly, discovery was an avenue open to all nations as a means of acquiring possessions in the New World. Thirdly, it was patently unnecessary to proclaim ownership of a newly-found territory when every European nation knew and supposedly acknowledged that such land already belonged to the person claiming it. If indeed the title of discovery as based on solemn possession-taking was invalidated by the papal donations and the Treaty of Tordesillas, the activities of Spanish navigators and conquerors fail to indicate it. Immediately after the papal grant, the Admiral continued his practice of possession-taking during his second voyage as he landed 17 on Marie Galante Island on November 3, 1493. On his third voyage, which was after John Cabot had already taken possession in North America for Henry VII of England, Columbus or one of his subordinates performed the first act on the South American mainland on the Paria Peninsula of 1 & present day Venezuela in 1498. ° Some four years later Pedro Martir, ”Segundo Viaje de Cristobal Colon” in Navarrete, Viages v Descubrimientos, I, 200. ■^Whether Columbus or Vicente Yanez Pinzon was the first to land and take possession of the mainland is still a very debatable question. Contemporary testimony is far from decisive. For the testimony presented see Coleccion de Documentos Ineditos Relativos al Descubrimiento, Con quista y Organizacion de las Antiguas Posesiones Espanolas 36 on his final voyage, which was the only time that he was instructed to take possession by their Catholic Majesties, Columbus formally claimed the territory of Central America by a solemn symbolic act at Punta Caxinas, the present day Cape Honduras.^ Unfortunately, it is impossible to determine de finitely on what juridical basis the Admiral relied in pro claiming Spanish sovereignty over these lands since the instruments of possession-taking (escrituras de posesidn) are among the missing documents. However, from the brief descriptions of acts contained in the various Columbian documents, it appears that these later ceremonies were very similar, if not identical, to his first act on San Salvador. This similarity, coupled with the lack of any evidence that the Admiral relied on or invoked the papal donation as a basis proclaiming Spain's title to the lands, indicates that his acts after 1493 were still based upon the legal precedents of Roman Law. de Ultramar (Madrid: Establecimiento Tipografico "Sucesores de Rivadeneyra," 1892), Vols. VII and VIII, hereinafter cited as Coleccion de Documentos Ineditos de Ultramar. For Columbus' act and discovery see Coleccion de Documentos Ineditos de Ultramar, VII, 106-107. •L9"Relaci6n del Viage e de la Tierra Agora Nueva- mente Descubierta por el Almirante, D. Cristobal Colon" in Navarrete, Viages v Descubrimientos. I, 283-284. This same situation is true of the acts performed by the second and third Spanish navigators to take possession in America. Vicente Yanez Pinzon, who had commanded the Nina on the original voyage of discovery, arrived on the coast of Paria in 1500 where he took possession.^ A few months later Diego de Lepe sailed to the coast of northern South America and performed acts in Paria, the Guianas, and Brazil.21 Although the evidence proving that the acts were made is unquestionable, the lack of a detailed description of the acts and their ceremonies makes it impossible to determine definitely if these explorers relied on Roman Law or ecclesiastical fiat. Yet, the fact that the papal donation is not mentioned once in the description of the acts renders it quite probable that both Pinzon and Lepe followed the traditional precepts of Roman Law in claiming Paria, Guianas, and the northern coast of Brazil for the Spanish Crown. That such policy was practiced, and perhaps practiced consciously, is also confirmed by Alonso de Ojeda’s cedula which was granted by the Catholic Monarchs 20Herrera, Historia General. Dec. I, Lib. IV, Cap. VI. Navarrete, Viages v Descubrimientos. Ill, 547- 548. ^Herrera, Historia General. Dec. I, Lib. IV, Cap. VII. Navarrete, Viages v Descubrimientos. Ill, 554. 38 9 9 shortly after Lepe's voyage. Ojeda was instructed to follow the course of his expedition of 1499 and to place the royal arms or other markers upon the land in order to oo forestall England*s discovery of such lands. Thus, the Spanish rulers, as their cedula indicates, were relying upon the simplest forms of possession-taking, and not upon ecclesiastical dictums for obtaining jurisdiction over terra nullius as well as for securing England*s respect of Spanish claims. With Ojeda*s cedula and his ill-fated voyage of 1501, the first phase of Spanish possession-taking came to an end. This early period, which in spite of the papal donation witnessed the continual use of symbolic acts for obtaining jurisdiction over new discoveries, was followed by a span of twelve years in which not a single act is recorded. This failure to perform acts from 1501 to 1513 must not, however, be interpreted as an innovation in the Spanish method of securing jurisdiction over newly dis covered lands. The reason that no acts were performed was simply that the Spaniards were consolidating their early 9 9 Reales Cedulas en que Se Contiene el Asiento Hecho con Alonso de Hojeda para que Vuelva con Diez Navios a Hacer Descubrimientos en Atencion al Poco Provecho que Tuvo en el Viage Anterior . . ." in Navarrete, Viages v Descubrimientos, III, 85-88. ^^Ibid., p. 86. settlements, and their explorations into the interior of North and South America had not begun in earnest. The year 1513 marks the beginning of Spanish ex plorations and discoveries in the interior of North, Central, and South America. Within the period of the suc ceeding century these intrepid Iberians had penetrated the territory of the two American continents, except the northern portion of the present day United States and Canada. This seemingly endless penetration, as will be seen, was constantly punctuated by the ceremonies of possession-taking as the rough but legalistic-minded con- quistadores proclaimed and acquired title for their sover eigns. As the reader accompanies these explorers, he not only realizes the importance which they placed upon possession-taking; but also learns the territories claimed by Spain, the juridical basis of her claims, as well as the source of many future disputes among the colonial powers of the sixteenth century. Although with the Spanish the post-Columbian phase of possession-taking began in 1513, its roots were laid in 1512 when Juan Diaz de Solis was commissioned by the crown to determine where the demarcation line ran. Diaz' capitulacion is a revealing document because of the import ance which the Spanish crown places on possession-taking. Not only is Diaz to take possession of the disputed Moluccus, but also of all lands that he might find within 40 the Spanish sphere.^ Such an instruction is puzzling when one realizes that in Spain the king1s advisors, such as Juan Lopez de Palacios Rubios, were propounding the idea that Spain's title to the Indies was exclusively based upon the papal grant which superseded Roman Law as the basis of original acquisition.25 But stranger yat is the fact that the capitulacion not only ignored the papal grant, but also stressed the necessity of performing acts of possession upon all land discovered. Such a practice, it is obvious, did nothing more than conform to Spain and Portugal's interpretation of the principles of Roman Law on original acquisition. Furthermore, in doing this, Spain was actually excluding the future colonial powers of England and France by claiming the New World through the process of individual discoveries and acts of sovereignty. Such a policy of piecemeal exclusion is evidenced not only from Diaz de Solis' capitulacion and Ojeda's prior cedula. but also, and most particularly, from the different Spanish 2^,,Sobre Carta de una Capitulacion Celebrada por la Reina con Juan Dfaz de Solis para Efectuar la Demarcacion de Limites entre los Dominios de Espana y Portugal" in Jose Toribio Medina, Juan Diaz de Solis: Estudio Historico (Santiago de Chile: 1897), II, 58-59 and 64. Juan Lopez de Palacios Rubios, De Las Islas del Mar Oceano, edited by Silvio Zavala, translated by Agustin Millares Carlo (Mexico: Fondo de Cultura Economica, 1954), p. 128. Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949), pp. 27**29, 147, hereinafter cited as Hanke, The Spanish Struggle for Justice. explorations in the New World. The renewal of Spanish possession-taking activity and therefore of the policy of piecemeal exclusion of other colonial European powers, began in the present limits of the United States. Little is known of the first Spanish act of sovereignty in Florida except that Juan Ponce de Leon erected a stone cross on the St. Johns River in April 9 A 1513. What ceremonies he performed and what he said when he claimed the country for Spain are simply not known al though there have been many elaborate interpretations of his act.^ There is, however, no doubt that he gave Spain her first claim to Florida. Within a few months after Ponce established Spaint s claim to Florida, Vasco Nunez de Balboa crossed the Isthmus of Panama and discovered the Pacific Ocean. Although Balboa had come to Panama as a stowaway and had illegally seized command of the trans-isthmian expedition, he imme diately recognized the necessity of legally claiming his most astounding discovery for the kingdom of Castile. After a large wooden cross was erected and the Te Deum was recited, Balboa formally took possession of the Southern 26 Herrera, Historia General, Dec. I, Lib. IV. 27 T. Frederick Davis, "Juan Ponce de Leon’s Voyage to Florida," The Florida Historical Society Quarterly, iXIV (July, 1935), 36-37, hereinafter cited as Davis, "Juan jPonce de Leon’s Voyage to Florida." Sea (the Pacific Ocean) as he entered into the salt water of the ocean, ui reached his knees, and he began to go back and he said: * Long live the Most High and Powerful Queen, Don Fernando and Dona Juana . . . in wn>- and in behalf of the royal crown of Castile I : seize possession of these seas and lands and c,: If ports and southern isles, with all their surro || and kingdoms and provinces which belong to the*. }| belong in any manner whatsoever, or by any rea. ^ h'j title which exists or can exist, ancient or mo- i|| past times, present, or future, without contra* % whatsoever. And if any other prince or capcar. Christian or infidel, or of whatever law or se cond! tion aspires to a right to these lands an-. 1 am ready and equipped to contradict it, and in the name of the King and Queen of Castile, and future, to whom belongs this empire and do these Indies, isles, and northern and southern Firme with its seas, both in the Arctic as v.*el the Antarctic and in both parts of the equinoc within and without the Tropics of Cancer anc C iff c o m . . . . i When Balboa finished delivering his proclam 1 the complete ceremony was solemnly recorded by the |j notary, Andres de Valderrabano.^ Besides its imp H as being the first New World act that has been pre its entirety, the act has great value because of t trine that it expressed in claiming jurisdiction o* Southera Sea and all the adjoining territories. A it is quite evident that Balboa based his act on s "*il II Q y ^ ^°Gonzalo Fernandez de Oviedo y Valdes, His-.i General v Natural de las Xndias, Is las v Tierra-Fi; ; r Mar Oceano (Madrid: 1853), Lib. XXIX, Cap. Ill, her) cited as Fernandez de Oviedo, Historia General v Na' ^Ibid. f ; 1 43 the precepts of Roman Law, there is evidence present that he implicitly recognized that these lands and waters already belonged to the Spanish crown. Naturally, such a claim of prior ownership can only be based upon Alexander Vi's bulls. Therefore, Balboa* s ceremony at San Miguel can be said to rely on Roman law only in so far as first discovery and occupation of the isthmian territory is concerned. Regard ing his claim to the Southern Sea and the lands which it washes, the act was contrary to the principles of jus gentium, and appears to be based upon the supra-national donation of the papacy. Thus, Balboa may be credited with being the first explorer to introduce the papal gift into the Spanish ceremony of taking possession although he did it only implicitly and not as basis of obtaining title over his discovery. Nunez* implicit reference to the Spanish crown's prior ownership of the territory cannot be regarded as an exceptional innovation, except for the manner in which it was mentioned. That it should first be introduced in 1513 is most understandable since it was precisely at this time that Spanish theologians and legists were examining Spain* s title to the Indies. Although the acquisition of terra nullius had been effected by symbolic acts, the Spaniards in the Peninsula now placed more and more weight on the pontifical grant as the basis for their title to the 44 Indies.'*® Suddenly, however, the legitimacy of the Spanish title as based on Alexander* s bulls was questioned as a result of Fray Antonio de Montesinos* condemnation of Indian maltreatment in Espanola. From this historic event, which led to the famous Junta of Burgos of 1511-1512, flowed not only the famous Laws of Burgos but also the most solemn and respected legal and ecclesiastical theories con cerning Spain's title to the New World. Whereas in the period of Columbus' first discovery, the Spanish jurists had based their title on Columbus* discovery and possession- taking, the outstanding men at Burgos, Fray Matias de Paz and Juan Lopez de Palacios Rubios, recognized no title 01 other than Alexander's donation. x The legal doctrine which these men espoused did not remain a mere academic question. On the contrary, it had serious repercussions, particularly in Spain. This was especially true of the opinions of Lopez de Palacios Rubios, Ferdinand's trusted advisor and apologist. Not only was "*®Herrera, Historia General. Dec. I, Lib. II, Cap. IV. Hanke, The Spanish Struggle for Justice, pp. 26- 29 and 147. Zavala, Las Instituciones Juridicas de la Conquista de America, pp. 28-30. ■^Lopez de Palacios Rubios, De Islas del Mar Oceano, pp. 128-129. Matxas de Paz, Del Dominio de los Reves de Espana sobre los Indios. edited by^Silvio Zavala, trans- lated by Agustxn Millares Carlo (Mexico: Fondo de Culture Economica, 1954), pp. 222-223. For an excellent analysis of Paz* and Lopez* theories see Hanke, The Spanish Struggle for Justice, pp. 17-36. 45 his theory of Spain's reliance on the papal donation for legitimate title to the Indies accepted, but also the duties which he imposed upon the Spanish crown and colonists in order to validate the donation. Paramount among such duties was the just treatment of the aborigines, for it was from their unjust treatment and enslavement in Espanola that the Junta of Burgos resulted. It was precisely to prevent the ill-treatment of the Indians, as represented in their unjust enslavement, that Lopez de Palacios Rubios was requested to formulate the well-known, but ridiculed requerimiento which all Spanish discoverers and explorers were required to read to the natives before any warlike activity could be justly levied against the Indians.^2 It is the royal order necessitating the reading of the theology-laden requerimiento that amply proves that Charles I of Spain, and thereby the Spanish Crown, accepted Lopez de Palacios Rubios' doctrine on Spain's title to the Indies.^ Although the requerimiento itself was not part of the ceremony of possession-taking, there is no doubt that it altered the legal foundation of the act of ■^Hanke, The Spanish Struggle for Justice, pp. 32- 33. Zavala, Las Instituciones Jundicas en la Conquista de America, pp. 89“95. •^The order promulgating the compulsory reading of the requerimiento by every Spanish expedition before begin ning hostilities was not issued until June 26, 1523. Recopilacion de Leves de las Indias (Madrid: Boix, 1841), Lib. Ill, Tit. IV, Ley IX. 46 possession since it required that the Indians accept the religious and temporal supremacy of the papacy, the Pope’s donation of their territory to the Spanish crown, and the admittance of missionaries in their midst.^ Logically, the act of possession became a ceremony not for acquiring original ownership of terra nullius but simply for taking possession of derivative jurisdiction as in the ceremony of seisin. That this conclusion is valid is evident from Lopez de Palacios Rubios' own words when he states that although the dominion is transferred immediately through the prince's concession, donation, or privilege, possession cannot be perfected without a real and factual apprehen- 35 sion. J Granting that the requerimiento theoretically altered the legal basis of the Spanish act and that Lopez de Palacios Rubios' theory was accepted in the Iberian Peninsula, it does not necessarily follow that possession- taking ceremonies in the New World were automatically changed to conform to his doctrine. The reasons which might forestall such a change are many indeed. Primary among them is the attitude of the conquistadores toward ^Coleccion de Documentos Ineditos de Ultramar, XX, 311-314. 3-*Lopez de Palacios Rubios, De Islas del Mar Oceano. p. 137. 47 the requerimiento and its theologically-inspired Indian rights. Lewis Hanke gives us an excellent picture of the attitude toward and manner in which the Spanish conquerors fulfilled the Crown's order of reading this proclamation. The Requirement was read to trees and empty huts when no Indians were to be found. Captains muttered its theological phrases into their beards on the edge of sleeping Indian settlements, or even a league away before starting the formal attack, and at times some leather-lunged Spanish notary hurled its sonorous phrases after the Indians as they fled into the moun tains. Once it was read in camp before the soldiers to the beat of the drum. Ship captains would sometimes have the document read from the deck as they approached an island, and at night would send out enslaving ex peditions. . . .36 This open disregard of royal orders appears to be more than just a rejection of Indian rights by the Spanish colonists and explorers in America. It also appears to be a rejection of the theological and political theory upon which such rights were based; and therefore a silent, un planned but effective repudiation of the opinion that the New World belonged to them because it was bestowed on their Crown by the Pope. Perhaps, it would not be too far from the truth to state that these early conquerors actually believed that the Indies belonged to Spain because of their discoveries, solemn acts, and conquests. Certainly, it would be most difficult to interpret their actions and Of. Hanke, The Spanish Struggle for Justice, p. 34. 48 07 blatant disobedience in any other manner. There are other reasons, which are as cogent as the explorers’ attitude toward the requerimiento, that lead any historian seriously to question the assertion that the Spanish act of possession, as performed in the New World, would be based upon the pontifical grant. In the first place there is no documentary evidence that Ferdinand, in accepting Lopez de Palacios Rubios’ interpretation at home, abandoned the original practice of claiming new discoveries by acts of sovereignty based on Roman Law. Furthermore, it is most interesting to note that from Ojeda’s cedula of 1501 to Philip’s Ordenanzas of 1573, the Crown failed to issue any instructions stating nn what basis such acts should be performed.^8 Because of the absence of such ^Actually the Spaniards’ disregard of the spirit of the requerimiento can be classified as one of the first examples of the Spanish practice of obeying but not exe cuting a law. However, it appears that this failure to execute the law of the requerimiento stems from their ideas on how Spain acquired title to the New World. ^The only instructions issued by the Crown on possession-taking, which the writer has^located, date from Columbus’ last voyage to the Recopilacion de Leyes de las Indias. They are contained in the following documents and are remarkable for their brevity and lack legal interpreta tion. "Reales Cedulas en que se Contiene el Asiento Hecho con Alonso Hojeda . . ."of June 18, 1501 in Navarrete, Viages v Descubrimientos, XXI, 85-86. "Sobrecarta de tana Capituiacion celebrada con Juan Diaz de Solis . . ."of March 27, 1512 in Medina, Juan Diaz de Solis: Estudio Historico, II, 58-64. "Lo que vos Juan Diaz de Solis mi piloto mayor abeys de facer para lo del viage que enhora buena abeys de llevar a descobrir en las espaldas de instructions, it is reasonable to conclude that acts of possession which were performed in the sixteenth century reflected the views and ceremonies which either the indi vidual explorer or the governing colonial official desired. Thus, if any changes occurred in the explorer's act which transformed it from an act of sovereignty based on Roman Law to merely an act of investiture dependent upon Alexander's donation, it was due to the personal opinions and practices of the discoverer, colonizer, or local governing official. Because some of these men were in fluenced by the theories of Paz and Lopez de Palacios Rubios, it is necessary that as future Spanish explorations and acts of possession are considered that care be taken to analyze the legal basis upon which the lands were claimed for Castile. Although the documentation for the explorations immediately following the Junta of Burgos is not as com plete as the student of possession-taking acts would like, historical evidence shows that the early basic acts— those by which sweeping portions of the New World were first Castilla de Oro en lo syguyente," Mansylla, November 24, 1514, MS, in Archivo General de Indias, Sevilla^(herein after cited as A.G.I.), Patronato, Leg. 26, N9 unico, R9 6. D. Felipe en Aranjues a postrero de Noviembre de 1568 in Recopilacion de Leves de los Reinos de las Indias, Lib. IV, Tit. il, Ley X . T I "Ordenanzas de Su Mages tad Hechas para los Nuevos Descubrimientos, Conquista y Pacificaciones" of July 1573 in Coleccion de Documentos Ineditos de America y Oceania, XVI, 146-147. 50 claimed--were almost completely uninfluenced by the legal theories emanating from Burgos. Among the first explorers to embark on a voyage of exploration and possession-taking after the historic Junta was Juan Diaz de Solfs. After receiving his instructions, which described the ceremonies to be followed but ignored the legal basis on which to proclaim the acquisition of territory, Diaz de Solis sailed to Rio de la Plata where he took possession of the country on February 2, 1516.39 Although the available documentary materials describe the act very briefly, it seems safe to conclude from them, as well as from his instructions, that the act was not dependent on Alexander’s donation and that it was a composite of the Germanic practice of branch- cutting and the Roman legal theory of original acquisi tion.^ Two years after Diaz de Solis claimed the Rio de la Plata area, the regions of southern Mexico were formally declared as belonging to the Castilian crown. Although popular imagination generally pictures Cortes as the first Spaniard to proclaim Spain’s title to Mexico, it was 39"Lo que vos Juan de Solis mi piloto abeys de facer para lo del viage . . . en las espaldas de Castilla de Oro . . Mansylla, November 24, 1514, MS, in A.G.I., Patronato, Leg. 26, R9 6. Herrera, Historia_General, Dec. II, Lib. I, Cap. VII. 40Ibid. 51 Juan de Grijalva who hoisted the Spanish colors and took formal possession on Cozumel Island and on an island off the Veracruz coast in 1518.^ Grijalva, like Cortes who a year later took possession at Tabasco, makes it clear in his proclamation at Cozumel that the title obtained is derived from the very act itself. Yet, Grijalva and Cortes' acts, despite this essential similarity, are very different in other respects. A particularly outstanding difference appears— one that indicates the relative freedom which Spanish explorers enjoyed in performing their acts— in the ceremonies which these men utilized at Cozumel and Tabasco. While Grijalva rendered thanks to God through prayer, Cortes ignored all religious demonstration. Secondly, Grijalva's symbolic activity was relatively simple since he merely displayed the flag as the proclama- tion was read; Cortes, however, brandished his sword, struck a tree, and displayed a very warlike spirit. A more essential difference, however, was that Grijalva had re ceived instructions for performing his acts; Cortes, on the other hand, since he was acting contrary to the Cuban governor's orders, relied on his own initiative for the ^Fernandez de Oviedo, Historia General v Natural, Lib. XVII, Cap. IX. Herrera, Historia General. Dec. II, Lib. II, Cap. IX. 52 y o performance of his act. An almost completely opposite picture to Cortes1 rather extravagant ceremonies is presented a year later as another famous Iberian navigator and explorer claims in behalf of the Castilian crown the vast territories of Patagonia, southern South America, and the Philippines. Ferdinand Magellan (Fernando de Magallanes), the former Portuguese subject, seemingly following the Portuguese tradition of possession-taking, confined his ceremonies to the erection of crosses. Antonio Pigafetta, one of the well-known chroniclers of the voyage, gives us no other information on the navigator’s acts than that Magellan erected crosses at San Julian in Patagonia, Rxo Isleo in the Straits of Magellan, and Mindanao in the Philippine I s l a n d s . i t would, indeed, be idle to speculate on either the basis of the act or its ceremonies with such limited information available. Almost as limited as the information concerning ^Bernal Diaz del Castillo, Historia Verdadera de la Conquista de la Nueva Espana (Mexico: Ediciones Mexicanas, S. A., 1950), p. 61. Fernandez de Oviedo, Historia General v Natural, Lib. XVII, Cap. IX. Herrera, Historia General, Dec. II, Lib. II, Cap. IX. ^ A n t o n i o Pigafetta, "Relacion del Primer Viaje Alrededor del Musido" in Biblioteca Indiana: Viaies y Viaieros, America en los Grandes Viaies, edited by Manuel Ballesteros Gaibrois (Madrid: Aguilar, 1957), pp. 28, 30, 38, and 44-45, hereinafter cited as Biblioteca Indiana. 53 Magellan is the documentation that is available on the act by which Spain first claimed New Mexico in 1539. But this is not the only similarity between these two acts. For just as Magellan erected the cross as a sign of possession, so did Fray Marcos de Niza when he proclaimed "that he was placing that cross and landmark in the name of Don Antonio de Mendoza, Viceroy and Governor of New Spain, in behalf of the Emperor, Our Lord, as a sign of posses sion."^ Furthermore, Fray Marcos, notwithstanding that he is the first religious to perform an act of possession in North America, fails to mention--as Pigafetta did in his description--the papal donation in his relation. Fray Marcos’ expedition to the Seven Cities has other historical importance than just establishing Spain's claim to New Mexico. For Fray Marcos de Niza’s descrip tions not only led to the subsequent expeditions of Francisco Vasquez de Coronado to New Mexico and of Juan Rodriguez de Cabrillo to Alta California, but were also indirectly instrumental in preparing the ground for Ruy Lopez de Villalobos’ voyage to the Pacific Islands. Both Rodriguez’ and Villalobos’ expeditions are important for ^"Relacion del viaje de descubrimientos que hizo en Yndias de siete ciudades Fr. Marcos de Niza, de la orden de San Francisco por comision del Virrey Don Antonio de Mendoza," Mexico, August 26, 1539, MS, A.G.I., Patronato, Leg. 20, N? 5, R? 10. 54 claiming new lands for the Spanish Empire. Cabrillo took possession four times in California during the months of August and September, 1542.^"* Villalobos, although he took possession, also in 1542, Caesari Karoli (Island of Mindanao), which fell within the vicinity of Magallanes' act of 1521, is indirectly instrumental in procuring Spain's claim to New Guinea.^ For it was one of his cap tains, Inigo Ortiz de Retes, who took possession of New Guinea on June 20, 1545.^ What Rodriguez, Villalobos, and Retes did and said when they performed their ceremonies is unknown. The relations of the voyages give no details other than that possession was taken. While Rodriguez and Villalobos were establishing Spain's title to California and to the Philippine Islands, ^"Relacion del descubrimiento que hizo Juan Rodriguez, navegando por la contra-costa del mar del Sur al Norte. . . . Esta relacion esta hecha por Juan Paez," [undated], MS, A.G.I., Patronato. Leg. 20, N9 5, R? 13. Relacion del viage que hizo desde Nueva Espana a las islas del Poniente despues Filipinas, Ruy Lopez de Villalobos de orden del Virey de Nueva Espana Don Antonio de Mendosa," [undated], MS, A.G.I., Patronato, Leg. 23, N? unico, R9 10. Coleccion de Diarios v Relaciones para la Historia de los Viaies v Descubrimientos (Madrid: Instituto Historico de Marina, 1947), V, 10, hereinafter cited as Coleccion de Diarios v Relaciones. Relacion del Viaje que Hizo desde La Nueva Espana a las Islas del Poniente Ruy Gomez de Villalobos por Orden del Virrejr D. Antonio ^de Mendoza1 ' in Coleccion de Docu- mentos Ineditos de America v Oceania, V, 155. Coleccion de Diarios v Relaciones, V, 10. 55 Francisco de Orellana was taking possession in the upper waters of one of the tributaries of the Amazon in what is modem Peru. Fortunately, Orellana*s escrituras de posesion have been preserved, and there is no question as to the basis on which he took possession. Orellana, as the notarized escritura attests, neither relied on nor men tioned the papal bulls.^ However, Orellana's acts have a more interesting facet than just its Roman Law foundation. What particularly distinguishes them is that Orellana does not take possession of the territory per se but of the caciques (Indian chieftains) whom he enumerated dis tinctly.-^ Although this act will be referred to in later boundary disputes, the enumeration of the caciques limits the territory claimed rather definitely to the lands which are under the control of the Indian chiefs. This delimita tion of the territory claimed is a stipulation that is almost completely absent in the basic Spanish acts as well as in the French and English acts which will be considered /. Q ^The first act of January 4, 1542 appears to have been performed in eastern Ecuador; the second, in eastern Peru. ^Gaspar de Carvajal, Relacion del Nuevo Descubri- Tniento del Famoso Rio Grande que por el Nombre del Capitan le Llamo el Rio de Orellana (Caceres: Publicaciones del Departamento ProvinciaX de Seminarios de FET y de las JONS, 1953),^pp. 264 and 268-269, hereinafter cited as Carvajal, Relacion del Nuevo Descubrimiento. 50Ibid 56 later. In 1544, two years after Orellana had claimed the headwaters of the Amazon, Pedro de Valdivia instructed his lieutenants Geronimo de Alderete and Rodrigo de Quiroga to take possession of Nueva Extremadura (Chile) in his name for the Spanish crown. ^ Alderete fulfilled his orders exceedingly well as he took possession of the territory four times at San Pedro, San Mateo, Puerto de Valdivia, and Isla de San Nicolas. Of all the first acts claiming original acquisition of hitherto unoccupied lands, none can compare with Alderete's in ceremony, detail, and pageantry. Alderete*s ceremonies included reading the instructions aloud to the Indians, brandishing his sword as he pro claimed that he took possession in the name of his monarch and his governor, cutting crosses on trees, giving thanks to God, and having the complete ceremony recorded in front of witnesses by a notary. Yet, complete as Alderete's acts were, there was no mention whatsoever of any ecclesiastical donation, nor that the territory he was acquiring for his monarch depended upon any other juridical foundation than that derived from his ceremony. Cl Autos y Parezers sobre la Poblazion y Fortifica- sion de baldivia," Peru, 1544, MS, A.G.I., Patronato, Leg. 29, N? unico, R9 1, ff. 1-5. 52Ibid., ff. 5-9. 57 After Valdivia’s ceremonies in present-day Chile, the scene for Spain’s basic acts shifted from America to the South Pacific with Alvarado de Mendana’s expedition of 1566 and Pedro Fernandez de Quiros’ voyage of 1606. Mendana sailed to the Solomons which he claimed for Spain by taking possession of Santa Ysabel (Ysabel Island), Guadalcanal, San Juan (Ugi Island), and Santiago (San Christobal Island) in 1568.^ While little is known about Mendana's acts except that he took possession in the name of His Majesty, there is more information available on Fernandez de Quiros’ act of 1606. Fernandez landed on the Island of Ireney, whose location has never been determined, and took possession with the following words: Be witnesses to me heaven and earth and sea with all elements animals, birds and beasts, and you loyal vassals of the King our lord, that I take possession of all this country discovered in the name of His Holiness the Pope, and of King Philip our lord, and of Saint Francis of Assisi and of Anton Martin de la Capacha and of the successors of the royal crown of Castile.54 53"Relacion de lo acaecido en el descubrimiento de las yslas Salamon en el Mar del Sur que hizo Alvaro de Mendana," 1567, MS, A.G.I., Patronato, Leg. 18, N? 10, R? 5. "Relacion cierta y verdadera de la navegacion de las Islas del Poniente en la mar del sur hecha por Hernando Gallego Natural de la Civdad de la Coruna en el Reino de Galacia Ano de nuestro Senor Jesu Cristo de Mill y quinien- tos y sesenta y seis . . ."in Lord Amherst of Hackney and Basil Thompson, The Discovery of the Solomon Islands by Alvaro de Mendana in 1568 (London: Hakluyt Society, 1901), Series II, No. 7, Vol. I, pp. 38-39, 48, 49, and 56. 5^Henry R. Stevens and George F. Berwick, New Light on the Discovery of Australia as Revealed by the Journal of Captain Don Diego de Prado y Tovar (London: Hakluyt Society, 1930), Series II, No. 64, pp. 124-127, hereinafter cited as Journal of Prado v Tovar. 58 As this proclamation reveals, Fernandez de Quiros was the first Spanish discoverer to explicitly take posses sion of previously undiscovered territory in the name of the Pope. If in view of the already reviewed basic acts of possession, this proclamation seems strange and new, it must be said, however, that it sounded strange to his own men. Prado y Tovar, who would later continue as leader of the expedition, following Fernandez de Quiros' desertion, protested strongly against the proclamation and recorded in his journal that "I said to him [Fernandez de Quiros] in a loud voice 'of the King our lord and his predecessors and of others'; he answered ’I know what I am doing.' Among the others the same reply was given to him.'1JJ Thus, it seems that there was an established, traditional manner of proclaiming sovereignty of newly-discovered lands solely on behalf of the sovereign and not on behalf of the papacy. Whether any royal instructions had ever been issued order ing the papal donation to be incorporated in the formal act is a question that is unanswered. Why Fernandez de Quiros (an ex-Portuguese subject whose loyalty was later ques tioned) took possession in His Holiness' name is an un fathomable question which is rendered even more incompre hensible by his report to the Spanish crown where he 55Ibid. 59 describes his act but omits mentioning that he took posses- sion in the Popefs name. After Fernandez de Quiros had taken possession and abandoned the remainder of his expedition, Don Diego de Prado y Tovar and Luis Vaez de Torres (for whom Torres Strait off northeast Australia is named) continued the voyage to the vicinity of New Guinea and the Moluccas.^ On August, 1607, Tovar y Prado took possession formally of San Facundo Island (now named Saint Abundant) in the name CO of King Philip II and omitted all reference to the Pope. ° Soon after, as Tovar y Prado claimed Ratiles Island, the Spanish period of claiming vast areas of newly discovered territories came to an e n d .59 As the numerous basic acts considered reveal, the Spanish discoverers and explorers, who first claimed the immense areas of the Americas and the Pacific Islands, 56"Relacion de un Memorial que presento a S. M. el Cap? Pedro de Quiros sovre la Poblacion, y Descubrimiento de la quarta parte del Mundo Australia Incognita, su Gran Riqueza y fertilidad, descubierta por el mismo Capitan," [undated], MS, Museo Naval, Madrid, Noticias Hidrograficas de la America Septentrional. II, ff. 152-153. Although Fernandez de Quiros could have taken possession in His Holiness1 name as the result of simple religious enthusiasm, this possibility is weakened by the evidence which contemporary documentation presents of the Portuguese. 5^Stevens and Berwick, Journal of Prado y Tovar, p. 65. 5&lbid., pp. 142-143. ~^Ibid., p. 154 60 relied in all but one case on the traditional principles of Roman Law in performing their possession-taking acts. Whether such a practice was intentionally desired by the Spanish crown or whether it was an unplanned result cannot be determined. Yet, regardless of the reason, the reliance which Spaniards in America placed upon the law of Ancient Rome was indeed fortunate for the Spanish crown. For acts of sovereignty, based upon the common background of Roman Law, were soon recognized by England and France as the means of claiming their discoveries in the New World while titles based upon Alexander's bulls were rejected by them. ^ Naturally, England and France did not respect Spain's claims to such an immense territory solely because Spaniards had performed symbolic acts in different areas of the Americas. As is the case of international affairs, many other factors, such as military power, diplomatic alliances, as well as permanent occupation of some of the claimed territory, played an important role. However, when one considers that England and France only denied Spain's title to very small areas of the immense Spanish territory, even when Spain's power declined and many areas originally claimed remained unsettled, the role of possession taking James Simsarian, "The Acquisition of Terra Nullius," Political Science Quarterly. LXIX (March, 1938), 111-128. proves to be of essential importance both in obtaining original title as well as in retaining jurisdiction over former terra nullius. CHAPTER III THE SPANISH POST-DISCOVERY ACTS Important as the first acts in different areas were, it cannot be said that Spain depended upon them as the sole basis of her title to Hispanic American lands. As it is evident, there were and are many difficulties connected with obtaining ownership of terra nullius by symbolic acts. Among such difficulties the. problem of whether occupation of the territory should be permanent or fictitious (tempo rary) is, of course, always present. However, the most pressing difficulty in this early period concerned the extent of territory obtained by each act. Just how much territory such men as Columbus, Ponce, Balboa, Grijalva, Magellan, etc., claimed, or could claim according to the principles of Roman Law was and still is undetermined. Furthermore, since the New World territory was not yet divided into delimited areas, it would be impossible to say that a certain explorer claimed a geographical area which was limited by definite boundaries. Nor could it be stated that the various acts which were first performed in the different sections of the Americas actually gave the Spaniards title to all the outlying or intervening lands which lay between the points where possession had been 62 63 taken. Thus, it would be possible for the English and French explorers to discover and take possession of terra nullius which the Spaniards had neither seen nor claimed specifically but which lay between or beyond the points where they had performed acts of sovereignty. This is, in fact, what occurred when England established herself on the Atlantic seaboard and in Guiana; France, in Canada and in the Mississippi Valley; and Holland, in New Netherlands. Just how Spain obtained title to most of the inter vening lands that lay between or beyond the locations of her first acts is not a subject which has often attracted the historian's interest. Although it is well known that Spanish settlements established throughout the territories claimed by the first discoverers were most important in preserving Spain's control over the areas of what are now Hispanic America and southeastern United States, little has been written concerning the series of post-discovery acts by which the crown not only obtained juridical title but in some cases also maintained permanent possession of the formerly specifically unclaimed intervening territories, particularly of those areas of sparse Spanish population. To overlook the network of continual and contiguous titles which these post-discovery acts established would not only present an incomplete picture of the Spanish act in Ameri can history, but would also render incomprehensible French and English failure to establish colonies in the originally 64 unclaimed portions of South and Central America. Nowhere, indeed, can the Spanish policy of repeti- tive possession-taking for extending the crown’s claims be better evidenced than in the area of Central America where Columbus first took possession at Punta de Caxinas on the Rio Tinto.-*- Six years after Balboa had performed his acts on the Panamanian Isthmus in 1513, possession-taking of the entire territory began in earnest as conquistadores vied with one another in obtaining new lands. Shortly after Pedrarias Davila arrived as governor of Darien, the series of repetitive acts began as he took possession of the Province of Pague and the Ysla de Flores with different acts in 1519.^ Soon his rivals, who sought to carve out provinces which they could govern, were busily taking possession of the intervening territory between Mexico and Darien. Gil Gonzalez Davila in his own name made his symbolic act in 1522 on Rio de Posesion in southern Honduras, off the Gulf of Fonseca where El Salvador, k'Relacion del Viage e de la Tierra Agora Nueva- mente Descubierta por el Almirante D. Cristobal Colon" in Navarrete, Viages v Descubrimientos, I, 283-284. 2'*Abto de posesion que tomo el gobemador sehor Pedrarias Davila teniente general en nombre de SS. AA. en la provincia de Pague, en la costa de Sur," [undated], MS, A.G.I., Patronato. Leg. 26, N9 1, R? 13. "Abto de posesion que tomo el muy magnifico senor pedrarias davila, teniente general por sus altezas en la ysla de flores que es en la mar del sur," [undated], MS, A.G.I., Patronato. Leg. 15, N? 2, R? unico. 65 Honduras, and Nicaragua now meet.^ Cristobal de Olid, also seeking to establish himself in Honduras, took possession at Puerto Caballos in northwestern Honduras.^ Finally, Cortes, who ultimately emerged as the conqueror of Honduras, performed acts, by means of his lieutenants, in the founding of the cities of Trujillo and Frontera de Caceres in 1525 and 1526.-* The very next year, 1527, Pedro de Alvarado, the adelantado of Guatemala and Cortes' com panion, took possession of the city of Santiago de Guate- £ mala as he carved out his own province to govern. As the rivalry in Central America subsided in some areas after Francisco Lopez de Gomara, Historia de las Indias, Vol. II of Historiadores Primitivos de las Indias Occiden- tales, edited by Andres Gonzalez Barcia^(Madrid: 1749), p. 185, hereinafter cited as Lopez de Gomara, Historia de las Indias. ^Lopez de Gomara, Historia de las Indias. p. 172. •^'Testimonio de la posesion y fundacion que hizo^el capitan Francisco de las Casas, a nombre de Heman Cortes, del puerto, asiento y villa de Trujillo: en Honduras 1525," MS, A.G. 1.,^ Patronato. Leg. 20, N? 4, Rr 1. ^Testimonio de la fundacion de la villa de la Frontera de Caceres en la provincia de Honduras y de la posesion que en ella tomo a nombre de su Magestad, Bartolome de Celada, 1526," MS, A.G.I., Patronato. Leg. 20, N? 4, R? 2. ^"Probanza de los meritos y buenos servicios del Adelantado Pedro de Alvarado, de su hermano Jorge y del hijo de este, Gonzalo de Alvarado, conquistadores y pobla- dores de las provincias de Guatemala, Honduras, e Higueras. Santiago de Guatemala a 12 de Octubre," 1538, MS, A.G.I., Patronato, Leg. 77, N? 2,^ R? 2. Justo Zaragoza, Historia de Guatemala o Recordacion Florida (Madrid: Luis Navarro, 1882), I, 83. 66 AlvaradoTs conquest of Guatemala, the performance of sym bolic acts appears to have slowed down considerably as documentary records reveal only three acts of sovereignty in the remainder of the sixteenth century. The first of these acts, all of which were performed in Costa Rica, was effected by Francisco Vasquez de Coronado in the Pueblos of Turucaca and Borucaca on March 1, 1563; the second, by Diego de Artieda de Chirinos, the captain general of the provinces of Costa Rica and Nicaragua, as he founded Ciudad de Artieda; and the third, by Francisco Pavon, Artieda de Chirinos1 lieutenant, in the Valle de Pufibais y del Vaderroncal (Valle del Guaymi) on March 5, 1578.^ While the Central American governors, officials, and rival conquistadores were thus weaving a network of claims for the crown, a similar movement was occurring in Florida and an almost identical one in New Spain. The Florida movement, however, differs from both the Isthmian and the Mexican because of the lack of rivalry among the various "Toma de Posesion de los Pueblos de Turucacay Borucaca y del Valle del Guaymi, Ano de 1563," in Leon Fernandez, ed., Coleccion de Documentos para la Historia de Costa Rica (Patis: Imprenta de Pablo Dupont, ^1886), IV, 219-220. "Testimonio de la posesion que tomo en nombre del Rey Diego de Artieda Chirinos, gobemador y capitan general de Costa Rica, de la ciudad de Artieda en dicha Provincia," Ciudad de Artieda, March 3, 1575, MS, A.G.I., Patronato, Leg. 21, N? 5, R? 7. "Testimonio de la posesion que Diego de Artieda Chirino tomo del Valle de Pufibais y del Valderroncal, de la que fue descubridor," March 5, 1578, MS, A.G.I., Patronato. Leg. 21, N9 5, R? 7. 67 men who took possession. Yet, the results were in some respects similar in these two vast territories of Florida and New Spain, where the series of acts began almost simultaneously as Francisco de Garay and Heman Cortes set out for Florida and Mexico respectively in 1519. Garay’s expedition, which was captained by Alonso Pineda, dis covered the Mississippi River and took possession of Florida and the Gulf Coast of the United States.^ Two years later, as Lucas Vasquez de Aylion prepared his attempted settlement in Florida, possession was taken by Francisco Gordillo, his captain, near Cape Fear River as he explored the territory.^ At about the same time and in the same vicinity an illegal slave-hunter, Pedro de Quexos, whom Ayllon's captain met, also took possession despite his lack of authority. ^ In 1528, after Ayllon had failed in ^The writer of the study has not been able to locate any original documentation concerning Garay’s expedition in the Spanish archives. For Garay’s activities see Woodbury Lowery, The Spanish Settlements Within the Present Limits of the United States: 1513-1561 ^New York: G. P. Putnam's Sons, 1911), p« 150. Alfred Britain, Discovery and Exploration, Vol. I of The History of North America (Phila delphia: George Barrie and Sons, 1903), pp. 336-337. 9nparecer del Consejo Real de las Xndias, dirigido al Rey con fecha de 5 de mayo de 1565, Sobre el derecno que S. M. tiene a la Provincias de la Florida . . MS, Museo Naval, Madrid, Coleccion Navarrete, Vol. XIV, Doc. 34, f. 235. Herbert E. Bolton, The Spanish Borderlands: A Chronicle of Old Florida and the Southwest /New Haven: Yale University Press, 1921), p. 13. Justin Winsor, ed., Narrative and Critical History of America (Boston: Houghton, Mifflin and Company, 1886), II, 238-239. ^ W i n s o r , Narrative and Critical History of America, II, 239. 68 his effort to establish a settlement, Panfilo de Narvaez landed at Tampa and performed a symbolic act as the first step in establishing a settlement which also failed.^ Despite Narvaez* failure, as well as Ayllon and Ponce’s, Hernando de Soto sought and received permission to conquer territory and to establish the long-sought settlement. De Soto failed also, but appears to have succeeded in at 1 9 least performing the accustomed act. Yet, despite the continual failures, the establishment of a Spanish base on the Florida coast was imperative for the protection of the Bahama Channel. It was from this necessity that the expeditions of Guido de Bazares, Angel de Villafane, and Pedro Menendez de Aviles were sent out by the crown in 1558, 1561, and 1565. Bazares, who led the sea portion of Tristan de Luna y Arellano’s colonizing enterprise, took possession twice on the Gulf Coast of the peninsula, his Relacion de Cabeza de Vaca, tesorero que fue en la conquista [de Florida capitaneada por Panfilo de Narvaez 1" in Coleccion de Documentos Ineditos de America v Oceania. XIV, 270-271. Also see A.G.I., Patronato. Leg. 20, N9 5, R? 3. Eugenio Ruidfaz y Carvia, La Florida: Su Conquista y Colonizacion nor Pedro Menendez de Aviles (Madrid: 1853), I, Ixvi. 1 9 Parecer del Consejo Real de las Indias, dirigido al Rey con fecha de 5 de mayo de 1565, Sobre el derecho que S. M. tiene a la Provincia de Florida . . .," MS, Museo Naval, Madrid, Coleccion Navarrete, Vol. XIV, Doc. 34, f. 235. Oviedo, Historia General v Natural. Lib. XVII, Cap. XXII. 69 13 last act being apparently made at present-day Pensacola. Angel de Villafane, who replaced Lima y Arellano as gover nor of the colony, performed his acts in 1561 on the Santa Elena River, Cavo de San Roman (Cape Fear), Rio Jordan, and Cavo de Trafalgar.^ Menendez de Aviles, who was sent by Philip II in 1565 to drive out the French settlement of Fort Caroline on the St. Johns River, appears to be the last Spaniard to have taken possession of Spanish Florida, which included present-day Florida, South Carolina, south east North Carolina, and parts of Georgia and Alabama.^ ■^"Relacion que hicieron Guido de Lavezaris, y los Pilotos Heraan Perez, Constantino Oreja, Bernardo Peloso, y Juan Nunez que fueron a descubrir los Puertos y Costa de la Florida por mandado del Senor Virrey de Nueva Espana, de lo ocurrido durante la Jornada desde 3 de Septiembre de 1558 . . . hasta 14 de Diziembre del mismo ano . . .1559, MS, Museo Naval, Madrid, Coleccion Navarrete, Vol. XIV, Doc. 20, ff. 155-156. B. F. French, ed,, Historical Col lections of Louisiana and Florida (New York: Albert Mason, 1875), T , 236-238, hereinafter cited as French, Historical Collections of Louisiana and Florida. l^'Relacion del Reconoscimiento que hizo el Capitan General Angel de Villafane de la Costa de la Florida, y posesion que tomo en el Rio de Santa Elena, Cavo San Roman, Los Rios de Jordan y de Canoas, y el Cavo nombrado Trafal gar desde 33 hasta 35 grados de Altura N.," 1561, MS, Museo Naval, Madrid, Coleccion Navarrete, Vol. XIV, Doc. 27, ff. 204-206. French, Historical Collections of Louisiana and Florida. I, 239. ■ ^ " R e l a c i o n hecha por el Capellan de Armada Francisco Lopez de Mendoza, del viaje que hizo el adelan- tado Pedro Menendez de Aviles a la Florida," in Ruidiaz y Carvia, La Florida: Su Conquista v Colonizacion por Pedro Menendez de Aviles. II, 451. Woodbury Lowery, The Spanish Settlements Within the Present Limits of the United States: 1562-1574 (New York: G. P. Putnam1s Sons. 1905). p p . 159- 160, hereinafter cited as Lowery, The Spanish Settlements. 1562-1574. 70 As the discussion of the post-discovery acts in Florida has shown, the period of possession-taking was relatively short, lasting only some sixty years. It was, moreover, a period marked by the absence of acts from rival conquistadores but also by the presence of the French 1 fi counter-act at Fort Caroline. Yet, what essentially dis tinguishes the Floridan period even more from both the Isthmian and Mexican (which will be considered next) is that in Florida acts were performed repeatedly in about the same locations in an effort to maintain Spain1s right to the territory. On the other hand, in Central America and Mexico acts were performed in outlying places specifically to claim smaller areas which had been, or were thought to have been included in the territory claimed by the basic acts of the early discoveries. In Mexico it is Heman Cortes who is responsible for the beginning of the series of acts which would soon extend the territory of New Spain beyond the limits of the Aztec Empire. After his initial act at Tabasco, Cortes, aided by the Tlascaltecans, conquered the Aztecs.^ Almost •^"L’Histoire Notable de la Floride Situee Es Endes Occidentales Contenant les Trois Voyages Faicts en Icelle par Certains Capitaines et Pilots Franqois," Descrits par le Capitaine Laudonniere in Paul Gaffarel, Histoire de la Floride Francaise (Paris: Libraire de Firmin-Dido et Cie., 1875), pp. 354-355. There is no evidence to indicate or even hint that Cortes ever took possession of the Valley of Mexico. Why he did not do so is inexplicable. 71 immediately after the conquest, he sent Francisco Chico to Tehuantepec where the latter took possession of the land in I O , 1522*i0 Within a few years Cortes and his lieutenants penetrated into Honduras where the conquistador delegated Francisco de las Casas and Bartolome de Celada to take possession of the Villa de Trujillo and the Villa de la Frontera de Caceres in 1525 and 1526 respectively.^ Six years later, Nuno de Guzman, Cortes' bitter rival, took possession of the territory of Nueva Galicia (Jalisco, Nayarit, and part of Sinaloa) at least seven times as he sought to escape royal punishment for the crimes which he had committed during his term as president of the Audiencia of New Spain.^0 Cortes' activity, however, was not inter rupted by Guzman’s conquest of Nueva Galicia, for on December 26, 1533 the fleet which he prepared and sent to explore the Mar del Sur (Pacific Ocean) took possession of the Island of Santo Tomas whose location is still unknown.21 ■^Lopez de Gomara, Historia de las Indias, p. 154. Herrera, Historia General, Dec. Ill, Lib. Ill, Cap. XVII. Supra, p. 65. 20»tproceso Marques del Valle y Nuno de Guzman y los Adelantados Soto y Alvarado, sobre el^Descubrimiento de la Tierra Nueva (ano de 1541," in Coleccion de Documentos Ineditos de America y Oceania. XV, 320-325. 21"Derrotero de una armada compuesta de los navios llamados Concepcion y San Lazaro que salio del puerto de Santiago en el mar del Sur al mando de Hernando Grijalba y el Piloto Martin de Acosta portugues por disposicion de Heman Cortes a descubrir en el mar del Sur, 1533," MS, A.G.I., Patronato, Leg. 20, N? 5, R9 7. 72 After this expedition to the Pacific Ocean, Cortes directed his efforts to the exploration and settlement of present-day Lower California. On May 3, 1535 when he per formed his act of sovereignty at Puerto de Santa Cruz (La Paz), the Marques del Valle (Cortes) began the series of possession-takings of the peninsula that lasted over a century.^ In 1539 Francisco de Ulloa, Cortes’ lieutenant, voyaged to Lower California and took possession six times: Bahia de la Posesion, Ancon de San Andres y Mar Bermejo, Bahia de San Marcos, Rio del Carrizal, Bahia de Santa Catalina, and Isla de C e d r o s . ^ 3 Ulloa's acts marked Cortes' last activity in Lower California, as well as the last acts to be performed for a period of sixty-six years. For it was not until 1596 that the next possession-taking ceremony took place on the peninsula when Sebastian Vizcaino formally claimed the territory at San Felipe.^ If Vizcaino failed in his quest for establishing a settle ment for exploiting the pearl fisheries, his failure did n o ^"Auto de Posesion que de las tierras que habia descubierto en el Mar del Sur tomo el Marques D. Fernando Cortes en el Puerto y Bahia de Santa Cruz en mil quinientos treinta y cinco anos, conforme a las capitulaciones hechas con S. M.," in Coleccion de Documentos Ineditos de America v Oceania, IV, 190“192. 2%enry R. Wagner, ed., "California Voyages, 1539- 1541," California Historical Society Quarterly. Ill (December, 1924), 363-367. ^"Relacion que Sebastian Vizcayno a cuyo cargo fue la jomada de las Califomias da para el rrey . . .," [undated], A.G.I., Audiencia de Guadalajara, Leg. 133. not discourage further attempts. In 1615 Nicolas Cardona, searching for the best location for a settlement, decided upon Puerto de la Paz where he took possession.25 After Cardona* s failure to establish a settlement, the next expedition which solemnly claimed territory in Lower Cali- n £ fomia was that of Pedro Porter Cassanate in 1649. With Porter1s act the Spanish possession-taking activity came to a close in Lower California. Although these expeditions had failed to establish a permanent Spanish settlement, the acts which they performed were— since no one else disputed the ownership— sufficient to maintain their title to the territory until the Jesuit missionaries of the eighteenth century erected their missions. If the Spaniards demonstrated constant activity in claiming Lower California, they did not necessarily exhibit the same interest in every region. For in Alta California (present-day state of California) only Pedro de Unamuno took possession (1587) during the two hundred twenty-seven El Capitan Nicolas de Cardona sobre la poblacion del Reyno de la California," [undated, printed document signed by Cardona]^ A.G.I., Audiencia de Guadalajara, Leg. 133. "Relacion impresa que hace a S. M. el capitan Tomas de Cardona sobre lo sucedido en el descubrimiento de las perlas en la mar del Sur y Norte . . .," [undated, printed document], A.G.I., Patronato, Leg. 20, N? 5, R? 18. 2^”Relacion de lo Sucedido al Almirante Don Pedro Porter Cassanate Cavallero de la orden de Santiago; En el descubrimiento del golfo de California," April 13, 1649, MS, A.G.I., Audiencia de Guadalajara, Leg. 134. 74 year period that elapsed from the time of its discovery and possession-taking by Juan Rodriguez Cabrillo to the date of its settlement by the Sacred Expedition. ^ What makes this lack of interest on the part of the Spaniards incompre hensible— at least to present-day Californians--is that even the foreign threat of Drake, who actually took posses sion in 1579, did not incite them any further than Una- p Q muno’s solitary act of 1587. At the same time that the Spaniards were assiduously extending their claims in Lower California and ignoring Upper California, they were moving northward and establish ing specific title to Nueva Vizcaya, Coahuila, and Texas. On November 8, 1568 Francisco Cano, on behalf of Francisco de Valverde who was alcalde mayor of the Mazapil mines, took possession of Laguna de Nuevo Mexico, the present-day Laguna de Parras; on the eleventh of the same month he claimed the Rio de Palmas; and on the thirteenth, the Valle 27"Relacion del viaje y navegacion que el capitn [sic] Pedro de Vnamunu a hecho desde la isla macarera que esta vna legua al sur de la cibdad de Macan en la fragata nombrada Nuestra Senora de Buena esperan^a y lo que mas en el viaje a subcedido es lo siguiente:," 1587, MS, A.G.I., Patronato. Leg. 25, N? unico, R? 32. ^Robert F. Heizer, "Francis Drake and the Cali fornia Indians, 1579," University of California Publica tions in American Archaeology and Ethnology, XXXXII (March. 1947), 265-271. Although the Spaniards may not have known of Drake's act, they were aware of his expedition and also of the British practice of possession-taking. Therefore, they should have inferred that he had taken possession. 75 de Buena Esperanza.^9 Within thirty years the northward movement, as represented by acts of sovereignty, advanced from Nueva Vizcaya to Coahuila where Captain Anton Martin Zapata, justicia mayor of Parras and the Nazas River, per formed an act on the establishment of the Pueblo de Santa Maria de las Parras on February 13, 1598.^0 In Coahuila, however, the Spanish northward movement was halted for more than half of a century; but as Spanish colonizers and explorers once again continued their penetrations into the north, possession-taking was resumed. Antonio Balcarcel Rivadeneyra y Sotomayor, alcalde mayor of the Province of Coahuila, appears to have been responsible for the resump tion as he performed various acts in the vicinity of the Villa de Santiago in the month of November of 1674.^ In the following year the exploratory activity from Coahuila 29"Testimonio del descubrimiento y posesion de la laguna del Nuevo Mexico hecho por Francisco Cano Teniente de Alcalde mayor de las minas del Marcipil en la Nueva Galicia, por Francisco de Valverde Alcalde Mayor de ellas," 1568, MS, A.G.I., Patronato, Leg. 22, N9 unico, R? 3. J. Lloyd Mecham, Francisco de Ybarra v Nueva Vizcava (Durham: 1927), p. 191. Vito Alessio Robles, Francisco de Urdinola y El Norte de La Nueva Espana (Mexico: Imprenta Mundial, 1931), pp. 33-35. ■^Esteban L. Portillo, Apuntes para la Historia Antigua de Coahuila y Texas (Saltillo: Tipografia "ElGolfo de Mexico" de Severo Fernandez, 1886), pp. 402-404, here inafter cited as Portillo, Historia Antigua de Coahuila v Texas. 3-1-Portillo, Historia Antigua de Coahuila y Texas, pp. 44, 53-54, 61-62, 62-63, and 63-65. reached the Sabine River in Texas as Fray Juan Larios and Fernando del Bosque, Balcarcel’s lieutenant, led an expedi tion for the threefold purpose of securing the frontier against the Indians, establishing communications between Florida and New Spain, and pacifying as well as converting the natives.32 Larios and Bosque proved very prolific in performing acts as they took formal possession some seven teen times in Coahuila and Texas.33 Seven years later, 1683-1684, Fray Nicolas Lopez and Juan Dominguez de Mendoza, seeking both to convert the Jumano Indians and to locate pearls on the Nueces River, headed another expedi tion which reached as far as the junction of Conchos and Q / Colorado Rivers in Texas. Although Lopez and Dominguez de Mendoza erected nineteen crosses on their itinerary, it is difficult to determine whether these represented sym bolic possession-taking or simply the religious fervor of the missionary.35 There is, however, no doubt that Dominguez de Mendoza took formal possession at La Junta de 3^Herbert Eugene Bolton, Spanish Exploration in the Southwest 1542-1706 (New York: Charles Scribner's Sons, 1930), pp. 283-285, hereinafter cited as Bolton, Spanish Exploration. 33p0rtillo, Historia Antigua de Coahuila v Texas, pp. 106-128. "Diary of Fernando del Bosque, 1674," in Bolton, Spanish Exploration, pp. 291-309. S^Bolton, Spanish Exploration, pp. 313-319. 35"itinerary of Juan Dominguez de Mendoza, 1684," in Bolton, Spanish Exploration, pp. 320-343. 77 los Rios (present-day Presidio, Texas) on his return on June 13, 1684.36 Dominguez de Mendoza’s expedition of 1683-1684 was the last of the purely exploratory journeys into Texas and also the last to perform acts based upon fictitious or temporary occupation. For the Spaniards, fearing La Salle's activity in the Gulf, now hastened to colonize the territory as they dispatched Alonso de Leon in 1689. After establishing and taking possession of Monclova, Coahuila, on August 12, 1689, Leon journeyed into Texas, founded a mission for the Texas Indians in the area near modem 37 Houston, and took formal possession. ' Although the settlement failed and Martin de Alarcon was forced to re settle Texas and retake possession at San Antonio, Rio de Guadalupe, and Bahia de Espiritu Santo, Leon's colonizing activity and possession-taking are important because they 36carlos E. Castaneda, The Mission Era: The Finding of Texas. 1519-1683. Vol. I of Our Catholic Heritage in Texas, edited by Paul J. Foik (Austin: Von Boeckmann-Jones Company, 1936), p. 273, hereinafter cited as Castaneda, The Mission Era. 3^"Relacion y discursos del descubrimiento, pobla- cion y pacificacion de este Nuevo Reino de Leon; tempera- mento y calidad de la tierra. Por el Capitan Alonzo de Leon," in Genaro Garcia, ed., Documentos Ineditos o May Raros para la Historia de Mexico. Vol. XXV, Historia de Nuevo Leon Con Noticias sobre Coahuila, Tejas, y Nuevo Mexico por el Capitan Alonso de Leon, Autor Anonimo, v el General Fernando Sanchez de Zamora (Mexico: Libreria de la Vda. de Ch. Bouret, 1909), p. 388. Castaneda, The Mission Era, p. 352. Portillo, Historia Antigua de Coahuila y Texas, pp. 411-415. 78 were done, as will be seen later on, in an area which was disputed between France and Spain because of previous acts by explorers of both nations.^ At the same time that the above-named explorers were establishing Spain’s title to Texas and northern Mexico, other Spanish explorers were doing the same in New Mexico. Immediately after Fray Marcos de Niza’s trip to Cibola in 1539, Francisco Vasquez de Coronado made his famous, but fruitless expedition. Besides the acts of possession which his subordinate, Hernando de Alarcon, performed during his navigation of the Colorado River, Vasquez apparently did not take possession although he did erect some crosses.^ The raising of crosses seems to have become almost tradi tional as this symbol was also erected by Fray Agustin Rodriguez and Francisco Sanchez in their expedition to New Mexico in 1581; but, as in Coronado’s case, they were not posted as a sign of possession but as a religious symbol.^® ^ Fray Francisco Celiz, Diary of the Alarcon Ex pedition into Texas, 1718-1719. translated by Fritz Leo Hoffmann (Los Angeles: The Quivira Society, 1935), pp. 66- 67. Vito Alessio Robles, Unas Paginas Traspapeladas de la Historia de Coahuila y Texas: El Derrotero de la Entrada a Texas del Gobemador de Coahuila Sargento Mayor Martin de Alarcon (Mexico: Universidad Nacional de Mexico, 1933)™ pp. 21, 22, and 33. ^Herbert e. Bolton, Coronado. Knight of Pueblos and Plains (Albuquerque: The University of New Mexico Press, L1949 J), pp. 473-474. ^Diego Perez de Luxan, Expedition into New Mexico Made by Antonio Espeio, translated and edited by George Peter Hammond and Agapito Rey (Los Angeles: The Quivira Society, 1929), p. 89. 79 It was finally during Antonio de Espejo’s expedition of 1583, which was made to rescue the Franciscan missionaries left by Fray Agustxn Rodriguez at Bernalillo, New Mexico, and also to locate a supposed lake of gold, that there are indications that crosses were posted as a sign of posses sion taken.^ Eight years later, 1591, Gaspar Castano de Sosa, lieutenant governor of Nuevo Leon, again placed crosses on his route. However, in Castano's case there is no doubt whatsoever that the crosses represented a symbolic act of sovereignty despite the lack of a prolonged cere- 42 mony. The practice of erecting crosses to represent the complete ceremony of possession in New Mexico ended with Juan de Ohate's colonizing expedition of 1598. Onate's act near present-day El Paso, Texas, is, however, of greater interest because it is the first act in North America in which possession-taking is based specifically and essen tially upon the papal donation. In consonance with this religious foundation, the ceremony is more reminiscent of a religious oration than a legal proclamation; and the escritura de posesion reads more like a doctrinal tract 41Ibid., pp. 59-102. 4 2"Memoria del Descubrimiento que Gaspar Castano de Soza, Hizo en el Nuevo Mexico, siendo Teniente de Gobema- dor y Capitan General del Nuevo Reino de Leon" in Coleccion de Documentos Ineditos de America y Oceanxa, XV, 241-252. Garcia. Historia de Nuevo Leon, p. 93~ 80 than a legal document as the Pope's spiritual and temporal supremacy are deductively expostulated. Finally, there is the symbolic ceremony to consider: Onate placed a cross upon a tree and, kneeling, recited a prayer in which he asked God to grant his king and himself undisturbed posses sion of the territory for Godfs holy glory. Yet, Don Juan did not omit the purely secular aspect of possession- taking; for he hoisted His Catholic Majesty's colors and honored them by a discharge of muskets. Thus Onate, who would later mistreat the natives and combat the mission aries, performed one of the most religious, most solemn, and longest acts in the history of possession-taking.^ Onate's act at El Paso, coupled with his act in the vicinity of San Luis, Sonora, would have brought to an end the detailed possession-taking by Spaniards in New Mexico had not the famous Pueblo Revolt of 1680 occurred.^ But with the reconquest of New Mexico, Diego de Vargas found it necessary to perform an act of repossession on September 14, ^Toma de posesion de Juan de Onate, 1598, MS, A.G.I., Patronato. Leg. 22, N? unico, R? unico. ^"Relaciones de todas las cosas, que en el nuevo Mexico se han visto y sabido as£ por mar; como por tierra desde el ano de 1538 hasta el de 1676. Por el Padre Fray Geronimo de Zarate, Salmeron . . .," Museo Naval, Virreinato de Meiico. Vol. I. 1692.45 From the consideration of numerous acts that the Spaniards made in Central and North America, a number of generalizations can be derived regarding their practice of possession-taking. Perhaps the most important generaliza tion which can be extracted is that the Spanish explorers and colonizers, excepting Juan de Onate, relied solely upon Roman Law for acquiring title to territories, pueblos, and villages. Secondly, it is evident that Spaniards con sidered temporary occupation as effective as permanent possession in obtaining title to the territory claimed; and, therefore, relied on both Azo and Bartolus' theories for acquiring terra nullius. Finally, it is obvious that acts were utilized specifically to claim and renew their claim to territory which lay on the fringe of vast areas which were originally acquired by the acts of the earliest discoverers. Whether such generalizations are also applicable to the Spanish possession-taking activity in South America, or whether they must be modified, is a question whose answer can only be obtained by considering the individual acts performed in that continent. The very fact that Spain was 4^Don Carlos de Siglienza^y Gongora, Mercurio Volante con la Noticia de la Recuperacion de las Provincias del Nuevo Mexico Conseguida por D. Diego de Vargas. Zapata, v Luxan Ponce de Leon, translated by Irving Albert Leonard (Los Angeles: The Quivira Society, 1932), pp. 66 and 108. 82 almost completely free from international competition in obtaining control of the mainland of South America during the sixteenth and seventeenth century indeed gives indica tion that possession-taking practices varied and were determined by the activities of rival nations. The first territory that was formally claimed in South America was the northern coast of present-day Venezuela where the Gulf of Paria is located. Columbus first took possession of the territory in his third voyage; and both Pinzon and Lepe repeated ceremonies in their expeditions of 1500 and 1501 respectively.48 However, Paria was not the focal point from which expeditions set out to explore and claim outlying territories. The first post-discovery act performed within the vicinity of the gulf was made in present-day Cumana when Gonzalo Ocampo and Bartolome de las Casas arrived from the Antilles and took possession upon founding the city on 1523.4^ Heronimo Dortal, governor of Paria, also took possession in the same vicinity in 1540 or 1541 when he arrived from the West Indies.48 After Dortalfs act a half century elapsed before Domingo de Vera Ybargoyen, on orders from Antonio Berrio, 48Supra, pp. 35-38. ^Fernandez de Oviedo, Historia General y Natural. Lib. XIX, Cap. VI. 48Ibid., Lib. XXIV, Cap. XV. 83 took possession of the Puerto de Comocurapo and the Ciudad * 49 de San Jose de Oruna on the Isle of Trinidad. Two years later in 1593, Vera also took possession twelve times along the western banks of the Orinoco River in north eastern Venezuela, which was then called El Dorado and Guianas.^ Vera’s acts of 1593, which later figure prominently in the British Guiana-Venezuelan boundary dis pute, are apparently the last of the post-discovery acts 51 recorded in the vast area of western Venezuela. The infrequency of possession-taking which charac terized the Spanish practice in the northeast coast of South America, is also found in the Spaniard’s acquisition of the remainder of South America, excepting the Straits of Magellan. In the province of Rio de la Plata, for example, a thorough search in the Archives of the Indies at Seville produced evidence of only four post-discovery acts in the area. Thus, after Juan Draz de Solis’ initial act in 1516, 4-9” Los autos de la poblacion de San Joseph de Oruna,” San Joseph de Oruna, Trinidad, June 16, 1593, MS, A.G.I., Patronato, Leg. 26, N? unico, R? 33. 50'*posesion de Goayana,” San Joseph de Oruna, 1593, MS, A.G.I., Patronato. Leg. 26, N? unico, R? 33. British Guiana— Venezuelan Boundary. Arbitration Between the Governments of Her Britannic Majesty and the United States of Venezuela, Proceedings (Paris: Typographic Chamerot et Renouard, 1899), I, 38-39, hereinafter cited as British Guiana— Venezuelan Boundary. ^British Guiana— Venezuelan Boundary. Vols. I and IV, passim. 84 the famous Alvar Nunez Gabeza de Vaca took possession of the Isle of Santa Catalina on April 18, 1541 and of the territory of Vera on November 25, 1541. More than fifty years later, Domingo de Yrala, through his lieutenant governor, performed what appears to be the last act in the province at Rxo de San Salvador on February 11, 1539.53 In the western provinces, which were explored by expeditions setting out from Peru, post-discovery acts, as archival research now indicates, were performed with about the same frequency. Thus in present-day Colombia only three acts have come to light. These acts, moreover, were not per formed to acquire territory which was unexplored, but rather to obtain title to lands of cities which were being founded. In this way the cities of San Juan (1539), San Juan de Castro (1631), at;d Ciudad de Salamanca de los Reyes (1639) were founded and taken possession of. 54 Although -*2" La posesion que su senoria tomo de la ysla de Santa Catalina," [undated], MS, A.G.I., Justicia, Leg. 1131. "Posesion del campo y pueblo de Tocan Guaca," [undated], MS, A.G.I., Justicia. Leg. 1131. 53"Xnformacion de los meritos y serbicios de Domingo y Yrala Gobemador <jue fue del Paraguay y fundador de la ciudad de la Asuncion en nombre de S. M. . . .," 1605, MS, A.G.I., Patronato, Leg. 142, N? 2, R? 1. 54"Relacion de lo que subcedio en el descobrimiento de las provincias de Antioqufa, anzerma, y cartagena y cibdades que en ellas estan pobladas por el capitan Jorge Robledo," [undated], MS, A.G.I., Patronato, Leg. 28, N? unico, R? 66. "Fundacion de la ciudad de San Juan de Castro en las provincias del Choco," San Juan de Castro, 85 Pedro de Alvarado may have taken possession in Peru early in the sixteenth century when he sought to share the spoils with Pizarro, there is no evidence proving that he actually S S carried out his intended act. There is, however, un assailable proof that Juan Alvarez Maldonado, upon re ceiving permission from the Governor of Peru, took posses sion of the Mojos province of northwestern Bolivia in 1567, and thereby brought the post-discovery acts in the present area of Colombia, Peru, and Bolivia to at least eight. While the vast territories of modem day Venezuela, Colombia, Ecuador, Peru, and Bolivia were almost neglected in the performance of repetitive possession-taking, the southern tip of the continent with its Straits of Magellan received unprecedented attention. Some thirty-seven years after Magellan had taken possession of Patagonia and of the straits bearing his name, Juan Ladrillero sailed from Peru to reclaim the territory. Arriving in the straits late in the summer of 1558, Ladrillero took possession at Tierra de October 29, 1631, MS, A.G.I., Audiencia de Santa Fe, Leg. 196. "Fundazion de la ciudad de Salamanca de los Reyes," Ciudad de Salamanca de los Reyes, January 5, 1639, MS, A.G.I., Audiencia de Santa Fe, Leg. 196. 5 5 Herrera, Historia General, Dec. V, Lib. VI, Cap. I. ■^"Entrada de candia y otros capitanes a los Mojos. Juan albarez maldonado poblo a el bierzo," Peru, [undated], MS, A.G.I., Patronato, Leg. 29, N? unico, R? 17. 86 los Boquerones, San Lazaro, Nuestra Senora de los Remedios (twice), and Punta de Posesion (twice).^ Whether Ladrillero*s acts were known abroad or not is undetermined, but regardless of the fact, Francis Drake also took posses sion of the straits as he passed through them on his cir cumnavigation of the world.58 Drake’s act, which is the first English counter-act on a territory specifically claimed by Spaniards, immediately aroused the Spaniards. Don Pedro Sarmiento de Gamboa was immediately dispatched to the straits where he took possession. Basing Spain's title upon the papal donation Sarmiento performed acts at Nuestra Senora del Rosario, Puerto Bermejo, Santa Ines, San Antonio de Padua, and Rio San Juan in what appears to have been an effort to overpower Drake's act by wholesale execution of Spanish possessory acts.59 However, Spanish authorities 57! 'Rotero de Cortes ogea que fue con Juan Ladrillero en el navio San Sebastian, ano 1587," MS, A.G.I., Patro nato, Leg. 32, N9 unico, R? 5. ^Francis Drake, The World Encompassed by Sir Francis Drake, Being his Next Voyage to Nombre de Dios. Collated with an Unpublished Manuscript of Francis Fletcher, Chaplain to the Expedition, edited "b'y W. S. W. Vaux (London: Hakluyt Society, 1854), Series I, No. 16, p. 75, hereinafter cited as Drake, The World Encompassed. 59"Relacion y Derrotero del Viage y Descubrimiento del Estrecho de Madre-de-Dios antes Llamado de Magallanes," in Coleccion de Diarios v Relaciones, III, 38-39, 64-65, 73-74, and 84-87. Clements R. Markham, Narratives of the Voyages of Pedro Sarmiento de Gamboa to the Straits of Magellan (London: Hakluyt Society, 1895), Series I, No. 91, contains excellent translations of the various acts, hereinafter cited as Markham, Narratives of the Voyages of Pedro Sarmiento de Gamboa. 87 did not appear to have placed complete confidence in the rights which Sarmiento's acts secured in 1583-1584, for he is again found in the straits where he not only took posses sion at Cape Virginia and Ciudad de Jesus, but also unsuc cessfully attempted to found a settlement at the latter. Despite Sarmiento1s failure to colonize the Magel lanic lands, the Spaniard's title to this territory remained undisturbed as English activity within the vicinity of the straits subsided during the following century. However, the fear of English intrusion, which Drake had awakened, remained. For in 1675, whether or not it was due to John Narborough's landing and possession-taking in both Puerto Deseado and Puerto de San Julian in Patagonia, a rumor arose that the English had established a settlement in the straits.61 The Viceroy of Peru promptly dispatched 60"Relacion hecha y firmada, por Pedro Sarmiento de lo que acaecio en la jomada del Estrecho de Magallanes . . . y de la posesion que tomo Pedro Sarmiento del dicho Estrecho . . 1584, MS, A.G.I., Patronato. Leg. 33, N? 3, R? 46. 61”A Journal Kept by Captain John Narborough, in John Narborough, An Account of Several Late Voyages and Discoveries: I. Sir John Narborough's to the South Sea by the Command of King Charles the Second. II. Captain J. Tasman's Discoveries on the Coast of Terra Incognita. III. Captain J. Wood's Attempt to Discover a North East Passage to China. IV. F. Maten's Observations made in Greenland, and other Northern Countries ('London: D. Brown. 1711), pp. 40 and 47, hereinafter cited as Narborough, "A Journal" in An Account of Several Voyages. Bolton Glanvill Comey, The Quest and Occupation of Tahiti by Emissaries of Spain During the Years 1772-1776 (London: Hakluyt Society, 1913), Series II, No. 32, Vol. I, pp. xiv- xxi, hereinafter cited as The Quest and Occupation of Tahiti. 88 Antonio de Vea and Pascual de Yriate to investigate. Although no trace was found of an English intrusion, both men took possession in an effort to reinforce Spain*s title to the southern tip of South America.62 Vea and Yriate*s acts, coming after Diego Tomas de Andia y Varela*s possession-taking at San Julian in Pata gonia in 1746, were the last Spanish symbolic ceremonies performed within the territory of the straits.63 No territory— not even the Philippines where Miguel Lopez de Legazpi and his lieutenants took possession fifteen differ ent times in 1565, 1570, and 1579--was so persistently and repeatedly proclaimed during the sixteenth and seventeenth centuries.^ Lest it be overlooked, it should be noted 62"Relacion Diaria del Viaje que se Ha Hecho a las Costas de el Estrecho de Magallanes, en el Recelo de Enemigos de Europa, por don Antonio de Vea," in Coleccion de Diarios y Relaciones, I, 87, 100, 108, and 111-113. Corney, The Quest and Occupation of Tahiti, I, xvii-xx. 63"Diario de el Viage que hize, yo Diego Thomas de Andia y Varela, Piloto maior, en la fragata de S. Magestad Nombrada San Antonio, bajo del comandante de el, Alferez de Navio Don Joaquin de Olivares, desde Buenos Aires al Reconocimiento de la Costa de el Rio de la Plata, por horden del Rei, cuia comision hiba, a Cargo de el Reveren-, disimo Padre Joseph Quiroga, Maestro de Mathematicas, aquien acompanaban el Reverendisimo Padre Mathias Strobel, y el Reverendisimo Padre Joseph Cardiel, Misioneros de la Compania de Jesus," [undated], MS, Museo Naval, Vol. 620. 6^Legazpi took possession of the following in 1565: Isla de Barbudos on January 9; Guam on January 26; Cibabao on February 15 and 22; Bahia de San Pedro, Isla de Tandaya, on February 23; Isla de Camiguin on March 14; and Bohol on April 13. For acts see "Escrituras y rrecaudos tocantes al 89 that these acts were not empty ceremonies since Spain— aided by the lack of interest of other nations--retained title to both the territory and the straits until the Hispanic American nations effected their independence. In considering the total picture of Spanish possession-taking practices in all of the Americas, it can be said that most of the generalizations derived from the Spanish activity in North America are applicable in their practice in South America. Thus, in all the western hemisphere and in the Pacific Islands Spanish navigators, explorers, and colonizers--excepting Pedro Sarmiento de Gamboa, Juan de Onate, and Pedro Fernandez de Quiros— relied specifically upon the tenets of Roman Law, and not upon the papal grant, for acquiring title to terra nullius. Furthermore, these men considered that temporary occupation was as effective as permanent possession in obtaining title to the new territories. Ultimately, the Spaniards in both descubrimiento de las yslas del poniente," 1565, MSS, A.G.I., Patronato, N? unico, R? 17. Juan de Salcedo took possession of the following in 1570: Isla de Cubuyan on January 28; Isla de Similara on February 8; Isla de Poro on March 12: Isla de Luban on March 14; Isla de Bindoro [MindoroJ, Luzon Menor, on March 16; and Isla de Elim on March 24. Martin de Goite took possession of Vindoro on May 16, 1570; of Manila, Luzon, on June 16, 1570; and of the Isla de Cibuyan on December 8, 1579. For Salcedo and Goite*s acts see "Posesiones tomadas en nombre de Su Magestad de las Yslas de Luban, Similara, Poro, Cubuyan, Helin, Luzon, y Vindoro o Luson la menor," [undated], MSS, A.G.I., Patronato, Leg. 24, N? unico, R? 1570. continents, although somewhat less in South America than in North, relied upon the post-discovery acts to claim the territory which lay beyond or between the points where the first discoverers took initial possession, and thus in their minds acquired new areas of territory. Beyond these generalizations there are others which can be drawn from the over-all activity of the Spaniards. As their acts in Florida, the Straits of Magellan, and even in California show, the Spaniards felt it necessary to perform an act or acts subsequent to any foreign counter act performed in any territory of which they had previously taken possession. Thus, they were forced to further ex plorations, subsequent possession-takings, and even colonization projects in their efforts to superimpose their rights to the territory which had been claimed by some foreign settler or explorer. Finally, as the activity of 1580 and 1581 in the Straits of Magellan reveals, it seems that Iberians sought to overwhelm and annihilate any rights which a rival counter-act might establish by performing numerous acts in the vicinity of where the intruders had taken possession. The counter-acts of rival nations, as has been seen, had an effect upon the Spanish possession-taking practice. However, this, as will be seen in the following chapter, is but one phase of the importance of counter-acts. The real importance, however, lies upon the rights which they con ferred to the nation making them, the international crises which arose from their performance, and also the recogni tion which they received from rival powers in the Americas. CHAPTER XV THE EARLY COUNTER ACTS OF EUROPEAN COLONIAL RIVALS As soon as the news spread that Columbus had dis covered and taken possession of the unknown territory for Spain, rival European powers began making plans for obtain ing their claims to the newly discovered lands. But before these nations could embark on any projects of territorial aggrandizement, Spain had acquired a theoretical near monopoly of the New World as a result of the Alexandrine bulls and the Treaty of Tordesillas. Notwithstanding the religious sanctions imposed by the bulls and the treaty, the Catholic monarchs of England and France, Spain's greatest rivals, determined to break the Iberian monopoly in the New World. Henry VII of England was the first monarch to chal lenge both Spain's claim to the New World and the papacy's right to grant terra nullius when he granted his letters patent to Giovanni Caboto on March 5, 1496 "for the dis- coverie of new and unknowen lands." This patent, which is of extreme value to the student of international law, presents a very concise statement of the legal foundation upon which Henry expected to base England's claim to new lands. By ignoring any mention whatsoever of the papacy 92 and its donation, he removed from the ecclesiastical sphere the complete question of acquiring terra nullius, and thereby denied Spain's title to a monopoly. Nevertheless, he acquiesced in Spain's right to the lands which its navigators had discovered by granting Cabot and his heirs those lands which they discovered and which were "unkowen to all Christians." Henry, moreover, recognized the value of the symbolic act for acquiring possession by authorizing Caboto "to set up our banner and ensignes in every village, towne, castle, isle, or maine land of them newly found. Thus, it is evident that Henry's patent was based on the tenets of Roman Law and on European traditional practice for the acquisition of land. Caboto's voyage, which was made the following year of 1497, was of monumental importance in breaking Spain’s monopoly in the New World and in eliminating the last remnants of the Pope's temporal power. For despite the excommunicatory provisions of the papal bulls and the treaty of Tordesillas, Henry VII's defiance does not appear to have been censured by the supreme pontiff. Furthermore, k’The Letters Patents of King Henry the Seventh Granted unto John Cabot and his Three Sonnes, Lewis, Sebastian, and Sancius for the Discoverie of New and Unkowen Lands," in Richard Hakluyt, The Principal Naviga tions Voyages Traffiques and Discoveries of the English Nation (Glasgow: James MacLehose and Sons, 1904), VII, 141-144, hereinafter cited as Hakluyt, The Principal Navigations. 94 there is evidence that the practice of possession-taking gained international recognition as the means of obtaining newly discovered territory, as is indicated in the diplo matic correspondence of Raimondo di Soncino, the Milanese ambassador, to his ruler the Duke of Milan. Perhaps amidst so many occupations of your Excel lency it will not be unwelcome to learn how his majesty here has acquired a portion of Asia with a stroke of his sword. In this kingdom there is a lower class Venetian named Master Zoanne Caboto, of a fine mind, very expert in navigation, who, seeing that the most serene kings, first of Portugal, then of Spain have occupied unknown islands, meditated the achievement of a similar acquisition for his majesty aforesaid, and having obtained royal grants securing to himself the profitable control of whatever he should discover, since the sovereignty was reserved to the crown, with a small ship and eighteen persons he committed himself to fortune and set out from Bristol, a western port of this kingdom, and having passed Ireland, which is still further to the west and then shaped a northerly course, he began to navigate to the eastern parts, leaving (during several days) the North star to the right; and having wandered about considerably at length he fell in with terra firma where he set up the royal standard, and having taken possession for this king and collected several tokens, he came back again. . . .^ That Cabot actually did not take possession of con tinental America, but only (perhaps) of Cape Breton Island is unimportant since at a later time both England and her rivals assumed that it was on the North American mainland. 2 Raimondo di Soncino to the Duke of Milano [undated], in H. P. Biggar, The Precursors of Jacques Cartier 1497-1534: A Collection of Documents Relating to the Early History of the Dominion of Canada (Ottawa: Government Printing Bureau, 1911), p. 17, hereinafter cited as Biggar, The Precursors of Cartier. 95 What is important is the recognition by a foreign agent, particularly one so close to Rome, of the juridical value of the act of possession for the acquisition of terra nullius. Three years after Caboto’s formal possession-taking at Cape Breton, Pedro Alvarez Cabral landed at Brazil, perhaps accidentally, while voyaging from Portugal to India. Not knowing that the Spaniards had already dis covered and taken possession of the territory, he ordered a cross to be raised on the highest branch of a tree, whither it was lifted with great solemnity, and many benedictions by the priests whom he had brought in his company, and the name of Sancta Cruz was given to the land.3 As is known, Cabral’s counter-act overshadowed the previous acts of Vicente Yanez Pinzon and Diego de Lepe because Brazil was located east of the demarcation line established by the Treaty of Tordesillas. Because Cabral’s act was governed by the stipulations of the treaty for obtaining the uninhabited territories of Brazil, it cannot be re garded as a counter-act in a strict sense of the term, although its performance most certainly strengthened Portu gal's title to that area and limited Spanish expansion in the region. ^Pero de MagahalSes, The Histories of Brazil, trans lated and edited by John B. Stetson (New York: The Cortes Society, 1922), pp. 22-23. 96 While Portugal's exploratory and claim-establishing activities in the New World were definitely in accordance with the stipulations of the papal donation and the Treaty of Tordesillas, those of France (who like England had been unceremoniously excluded in the Pope's bulls from the American scene) were in sharp contradiction. Francis I, like Henry VII of England before him, found it necessary to dispatch an exploratory expedition to present-day North America in order to establish a colony. Giovanni Verrazzano, the Florentine adventurer whom Francis I se lected to lead the expedition, explored the northeast coast without taking possession of the country.^ But if Verrazzano actually failed to perform an act of sover eignty, as contemporary documentation seems to indicate, France's claim to America was not in the least weakened since both Frenchmen and Englishmen of the following gener ations manufactured evidence of such an act and recognized France's claim and title to New France upon the basis of ^An excellent narration of Verrazzano's voyage is found in Winsor, Narrative and Critical History of America. IV, 5-9. 5 An example of France's claim to New France, as derived from Verrazzano's supposed act, is found in Francois Du Cruex, The History of Canada or New France, translated by Percy J. Robinson, edited by James B. Conacher (Toronto: The Champlain Society, 1951), I, 133. 97 The earliest English writer who presented evidence of Verrazzano*s supposed act appears to have been the Elizabethan historian, geographer, and royal advisor Richard Hakluyt. Although Hakluyt did not deny nor affirm the authenticity of the act, he gave credence to its per formance by including Rene Laudoniere's description of it in his collection of principal voyages. According to the French explorer and colonizer that which is toward the Pole Articke on the North is called New France, because that in the yeere 1524, John Verrazzano a Florentine was sent by King Francis the first, and by Madam the Regent his mother under these newe Regions, where he went on land, and dis covered all the coast which is from the Tropicke of Cancer, to wit, from the eight and twentieth unto the fiftieth degree, and farther unto the North. Hee planted in this Countrey the Ensignes and Armes of the king of France; so that the Spaniards themselves which were there afterwarde, have named this Countrey Terra Francesca.6 Laudoniere's description of Verrazzano*s act, as contained in Hakluyt, arouses even greater doubt concerning the authenticity of the Florentine's possession-taking since the author describes a ceremony closely resembling the one that his contemporary Jean Ribault made in Florida in 1562.^ Moreover, the doubt is further reinforced by a "The Description of the West Indies in^Generali, but Chiefly and Particularly of Florida by Rene Laudoniere," in Hakluyt, The Principal Navigations, VIII, 449-450. ^Ibid., p. 464. 98 comparison of Verrazzano's act with those which Jacques Cartier performed ten years later when the latter erected crosses as a symbol of possession-taking. If Verrazzano's act is based upon questionable sources, Cartier's are founded upon solid historical docu mentation of unquestionabled genuineness. Cartier, who like Verrazzano was commissioned by Francis I, also failed to establish a permanent French settlement. Yet, by his numerous counter acts and detailed explorations made in the Saint Lawrence River area, he presented his monarch with a solid claim to the territory which would later be known as La Nouvelle France. On his first voyage of 1534 he took possession of Saint Servan (Lobster Bay) and Gaspe Harbor; on the second expedition of 1535-1536 he erected crosses at Saint Nicholas Harbor (Fashashibu Bay), Saint Quentin, and perhaps Sainte Croix.^ His second act, which was his first on the mainland, is illustrative of the longer ceremonies which he performed at Gaspe Bay and at Sainte Croix. On Friday the twenty-fourth of the said month of July we had a cross made thirty feet high, which was put together in presence of a number of the Indians on the point at the entrance of this harbour, under the Jacques Cartier's First Account of the New Land, Called New France, Discovered in the Year 1534" and "Cartier's Second Voyage, 1535-1536," in H. P. Biggar, ed., The Voyages of Jacques Cartier: Published from the Origi nals with Translations. Notes and Appendices (Ottawa: F. A. Acland, 1924), pp. 20, 64-65, 100, 172-173, and 225, here inafter cited as Biggar, The Voyages of Cartier. 99 cross-bar of which we fixed a shield with three fleurs- de-lys in relief, and above it a wooden board, engraved in large Gothic characters, where was written, LONG LIVE THE KING OF FRANCE. We erected this cross on the point in their presence and they watched it being raised in the air, we all knelt down with our hands joined, worshipping it before them; and made signs to them, looking up and pointing towards heaven, that by means of this we had our redemption at which they showed many marks of admiration at the same turning and looking at the cross.9 Cartier’s acts, which were essentially religious in symbolism and therefore extremely similar to both the Portuguese and the Spanish, mark the beginning of a hiatus in the possession-taking activities of Spain's rivals in the New World. Particularly due to the English religious problem and the Franco-Spanish wars, both England and France refrained from immediately sending out costly ex ploratory and colonizing expeditions after the claim- establishing voyages of Caboto and Cartier. Yet, in France it was the development of a non- conforming religious minority which led to the foundation of the first non-Iberian colonial ventures in the Americas. The persecuted French Huguenots, like the Jewish people of our era in Israel, were driven to seek relief by establish ing a colony where they might realize complete enjoyment of their rights. Receiving aid from their co-religionist Gaspard de Coligny, Admiral of France, the Huguenots 9Ibid., pp. 64-65. 100 established their first colony of Antarctic France in Rio de Janeiro, Brazil, in 1555. Their second was Florida on the St. Johns River in 1564, after Jean Ribault had taken possession of the territory in 1562 when the colonial venture at Port Royal Sound (South Carolina) failed.^ The French establishments were the first effective denial of the juridical value of possession-taking for the acquisition of terra nullius. The fact that the colonists were persecuted at home and migrated to Brazil and Florida in order to enjoy their religious rights does not appear to be sufficient reason for denying the validity of acts of sovereignty for establishing bona fide claims. On the con trary, it appears that their denial was simply motivated by reasons of convenience and personal gain, particularly since the French nation had a valid claim to the vast area of the St. Lawrence region which was then uninhabited by Christian Europeans. Whatever the reasons that motivated the French intrusion, there is no question whatsoever that both Portugal and Spain considered the presence of the French in Brazil and Florida a violation of their sovereign rights 10'tNarrative of the First Voyage Made by Captain Jean de Ribault, by Order of Charles IX, King of France, to Take Possession of, and Found a Colony of French Protes tants in Florida, 1562," in French, Historical Collections of Louisiana and Florida, II, 176. 101 in the New World. After a ten-year period at Rio de Janeiro the Huguenots were expelled by Mem de Sa. In Florida, where the Spanish had effected numerous acts and colonization attempts prior to that of Ribault's, the period of existence was even shorter because of the rapidity with which Philip II and Don Pedro Menendez de Aviles prepared a force to annihilate their hated rivals. By 1565 Menendez had massacred most of the colony on the St. Johns River, retaken possession of the territory, and planted the colony of San Agustin.-^ Furthermore, he had demonstrated most cogently that legal rights, regardless of traditional foundation upon which they rest, are of no value unless they can be enforced by resort to power. While the French were founding short-lived colonies and attempting to establish effective occupation as the means of obtaining title to terra nullius, the English were resolving the religious question by the implantation of Anglicanism. Once the religious problem was settled and Elizabeth's right to the throne was no longer threatened, England was ready to begin her colonial ventures anew. The first Elizabethan navigator who set forth was ^"Relacion hecha por el Capellan de Armada Francisco Lopez de Mendoza, del viaje que hizo el adelan- tado Pedro Menendez de Aviles a la Florida," in Ruidiaz y Carvia, La Florida: Su Conquista v Colonizacion por Pedro Menendez de Aviles. II, 451. Lowery, The Spanish Settle ments. 1562-1574. 102 the celebrated Martin Frobisher, who made two voyages to the west: in the first he reached the northeast portion of Canada and took possession twice; in the second, which he made the following year of 1578, he arrived at an unknown location where he also laid claim by an act of sover- 12 eignty. In the same year as Frobisher's last voyage, Francis Drake started his famous voyage round the world during which he took possession of the Straits of Magellan a n d D r a k e ' s B a y , b o t h l y i n g i n t e r r i t o r i e s w h i c h S p a i n claimed because of the acts of Magellan, Ladrillero, and 1 ^ Rodriguez Cabrillo. Five years later, 1583, Raleigh's half brother, Sir Humphrey Gilbert, attempted to establish 1 o The Second Voyage of Master Martin Frobisher, Made to the West and Northwest Regions, in the yeere 1577, with a Description of the Country and People: Written by Master Dionise Settle," in Hakluyt, The Principal Naviga tions, VII, 217. "A True Report of Such Things as Happened in the Second Voyage of Captaine Frobisher, Pretended for the Discovery of a New Passage to Cataya, China and East India, by the Northwest. Ann. Dom. 1577," in Hakluyt, The Principal Navigations, VII, 291-292. "The Third Voyage of Captaine Frobisher, Pretended for the Discoveries of Cataia, by Meta Incognita, Anno Do. 1578," in Hakluyt, The Principal Navigations, VII, 326. i 'i Drake, The World Encompassed, pp. 75 and 225-226. Heizer, "Francis Drake and the California Indians, 1579," University of California Publications in American Archaeo logy and Ethnology, XXXXII (March, 1947), 265-271. "The Second Circum-Navigation of the Earth: Or the Renowned Voyage of Sir Francis Drake, the First Generali Which Ever Sayled about the Whole Globe, Begun in the Yeere of Our Lord, 1577. Heretofore Published by Mr. R. Hakluyt, and Now Reviewed and Corrected," in Samuel Purchas, Hakluytus Posthumus or Purchas His Pilgrimes (Glasgow: James MacLehose and Sons, 1905), II, 129, hereinafter cited as Purchas, Hakluytus Posthurnus. 103 the first English colony in the New World at Newfoundland. Although Gilbert’s enterprise failed, the formal act that he performed strengthened England's claim to the terri tory.^ Gilbert’s failure to establish a permanent colony was soon followed by Walter Raleigh’s in Virginia where 15 possession was again taken in 1584. Eleven years after Raleigh’s venture the last of the Elizabethan voyages and possessory acts was made as Robert Dudley took possession of the Isle of Trinidad where Antonio de Berrio had per formed solemn acts of possession in the name of the Spanish crown two years before.^ The Elizabethan colonial ventures, as is well known, were not as successful in founding a permanent colony as ^'A Report of the Voyage and Success thereof, Attempted in the Yeere of Our Lord 1583 by Sir Humfrey Gilbert Knight . . .,” in Hakluyt, The Principal Naviga tions, VIII, 53-55. The First Voyage Made to the Coasts of America, Where in Were Captaines M. Philip Amadas, and M. Arthur Barlowe, Who Discovered Part of the Country Now Called Virginia, Anno 1584. Written by One of the Said Captaines, and Sent to Sir Walter Ralegh Knight, at Whose Charge and Direction, the Said Voyage was Set Forth,” in Hakluyt, The Principal Navigations. VIII, 309-310. ■^"Robert Dudley's Voyage to the West Indies, 1594- 1595, Narrated by Captain Wyatt,” in George F. Warner, ed., The Voyage of Robert Dudley, Afterwards Styled the Earl of Warwick and Leicester and Duke of Northumberland, to the West Indies, 1594-1595 /London: Hakluyt Society,1899), Series II, No. 3, pp. 26-33 and 44, hereinafter cited as Warner, The Voyage of Robert Dudley. "Los Autos de Pobla- cion de San Joseph de Oruna," Trinidad, June 16, 1593, MS, A.G.I., Patronato, Leg. 26, N? unico, R? 33. 104 they were in establishing English claims to the New World. Regarding the claims which England obtained from the various acts which its navigators performed, there are several problems concerning the validity of the acts. This is particularly true of Drake and Dudley's acts which were made in territories which the Spaniards had already claimed prior possession.^ To a lesser degree the act performed in Virginia by Amadas and Barlowe on behalf of Raleigh is of doubtful value because of its proximity to the location where the Spaniards, Ayllon and Villafahe, had also per formed acts. There is, however, no doubt that the cere monies which both Frobisher and Gilbert performed, ful filled all the requirements for legally acquiring a claim to terra nullius. But if these two acts established any British rights to new lands, their validity was rejected by the English crown itself as Elizabeth, in rejecting Spain’s papal title to the Indies, proclaimed that effective occupation was the only means of obtaining title to lands 1 R uninhabited by Christians. Consequently, the value of possession-taking, as based on a temporary occupation, was categorically denied; and the claims arising from the 17 Dudley was well aware when he took possession of Trinidad that the Spaniards were already established there. See Warner, The Voyage of Robert Dudley, p. 30. ^•^William Camden, Annales Rerum Anglicarum, et Hibernicarum, Regnante Elizabetha (Londini: 1615), p. 309. 105 English voyages, including Caboto's, were nullified. How ever, it should be noticed that not all Englishmen adhered to the official theory, for there were important people, such as Richard Hakluyt, who continued to base England’s right to colonize America upon Caboto's discovery, thereby recognized the juridical value of prior possession- taking. ^ With the ascension of James I to the throne in 1603, English colonial enterprise thrust forward rapidly. No sooner had the crown been placed upon his head than plans 90 were made for the establishment of a colony in Virginia. u Upon learning of the English plans, the Spaniards sought to frustrate them by protests and by devious methods; the English, however, were not to be denied and defended their right to colonize Virginia upon the claims which they had obtained from Caboto's voyage of discovery and possession taking.^ By establishing Jamestown in 1607, the English • ^ " D i s c o u r s e of Western Planting by Richard Hakluyt, 1584," in E. G. R. Taylor, ed., The Original Writings & Correspondence of the Two Richard Hakluyts (London: Hakluyt Society, 1935), Series II, No. 76, Vol. II, pp. 280-297. 2®Juan de Ciriza to Andres de Pedrastra, Madrid, May 7, 1607, in Alexander Brown, ed., The Genesis of the United States (Cambridge, Massachusetts: Houghton Mifflin and Company, 1891), X, 100-101. ^•^•Philip III of Spain to Pedro de Zuniga, Vento- silla, June 12, 1607 [first draft of letter], in Brown, The Genesis of the United States. I, 102-103. "Document Dedi cated to the Chief Treasurer of This Colony and of the Merchants of the Muscovite and East India Companies," in Brown, The Genesis of the United States, I, 260-263. 106 c o n s e q u e n t l y r e j e c t e d E l i z a b e t h ’ s d o c t r i n e o f e f f e c t i v e o c c u p a t i o n , a n d a g a i n o f f i c i a l l y r e c o g n i z e d t h e v a l i d i t y o f p o s s e s s i o n - t a k i n g . H a v i n g r e c o g n i z e d t h e a c t o f s o v e r e i g n t y a s t h e l e g a l m e t h o d o f a c q u i r i n g t e r r a n u l l i u s , t h e E n g l i s h n o w s h o w e d t h e m s e l v e s e x t r e m e l y f a i t h f u l i n p e r f o r m i n g a c t s i n t h e t e r r i t o r i e s w h i c h t h e y l a t e r e x p l o r e d a n d c o l o n i z e d . I n G u i a n a , w h e r e A n t o n i o d e B e r r i o h a d t a k e n p o s s e s s i o n i n t h e e x t r e m e w e s t e r n p o r t i o n o f t h e t e r r i t o r y , R o b e r t H a r c o u r t m a d e a n a c t i n 1 6 0 8 a t W i a p o c o , t h e v e r y s p o t w h e r e C h a r l e s L e i g h h a d a l s o p e r f o r m e d a n a c t i n 1 6 0 4 . 2 2 H o w e v e r , i t w a s i n S p i t s b e r g e n a n d i n n o r t h e r n N o r t h A m e r i c a w h e r e t h e E n g l i s h t r u l y e x h i b i t e d t h e g r e a t e s t p o s s e s s i o n - t a k i n g a c t i v i t i e s . A t S p i t s b e r g e n , w h i c h E n g l a n d n e v e r a c q u i r e d , t h e E n g l i s h n a v i g a t o r s J o n a s P o o l e , W i l l i a m B a f f i n , a n d R o b e r t F o t h e r b y e m a d e s o v e r e i g n t y - c l a i m i n g a c t s i n 1 6 1 0 , 1 6 1 3 , a n d 1 6 1 4 - 1 6 1 5 . 2 3 I n n o r t h e r n 22»'a Relation of a Voyage to Guiana Performed by Robert Harcourt of Stanton Harcourt in Countie Oxford, Esquire," in C. Alexander Harris, ed., A Relation of a Voyage to Guiana by Robert Harcourt, 1613 (London: Hakluyt Society, 1928), Series II, No. 60,pp. TIO-111. "Posesion de Goayana," San Joseph de Oruna, 1593, MS, A.G.I., Patro- nato, Leg. 26, N? unico, R? 33. 23"A Voyage Set Forth by the Right Worshipful Sir Thomas Smith, and the Rest of the Muscovie Company, to Cherry Island: and for a Further Discoverie to be Made towards the North Pole . . . in the Ship Called the Amitie, of Burthem of Seventie Tuns; in the Which I Jonas Poole was Master, Having Fourteen Men and One Boy: A. D. 1610," in Purchas, Hakluytus Posthumus, XIV, 12. "A Journal of 107 Canada Thomas Button, Luke Foxe, and Thomas James gave England her claim to Hudson Bay by performing acts in 1613, 1631, and 1632.24 The Canadian acts performed by these navigators are of further interest than just the claims they established. Their ceremonies, marked by the erection of a cross as a sign of possession, indicate a deviation from traditional turf and twig English practice, and perhaps evidence the religious attitude of Charles I who was then reigning.25 But of more importance than the erection of the cross was the recognition (as proclaimed in James' proclamation of possession-taking) which they attributed to the ceremony as the Voyage Made to Greenland with 5 English Ships and a Pinnasse, in the Yeere 1613. Itfritten by Master William Baffin,” in Purchas, Hakluytus Posthumus, XIV, 52-53. "A Voyage of Discoverie to Greenland, &c. Anno 1614. Written by Ro. Fotherbye," in Purchas, Hakluytus Posthumus, XIV, 66-68, 77-78, and 85. 24” The Voyage of Captaine Luke Foxe, in His Maiestie's Pinnace, The Charles, Burthen 70 Tonnes; 20 Men and 2 Boys; Victuals for 18 Moneths . , . May 7th, Anno 1631,” in Miller Christy, ed., The Voyages Captain Luke Foxe of Hull and Captain Thomas James of Bristol in Search of a Northwest Passage in 1631-1632 (London: Hakluyt Society, 1894), Series I, No. 89, p. 384. "The Voyage of Captain Luke Foxe,” in Thomas Rundall, Narratives of the Voyages towards the Northwest in Search of a Passage to Cathay and India 1496 to 1631 (London: Hakluyt Society, 1849), p. 178. Thomas James, The Dangerous Voyage of Capt. Thomas James in His Intended Discovery of a North West Passage into the South Sea (London: 0. Payne, 1740), pp. 10, 89, and 95, hereinafter cited as James, The Dangerous Voyage. 25lbid. 108 the means of acquiring sovereignty of the New World. According to James, Charles I was not only king of England, Scotland, France, and Ireland, but "also of Newfoundland, and of these Territories, and to the Westward, as far as to Nova Albion, and to the Northward to the Lat. 80 Deg. 9 6 &c. Consequently, James considered the lands where Frobisher, Drake, and Gilbert had performed the first possession-taking acts as belonging to England. What James had expressed in Canada seems to be but an echo of official English doctrine which was then being formulated at home against the United Provinces (Holland) whose subjects were competing with the New Englanders for the ownership of the Connecticut Valley. In the dispute that followed over this territory in 1632, the English based their title to the valley as well as to all of New Netherlands on their "first discovery, occupation and the possession which they have taken thereof, and by the con cessions and letters patent they have had from our Sover eigns" ; and at the same time negated the Dutch claim as they "denied that the Indians were possessores bonae fidei of those countries, so as to be able to dispose of them r t / James, The Dangerous Voyage, p. 95. 109 either by sale or donation.This doctrine which Charles I's representatives presented to the Dutch, besides enumerating the requisites necessary for a valid act of possession, justified the English permanent occupation of New Netherlands in 1664. For on April 17, 1664, prior to the English occupation, Sir George Downing, Charles I's Envoy Extraordinary to the United Provinces, very cogently stated his country's title to the land: And as to the second, the Deputies doe not deny that this Land called New Netherlands is within the Patents granted by his Majesty, to his Subjects, and he the said Envoy doth affirme that it is. And let those of the West India Company produce an antienter Patent for the same, but he doth not believe they can produce any at all, other then that general Octroy (which as above-said) grants not the Soveraignty of all Lands with the Limits thereof: And as to the point of Possession, there is nothing more cleare and certaine than that the English did take possession of and inhabit the Lands within the Limits of the said patents, long before any Dutch were there. 'Tis not to say, (nor is it requisite that it should be said) that they did inhabite every Individuall Spot, within the Limits of them. It is enough that their patent is the first, and that in pursuance thereof, they had taken possession, and did inhabite and dwell within the same. . . .28 ^"Answer to the Remonstrance Presented to the King and the Lords, His Commissioners, by Their Lordships the Ambassador and Deputy of the Lords States General of the United Provinces, in April, 1632," in John Romeyn Brodhead, Documents Relative to the Colonial History of the State of New York: Procured in Holland, England and France (Albany: Weed, Parsons and Company, 1856), I, 58, hereinafter cited as Brodhead, Documents. 2^"A Reply of Sir George Downing Knight and Baronet, Envoy Extraordinary from His Majesty of Great Britain, &c. To the Remarks of the Deputies of the Estates General, upon His Memorial of the 20th of December, 1664," in Brodhead, Documents, II, 332. 110 Besides this reply there are other documents which definitely show that the English— at least when it is profitable for them--did recognize the legal value of possession-taking acts. Naturally, the existence of such documents is due to other territorial disputes where the same lands were claimed by rival European colonial powers. Undoubtedly, the most acrid dispute between the late colonial powers was the one between England and France over the ownership of the Hudson Bay Area. Having already con sidered the acts by which England claimed the territory, it is necessary to present a brief background of the French explorations and possession-taking activities in order to understand fully the disputes as well as the rights of both parties. The original French claim to the St. Lawrence River area, as established by Cartier, was extended and rein forced by French acts and colonial establishments of the seventeenth century. Samuel de Champlain, the first French explorer to perform acts after Cartier, began extending the claims of His Most Christian Majesty not only by founding and taking possession of Quebec in 1608, but also by exploring and formally claiming the areas of Sainte Croix Island and Lake A l l u m e t t e . ^ if Champlain's explorations 29Samuel de Champlain, The Works of Samuel de Champlain, edited by H. P. Biggar (Toronto: Champlain Society, 1922-1936), II, 271-272 and 297; V, 5-7. Ill and possession-takings were accomplished without any diffi culties, this was not necessarily true of all French possession-taking, as the activities of the Jesuits on Mount Desert Island, Maine, in 1613 demonstrate. Having arrived on the island for the purpose of establishing a colony, the Jesuits no sooner erected a cross and celebrated mass, than Captain Samuel Argali, who had been driven ashore by a storm, pounced upon them, killed one Jesuit, and took eighteen colonists as prisoners to Virginia.^0 Argali's attack, apparently the first Franco-British encounter in the New World, was not an accidental piratical raid but an official action ordered by Governor Dale of Virginia who believed that the French were intruding upon British territory. Thus, the first clash between England and France resulted from the latter's possession-taking and colonizing efforts in the territory which the former ultimately claimed on the basis of John Cabot's voyage and act of sovereignty. ^Marc Lescarbot, The History of New France, edited and translated by W. L. Grant (Toronto: The Champlain Society, 1914), III, 64. John Romeyn Brodhead, History of the State of New York (New York: Harper and Brothers, 1853), I, 52-53. 3^-Lyon Gardiner Tyler, England in America, 1580- 1652, Vol. IV of The American Nation: A History (New York: Harper and Brothers, 1904), p. 70. Despite English hostility, which later revealed itself most pointedly both by King James X*s grant of Nova Scotia (1621) and the St. Lawrence Valley (1629) to William Alexander and by David Kirke's temporary conquest of Quebec in 1628-1629, French exploratory expansion and possession- 90 taking did not completely stop. Relatively soon after the restoration of Quebec, French sovereignty-acquiring activities resumed throughout the world as Cardinal Richelieu ordered the island of Madagascar to be solemnly claimed in 1642.33 Fourteen years later Jean Bourdon per formed an act, on behalf of the directors of the Canada Company, claiming the territory of Labrador, where British navigators had previously taken possession.3^ If the French had been slow in performing acts after regaining Quebec in 1632, the situation changed quickly when Louis XIV personally took over the reins of government in 1661. Within two years after his personal rule began, Sieur Couture arrived at Hudson Bay and became the first Frenchman to take possession of the area which Foxe and 32Ibid., pp. 289-290. 33Lyons McLeod, Madagascar and Its People (London: Longman, Green, Longman, Roberts, and Green, 1865), p. 11. 34"Copie de la Declaration Fait au Greffe du Conseil Souverain de Quebec par le Capitaine Jean Bourdon Commandant le Vaisseau Nomme le St. Francois Xavier,1 1 quoted in 1 1 Cartographie de la Nouvelle France,” Revue de Geogranhie, XVI (March, 1885), 186-194. 113 James had officially claimed for England in 1631 and q c 1632. This claim north of Quebec was soon balanced by one to the south in 1666 when Frouville de Tracy invaded Mohawk territory, defeated the Iroquois, and solemnly took possession of the land.36 However, Couture and De TracyTs claims were small compared to the one which soon followed in the territories west of Quebec as French missionaries and fur traders penetrated those areas. Western possession-taking activity began in 1669 as the Sulpician Fathers, Dollier and De Galinee, performed an act of sovereignty on the River Rapide to the northeast of Lake E r i e .37 As the result of their activity Sieur de St. Lusson, on orders from the Intendant of New France, Jean Talon, performed an act at Saulte Sainte Marie in 1671 where he claimed the lands lying between Montreal and the Sea of the South (Pacific Ocean).^ Despite the 35e. M. Faillon, Histoire de la Colonie Francaise en Canada (Paris: Jacques Lecoffre et Cie., 1865), III, 310, hereinafter cited as Faillon, Histoire de la Colonie Francaise. 36ibid., II, 147. 37pierre Margry, Decouvertes et £tablissements des Francais dans 1*Quest et dans le Sud de LtAmerique Septentrionale (1614-1754): Memoires et Documents Originaux (Paris: Maisonnueve Freres et Ch. Leclerc, 1885), 166, hereinafter cited as Margry, Decouvertes et Utablissements. 38saint Lusson's Proces-Verbal, June 14, 1671, in Collections of the State Historical Society of Wisconsin (Madison: The Democratic Printing Company, 1888), XI, 26- 29. Francis Parkman, La Salle and the Discovery of the Great West (Boston: Little, Brown and Company, 1918), pp. 42-43, hereinafter cited as Parkman, La Salle. Faillon, Histoire de la Colonie Francaise. Ill, 307. all-embracing acts of St. Lusson, the French felt that it was necessary to strengthen their claims by further repeti tive acts both in Hudson Bay and in the West. Although Bourdon had claimed Hudson Bay in 1656, the Intendant ordered Denys de Saint-Simon and the Jesuit Charles Albanel to take possession of the area in 1672 because the traitor ous fur traders Pierre Radisson and Medard Grosseilliers had led a British party of the Hudson Bay Company into the territory for reconnoitering and possession-taking activi ties.^ xn the West, where no rival power had yet chal lenged France's expansion, acts were performed repeatedly. In the summer of 1679 Daniel Greysolon, Sieur Du Lhut, formally claimed the Upper Mississippi Country.^ Three years later Rene Robert Cavalier, Sieur de la Salle, per formed his famous acts by the Mississippi River and in the Arkansas country by which he claimed all the Mississippi Valley.^ However, the French, apparently following the same pattern as the Spaniards, found it necessary to weave a network of claims by performing acts in the lands lying ^Faillon, Histoire de la Colonie Francaise. Ill, 309-312. ^Parkman, La Salle, p. 257. ^La Salle's Proces-Verbal, March 14, 1682, in Collections of the State Historical Society of Wisconsin. XI, 29-32. La Salle's Proces-Verbal, April 9, 1682, in Collections of the State Historical Society of Wisconsin, XI, 33-35. 115 between the locations where their possessory ceremonies had taken place. Thus not only were acts performed in 1687 by Sieur de La Durantaye at Detroit and by the Marquis de Denonville at Niagara and at the Iroquois village of Totiakton, but also in 1689 by Nicolas Perrot in the Upper Mississippi territory in Canada.^ It was in the year 1687, when French possession- taking activities were reaching unprecedented repetition, that the Franco-British struggle for the Hudson Bay area broke out officially. Hitherto the rival claimants had carried on an undeclared war as the French adventurers, particularly Pierre Le Moyne d'Iberville, determined to annihilate the English posts in the territory which was considered to belong to New France. However, after a most successful French overland expedition which captured Fort Hayes and other English posts, James II, despite his extreme friendship for the French, found it necessary to launch a formal protest and claim to the territory. In 42"Morel de La Durantaye Renouvelle de la Prise de Possession des Terres des Environe de Detroit des Lacs Erie et Huron Faite Precedement Par Cavalier de La Salle," in Margry, Decouvertes et ^Stablissements. V, 31-33. "Prise de Possession de Niagaraparle Marquis de Denonville. 31 Juillet 1687," in Margry, Decouvertes et iStablissements, V, 28-30. "Acte de Prise de Possession du Pays des Iroquois Dits Sonnontouans, Fait au Village de Totiakton le 19 Juillet 1687," in Margry, Decouvertes et Utablissements, V, 26-27. "Perrot1s Minute of Taking Possession, May 8, 1689," in Collections of the State Historical Society of Wisconsin, XI, 35-36. 116 the initial memorial, England first based her claims on Cabot’s voyage; secondly, on the acts performed by Henry Hudson, Thomas Button, and Luke Foxe; and lastly, on the / Q , settlements established. The French replied by denying not only Cabot’s discovery of the continental territory but also the performance of Button and Hudson’s acts; by stating that Champlain took possession of the whole country and made settlements which the British never did; and by referring to treaties, settlements, patents, land pur chases, and the acts performed by Sieur de Roberval, Bourdon, and Couture.^ Although the diplomatic exchange continued at least until 1699, it is not necessary to cite all the correspondence but only to state the final posi tions which these nations maintained in their efforts to ^"Memorial Presented to the French Commissioners as to the King of England's Right to Hudson Bay," as abstracted in Calendar of State Papers, Colonial Series, America and West Indies. 1685-1688 (London: Norfolk Chronicle Company, Ltd., 1899), p. 369, hereinafter cited as Calendar of State Papers. Answer of French Commissioners to Memorial of Hudson Bay Company,” as abstracted in Calendar of State Papers, 1685-1688, pp. 388-389. The French appear to have been correct in denying Cabot's discovery of the continent and Hudson's performance of an act. For Cabot’s discovery see H. P. Biggar, The Precursors of Cartier. For Hudson’s supposed act see J. Franklin Jameson, Narratives of New Netherlands 1609- 1664 (New York: Charles Scribners, 1909), pp. 6-9, 16-28, 36-60; and G. M. Asher, Henry Hudson, the Navigator. The Original Documents in Which His Career is Recorded, Col lected, Partly Translated, Annotated (London: Hakluyt Society, I860), Series I, No. 27, pp. 167-172. 117 justify their claim to the area. England ultimately re jected all French claims because she (England) had taken possession first and because in territorial disputes ”it is better to rely on actual discoveries and on possession taken.France, despite her enumeration of possession- taking in previous correspondence, flatly rejected the validity of acts of sovereignty by insisting on ”a con tinual habitation or a trade at least carried out”; and sought to show the absurdity of such a doctrine by laying claim to Carolina on the basis of previous French acts which antedated England*s colonial ventures in that area. France’s inconsistency of principle as indicated by her rejection of the validity of the Spanish and English acts in Florida and in the Hudson Bay area while her ex plorers were claiming great territories in the West by the performance of both official and unofficial acts of sover eignty, is even further accentuated when the historian recalls the basis of the official French claim in the Ohio Valley and over the Iroquois lands. Against Colonel Dongan's assertion that the Iroquois country belonged to Reply of the English Commissioners to the Memorial of the French Commissioners,” as abstracted in Calendar of State Papers, 1685-1688, p. 405. i x - f i "French Ambassador's Answer to the Memorial of H. M. Commissioners, March 17, 1699, relating to their claim of a Title to Hudson Bay,” as abstracted in Calendar of State Papers, 1621-1698, p. 205. 118 his government, De Tracy argued most cogently for "the rights of the French who had taken possession of it even before the Dutch or the English had set foot at Manatte [Manhattan]gut Tracy proved France's title to the Ohio and Mississippi Valleys by plainly demonstrating the numerous French acts, his proof as well as the acts performed were logically rendered worthless by France’s rejection of the validity of the English acts in the Hudson River Valley. France's rejection of the legal value of possession- taking and England's insistence upon it as the only means of acquiring title to the New World, actually placed both nations in disadvantageous positions. For France, by seek ing to deprive England of title to the Hudson Bay area, actually lost her legal claim to the Ohio Valley. England, on the other hand, by maintaining that her title to northern Canada was the legitimate one, gave implicit recognition to France's claim to the Iroquois territory and the Mississippi Valley. However, as history has definitely proved, the official positions which these two nations took "Memoir Sent by the King to M. De Denonville, Governor-General of New France, Explanatory of the French Possessions in North America, Especially the South Part of Arcadia, from Pantagouet to Kennebeck River; of the Iroquois & Hudson's Bay; Done at Versailles, the 8th March, 1668. Signed by Louis Colbert," in French, Historical Collections of Louisiana and Florida, II, 135-142. 119 during the Hudson Bay Controversy actually had little influence in determining their expansionist program. For England, despite her pious utterances on the legality of acts, completely ignored both Spain's prior acts and claims in Carolina and Guiana and France's in the Ohio country. France, moreover, continued claiming the Ohio and Missis sippi Valleys on the strength of the acts of possession which her missionaries and explorers had performed. Thus, both nations demonstrated an uncanny double standard regarding the value of possession-taking; namely, the first possession-taking of a territory was valid if it was per formed by her representatives; if performed by a rival, it was invalid and could be ignored or denied. As has already been shown, it was France's denial of England's claim to the Hudson Bay that led to undeclared warfare in the area in the final quarter of the seventeenth century. Further more, it would soon become one of the prime causes of the first Anglo-French conflict, King William's War. England's implicit denial of France’s claim to the Ohio Valley, which as late as 1749 had been reclaimed by Celeron de Bien ville’s six acts, would also be one of the leading causes of the French and Indian War of 1763.^® However, the claims and counter claims arising from ^C. B. Galbreath, Expedition of Celeron to the Ohio Country in 1749 (Columbus: F. J. Heer Printing Company, 1921), pp. 17, 26, 37, 39-40, and 50. 120 the various acts which France and England performed led to other conflicts than just the Anglo-French wars. Spain, the first major colonial power in the Americas, was also seriously affected by the English and French policies of recognizing only those acts of sovereignty which benefited them. Nowhere else are the effects of the policies of those two nations more manifest than in the Carolina terri tory which France had previously sought to colonize in 1562-1564 and which England succeeded in doing a century later despite the claims established by the acts of Ponce, Ayllon, Villafane, and Menendez and the Spanish settlements and missions. A striking example of the British policy occurred in the 1660's. Almost at the same time that Downing was establishing Britain's title to New Netherlands on the basis of previous English possession-taking (which was re-enforced by a stronger military force), Charles II was implicitly denying Spain’s title— also based upon previous possession-taking--to Carolina by granting the territory, including northern Florida, to high ranking personages in 1663 and 1665. The result of Charles' grant, which may have ultimately been based either on Cabot's or Aroadas' possession-taking, is well known. The Spaniards, despite their objections to this intrusion into their ter ritory, compromised and signed the Treaty of Madrid of 1670 in which the boundary between Spanish Florida and British 121 Carolina was established, the principle of effective occupation temporarily recognized, and for the first time the claims arising from possessory acts delimited.^ How ever, the treaty was a failure as neither country respected its stipulations but later engaged in warfare which con tinued well into the eighteenth century. Although England's disregard of Spanish claims in present-day Carolina and Georgia led to colonial warfare and Spain's loss of the territory, actually French explora tion and possession-taking, particularly La Salle's, repre sented a greater danger to Spain and the territories which she claimed in what is now the United States of America. La Salle's act of 1682 in which he did take possession in the name of his Majesty . . . of the country of Louisiana and all lands, provinces, countries, peoples, nations, mines, ores, ports, harbors, seas, straits, and roadsteads, and of each of these comprised in the region from the mouth of the river St. Louis called Ohio, Oligihinsipou and Chuka- goua, along the banks of it and of all and each of the rivers which empty into it from the east to the mouth of the Riviere des Palmes from the west, along the river Colbert, called Mississippi* and all rivers which empty into it from the east . . . 49«<Tratado entre las Coronas de Espaha, y de la Gran Bretaha, para Restablecer la Amistad, y Buena Corres ponded ia en America: Ajustado en Madrid a 18 de Julio de 1670," in Joseph Antonio de Abreu y Bertodano, Coleccion de los Tratados de Paz . ♦ . Hechos por los Pueblos, Reyes, v Principes ,~ Reynado de Carlos II, Parte I (Madrid: 1751) , pp. 507-508. 50"La Salle's Proces-Verbal, March 14, 1682," in Collections of the State Historical Society of Wisconsin, XI, 29-32. "La Salle's Proces-Verbal, April 2, 1682," in Collections of the State Historical Society of Wisconsin, XI, 33-35. 122 gave France a formal claim to all the territory of the Mississippi Valley and later brought her into conflict with Spain whose explorers and missionaries had taken possession in Texas, the Gulf coast, and Florida. La Salle's possession-taking was not an empty cere mony despite France's decision that possession-taking acquired no title for the British in Hudson Bay; for in 1685, three years after he performed his acts, La Salle returned on his unfortunate expedition to establish a settlement in Texas, the territory where Spain had effected the most recent act.^l Although the settlement failed miserably, the Spaniards, ignorant of the outcome, immedi ately reacted by sending out Alonso de Leon to locate the French colony and settle the territory. Failing to find any French establishment, Leon took possession and founded a mission, which failed shortly in 1689. La Salle's failure in Texas did not, however, induce France to abandon her claim to the Mississippi Valley and its coastal region on the Gulf of Mexico. French plans were soon made for the establishment of a settlement on the gulf coast near the mouth of the Mississippi River. 51Supra, pp. 75-78. Supra, p. 77. Also see Herbert E. Bolton, The Spanish Borderlands (New Haven: Yale University Press, 1921), pp. 214-217. 123 Learning of the plans, the Spaniards immediately occupied Pensacola, Florida; and the French, who ironically were led by Pierre le Moyne D'Iberville of Hudson Bay fame, explored the gulf coast, took possession of the area some five times, and established the colony of Louisiana at Biloxi S3 in 1699. That a war did not arise from France's intru sion into the area was due only to Spain’s weakness and not to her relinquishment of the validity of her previous acts. There seems to be little doubt that such a French action in the sixteenth century would have immediately been answered by military action. The unexpelled French establishment in Louisiana proved to be extremely detrimental to Spanish interests and territorial claims. Not only was Spain's eastward expan sion curtailed by new French outposts, but her claims to the territory north of Texas were soon questioned by the exploration and possession-taking of Charles Claude Du ( - / Tisne in western Nebraska in 1719. Although Spain had never formally claimed this northern area of the Plains, -^"Historical Journal or Narrative of the Expedition Made by Order of Louis XIV, King of France, under Command of M. D'Iberville, to Explore the Colbert (Mississippi) River and Establish a Colony in Louisiana," in French, Historical Collections of Louisiana and Florida, II, 58-61, 65, and 75. ^"Annals of Louisiana from 1698 to 1722 by M. Penicaut," in French, Historical Collections of Louisiana and Florida, I, 151-153. 124 she regarded the French activity there as detrimental and on occasion, despite her weakness, sent military expedi- 55 tions into the area to Indians under French influence. However, it was not only from Louisiana that French explorations set out, formally claimed new western lands, and eventually cut off the extension of Spanish claims into the north; but it was also from New France, as the famous explorations and possession-takings of Pierre Gaultier de Vafennes de la Verendrye testify. La Verendrye’s party, which reached the Saskatchewan River, performed possession- taking ceremonies in the Mandan Villages of North Dakota (1739) and at Pierre, South Dakota (1743)."^ Although Celeron de Bienville performed repetitive acts in the Ohio Valley in 1749, La Verendrye’s acts were actually the last French acts performed in North America for obtaining title to previously unclaimed land or terra nullius; for within a decade the great Franco-English rivalry, resulting from conflicting claims, would soon explode in open warfare, and France, whose occupation and claims arising from acts of sovereignty were the weakest, would be expelled from the continent. 5^For a brief but excellent summary of the Franco- Spanish rivalry see Herbert Eugene Bolton and Thomas Maitland Marshall, The Colonization of North America, 1492- 1783 (New York: The Macmillan Company, 1948), pp. 295-297. 5^Pierre Gaultier de Varennes de la Verendrye, Journals and Letters, edited by Lawrence Burpee (Toronto: The Champlain Society, 1927), pp. 17, 351-352, and 426-427. CHAPTER V NEW IMPERIALISM AND POSSESSION-TAKING The termination of the French and Indian War brought to an end the first phase of colonial enterprise and possession-taking in the New World. All territorial dis putes that had arisen from acts of sovereignty of the various colonial powers were settled by the provisions of the Treaty of Paris of 1763, and the colonial powers en joyed a momentary period of peace. This temporary peace, however, was soon to be broken as both France and England, particularly the latter, em barked on their second wave of imperialism. This new imperialism, which was disguised by the cloak of scientific study and exploration, would also rely heavily upon the ceremony of possession-taking for both the acquisition of newly discovered lands and even of already claimed terri tories. Thus, the practice of taking possession would once again come to the forefront as rival powers sought to defend their claims or their intrusions by affirming or denying either the performance or the validity of acts of sovereignty. Although the British are generally credited with originating "new imperialism" and the era of scientific exploration, there is no doubt that it was actually 125 126 begun by the French. As early as March 17, 1764 Louis Antoine de Bougainville, while on his voyage of exploration round the world, arrived at the Falklands, took solemn possession, and established a colony of former Acadians on 1 the island of Soledad (East Falkland). Although the Islands had been sighted by various English, Dutch, Spanish, and French navigators they had never been formally claimed by any nation, and were therefore terra nullius. However, Spain considered the territory as belonging to her, and protested to the French government, and was in turn allowed to purchase the enterprise from Bougainville.^ On April 1, 1767 Bougainville turned the colony over to the Spaniards who solemnly took possession. Yet, France was not the only colonial power inter ested in the Falklands. Shortly after Bougainville estab lished his colony, the British Admiralty instructed ^•Louis Antoine de Bougainville, ''Viaje Alrededor del Mundo por la Fragata del Rey La Boudeuse y la Urea L'Etoile por Luis Antonio de Bougainville," in Biblioteca Indiana, p. 695, hereinafter cited as Bougainville, "Viaje." ^Marques de Grimaldi to Julian de Arriaga, San Ildefonso, October 3, 1766, in Manuel Hidalgo Nieto, La Cuestion de las Malvinas: Contribucion al Estudio de las Relaciones Hispano-Inglesas en el Siglo XVIII (Madrid: Instituto Gonzalo Fernandez de Oviedo, 1948), pp. 587-588, hereinafter cited as Hidalgo, La Cuestion de las Malvinas. ^Bougainville, "Viaje," in Biblioteca Indiana, p. 692. Felipe Ruiz Puente to Julian de Arriaga, Malvinas, April 25, 1767, in Hidalgo, La Cuestion de las Malvinas, pp. 590-591. 127 Captain John Byron, the famous poet's grandfather, to pro ceed to the Falklands (which the Admiralty asserted to have been formally annexed by Cowley's act of 1686) and to survey the islands.^ Arriving there on January 22, 1765 Byron took possession some ten months after Bougainville.** The following year the British established a fort at Port Egmont.^ Although the French suspected the existence of a British establishment, no effort appears to have been made to locate or eradicate the fortification.^ Spain, however, did not continue to pursue France's policy of ignoring intruding explorations and settlements Secrete Orders to John Byron, Captain of His Majesty's Ship Dolphin, June 17, 1764,” MS, Public Record Office, London, Admiralty 2, 1332, hereinafter cited as P.R.O. ^William Robinson, "A Journal of the Proceedings of his Majesty's Ship Dolphin Commencing April 21st, 1764 and Ending May the 6th, 1765," MS, P.R.O., Admiralty 51, 4535. "An Account of a World Voyage round the World . . . By the Honourable Commodore Byron . . .," in John Hawkesworth, ed., An Account of the Voyages Undertaken by Order of His Present Majesty for Making Discoveries in the Southern Hemisphere and Successively Performed by Commodore Byron, Captain Wallis, Captain Carteret and Captain Cook in the Dolphin, the Swallow, and the Endeavor (London: W. Strahan and T. Cadell, 1773), I, 50-51, hereinafter cited as Hawkesworth, An Account of the Voyages Undertaken. ^Samuel Johnson, "Reflexiones sobre la ultima nego- ciacion de Las Yslas de Falkland," [undated translation in eighteenth century script], MS, Archive Historico Nacional, Madrid, Estado, Leg. 4248, hereinafter cited as A.H.N. Hidalgo, La Cuestion de las Malvinas, p. 5. 7Felipe Ruiz Puente to Julian de Arriaga, Malvinas, February 10, 1768, in Hidalgo, La Cuestion de las Malvinas, pp. 604-605. 128 in the Patagonia and Falkland areas. In 1768, about a year after Spain purchased the French settlement, Captain Byron’s journal was published in French. This publication, whose French editor credited Byron with discovering Pata gonia, immediately aroused the Spanish officials--who considered the Falklands as part of Patagonia--into proving that Pedro Sarmiento not only discovered the Patagonian Q coast but also took formal possession of it. Furthermore, the Spaniards sought to lay their proof before the English people themselves as the Spanish government seriously con sidered publishing an English version in addition to the Spanish edition of Sarmiento’s journal.^ However, the pro ject was dropped, and relations between Great Britain and Spain remained pleasant despite Charles Ill’s extreme Q y °"Sobre la publicacion del Viage, y Derrotero de Pedro Sarmiento de Gamboa, y sus descubrimientos," 1768, MS, A.H.N., Estado, Leg. 2860. Pedro Sarmiento de Gamboa, Viage al Estrecho de Magallanes por el Capitan Pedro Sarmiento de Gamboa en los anos de 1579 v 1580 v Noticias de la Expedicion quedespues Hizo para Poblarla (Madrid: Iraprenta Real, 1768), pp. vii-ix. Jorge Juan to Marques de Grimaldi, Madrid, January 6, 1768, MS, A.H.N., Estado. Leg. 2860. ^"Cuenta del Coste que ha tenido la Ynpresion del Libro^Intitulado, Viage al Estrecho de Magallanes, por el Capitan Pedro Sarmiento de Gamboa, del que se han tirado mil Doscientos y cinquenta exemplares en papel de Marquilla Corta y doscientos cinquenta en Marquilla prolongada," June 14, 1768, MS, A.H.N., Estado. Leg. 2860. ’ ’Sobre la publicacion del Viage, y Derrotero de Pedro Sarmiento de Gamboa, y sus descubrimientos," 1768, MS, A.H.N., Estado. Leg. 2860. Prince Masseranto to Marques de Grimaldi, London, July 29, 1768, in A.H.N., Estado. Leg. 2860. 129 distrust of British designs. Although the two great colonial powers remained on friendly terms, the Spaniards in South America were appre hensive, and sent out exploring expeditions in order to ascertain whether a British establishment actually existed in the Falklands.Upon discovery of the British estab lishment late in 1769, the Spanish requested the withdrawal of the English. The English leader in the Islands rejected the Spanish request, stating that the Islands belonged to Great Britain by right of prior discovery as well as by 1 1 settlement. Finally, on June 4, 1770 a small Spanish fleet, commanded by Juan Madariaga, arrived and demanded 1 o that the British withdraw. When the English, commanded by George Farmer, refused, the Spaniards opened fire, ■^"Relacion del moderno establecimiento de los Yngleses del Puerto Egmono en las Yslas Malvinas situado a los 57 grados 22 minutos de Latitud Meridional descubierto por el Gobemador de Mar en el mes de Diziembre proximo pasado con la goleta de S. M. nombrada S. Phelipe,M 1770 [modem copy of the manuscript], in A.H.N., Estado. Leg. 4847. 11 Anthony Hunt to Phelipe Ruiz Puente, Falkland Isles, December 10, 1769, in Hidalgo, La Cuestion de las Malvinas, pp. 616-617. Johnson, "Reflexiones sobre la Ultima negociacion de Las Yslas de Falkland," MS, A.H.N., Estado, Leg. 4248. ^■^Juan Ignacio Madariaga to William Maltor, Port Egmont, June 7, 1770, in A.H.N., Estado, Leg. 4847. Juan Ignacio Madariaga to George Farmer, Port Egmont, June 7, 1770, A.H.N., Estado, Leg. 4847. 130 overcame the British, and took over the settlement. J The Spanish seizure of Port Egmont almost led to war with Great Britain.^ Although both nations accepted the practice of first possession-taking (prior discovery) as the means of acquiring terra nullius, the dispute arose because both based their rights to the territory upon first discovery and possession-taking. As the events recorded above indicate, Spain appeared to have the better of the two claims. However, neither Spain nor England appears to have been the country which originally obtained the first legitimate claim to the territory. Spain’s original claim, based on Sarmiento1s discovery and possession-taking, seems to have been invalid because Sarmiento took possession of the Straits of Magellan and not of the Falklands. England’s original claim, as mentioned in Byron’s instruc tions, was also invalid since there are no documents to substantiate the statement that Cowley ever took possession of the Islands. On the other hand, France definitely had ■^George Farmer to Juan Ignacio Madariaga, Port Egmont, June 8, 1770, A.H.N., Estado, Leg. 4847. George Farmer to Juan Ignacio Madariaga, Port Egmont, June 9, 1770, A.H.N., Estado, Leg. 4847. Hidalgo, La Cuestion de las Malvinas, pp. 73-74. •^Conde de Aranda to Carlos III, Madrid, Septem ber 30, 1770, A.H.N.,, Estado. Leg. 2858, N? 2. Prince Masseranto to Marques cte Grimaldi, London, January 23, 1771, A.H.N., Estado, Leg. 4248. Conde de Aranda to Charles III, Madrid, December 16, 1770, A.H.N., Estado. Leg. 2858, N? 2. 131 a more solid claim since Bougainville was the first to claim the Islands formally for his monarch.^ The fact that the French right was transferred to the Spanish actually bestowed on Spain the title to the territory. But despite Spain's stronger claim, the British, who considered themselves insulted, regained the settlement at Port Egmont. ^ Spain, whose humiliation was complete, was actually forced to meet the British demands when she was unable to count upon France's aid in case of war.^ Thus, once again the British had seized upon the ceremony of possession-taking as an instrument of expansion, regardless whether their ceremony was invalidated by previous acts or settlements. England's reliance on the non-existent act of Cowley and on Byron's ceremony (which was invalidated by Bougainville’s previous one) for establishing a colonial enterprise in an already settled territory, was only 15Even Spain conjectured that her own claim was weak since it never claimed to have taken possession or settled the area. "Sobre el descubrimiento, y establecimiento de los Frances en una Ysla que suponen combeniente para Escala en la Navegacion a las Indias Orientales," Madrid, August 2, 1764, MS, A.H.N., Estado, Leg. 2858, N9 2. •^Declaracion del Embajador de Espana, London, January 22, 1771, MS, A.H.N., Estado, Leg. 2858, N? 2. •^Prince Masserano to the Marques de Grimaldi, London, January 23, 1771, A.H.N., Estado, Leg. 4248. Prince Masserano to the Marques de Grimaldi, London, Febru ary 19, 1771, A.H.N., Estado, Leg. 4248. "Respuesta de los Yngleses [a la Declaracion del Embajador de Espana]," London, January 22, 1771, A.H.N., Estado, Leg. 2858, N? 2. 132 matched and even surpassed by the final action in 1774 when they abandoned the fortification at Port Egmont. Upon leaving the settlement, they erected the following marker of possession: Be it known to all nations, That Falkland's Island with this fort, the storehouses, wharfs, harbours, bays, and creeks there unto belonging, are the sole right and property of His most Sacred Majesty George the Third, King of Great Britain, France, and Ireland, Defender of the Faith &c. In witness whereof this plate is set up, and his Britannic Majesty's colours left flying as a mark of possession by S. W. Clayton, commanding officer at the Falkland's Island, A. D. 1774.18 It was particularly on the basis of this act and sign of possession that Great Britain returned some sixty years later to retake the territory which had been settled and formally claimed by the United Provinces of Buenos Aires in the second decade of the nineteenth century. Although Great Britain did not utilize force to discourage or dislodge the Argentine colony, it sharply protested against its establishment which was considered a violation of British sovereignty and rights. According to the l^Bemard Penrose, An Account of the Last Expedition to Port Egmont, in the Falkland Islands, in the Year 1772. Together with the Transactions of the Company of the Penguin Shallop during their Stay There (London: J.J. Johnson, 1775), pp. 76-77. 133 British Consul at Buenos Aires, these rights founded upon original discovery and sub sequent occupation of said Islands, acquired additional sanction from the restoration of His Catholic Majesty of the British settlement in the year 1771. . . . The withdrawal of His Majesty's forces from these Islands in the year 1774 cannot be considered as in validating His Majesty's just Rights; that measure took place in pursuance of a system of retrenchment adopted at that time by His Britanick Majesty's Government.-- But the marks and signals of possession and property were left upon the Islands: When the Governor took his departure, the British Flag remained flying, and all those formalities were observed which indicated the rights of ownership, as well as an intention to resume the occupation of the territory at a more convenient season.19 But if Great Britain was reluctant to oust the Argentine settlers forcibly from the Falklands, the United States, whose fishing interests ran counter to those of the natives, was more than eager to eradicate Argentine settle ment and authority on the Islands.^0 When the Platine authorities seized the United States ships, Breakwater. Harriet, and Superior and imprisoned most of the crews of the last two ships for violating fishing regulations in 1831, the United States government retaliated by sending ■^Woodbine Parish to the Argentine Foreign Office, Buenos Aires, November 29, 1829, in William R. Manning, Diplomatic Correspondence of the United States: Inter- American Affairs 1831-1860 (Washington, D.C.: Carnegie Endowment for International Peace, 1932), I, 119, herein after cited as Manning, Diplomatic Correspondence: Inter- American Affairs. ^Martin van Buren to John M. Forbes, Washington, February 10, 1831, in Manning, Diplomatic Correspondence: Inter-American Affairs. I, 3-4. 134 the U.S.S. Lexington which attacked and dispersed most of the Argentine settlement in the East Falkland Island.^ But of more importance than the American demonstration of force was the State Department's denial that the United Provinces of La Plata possessed any rights of sovereignty over the Islands.^2 Such denial, besides ignoring the value of the act of sovereignty for acquiring territorial rights (Argentina's claim was ultimately based upon Bougainville's act and establishment), was an open invita tion for the British to re-take the Islands.^ Great Britain was quick to take advantage of the situation. By December of 1832, His Majesty's sloop Clio reached Port Egmont to reassert British sovereignty by a repetitive act of possession. On January 3, 1833 the Clio arrived at Port Louis, the former French, Spanish, and Argentine settlement, and formal possession of the Island 21 Edward Livingston to Francis Baylies, Washington, January 26, 1832, in Manning, Diplomatic Correspondence: Inter-American Affairs. I, 4-12. ^Francis Baylies to Manuel Vicente de Maza, Buenos Aires, July 10, 1832, in Manning, Diplomatic Correspond ence: Inter-American Affairs. I, 111-126. 23por the reasons of the American Attitude in the Falkland Isles affair see Samuel Flagg Bemis, The Latin American Policy of the United States: An Historical Inter pretation (New York: Harcourt, Brace and Company. 1943). pp. 99-100. Also see Richard W. Van Alstyne, American Diplomacy in Action (2nd edition; Palo Alto, California: Stanford University Press, 1946), p. 36. 135 c \ f was again taken. Although the British have remained in de facto possession of the Falklands since then, Argentina has never relinquished her claims. Argentina first protested against British occupation of the Falkland Islands in 1834, and her communication on this subject was somewhat brusquely rejected by Lord Palmerston. There were other diplomatic representa tions in the period from 1841 to 1849, and then a long interval of silence ensued, during which no further action was taken by the Governments of the time. A second series of protests began in 1884, and since 1908 these have increased in frequency and force. The Falkland Islands, under the name Islas Malvinas, are now treated as Argentine territory for all purposes except actual administration, and the school-children are taught that they are an integral part of the mother country. The population of the islands is included in the national census returns, and Falkland Islanders visiting Argentina are treated as Argentine citizens, liable to be called upon for military service and required to carry Argentine passport.25 Besides these measures to which Argentina has resorted in order to preserve her legal claim to the Islands, there has been added the semi-comical one of re fusing to recognize British stamps either commemorating the British occupation of the Islands, or indicating by words or maps that the Falklands are British-owned. The Argentine measures, despite England's dependence 2^Great Britain, Foreign Office, Handbook No. 138, Falkland Islands, Kerguelen (London: 1920), p. 14. ^Christie, The Antarctic Problem: An Historical and Political Study (London: George Allen and Unwin, Ltd., 1951), p. 265. 26Ibid., p. 270. 136 upon that nation's trade, have not proved effective. Although England is willing to submit the Antarctic dis pute with Argentina to the jurisdiction of the Inter national Court of Justice at The Hague, nowhere has this author found any evidence of a similar proposal concerning the settlement of the Falkland Islands dispute.^ In view of England's unwillingness to submit her claims to arbitra tion, one cannot help but share Professor Julius Goebel's feeling--after he had studied this dispute most thoroughly— "that there is a certain futility in interposing the lean ascetic visage of law in a situation which first and last 28 is merely a question of power." Yet, England's stand on the Falkland Islands, which Goebel so sternly condemns, is in reality no different from the previous position which the British maintained in their territorial disputes with Holland and France in the seventeenth and eighteenth centuries; for England once again relied upon the ceremony of possession-taking as a pretext for acquiring an already occupied territory. How ever, in this controversy England alone should not bear the sole responsibility for usurping Argentine rights; for ^Reginald Leeper to Juan A. Bramuglia, Buenos Aires, December 17, 1947, in Christie, The Antarctic Problem, pp. 305-308. 28Goebel, The Struggle for the Falkland Islands, p. 468. 137 she indeed was encouraged and abetted by the United States, which would later rely upon the ceremony of possession- taking as the requisite legal formality for acquiring the uninhabited Pacific Islands.^9 From what occurred in the Falkland Islands dispute, it must not be thought that England began pursuing a con sistent policy of acquiring territory by possession-taking during the eighteenth and nineteenth centuries. As the facts indicate in this dispute, England did not hesitate to ignore her rivals' previous acts or even actual occupation of a territory which she coveted as being strategic.^ Yet, with regard to new lands which were not strategically valuable, the British were quite willing to ignore their own acts of possession and thereby allow the territories to be annexed by other colonial powers. A striking example of this British practice occurred just two years after Byron made his historic act at Port Egmont. Samuel Wallis, who like Byron had received secret instructions to take posses sion of terra nullius, set out on a voyage of exploration 29Infra, pp. 271-280. ■^The recognition of the strategic position of the Falkland Islands was made by George Anson during his voyage of exploration. At his recommendation in 1740 a British expedition was planned, but later cancelled because of the Spanish protests. See Johnson, "Reflexiones sobre la tfltima negociacion de Las Yslas de Falkland," MS, A.H.N., Estado, Leg. 4248. in which he was accompanied by Philip Carteret on the 31 Swallow. Arriving at Tahiti on June 26, 1767, Wallis 32 took the first formal possession of the island. Almost two and a half months later, Carteret reached the Island of New Ireland and also performed the first act of sovereignty 33 upon it. Yet, England, despite the performance of these first acts, never officially confirmed her ownership to the islands by annexation, but allowed Tahiti to be annexed peacefully by France in 1343 and New Ireland by Germany in 1884, when the representatives of these two nations took Q t possession of the territories. 31 "Secrete Order to Captain Samuel Wallis, Commander of HMS Dolphin, August 16, 1766," MS, P.R.O., Admiralty 2, 1332. 32 "William Clarke, A Journal of the Proceedings of His Majesty’s Ship Dolphin, Samuel Wallis (Esquire) Commander. Commencing June 19th, 1766, and Ending August the 23rd, 1767," MS, P.R.0., Admiralty 51, 4538. "An Account of a Voyage round the World in the Years MDCCLXVI, MDCCLXVII, and MDCCLXVIII, by Samuel Wallis, Esq., Commander of His Majesty's Ship the Dolphin," in Hawkesworth, An Account of the Voyages Undertaken, I, 446. O O "An Account of a Voyage round the World, in the Years MDCCLXVI, MDCCLXVII, MDCCLXVIII, and MDCCLXIX, by Philip Carteret, Esquire, Commander of His Majesty's Sloop the Swallow," in Hawkesworth, An Account of Voyages Under taken, I, 592. ^R. W. Robson, The Pacific Islands Handbook, 1944 (New York: The Macmillan Company, 1945), pp. 95-97 and 223-224. J. D. Rodgers, Australasia, Volume VI of A His torical Geography of the British Dominions, ed. C. Lucas (2nd edition; Oxford: Clarendon Press, 1925), pp. 300-301, hereinafter cited as Rodgers, Australasia. 139 England*s official disinterestedness in annexing Tahiti is also of particular interest to the student of acts of sovereignty because of the concern which not only her navigators but also those of France and Spain initially showed in obtaining ownership of the island. The year following Wallis* discovery and possession-taking, Bougain ville arrived on the friendly island and took formal 3 5 possession of it on behalf of France. Despite the English and French acts as well as a number of exploratory visits by English, French, and Spanish navigators, Tahiti remained virtually abandoned until 1775 when the Spaniards, obeying royal and viceregal orders, formally claimed the OfL island and attempted to establish a Franciscan mission. ° Although the Spanish effort failed, it possessed a greater historical significance than is generally imagined. First, the Spanish act presents the initial example of Spain’s failure to recognize the rights derived from the perform ance of previous acts of sovereignty by a rival power. •^Bougainville, "Viaje” in Biblioteca Indiana, pp. 755-756. "Diario de la Navegacion que de Orden de S. M. comunicada por el Excelentfsimo Don Manuel Amat . . . Virrey, Govemador y Capitan General de los Reinos de Peru y Chile, hizo a la Ysla de Amat y sus Adyacentes, el Capitan de Fragata Don Domingo de Boenechea, Comandante de Santa Marfa Magdalena (alias Aquila) y el Paquebot Jupiter . . . Dado a Luz por el Theniente de Navfo Don Thomas Gayangos destinado en la propia Fragata," 1775, MS, A.G.I., Lima, Leg. 1035. Comey, The Quest and Occupation of Tahiti, II, 152-153. Thus, Spain, for the first time, is seen in the role of demanding that her acts be acknowledged while she denies any validity to the legitimately performed act of the English. Secondly, the Spanish ceremony and the coloniza tion attempt are worthy of the historian*s attention be cause the English government, despite the efforts of her navigators, completely overlooked the Iberian intrusion on the island where England obviously possessed the soundest claims. The fact that Captain James Cook returned to Tahiti in 1777 and retook possession of the territory did 07 not move the English crown to occupy the island. ' Thus it happened that while England was so acridly defending her rather untenable legal right of ownership to the Falklands, she was defaulting a far sounder claim to Tahiti by allow ing the Spanish intrusion to go unprotested. England's abandonment of Tahiti and New Ireland to France and Germany did not, however, initiate any set British precedent regarding the acquisition or rejection of South Pacific territory claimed by English navigators. 37”James Burney, Journal of a Voyage in the Dis covery, Charles Clerke, Commander, in Company with the Resolution, Captain James Cook. 10 Feb. 1776 to 27 April 1778," MS, P.R.O., Admiralty 51, 4528. James Cook and James King, A Voyage to the Pacific Ocean. Performed under the Direction" of Captains Cook. Clerke, and Gore in his' Majesty's Ships the Resolution and Discovery in the Years 1776. 1777, 1778. 1779, and 1780 (London: G. Nicol and T. Cadell, 1784), II, 12, hereinafter cited as Cook and King, Voyage to the Pacific Ocean. 141 The very next year after Wallis and Carteret had formally claimed Tahiti and New Ireland, Captain Cook set out on his first voyage of exploration after receiving secret orders to take possession of previously undiscovered 38 lands. Arriving at Queen Charlotte’s Sound, New Zealand, Cook took formal possession on January 31, 1770 despite the previous discovery and naming of the islands by the 39 Dutch navigator Abel Tasman in 1642. Several months later, the famous English navigator arrived in New South Wales, Australia, and proceeded to claim the territory, notwithstanding Tasman's discovery and act of sovereignty on the island of Tasmania in 1642.^ Cook, who was well aware of the Dutchman's discoveries, was not, however, trying to encroach upon the Dutch navigator's claim; a fact proved both from his journal and from the location of his 38 ' ’Secrete Orders to Lieutenant James Cook, Com mander of H M Bark the Endeavor in Galleons Reach, March 27, 1769," MS, P.R.O., Admiralty 2, 1332. ■ ^ J a r a e s Cook, Captain Cook's Journal during His First Voyage Round the World. Made in H. M. Bark "Endeavor, edited by W. J. L. Wharton (London:Elliot Stock, 1893), p. 189, hereinafter cited as Cook, Journal of First Voyage. 40 Abel Tasman, "Voyage du Captaine Abel Tasman, pour la decouverte des Pays baignes par la Mer de Sud," in Jean Barrow, editor, Abrege Chronolo^ique ou Histoire Des Decouvertes Faites par les differentes parties du Monde, Extrait des Relations les plus exactes & des Voyageurs les plus veridiques (Paris: Saillant, 1766), VI, 217-218, hereinafter cited as Tasman, "Voyage" in Barrow, Agrege Chronologique. Cook, Journal of First Voyage, p. 312. 142 act on the mainland of Australia which Tasman did not claim. ^ The British government, which had quietly ignored French and Spanish intrusions at Tahiti, demonstrated interest in Australia whose favorable conditions had been extolled by Cook. As early as 1783 the government con sidered the possibility of making good its claim to the territory by settling American Loyalists there. However, it was finally decided that a penal colony should be estab lished. Thus, in the beginning of 1788 the British claims to Australia were perfected as the prison colony was at last established at Port Jackson. In the case of New Zealand, where Cook's act of possession may have given England an even sounder claim than in Australia, the government not only ignored but also opposed perfecting the British title to the country. It was not until 1840 that England, fearing French enterprise, determined to annex the territory and proclaim British sovereignty over the islands which had already been un officially colonized by the British.^ ^Cook, Journal of First Voyage, p. 312. ^James A. Williamson, A Short History of British Expansion: The Modern Empire and Commonwealth (2nd edition; London: Macmillan and Company, LtdT, 1930), pp. 107-109. Jean Ingram Brookes, International Rivalry in the Pacific Islands. 1800-1875 (Berkeley: University of California Pres s, 1941), pp. 98-101, hereinafter cited as Brookes, International Rivalry. 143 The inconsistency which England had officially shown in acquiring the territories of New Zealand and Australia, was again demonstrated after the third voyage of Cook. On his third trip the famous navigator performed three acts of sovereignty: one at Tahiti and two on the Pacific Northwest Coast of North America. As has already been pointed out, the British government ignored Cook's act at Tahiti. How ever, concerning the other two acts, performed at Kayak Island and Cook's River, the government was not hesitant to rely upon them in order to secure quasi-sovereign rights in / o the Pacific Northwest Territory. When the history of the Pacific Northwest is con sidered, both Cook’s acts and the later British official action of securing quasi-sovereign rights to that territory appear to have been an encroachment upon the prior rights which Spain had acquired by first taking possession and subsequent settlement. Although Spain's activity in the northwest has been characterized by a noted scholar as 1 1 consisting of a single petulant attempt to frustrate a British venture at Nootka Sound on the Pacific side of Vancouver Island," documentary evidence appears to prove that Spanish activity in this territory not only equaled ^Cook and King, Voyage to the Pacific Ocean. II, 350 and 397. 144 and antedated that of the British, but that Spanish claims were also sounder.^ Spanish interest in the Pacific Northwest appears to have developed as a result of Russian activities in the Aleutian Islands. Fearing Russian expansion into the Northwest, the Spaniards, led by Viceroy Bucareli, reacted by dispatching Juan Perez in 1774 to sail as far north as 60 degrees north latitude in order to explore the coasts AC and take possession of them for his Catholic Majesty. Perez, however, was unable to fulfill the viceroy1s instructions of taking possession or of reaching the 60th parallel. Yet, this first non-Russian explorer of the Pacific Northwest sailed along and explored the coast as far north as 55 degrees. Furthermore, he appears to have entered San Lorenzo de Nutka (Nootlca Sound), viewed the land from the ship, had contact with the natives who stole two silver spoons, but because of the winds was unable to 46 land and formally claim the territory. ^Van Alstyne, American Diplomacy in Action, pp. 558-559. ^Henry Raup Wagner, The Cartography of the North west Coast of America to the Year 1800 (Berkeley: Univer sity of California Press, 1937), I, 172-173, hereinafter cited as Wagner, Cartography of the Northwest. 46itQiario que yo Fray Juan Crespi Misionero . . . formo de la fragata de su Magestad nombrada Santiago, alias la Nueva Galicia mandada por su capitan y alferez de fragata Don Juan Perez . . .,1 1 in Publications of the 145 However, Perez’ failure to take possession was soon overcome as a new expedition was prepared to explore as far north as 65 degrees north latitude and to take possession of the intervening territory by a number of acts.^ This time the viceroy selected Bruno de Hezeta to command the expedition to what they called the northern coast of California. Hezeta, who was captain of the Santiago, apparently reached the 48th parallel while his subordinate, Juan Francisco de la Bodega y Cuadra, com manding the Sonora, appears to have come within two degrees of the 60th parallel. As far as exploration and possession-taking is concerned, the expedition was an outstanding success. Hezeta discovered the mouth of the Columbia River and formally claimed the northern portion of present-day California and Oregon by performing one act of sovereignty at Trinidad Bay on June 11, 1775 and another at Rada de Bucareli (Point Grenville) on July 7, Historical Society of Southern California, Vol. II, 1891, pp.^ 161, 167, and 168. "Copia de Carta escrita en San Bias, por Don Estevan Jose Martinez en fecha 5 de Diciembre de 88 y Apuntamientos de Don Bernardo Yriarte, 1798," MS, A.H.N., Estado, Leg. 4248, Apartado 11. H. R. Wagner believes that the expedition actually reached Nootka if Martinez, who was very accurate, took the observation. Wagner, Cartography of the Northwest, I, 172-173. “ ^ A n t o n i o Bucareli y Ursua to Julian Arriaga, November 26, 1774, A.G.I., Estado, Leg. 20, Doc. 11. 146 A o 1775. Bodega, who had continued his northern voyage on the Sonora, found no evidence of Russian settlements on the continent and took possession of Puerto de los Remedios (Kruzof Island) on August 18, 1775 and of Puerto de AQ Bucareli (Prince of Wales Island) on August 24, 1775. Unfortunately for both Spain’s interests and Bodega’s reputation his explorations and acts were kept secret. After Bodega’s official possession-taking voyage of 1775, Spanish exploratory expeditions into the area were curtailed for a few years because of the jurisdictional problems arising from the creation of the Coramandancy General of the Internal Provinces, the lack of ships, and the general poverty of Spain. It was during this lull in Spanish activity in the Northwest that Captain James Cook ^Escritura de posesion tomada por Bruno Hezeta en el Puerto de la Santisima Trinidad, June 11, 1775, MS,^ A.G.I., Estado, Leg. 38, Doc. 6. Escritura de posesion tomada por Bruno Hezeta en la Rada de Bucareli, June 14, 1775, MS, A.G.I., Estado, Leg. 38, Doc. 7. For the location of the acts see the following: Coleccion de Diarios v Relaciones, II, 99; Wagner, Carto graphy of the Northwest, I, 176. ^Escritura de posesion tomada por Juan Francisco Bodega y Cuadra en el Puerto de Nuestra Senora de los Remedios, August 18, 1775, MS, A.G.I., Estado, Leg. 38, Doc. 9. Escritura de posesion tomada por Francisco Antonio de Maurelle en el Puerto de Bucareli, August 24, 1775, MS, A.G.I., Estado, Leg. 38, Doc. 8. For location of the acts see Coleccion de Diarios y Relaciones, II, 100. Wagner locates Bodega’s first act at Sea Lion Bay just south of Salisbury Sound; but he fails to place the second act. See Cartography of the Northwest, I, 176-177. 147 sailed into the area as he began his search for the passage into the Atlantic. His instructions were to fall in with the coast of New Albion in 45°, that is, beyond the supposed limit of Cabrillo and Vizcaino, and after refitting, to follow the coast northward, but not to begin his careful search for a passage until he reached the latitude of 65°. Every precaution must be taken to avoid encroach ment on the Spanish Dominions, or troubles with any foreigners; but we also read in his instructions, ’You are also, with the consent of the natives, to take possession in the name of the king of Great Britain, of convenient situations in such countries as you may dis cover, that have not already been discovered or visited by any other European power; and to distribute among the inhabitants such things as will remain as traces as testimonies of your having been there.' It would appear notwithstanding the allusion to Drake in the use of the name New Albion, that it was not England's intention to found any territorial claims on the free booter's discoveries, but to claim by virtue of Cook's discovery all lands beyond the unknown limit of recent Spanish explorations.50 Thus, the British government not only continued to recog nize the ceremony of possession-taking of terra nullius for acquiring ownership, but even accepted Spain's title to the California territory as based upon the known explorations and possession-taking of Juan Rodriguez Cabrillo and Gaspar de Portola ^Hubert Howe Bancroft, History of the Northwest Coast (San Francisco: The History Publishing Company, 188(T), I, 168, hereinafter cited as Bancroft, History of the Northwest. -^Cabrillo's expedition, according to Wagner, reached the northern coast as far as 41° north latitude. The most northern location where the expedition took solemn possession appears to have been at 34° 05'. Henry Raup Wagner, "Spanish Voyages to the Northwest Coast in 148 Captain Cook proved quite faithful to his secret instructions. Coming from Hawaii, he sighted the Pacific Northwest coast at about 44° 33' north latitude. Respect ing the Spanish claims, Cook did not land until he reached King George's Sound--the San Lorenzo de Nootka which Perez had discovered, but of which he had not taken possession. Although Cook found the famous silver spoons that Perez lost, nevertheless, the illustrious Englishman concluded 5 7 that the Spaniards had never been there. Yet, Cook did not take possession at Nootka, but waited until he reached Cook's River which lies on 61 degrees 30 minutes north latitude.Thus, Cook actually established British claims to territory lying about four degrees north of where Bodega performed his most northern act (Kruzof Island) in 1775. Beyond the respect which Cook showed to the terri tories formally claimed by Spain, it must be noted that at Kodiak Island the English captain buried a bottle con taining a paper and British coins as he named the island, the Sixteenth Century. Chapter IV: The Voyage of Juan Rodriguez Cabrillo,” Quarterly of the California Historical Society, VIII (March, 1928), 47, 53, 74, and 77. Junipero Serra to Joseph Galvez, Monterrey, July 8, 1770, A.G.I., Audiencia de Guadalajara, Leg. 417. 52 Cook and King, Voyage to the Pacific Ocean, II, 258-266, 282-288, and 332. Bancroft, History of the Northwest, I, 168-169. 53 Cook and King, Voyage to the Pacific Ocean, II, 397. 149 Kaye; but he did not formally hoist the Union Jack and proclaim England's ownership. Why Cook avoided hoisting the flag has not been definitely determined although this action has aroused the curiosity of historians of the caliber of Hubert Howe Bancroft.^5 Perhaps, an answer to this question can be found in the fact that at that time it was known that the Russians had discovered and occupied many of the northern islands while there was no definite evidence that they had penetrated to the continent and occupied it. Thus, the buried bottle could actually serve as a token of possession if the situation were feasible, or it could just be a souvenir of the British captain's land ing if the Russians should claim the island and launch a formal protest. Whatever may have been Cook* s reason for performing the ceremony of possession-taking only at Alaska, it should be noted that this act did not have any immediate reper cussions. Neither the Spaniards nor the Russians forwarded any protests, nor did the English government make any use of the act for disputing the ownership of the territory for more than a decade. However, the Spaniards, whose previous exploratory expeditions had been curtailed for various 54Ibid., II, 350. ^Hubert Howe Bancroft, History of Alaska (San Francisco: A. F. Bancroft and Company, 1886), p. 204. 150 reasons which already have been stated, dispatched Ignacio Arteaga and Francisco de la Bodega y Cuadra in 1779 to retake possession of the area. Arteaga, who commanded the expedition, took possession of Puerto de Santiago Apostol (Port Etches in Hinchbrook Island) on August 2, 1779 and of Ensenada de Nuestra Senora de la Regia (near the vicinity of Cape Elizabeth) on August 2, 1779.^ How ever, Arteaga^ results, like those of Perez and Hezeta1s, were not published but kept secret from the rest of the world.^ There appears to be no reason to doubt, as the result of Spain1s policy of secrecy, that many Englishmen at first believed that they were the original discoverers 56"Diario de la Navegacion que . . . espera hacer el Theniente de Navio Don Ygnacio de Arteaga . . . desde el Puerto de San Bias . . . Hasta los 70 . . . de California," 1779, MS, A.G.I., Estado, Leg. 38, Doc. 13. Escritura de posesion tomada del Puerto de Santiago Apostol, July 22, 1779, MS, A.G.I., Estado, Leg. 38, Doc. 13. Escritura de posesion tomada de la Ensenada de Nuestra Senora de la Regia, August 2, 1779, MS, A.G.I., Estado, Leg. 38, Doc. 12. For location of Acts see Henry Raup Wagner, "Creation of Rights of Sovereignty through Symbolic Acts," Pacific Historical Review, VII (December, 1938), 312-313. •^William R. Manning, The Nootka Sound Controversy (Washington, D.C.: Government Printing Office, 1905), pp. 308-309. According to Bancroft the results of the Spanish expeditions were not published until the English translation of Maurelle*s Journal of a Voyage of 1775 (London: Daines Barrington, 1780) appeared in 1781. See Bancroft, History of the Northwest, I, 159 and 166. 151 S8 of the northwest portion of North America. Therefore, it is not strange that British merchant vessels would soon appear on the Northwest Coast. The first ship to arrive after Cook's voyage of 1778 and Arteaga's expedition of 1779 was a brig commanded by James Hanna who began the fur trade between China and the American coast in 1785. The venture having proved successful, Hanna returned the following year when he again traded at Nootka. However, competition in obtaining furs had developed by that time, and other important fur-trading expeditions, namely those by Captains Meares and Tipping, John Strange, and Captains Portlock and Dixon, made their way to the coast in the following years of 1786 and 1787. Besides these more im portant expeditions there were other voyages made to the Northwest Coast during these early years. Yet, only once was possession taken. James Charles Stuart Strange, as the result of his act in 1786 on Scott's Bay in Vancouver Island, became the first British subject to claim the “^Cook was undoubtedly sincere in his belief that no one had discovered Prince William Sound before him. How ever, this author finds it difficult to accept Cook’s reasoning concerning his supposed discovery of Nootka Sound. See Cook and King, Voyage to the Pacific Ocean, II, 282-288, 332, 380, and 396. Later English navigators should have been aware of the Spanish discoveries since Maurelle's Journal of a Voyage of 1774 appeared in 1781, and by 1784 the results of j this expedition were included in the footnotes of Cook's Voyage to the Pacific Ocean, II, 344. 152 territory of present-day western Canada for His Britannic Majesty. 3 However., Strange's act was ignored by both diplomats and historians because he was merely a private citizen, while those of later official navigators, such as George Vancouver, have received undue recognition. A year after Strange performed his act, the King George's Sound Company, which as early as 1785 proposed to claim the territory and to erect factories in the Pacific Northwest, again sent Portlock and Dixon to procure more fin furs. Although Portlock and Dixon failed to establish a British settlement in the Northwest, their voyages are important because Dixon possessed knowledge as early as 1786 that the territory had previously been explored by the Spaniards in 1775.^1 Therefore, by the year 1787 English ^9james Charles Strange, James Strange's Journal and Narrative of the Commercial Expedition from Bombay to the North-West Coast of America ('Madras: Government Press. 1929), pp. 28-29. Wagner,Cartography of the Northwest, I, 206. ^"Instructions to Capt. Nathaniel Portlock, Com mander of the Ship King George. London, Sept. 3, 1785," in Argonaut, A Continuation of An Authentic Statement of All the Facts Relative to Nootka Sound, Its Discoveries, His tory. Settlement, Commerce, and the Public Advantages to be Derived from It (London: 1790). p p . 20-26. Bancroft, History of the Northwest, I, 179. ^George Dixon, A Voyage Round the World, But more Particularly to the North-West Coast of America in 1785. 1786, 1787 and 1788 in the King George and Queen Charlotte. Captains Portlock and Dixon (London: George Goulding, 1789), p. 75, hereinafter cited as Dixon, A Voyage. 153 navigators, such as Dixon and Portlock, were aware that the Spaniards had discovered, explored, and probably taken fi 9 formal possession of the area as early as 1775. This knowledge of Spain1s prior discovery and possession-taking did not, however, deter the British from taking possession of the Pacific Northwest. For in the same year that Portlock and Dixon made their second voyage, Captains Colnett and Duncan, who were also representing the King George*s Sound Company, arrived in the area for the purpose of fur trading. However, Colnett and Duncan, un like the previous traders of the company, took possession of Queen Charlotte's, Princess Royal, and various other islands along the coast although they failed to establish a settlement.^3 Shortly afterwards in 1788, John Meares 62conceming Portlock's knowledge of Maurelle's voyage, such a fact can be assumed because he accompanied Dixon on both expeditions as captain of the King George. Meares, the most prominent English figure in the Nootka Sound Controversy, also knew about Maurelle's voyage. However, it cannot be determined when he obtained his information. See John Meares, Voyages Made in the Years 1788 and 1789, From China to the North West Coast of America (London: 1790V. p p . li-lii, hereinafter cited as Meares, Voyages. ^Argonaut, An Authentic Statement of All the Facts Relative to Nootka Sound: Its Discovery, History. Settle ment. Trade, and the Probable Advantages to be Derived from It; in an Address to the King (London: j7 B. Debrett, 1790), pp. 7-9. Neither Wagner in Cartography of the Northwest, nor F. W. Howay in The Journal of Captain James Colnett mention any act of possession by Colnett or Duncan. Bancroft in his History of the Northwest, pp. 183-184, states that "Duncan also discovered and named for his vessels, the Princess Royal Isles," but he does not refer to any taking of possession. 154 and William Douglas, British subjects, arrived at Nootka in ships flying the Portuguese standard and carrying papers of that nation.^ Although Meares claimed to have taken possession of the Strait of Juan de Fuca, historians of the Northwest, such as Robert Greenhow, H. H. Bancroft, and F. H. Howay, reject his claims.65 However, there is no doubt that Meares constructed a temporary house for his men who built a new vessel, the North-West America.66 Although Meares later claimed that he obtained title to the ground and hoisted the British colors, contemporary witnesses, such as the English Captain Duncan, disclaim his assertions and state that the Portuguese flag was displayed.6? However, it was not the voyages of the British ^'Haswell's Log of a Voyage Round the World on the Ship Columbia Rediviva and the Sloop Washington.M Oregon Historical Quarterly. XXIX (June, 1928), 185-186. F. H. Howay, The Dixon-Meares Controversy (Toronto: The Ryerson Press” [1929]), pp. 5-6. ^Meares, Voyages. p. 173. Greenhow, The History of Oregon and California, pp. 175-178. F. W. Howay, "Early Navigation on the Straits of Fuca,” The Quarterly of the Oregon Historical Society. XII (March^ 1911), 13. 66John Meares, The Memorial of John Meares to the House of Commons Respecting the Capture of the Vessels in Nootka Sound, ed. Nellie B. Pipes (Portland, Oregon: Metropolitan Press, 1933), pp. 2-3, hereinafter cited as Meares, Memorial. Meares, Voyages, pp. 115-116. 6?Meares, Memorial, pp. 2-3. Howay, The Dixon- Meares Controversy, p. 6. George Dixon, "Further Remarks on the Voyages of John Meares, Esq.," in Howay, The Dixon- Meares Controversy, p. 116. 155 traders during the years 1785-1788, nor the activities of the Americans, John Kendrick and Robert Gray, that prompted the Spanish government to send another possession-taking /IQ expedition to the Northwest. As in the previous expedi tions it was the fear of Russian expansion that led to this voyage under the command of Estevan Jose Martinez. Judging from the letters of Gonzalo Lopez de Haro, who was second in command, Martinez proved to be an incompetent, ego tistical leader who mistreated his men, failed to follow his instructions, and even falsified his log book.^ Despite Martinez* shortcomings, which were to prove fatal to Spanish interests in the Pacific Northwest in 1789, he accomplished the two main purposes of his mission: ascer taining the Russian activities in the extreme Northwest, fLQ It is interesting to note that although Kendrick and Gray did not take formal possession in their voyage to the Pacific, they curiously left medals at the various places which had not been permanently occupied by European nations. Thus, these medals appear to have been used as a quasi-sign of possession. John Henry Cox, Observations and Remarks Made during a Voyage to the Islands of Teneriffel Amsterdam, Maria*s Islands Near Van Pieman's Land, Otaheite, Sandwich Islands; Owhvhee, The Fox Islands on the North West Coast of America, Tinian, and From There to Canton, in the Brig Mercury (London: T. Cadell, 1791), pp. 53-54. ^ G o n z a l o Lopez de Haro to Manuel Antonio Florez, San Bias, October 28, 1778, A.H.N., Estado, Leg. 4898. Manuel Antonio Florez to Antonio Valdes, Mexico, Novem ber 26, 1788, A.H.N., Estado. Leg. 4898. 156 and formally retaking possession of the area.^ But even of greater importance than the six acts of possession that Martinez and Lopez de Haro performed at Unalaska and at the Isla de Montagu (Montague Island ?). Puerto de Flores (Islas Vertes ?), and Puerto de Trinidad (Trinity Islands ?) were the reports that they brought b a c k .71 They understood that the Russians, though they had no establishment at Nootka, intended to found one there; they learned something also of the operations of English traders in northern waters; and their reports on these matters, as we shall see, caused Martinez and [Lopez de] Haro to be sent in 1789 on a new expedi tion. 72 Plans were immediately formulated for a new expedi tion to the Northwest. Both the instructions and the viceroy's correspondence reveal that the Spaniards, fearing Russian and English designs, were unwilling to concede 7^Manuel Antonio Florez to Antonio Valdes, Decem ber 23, 1788, A.H.N., Estado. Leg. 4289. f,Diario de la expedicion de 1788 hecha por el Paquebot de S. M. San Carlos el Filipino bajo el mando de Don Gonzalo de Haro, 1788," MS, A.H.N., Estado, Leg. 4289. Manuel Antonio Florez to Antonio Valdes, November 24, 1788, A.^H.N., Estado. Leg. 4289. "Seis Escrituras de Posesion tomada por el primer Piloto, y Alferez de Navio graduado Don Estevan Jose Martinez, Comandante de la Fragata Princesa, en los nuevos descubrimientos hechos en el ano de 1788," MSS, A.H.N., Estado. Leg. 4289. 71"Seis Escrituras de Posesion tomada por el^Primer Piloto, y Alferez de Navio graduado Don Estevan Jose Martinez, Comandante de la Fragata Princesa, en los nuevos descubrimientos hechos en el ano de 1788," MSS, A.H.N., Estado, Leg. 4289. Wagner, Cartography of the Northwest. I, 203-204. 7^Bancroft, History of the Northwest, I, 185. Also see Manning, The Nootka Sound Controversy, pp. 300-303. 157 either nation any territorial rights to the present-day Pacific Northwest.^ The viceroy*s reason for denying Russia any rights was based upon both Bering*s and Chirikov* s failure to explore and take possession of the territory which they had discovered, but which had been formally claimed by the Spanish expeditions of 1774, 1775, and 1779. Concerning the British pretensions at Nootka, the Viceroy rejected any claim which might be based upon Cook's arrival in 1778 because Juan Perez had arrived in the area in 1774. Furthermore, the viceroy instructed Martinez that he should demonstrate to any Englishman, whom he might encounter at Nootka, that the Spaniards had a prior claim to that of Cook's, a fact which was proved by the spoons (lost by Perez in 1774) which Cook found in 1778. However, of greater importance than the reason for Spanish titles to the area were Martinez* instructions to establish a permanent settlement at Nootka so that Spain's inchoate title might be perfected.^ Martinez* instructions concerning the establishment of a settlement at Nootka are important because they appear ^Manuel Antonio Florez to Antonio Valdez, Mexico, December 23, 1788, A.H.N., Estado, Leg. 4289. "Co^ia de La Ynstruccion a Don Estevan Martinez para la ocupacion de Nootka," [Mexico, 1789], MS, A.H.N., Estado, Leg. 4258, hereinafter cited as "Ynstruccion a Estevan Martinez." ^"Ynstruccion a Estevan Martinez." 158 to reflect a change in the viceregal mind in the acquisi tion of terra nullius. Whereas in all other cases Spain had always maintained, explicitly or implicitly, that formal possession-taking of itself was sufficient for obtaining complete title to uninhabited lands, Martinez' instructions seem to indicate that Spanish title to Nootka was being perfected by the founding of the settlement. That such indeed may be the case is evident from the words of the viceroy concerning the erection of the token estab lishment: "That my preoccupation concerning the construc tion of that humble establishment is directed essentially to show our Sovereign's proprietorship to the Port of Nootka and to the shores of its coast."7- * Estevan Martinez set out for Nootka soon after re ceiving his instructions. Arriving at Nootka in May 1789, he auspiciously began his mission by seizing and later releasing the British owned Iphigenia which flew the Portu guese flag and carried Portuguese papers.7^ Martinez then proceeded with the founding of the establishment which 75Ibid. 7^"Diario de la Navegacion que Yo el Alferez de Navio de la Real Armada Don Estevan Josef Martinez, boy a executar al Puerto de San Lorenzo de Nuca . . . en el Presente ano de 1789," MS, Huntington Library, San Marino, HM 529, ff. 76, 86, 93, and 98, hereinafter cited as 'TJiario de Estevan Josef Martinez." Meares, Memorial. pp. 6-10. "Extract of the Journal of the Iphigenia," in Meares, Memorial, pp. 62-75. 159 consisted of a Fort at Hog's Island and three houses: a workshop, a bakery, and a lodging house. ^ On June 24 he took formal possession of Nootka by using the same formulary (which relied heavily upon Alexander VI5 s dona tion) that Juan Perez, Bruno Hezeta, and Ignacio Arteaga had previously used in 1774, 1775, and 1779.^ However, Martinez' actions until now, though irritating to the English traders, were not of such intensity as to arouse an international dispute. Such a dispute, however, was soon in the making. On June 8, the Spaniard seized the British schooner, North-West America, which had been constructed at Nootka during Meares' voyage to the coast in 1788; and on July 3, he also took over the Argonaut, which was carrying British papers, and imprisoned its captain, James Colnett.^ Finally, on July 14, Martinez seized the Princess Royal which also flew the Union Jack and carried British papers.**0 ^"Diario de Estevan Josef Martinez," f. 95. Manning, The Nootka Sound Controversy, p. 326. Bancroft, History of the Northwest, I, 216. 78"Diario de Estevan Josef Martinez," ff. 120-121. For the proces-verbal of the act see F. H. Howay, "The Spanish Settlement at Nootka," The Washington Historical Quarterly. VIII (July, 1917), 164-167. ^^"Diario de Estevan Josef Martinez," ff. 105-106 and 126-140. Meares, Memorial. pp. 12-14. 80"Diario de Estevan Josef Martinez," ff. 155-158. Meares, Memorial, p. 15. 160 The Spanish commander’s actions before and during the seizure of the four vessels give ample proof of his belief--which was also that of the viceroy and the Spanish court— that Spain possessed complete title to Nootka as the result of original discovery and first possession-taking. Besides demanding explanations from the captains of the ships (American, British, and Portuguese), he ordered, at his discretion, that their papers be presented to him for Q I inspection. Only one of the commanders, Captain James Colnett of the Argonaut, proved extremely recalcitrant and made every effort to ignore and circumvent the Spaniards’ OO demand. Moreover, he went much further as he singularly challenged even Spain’s title to the region in the inter view that he had with Martinez. Instead of offering an excuse for sailing to Nootka, Colnett, according to Martinez, stated that he came as governor to this port, to establish a factory for collecting sea-otter skins, in the name of the company to which his ship belonged. He also said that he was entrusted to prevent other nations from taking part in this fur-trade, both in this port and the other harbours of the coast, and moreover, that he brought orders from his sovereign, the King of England, 81"Diario de Estevan Josef Martinez,” ff. 75-76, 85-86, 97-98, 105-106, 114-115, and 132-135. ®2”Diario de Estevan Josef Martinez,” ff. 132-137. 161 to take possession of the port of Nootka and its coast, to fortify it and make an establishment. Martinez, as would be expected from his instructions and from Spain's prior claims to the Northwest, opposed the Englishman's plans as the entry on his journal reveals. Colnet then asked me if there was anything or anybody to prevent him from carrying out the designs which he had declared to me. I answered him that I would prevent him from so doing, since I had taken possession prior to him under, of, and in the name of my sovereign Don Carlos III. I informed him that it was for this purpose that the port was fortified, and that various ships under my orders were here. When he received my reply, he answered me saying that this port and its coasts belonged to England, as discoveries made by Captain Cook, whom he himself had accompanied since boyhood. I then convinced him by showing that he had been mistaken, since I had anticipated Cook by three years and eight months in the discovery of this port, to which I had given the name of San Lorenzo. The Spanish ensign later learned that he had failed either to convince the English captain that Spain had dis covered the territory first or that his nation's title was valid.^ However, what apparently forced the Spaniard to 83'»a Translation of the Diary of Estevan Jose Martinez from July 2 Till July 14, 1789, Covering the Period . . .," in James Colnett, The Journal of Captain James Colnett Aboard the Argonaut~~from April 26, 1789 to Nov. 3, 1791, edited by F. N. Howay (Toronto: The Champlain Society, 1940), pp. 308-309, hereinafter cited as "A Translation of the Diary of Esteban Jose Martinez." Also see "Diario de Estevan Josef Martinez," ff. 127-128. B. Duffin to John Meares, Nootka Sound, July 12, 1789, in Meares, Memorial, pp. 76-82. 84ma Translation of the Diary of Esteban Jose Martinez," pp. 308-309. "Diario de Estevan Martinez," ff. 129-130. ^"Diario de Estevan Josef Martinez," ff. 132-137. 162 apprehend Colnett was not only the latter* s refusal to present his papers but particularly his insulting and ✓ Rfi threatening manner in dealing with Martinez.00 Up until the time that Colnett called him a "Goddam Spaniard,1’ Martinez had maintained a calm, prudent manner; but once Colnett uttered these words the Spanish Captain took decisive, if unwise action, in apprehending the English captain. After apprehending Colnett, Martinez seized the Argonaut. Imprudently, he took formal possession of the ship on the following day of July 4 just after the Spaniards and Americans had celebrated the Fourth of July by dining, drinking toasts to their respective nations, and firing salutes.8^ A few days after this celebration, Martinez dispatched the British ship and its crew to San Bias and the events at Nootka came temporarily to an end. The scene of the Nootka Sound dispute then shifted to Europe where the courts of England and Spain became involved in what might have become a controversy of vast international significance as the words of Professor Manning indicate. 86Ibid.. ff. 136-137. 87"Diario de Estevan Josef Martinez,” f. 140. In order to realize the importance that these two celebrations (the taking possession of the Argonaut and the Fourth of July) had, see Argonaut, An Authentic Statement, pp. 15-16. 163 It [the controversy] tested the triple alliance of 1788 between England, Prussia, and the Netherlands. It also afforded the occasion of overthrowing the Bourbon family compact of 1761. It marked the end of Spain's new brief period of national greatness, which had resulted from the wise reign of Charles III. It was also the beginning of the collapse of Spain's colonial empire. Duro, one of the leading Spanish historians of the present [1900's], says that it inaugurated a period of degradation disgraceful to Spanish history, and began a series of pictures which cause anyone to bliish who contemplates them with love for the fatherland. The diplomatic dispute began when the Spanish court first notified the English ambassador of the incident at Nootka on February 10, 1790. The court presented a firm stand on what it considered a serious violation of Spanish territory acquired by first p o s s e s s i o n - t a k i n g . Although later Spanish correspondence to the English court sought to strengthen Spain's title to the territory by advancing supplementary reasons for claim, the Spaniards never changed the fundamental basis of their claim; discovery and first possession-taking.90 However, the importance that ^Manning, The Nootka Sound Controversy, p. 285. ^^Marquis del Campo to the Duke of Leeds, Manchester Square, February 10, 1790, in Manning, The Nootka Sound Controversy, pp. 367-368. Also see Great Britain, Foreign Office, A Narrative of the Negotiations Occasioned by the Dispute between England and Spain in the Year 1790 [London: 17901, pp. 9-11, hereinafter cited as A Narrative of the Negotiations. 90por Spain's claim to sovereignty based pre dominantly upon possession-taking see the following: Marquis del Campo to the Duke of Leeds, Manchester Square, February 10, 1790, in Manning, The Nootka Sound Contro versy , pp. 367-368. "Memorial of Count Florida Blanca, Aranjuez, 13th June 1790," in Official Papers Relative to 164 the Spanish court placed on possession-taking can more fully be appreciated by realizing the efforts it went through in order to substantiate its claim by archival research and documentation. No lesser person than the early great Spanish historian, editor, and researcher, Juan Bautista Munoz, drew up the chronological extract of Spanish possession-taking of the Northwest for the Iberian litigants.^ If Spain officially placed essential importance upon possession-taking in the Nootka dispute, England, as the situation warranted, did not. Although the British were uncertain of what had occurred at Nootka until Meares arrived and presented his Memorial in England, they were not in the least hesitant to reject Spain's claim to exclu sive sovereignty to the Northwest coast.^ Furthermore, even at this time prior to Meares' inflammatory statement, the Dispute between the Courts of Great Britain and Spain, on the Subject of the Ships Captured at Nootka . . . (London: J. Debrett, 1790), ppT'31-66,"hereinafter cited as Official Papers. For the Spanish claims based on possession-taking and strong supplementary reasons see: Marquis del Campo to the Duke of Leeds [London, April 20, 1790], in Manning, The Nootka Sound Controversy, pp. 374-375. "Memorial of the Catholic King, June 4, 1790," in Official Papers, pp. 46- 51. 91"Apuntainientos sobre los actos de posesion en el mar del Sur por la Corona de Espana, i descubrimientos de sus vasallos en las costas de noroeste de America, Junio de 1790," MS, A.H.N., Estado, Leg. 4291. 9^a Narrative of the Negotiations, pp. 8 and 14-15. 165 English pride was aroused by what England considered an insult to Great Britain, and the government was already pressing for satisfaction.^ With the presentation of Meares* Memorial to the House of Commons, Britain lost any desire it might have had to consider the abstract question of sovereignty and became engrossed by the insult that the 94 Crown had supposedly suffered. Such a stand not only a fortiori rejected any validity of acts of sovereignty but brought both nations to the brink of war. Fortunately for England, Spain's ally, France, was in the midst of the Revolution, and was hesitant in joining her Iberian sister. Therefore, Spain, despite her rearmament program, was forced to capitulate gradually to the more and more strin gent British demands. Britain from her very first demands rejected Spain's claim to exclusive sovereignty over the Northwest, and most strongly asserted that "any territorial claim was declared inadmissible, unless founded on actual occupation and established possession, prior to any other European nation.Thus, Great Britain, as the situation in ^^Ibid., pp. 22-23. According to Manning, Meares returned to England shortly after April 20, 1790. The Nootka Sound Controversy, pp. 375-376. ^^Manning, The Nootka Sound Controversy, pp. 376 and 380-385. 9^A Narrative of the Negotiations, p. 80. 166 question required, cast aside any claims to complete sover eignty which Spain had obtained from the exploratory voyages of Perez and Bodega who preceded Cook to the North west. Regardless of the judgments which may be made of the British position, it must be noticed that the British were not too eager to test its validity either by discussing with the Spaniards the "questions of abstract right" or by submitting the dispute over sovereignty to the arbitration of any of European sovereigns as the Spaniards often sug gested.^ Whatever may have been Britain *s reason for not wishing to discuss the question of sovereignty or to submit it to neutral arbitration, is not known. However, it must be noted that her new position regarding effective occupa tion to obtain sovereignty was historically reversed from the principles on which she acquired both New Netherlands and Hudson Bay.9^ Furthermore, this new policy was also in opposition to the very practices of her traders. For less than a year before the incident at Nootka, these instruc tions were given to Robert Funter, captain of the North- West America: 96Ibid.. p. 78. 9^Supra, pp. 108-110 and 115-119. 167 You are on no account to hoist any colours until such time as your employers give you orders for this pur pose, except on taking possession of any new-discovered land; you will then do it, with the usual formality, for the Crown of Great B ritain.98 Moreover, Meares not only requested that Hunter take formal possession of newly discovered lands, but he himself, in the Memorial that he presented, also claims to have taken possession of Nootka Sound and the Straits of Juan de Fuca.^ Although it is not certain nor proved that the Union Jack was actually hoisted on the spot at Nootka that was rented or bought by Meares, or that the propounded act at the strait was executed, it was on this purchase and act at Nootka that Britain established her rights to protect her navigators and trade in the Northwest.^0 It would seem, therefore, that the new position taken by England regarding the acquisition of terra nullius ^"Extract of a Letter from Mr. Mears to Mr. Robert Funter, Second Officer of the Felice, Commanding the America; Dated Friendly Cove, Nootka Sound, 10th September, 1789,” in Meares, Memorial, p. 23. 99Meares, Memorial, pp. 2-3. Meares, Voyages, p. 173. lOOconceming t*ie hoisting and flying of the Union Jack on the temporary establishment see: Howay, The Dixon- Meares Controversy, p. 6. Dixon, "Further Remarks on the Voyages of John Meares, Esq.," in Howay, The Dixon-Meares Controversy, pp. 115-116. For Britain’s claim to partial sovereignty on Meares* purported act see: A Narrative of the Negotiations, pp. 27, 43, and 80. Manning, The Nootka Sound Controversy, pp. 290-291. 168 should have logically presented a dilemma to British officials and jurists. For if England denied Spain's claim which was based on possession-taking, she should have also rejected Meares'; if she really considered effective occupation as the source of obtaining ownership of land uninhabited by Europeans, then she should have given some recognition to the fact that Martinez actually established effective, though token, occupation of Nootka. The dilemma, if it was noticed by the participants of the dispute, was actually evaded by the Declaration and Counter-Declaration of July 24, 1790 and by the final Convention which settled the dispute so satisfactorily for England. By the Declaration and Counter-Declaration Spain agreed to make reparations and restitution for the ships and material seized at Nootka; Great Britain agreed that the signing of instruments did not preclude "the rights His Majesty [the king of Spain] may claim to any establishment which his subjects may have formed, or may desire to form in the future, at the said Bay of Nootka."Conse quently, possession-taking had acquired for Spain the right of establishing settlements but not securing complete Declaration signed by Count Floridablanca, Madrid, July 24, 1790, in Manning, The Nootka Controversy, p. 400. Counter-Declaration signed by Alleyne Fitzherbert, July 24, 1790, in Manning, The Nootka Sound Controversy, p. 406. 169 control over the territory; the British, on the other hand, by their acts of sovereignty and temporary settlement had implicitly obtained the right to trade, commerce, and of making settlements without getting complete sovereign rights. This sharing of sovereignty which is implicitly delineated in the Declarations is more evident in the articles of the Convention.By Article III both nations may trade and make settlements in places not already occupied, thus protecting the existing Spanish settlements in Alta California. By Article V the Northwest Coast was explicitly opened to joint occupation by both nations and any settlements, either before or after the Controversy, did not secure perfect ownership of the territory. Evidently, such stipulations, despite the previous British demands that title could only be obtained by effec tive occupation, demonstrate that England recognized that possession did secure some ownership^ of terra nullius, but not by any means perfect title. Thus it cannot be said as Convencion Entre El Rev Nuestro Senor y El Rev De La Gran Bretana, Transiguiendo Varios Puntos Sobre Pesca. Navegacion v Comercio En El Oceano Pacifico v Los Mares del Sur, Firmada En San Lorenzo El Real a 28 de Octubre de 1790, Cuvas Ratificaciones Se Cangearon En El Mismo Real Sitio a 22 de Noviembre Siguiente (Madrid: Imprenta Real, [1790J). 1 1 Convention between His Britannic Majesty and the King of Spain, signed at the Escurial the 28th of October, 1790," in Travers Twiss, The Oregon Territory, Its History and Discovery (New York: D. Appleton and Company, 1846), pp. 86-89. 170 two eminent scholars, William Ray Manning and Richard Van Alstyne, have said, that England merely put into effect its ancient doctrine that effective occupation was the only 1 0 3 means of acquiring title to uncivilized lands. For England gained power to trade and to establish settlements, but could not obtain sovereignty over the area. In reality, Britain, as in the case of its state church, was able to achieve another one of those incomprehensible com promises which have proved so materially beneficial to its people. Regardless of the compromise that was established by the Convention of 1790, both Spain and England continued to act as if the Northwest territory were still obtainable by formal possession-taking. The first Spanish expedition to the Northwest Coast after the encounter between Martinez and the English traders actually began before the Contro versy erupted in Europe. Therefore, the acts which Salvador Fidalgo performed in June and July of 1790 at Bahia de Cordova (Orca Bay), Ensenada de Menendez (Sheen or Simpson’s Bay), Puerto Grabina (location undetermined), and Puerto de Revillagigedo (Cape Elizabeth) and those which Manuel Quimper made in the latter half of the same iO^Richard W. Van Alstyne, "International Rivalries in the Pacific Northwest," Oregon Historical Quarterly, XLVI (March, 1938), 121-122. Manning, The Nootka Sound Controversy, pp. 384-385. 171 year at Conde de Revillagigedo (Sooke Bay), Rada de Valdes y Bazan (Royal Roads), Bahia de Quimper (New Dungeness), and Nunez Gaona (Neah Bay) were not attempts to establish a claim after the signing of the Convention.However, almost a year after the Eliza-Fidalgo-Quimper expedition, Don Alejandro Malaspina, who was on his voyage **around the world,1 * took formal possession in the vicinity of Mulgrave 1 0 5 Sound, Alaska, on June 20, 1791. The following year, Jacinto Caamano took possession twice; on July 22, he claimed the Queen Charlotte Group; and on August 1, Nepean Sound Area.^®^ Needless to state, neither Malaspina*s nor Caamano*s acts could confer any right to the Spanish claimants. However, the Spaniards were not the only ones per forming an empty ceremony in the Northwest. The British also did their share. George Vancouver, who was chosen as ^^Escrituras de posesion tomada ^or Salvador Fidalgo, MSS, Archivo General de la Nacion, Mexico, Historia, Vol. 68. Escrituras de posesion tomada por Manuel Quimper, MSS, Archivo General de la Nacion, Mexico, Historia. Vol. 68. For location of the acts see Wagner, Cartography of the Northwest, X, 220-222. ^■^Lorenzo Sanfeliu Ortiz, 62 Meses a Bordo. La Expedicion de Malaspina segun el Diario del Teniente de Navio Don Antonio de Tovar Arredondo. 2° Comahdahte de la "Atrevida** 1789-1794 (Madrid: BibTioteca de Camarote de la Revista General de Marina, 1943), p. 149. ^^Jacinto Caamano, The Journal of Don Jacinto Caamano. ed. by Henry R. Wagner and W. A. Newcombe, tr. by Harold Grenfell (Vancouver: British Columbia Historical Society, 1938), pp. 220-275. 172 the British Commissioner to carry out the repossession of Meares’ lands and non-existent house, set out on his voyage round the world in 1790. On November 29, 1791, Lieutenant William Broughton, commanding the Chatham, took formal possession of Chatham Island in the South Pacific.Once the expedition arrived in the Northwest, Captain Vancouver landed about noon with some of the Officers on the South Point of the small Bay Possession Sound, Everet Harbor where he took possession with the usual forms in his Majesty’s name and nam'd it New Georgia and hoisting the English Colours on the spot each Vessel proclaimed it aloud with a Royal Salute in honor of the Day. •'■0° This act of possession, like previous acts of similar nature by the Spaniards at a half dozen points within the strait, of course, had no possible force under the Nootka convention; but the men got an extra allowance of grog, and no harm was done.i&9 Six months later, Broughton must have also treated his crew to another extra allowance since he took formal possession of the Columbia River as he had "reason to believe that the subjects of no other civilized nation or state had ever entered this river."HO 107 George Vancouver, A Voyage of Discovery to the North Pacific Ocean, and Round the World . . . Performed in 1790, 1791, 1792, 1793, 1794, and 1795 in the Discovery Sloop of War, and Armed Tender Chatham (London: G. G. and J. Robinson and J. Edwards, 1798), I, 86, hereinafter cited as Vancouver, A Voyage of Discovery. ^®C. F. Newcombe, ed., Menzie’s Journal of Van couver’s Voyage. April to October. 1792 (Victoria. B.C.: Archives British Columbia, 1923), p. 45. lO^Bancroft, History of the Northwest, I, 277. ■^^Vancouver, A Voyage of Discovery, II, 66. 173 Vancouver's reason for taking possession of the river, despite his knowledge of the Nootka Convention of 1790, cannot be ascertained. However, the very fact that he and Bodega y Cuadra (as British and Spanish Coramis- sioners at Nootka) failed to agree upon the meaning of the very first article of the treaty and decided to resubmit the question to their respective governments, may have impelled him to continue taking possession of the terri tory. However, neither these later English and Spanish acts, nor the Spanish settlements at Santa Cruz de Nootka and at Nunez Gaona played any role whatsoever in the final settlement of the Nootka Sound Controversy in 1794. The final settlement at Nootka, which was signed by the Baron of St. Helens and the Duque of Alcudia, most stringently followed the spirit of the Convention of 1790 insofar as the impossibility of either party to acquire sovereignty over the Port of Nootka. By the Declaration and Counter-Declaration of January 13, 1794 the Spaniards were to restore the former British buildings and lands, and the British were to take solemn possession of them; but after this ceremony, both nations were to abandon the port. A copy of the Declaration and Counter-Declaration is found at the Archive of the Indies at Seville. It reads as follows: DECLARATION111 174 I _______________ in the name and by order of His Catholic Majesty, by this document, restore to ____________ _______________ the buildings and territorial districts located on the Northwest coast of the continent of North America, or on the adjacent islands of this continent, from which [buildings and districts] the subjects of His Britan nic Majesty were dispossessed on about the month of April of 1789 by a Spanish official. In certification of this I have signed the present declaration and set upon it the seal of my arms. Made at Nootka on ___________ of 17__. COUNTER-DECLARATION I _______________ in the name and by order of His Britannic Majesty, by this document, declare that the buildings and territorial districts located on the North west coast of the continent of North America, or on the adjacent islands of this continent from which [buildings and districts] the subjects of His Britannic Majesty were dispossessed on about the month of April of 1789 have been restored to me by ____________ . Which restoration I declare to be complete and satisfactory. In certification of this I have signed the present counter-declaration and set upon it the seal of my arms. Made at Nootka on ______________ of 179_. Thereupon the British official shall hoist the British flag over the restored territory as a sign of possession, and after these formalities the officials of both crowns shall respectively withdraw their people from the said Port of Nootka. Madrid June 13, 1794 The Duke of Alcudia Senor Don Juan de la Bodega y Quadra or another official which the Viceroy of New Spain may appoint in his absence. 1-Declaracion y Contra Declaracion de desposesion de Nootka, 1794, MS, A.G.I., Estado, Leg. 39. 175 The new settlement proved simple to carry out. On March 28, 1795 Jose Manuel de Alava proclaimed the declara tion of dispossession while Lieutenant Thomas Pearce enunci ated the counter-declaration of possession and hoisted the Union Jack.However, since neither party actually occupied the port, the abandonment of the disputed terri tory was easily accomplished by retiring the parties of the two commissioners. In consequence of this last British and Spanish activity at Nootka, the famous controversy came to a peace ful end. The results, insofar as the validity of first possession-taking is concerned, clearly show that Britain emerged with another interpretation; namely, that a first performed act of sovereignty procured some sovereign rights for her rivals; but not, by any means, rights that pre cluded Britain’s demand to trade and commerce as well as to settle jointly in the area. However, besides this new interpretation, other interesting historical events re sulted insofar as Spain is concerned. For the first time since Spain began her conquest of the New World, a new secular manner of taking possession was suggested. Instead of erecting a cross or holding a religious ceremony, Don Alejandro Malaspina recommended the more universally ■^■^jose Manuel de Alava to the Marques de Brand- forte, San Bias, April 23, 1795, A.H.N., Estado, Leg. 4290. 176 accepted form of determining the exact location, burying a bottle with coins and a paper citing the location, and 1 1 3 purchasing the territories from the natives. Thus, Spain was beginning to become interested in other forms of possession-taking which had so differently evolved from the almost universal religious ceremony of the sixteenth cen tury. Unfortunately, Spain would never again be able to utilize the newer form; for the acts on the Pacific North west Coast were to be the last performed by her navigators upon terra nullius. 1 1 3 Alejandro Malaspina to the Conde de Revillagi- gedo, Acapulco, December 14, 1799, A.H.N., Estado, Leg. 4288. CHAPTER VI THE CEREMONY OF POSSESSION-TAKING Throughout the first three hundred years of European colonization in the New World the colonizing powers relied almost exclusively upon possession-taking as a means of establishing their rights of ownership to terra nullius. In addition to the incidence of possession-taking and the disputes resulting from these acts, the ceremony itself merits historical attention. Thus far we have established an Hispanic pattern, but not a complete picture of the ceremonial which varied little during the sixteenth, seven teenth, eighteenth, and nineteenth centuries when the possessory ceremonies of the other European colonizing powers were evolving into simpler and more efficient pro cedures. A composite picture of the various types of acts is of value in understanding the evolutionary process of possession-taking. The period of these centuries brought about, albeit gradually, a more standardized procedure or uniform international ceremonial. Since possession-taking began with the Portuguese, it is natural that the Lusitanian acts of sovereignty be considered first. The earliest act attributed to the Portuguese navigators--but which this writer has not been 177 178 able to verify by contemporary documentation--is the alleged ceremony of possession that Gonzalez Zarco per formed at Madeira about the year 1420. What causes the historian to doubt that Gonzalez actually did perform such an act is the fact that "he took possession of the island in the names of King John the first of Portugal and his illustrious son, Henry Duke of Viseo."^ Such a ceremony is not consonant with other early Portuguese acts. For Denis Fernandes, who is credited by Antonio Galvano with dis covering Cape Verde, simply erected a wooden cross in 1446.^ Other early Portuguese seemed to have followed the same procedure of erecting wooden crosses or carving out Q similar inscriptions on trees. It was not until the voyage of Diogo Cao to the Congo in 1482-1484 that the Portuguese utilized the famous padrao (stone pillar) with its surmounted cross and the King’s inscription.^ ■^Clarke, The Progress of Maritime Discovery, p. 174. n Galvano, The Discoveries of the World from their First Original unto the Year of Our Lord 1555. p. 71. ^Duarte Pacheco Pereira, Esmeraldo De Situ Orbis. translated and edited by George H. T. Kimble (London: Hakluyt Society, 1937), Series II, No. 79, p. 42. Edgar Prestage, The Portuguese Pioneers (London: A. and C. Black, Ltd., 1933), p. 206. ^Ibid. The four padroes set up by Diogo C5o on his voyages have been found apparently on their original loca tion. See footnote in Pereira, Esmeraldo De Situ Orbis, p. 142. 179 Although there is documentary evidence existing about the placing of padroes as a sign of possession--both Bartholomeu Diaz and Vasco da Gama used them in their African acts--there is no indication that the king, John XI, who ordered the use of these stone pillars, directed the discoverers to issue any oral proclamation or religious ceremony. However, the royal order did not deter the later Portuguese navigators from introducing different cere monies. Thus, voyagers like Pedro Alvares Cabral and Miguel Corte Real, who accidentally landed on South America and North America in 1500 and 1511 respectively, took possession in different manner. Thus Alvares Cabral: after spending some days there, taking on water and waiting for suitable weather before departing, he wished to give a name to the Province he had so recently discovered; so he ordered a Cross to be raised on the highest branch of a tree, whither it was lifted with great solemnity, and many benedictions by the Priests whom he had brought in his company, and the name of Santa Cruz was given to the land [Brazil]; for the Holy Mother Church was celebrating the feast of the Holy Cross that very day (it being the third of M a y ) . 5 Corte Real, if we are to accept the investigations of Professor Edmund Burke Delabarre of Brown University, reached New England and carved out a possessory sign on still existent Dighton Rock near Dighton, Massachusetts.^ %agahalaes, The Histories of Brazil, pp. 22-23. ^Edmund Burke Delabarre, "The Rock Inscriptions of New England— Miguel Cortereal in Massachusetts, 1511," The Journal of American History, XXVI (1932), 69-110. 180 Finally, the third act which differed somewhat from the usual ceremony prescribed by King John II, took place in Java on January 27, 1532. This is the only occasion that this writer has found where the Portuguese took "very formal possession." Whether it was due to the Moluccas Controversy with Spain (as some students of International Law have conjectured) or to Spanish influence has not been determined.^ However, the ceremony was extremely similar to the ritual followed by Spanish explorers who were under royal orders to take formal possession for the Crown of Castile. Thus, a notary was present, a long proces verbal was transcribed, and the symbolic ceremonies of erecting Q the padrao were utilized. While such formal possession-taking with symbolic ceremonies, witnesses, notary, and formal proclamation appears to be most rare among the Portuguese, this indeed was not the case with their Iberian cousins, the Cas tilians. Although there are many cases, among the hundreds of Spanish acts, where the Spaniards performed only bare 7Arthur S. Keller, Oliver J. Lissitzyn, and Frederick J. Mann, Creation of Sovereignty through Symbolic Acts, 1400-1800 (New York: Columbia University Press, 1938), p. 27. ^Julio Firmino Judice Biker, Colleccao de Tratados e Concertos de Pazes que o Estado de India Portugueza Fez Com os Reis e Senhores com quen Teve Relacoes nas Partes da Asia e Africa Oriental (Lisboa: Imprensa Nacional, 1881), I, 55-62. 181 essentials in claiming territory, in the vast majority of their possession-taking activity they relied upon solemn ceremonies which included a formal proclamation and chal lenge, symbolic practices of cutting twigs or moving earth, a religious prayer or celebration, an erection of a sign of possession which was usually a cross, and a drawing up of a formal instrument by a notary and witnesses However, it is not so much the ceremonies of those who followed a rigid ritual of formal possession-taking that are particularly interesting to the student of acts of sovereignty, but rather the improvised, spontaneous ceremonies which seem more to be derived from tradition than from the newer decrees of royal officials. Furthermore, it is not the repetitive ceremonies of possession-taking, but rather some of those which laid the original claims to the vast por tions of future Spanish Empire that will be considered primarily in the discussion of the Spanish ceremony of acquiring sovereignty. The first improvised act performed in the New World was made by the discoverer, Christopher Columbus. Although Columbus carried notary, wax, witnesses, and seals with him on his first voyage, there is no evidence which even hints that he was instructed to take possession in any certain manner. Despite the Admiral's initial preparedness, his ceremony was quite simple, though impressive. He took 182 the royal standard, jumped on land, and then with all the members knelt down and gave fervent thanks to the Almighty God. Columbus' first act— the only one of his various acts which was well recorded for posterity— is interesting because, aside from actual thanksgiving for a safe landing, the Admiral did not rely upon a cross or any religious symbol as a sign of possession; nor did he intermingle the religious elements with the purely juridical. Thus, Columbus' initial act on behalf of the Crown of Castile was essentially a secular legal activity which did not imply any dependence by either the monarch or the Admiral upon the Papacy. Although it is impossible to determine the Discoverer's reason for following such a procedure, especially since the early Portuguese had relied upon the cross as a sign of possession-taking, it cannot be over looked that the great navigator was most fortunate in doing so. For Spain had not only failed to obtain or ask pon tifical permission for this expedition which she regarded as a purely secular activity, but also she was actually laying claim to territory which fell within the donation Q that Portugal had received from the Papacy. ^Supra, pp. 27-33. Even if Columbus had used a cross as a sign of possession as he did at Espanola, it is the author's judgment that such a sign would not indicate any dependency upon the Papacy. Perhaps it was coincidental, but once the Catholic raonarchs had applied for and had received the papal dona tion, the use of religious symbols and ceremonies in taking possession blossomed out most luxuriantly. Little is known of Juan Ponce de Leon's act near the mouth of the St. John's River in 1513 except the river was called Rro de la Cruz and a stone cross bearing an inscription was planted there.But Ponce's act reveals only a trace of religious influence upon possession-taking compared to that of Vasco Nunez de Balboa’s act in 1513. Having crossed the Isthmus, Balboa came upon the Pacific Ocean. Perhaps, realizing the importance of his discovery, the conquistador performed one of the most elaborate ceremonies of early possession-taking. Upon dis covering the great Southern Sea, Don Vasco fell upon his knees, gave thanks to God for allowing him to make the discovery, and ordered his men to do likewise. Having done this, he ordered his captain to cut down the most beautiful tree from which a huge cross was made. After the cross was planted on the mount from where the sea was first viewed, the complete group, with joyous tears in their eyes, sang the Te Deum Laudamus. When the prayer was finished and • ^ H e r r e r a , Historia General, Dec. I, Lib. IX, Cap. X. Davis, "Juan Ponce de Leon's Voyage to Florida," The Florida Historical Society Quarterly, XIV (July, 1935), 36-37. Bolton, The Spanish Borderlands, p. 7. 184 the tide had risen, Balboa entered the ocean, paraded back and forth with a sword in one hand and the royal banner in the other as he proclaimed Castile ownership to all lands which the ocean's water washed. Finally, after he had challenged anyone to dispute his sovereign's ownership and had cut crosses, the intrepid discoverer requested a notarized deposition of his act from the ever-present 11 notary. It is interesting to note that Nunez de Balboa, whose expedition and act were unauthorized by the Crown, was the first--as far as extant documentation is concerned-- to introduce the chanting of a prayer prior to the essen tial activities of the act of sovereignty. This religious observance, the chanting of the Te Deum, was to become in the late eighteenth century part of the ritual and formu lary which all the Spanish acts on the Northwest Coast of North America included. If the innovation in Balboa's unauthorized act proved permanent, those in the authorized ceremony of Juan Diaz de Solis failed to gain popularity or adherence. Diaz de Solis, like his predecessor on the Isthmus, first erected a cross; however, he added the blare of trumpets as posses sion was proclaimed, and then symbolically cut trees and ■^Fernandez de Oviedo, Historia General y Natural, Lib. XXIX, Cap. III. 185 1 2 branches. Yet, despite the seeming appropriateness of the martial air of trumpets which harmonized with the mili tant attitude of the Spaniards, this element did not become popular with them.^ Nevertheless, it is possible that there may have been some royal order concerning the symbolic cutting of twigs and branches during the first decades of the six teenth century. For such men as Diego de Lepe, Nunez de Balboa, Diaz de Solis, and Alvar Nunez Cabeza de Vaca meticulously cut twigs or branches in their acts.^ Don Heman Cortes, the unauthorized conqueror of Mexico, as well as most of his lieutenants, followed a similar prac tice of cutting vegetation in taking possession of Mexico, ^Eduardo Madero, Historia del Fuerto de Buenos Aires (Buenos Aires: Imprenta de "La Nacion," 1892), pp. 23-24. Herrera, Historia General, Dec. II, Lib. I, Cap. VII. ■^’ ’Abto de posesion que tomo el gobemador senor Pedrarias Davila teniente general en nombre por SS. AA. en la provincia de Pague, en la costa de Sur," [undated], MS, A.G.I.. Patronato, Leg. 26, N? 1, R? 13. "Abto de posesion que tomo el' "muy magnifico senor pedrarias davila, teniente general por sus altezas en la ysla de flores que es en la mar del sur,M [undated], MS, A.G.I., Patronato. Leg. 15, N? 2, R? unico. Ruidiaz y Carvia, La Florida. Su Conquista y Colonizacion por Pedro Menendez de Aviles, II, 451. •^Navarre te, Viages y Descubrimientos, III, 554. Fernandez de Oviedo, Historia General v Natural, Lib. XXIX, Cap. III. Madero, Historia del Puerto de Buenos Aires, pp. 23-24. "La posesion que su senoria tomo de la ysla de Santa Catalina," MS, A.G.I., Justicia, Leg. 1131. 186 Honduras, and California. Cortes' first act of sover eignty, which was made at Tabasco, reveals, moreover, some other interesting facts. According to Bernal Diaz, Cortes took possession in the following manner: Having unsheathed his sword, he struck a large ceiba tree in the courtyard three times as a sign of posses sion. He asked if there were anyone to contradict him, that he, with sword and shield, would defend his right against anyone. All the soldiers who were present responded that it was a good thing to take royal pos session in the name of his Majesty, and that they would help him if anyone contradicted him. Perhaps Cortes, who was influenced by his early legal training at Salamanca, desired to keep the ceremony within a completely secular basis dependent exclusively upon the traditions of Roman and Germanic Law since there is no indication whatsoever of any religious element in his act despite the presence of Father Olmedo. Nor was this omission purely accidental. His other acts, and those of his lieutenants, who also had the services of an ecclesi astic at hand, also reveal that neither prayers, nor ■^Diaz del Castillo, Historia Verdadera de la Con- quista de la Nueva Espana, p. 61. "Testimonio de la fundacion de la villa de la Frontera^de Caceres en la provincia de Honduras y de la posesion, que en ella tomo a nombre de su Magestad, Bartolome de Celada, 1525," MS, A.G.I., Patronato, Leg. 20, N? 4, R? 2. "Memoria y Rela- cion de Viaje y Descubrimiento . . . Hasta Esta Isla de los Cedros . . .," in Cartas de Relacion de la Conquista de America, - edited by Julio de Riverend (Mexico: Editorial Nueva Espana, [undated]), I, 690-695. ■^Diaz del Castillo, Historia Verdadera de la Con quista de la Nueva Espana, p. 61. 187 religious signs were utilized at all, except in the case of Hernando de Grijalva who took possession of the now unknown Isle of Santo Tomas in 1533. Thus, of the twelve acts which the conquistador and his delegates performed, only once, when Grijalva erected a cross as a sign of posses sion, was a religious symbol used.-*-? The secular aspect, as well as the traditional legal basis, of Cortes’ act is further strengthened by the sym bolic activities which he or his lieutenants performed in taking possession. Besides the cutting of branches or striking at trees that Cortes personally engaged in at Tabasco and Lower California and which Ulloa also did at the latter territory, the Marques (Cortes) threw sand and ■^Dfaz del Castillo, Historia Verdadera de la Con- quista de la Nueva Espana, p. 61. Herrera, Historia General, Dec. 23, Lib. 3, Cap. 17. ”Testimonio de la fundacion de la villa de la Frontera de Caceres en la provincia de Honduras y de la posesion, que en ella tomo a nombre de su Magestad, Bartolome de Celada, 1526,” MS, A.G.I.,, Patronato, ,Leg. 20, N? 4, R? 2., "Testimonio de la posesion y fundacion que hizo el capitan Francisco de las Casas, a nombre de Heman Cortes del puerto, asiento y villa de Trujillo, en Honduras, 1525,” MS, A.G.I., Patronato, Leg. 20, N9 4,, R? 1. Escritura de Posesion Tomada por Hernando Cortes en el Puerto de,Santa Cruz, , May 3, 1535, in Coleccion de Documentos Ineditos de America v Oceania. IV, 190-192. "Memoria y Relacion de Viaje y Descubrimiento . . . , Hasta Esta Isla de los,Cedros . . .,” in Cartas de Relacion de la Conquista de America, I, 690- 695. "Derrotero de una armada compuesta de dos navfos llamados Concepcion y San Lazaro que salio del puerto de Santiago en el mar del Sur al mando de Hernando Grijalba y el Piloto Martin de Acosta portugues por disposicion de Heman Cortes a descubrir en el mar del Sur, 1533,” MS, A.G.I., Patronato, Leg. 20, N9 5, R? 7. 188 walked from one place to another while Ulloa moved stones, threw water out of the sea unto the land, and also pulled grass.^ It is also interesting to note that both Cortes and Ulloa, after performing some of the symbolic ceremonies enumerated above, challenged anyone in their presence to dispute their act. This challenge, which does not seem to have any foundation in Roman Law, is in all probability of medieval origin. Yet, documentary evidence gives no indication that it was used in the medieval ceremony of seisin. The mystery of its origin and development is fur ther accentuated by the fact that Cortes was not the only Spaniard to utilize the ceremonial challenge. Vasco de Balboa, Pedrarias Davila, Antonio de Berrio, and Pedro de Valdivia, all of whom took possession in the sixteenth century, were the other Spaniards who relied upon the ceremonial challenge as an essential part of the cere mony. ^ However, what makes the challenge, which Cortes •^"Auto de Posesion que de^las tierras que habia descubierto en el Mar del Sur tomo el Marques D. Fernando Cortes en el Puerto y Bahia de Santa Cruz en mil quinieritos treinta y cinco anos. Conforme a las capitulaciones hechas con S. M.," in Coleccion de Documentos Ineditos de America v Oceania, IV, 190-192. "Memoria y Relacion de Viaje y Descubrimiento . . Hasta Esta Isla de los^Cedros . . .," in Cartas de Relacion de la Conquista de America, I, 690- 695. ^Fernandez de Oviedo, Historia General y Natural, Lib. XXIX, Cap. III. "Abto de posesion que tomo el gober- nador senor Pedrarias Davila teniente general en nombre de SS. AA. en la provincia de Pague, en la costa de Sur," 189 so boldly uttered, intriguing is that no comparable cere mony or similarity is found in the French and English possession-taking activities. Despite the fact that the challenge was not recorded in his ceremony of possession-taking, the fugitive Nuno de Guzman, who had also had some legal training, performed acts very similar to those of his rival, Heman Cortes. As Guzman took possession of various locations in Nueva Galicia, he paced back and forth, cut branches or vegeta tion with his sword, took turf in his hand, and took water from rivers and drank it.^O This similarity of possession- taking by two legally trained men seems to reenforce a belief that it was their educational background which in fluenced them in the ceremonies that they elected for formally claiming new territory for the Crown of Castile. As has been stated, Guzman's possession-taking [undated], MS, A.G.I., Patronato, Leg. 26, N? 1, R? 13. "Abto de posesion que tomo el muy magnifico senor pedrarias davila, teniente general por sus altezas en la ysla de flores que es en la mar del sur," [undated], MS, A.G.I., Patronato. Leg. 15, N? 2, R? unico. "Los autos de la poblacion de San Joseph de Oruna," San Joseph de Oruna, Trinidad, June 16, 1593, MS, A.G.I., Patronato, Leg. 26, N? unico, R? 33. "Autos y Parezers sobre la Poblazion y fortificasion de baldivia," Peru, 1544, MS, A.G.I., Patronato, Leg. 29, N9 unico, R? 1. 20<tproceso del Marques del Valle y Nuno de Guzman y los Adelantados Soto y Alvarado, sobre el Descubrimiento de la Tierra Nueva (Ano de 1541)," in Coleccion de Documentqs Ineditos de America v Oceania, XV, 320-325. 190 activities, when considered in their entirety, were, with the sole exception of the two crosses erected as signs of possession, secular. Therefore his activities in Jalisco should not be classified, as Henry Bamford Parkes has caustically done, as ''burning villages and building 91 crosses.1 Such description, indeed, conveys an erroneous impression of Guzman's activities and character. Guzman simply burned villages and claimed the land formally for his monarch. The crosses he erected appear to have little relation with his religious devotion or lack of devotion. Guzman's activities, which actually occurred after Ferdinand Magellan's acts of sovereignty in South America and Oceania, were included within the framework of Cortes' possession-takings because of their similarity. Strangely, there is also a similarity between Magellan's and Guzman's erecting of crosses. This similarity lies in the fact that in some cases the reasons for erecting crosses may be misinterpreted by the casual reader or careless scholar. Thus, Guzman* s crosses might be considered as reflection of his piety or bigotry, while Magellan's may always be thought to represent signs of possession taken. Actually, the great Portuguese navigator utilized the cross both as a sign of possession and as sign to indicate the route that ------------------- 4 2^-Henry Bamford Parkes, A History of Mexico (Revised edition; Boston: Houghton, Mifflin Company, 1950), pp. 69“ 70. his lost ships should follow. Thus, Magellan, after he had planted a cross as a sign of Spanish possession on the Patagonian port of San Julian, placed three crosses on the Straits bearing his name to indicate his route and location of reunion.22 However, this is as far as the similarity goes. Actually, Magellan, if his possession-taking in Mindanao in March 1521 is considered representative of his possessory acts, relied exceedingly upon religious observ ances for claiming territory on behalf of his monarch. The ceremony of taking possession in this instance seems to revolve around the celebration of Holy Mass as the shipsT cannons and soldiers' muskets were fired when the Host was elevated. After Mass a dance of swords was held, and on its termination a crucifix was brought and adored. Accord ing to the diarist, Pigafetta, there is no mention of any other activity before and after the Captain General asked the natives to plant the crucifix. Thus, Magellan's act at Mindanao appears to have been nothing more than a religious ceremony which nevertheless obtained proprietory title for Charles V.23 The acts of original discoverers, who followed after Magellan, either were very sketchily reported or very 22pigafetta, " R.elacicn del Primer Viaje Alrededor del Mundo," in Biblioteca Indiana, pp. 28-30. 23ibid.. p. 38. 192 unceremoniously performed. Fray Marcos de Niza, the first person to take possession of New Mexico, relates only that he erected a slender cross.^ Although the journals of both Juan Rodriguez Cabrillo and Ruy Lopez de Villalobos mention their possession-taking in California and the Philippines respectively, no description whatsoever is given.^ Notwithstanding the existence of the original instruments of possession for both Orellana and Valdivia's acts in the Amazon country and in Chile, it is only from the latter's records that any information concerning the ceremony is available. While Orellana apparently did not indulge in any symbolic activities, Valdivia's delegate enjoyed a rather prolonged ceremony as his act at San Pedro shows. He proclaimed Castile's title to the Indians and lands, cut branches, drank water from an adjoining river, erected a cross, cut crosses upon it, and adored it ^"Relacion del viaje de descubrimientos que hizo en Yndias de siete ciudades Fray Marcos de Niza, de la orden de San Francisco por comision del Virrey Don Antonio de Mendoza. Fecha en Mexico a 26 de Agosto 1539," MS, A.G. I., Patronato, Leg. 20, N? 5, R? 10. 9 R "Relacion del descubrimiento que hizo Juan Rodriguez navegando por^la contra-costa del mar del Sur al Norte . . . Esta relacion esta hecha por Juan Paez," MS, A.G.I., Patronato, Leg. 20, N9 5, R? 13. "Relacion del viage que hizo desde Nueva Espana a las islas de Poniente, despues Filipinas, Ruy Lopez de Villalobos de orden del Virey de Nueva Espana Don Antonio de Mendoza," MS, A.G.X., Patronato, R? 10. 193 with his party.^ With Valdivia's act, the treatment of the first Spanish acts in newly discovered territory is sufficient to give the reader an idea of the ceremonies which entered into these initial possession-takings. It is unnecessary to state that acts of these discoverers and settlers varied exceedingly in both religious and traditional legal symbol ism, a condition which indicated that the crown had not specified any certain formula for taking possession. How ever, it must be pointed out quite strongly that as much as some of these men relied upon religious symbols, that on no occasion did they state or imply any dependency upon the papacy for acquiring title to terra nullius. As far as this writer has been able to determine such dependency upon the Pope--Alexander's Donation— for acquiring title to newly discovered lands was not enunci ated and recognized until the English threatened to intrude upon already claimed Spanish territory. Almost a year after Drake took possession within the area of the Straits of Magellan, Pedro Sarmiento de Gamboa arrived to reassert Spain's title to the territory. During the years 1579-1580 Sarmiento de Gamboa took possession with greatest solemnity ^Carvajal, Relacion del Nuevo Descubrimiento, pp. 264 and 268-269. "Autos y Parezeres sobre la Poblazion y fortificasion de baldivia," MS, A.G.I., Patronato. Leg. 29, R? 1. 194 at Nuestra Senora del Rosario, Puerto Bermejo, Santa Ines, San Antonio de Padua, and Rio San Juan. Of the sixteenth century acts which had been performed up to that date, none is as pageant-filled and majestic as those of Sarmiento de Gamboa. Nor is there any previous act which presents the reasons for Spain's title to the area so fully as this explorer's proces verbal. The complete picture of Sarmiento de Gamboa's ceremony, however, can be grasped simply by reading a translation of the original description and instrument of possession. The diarist paints a vivid picture for us as he states: We named the port "Nuestra Senora del Rosario," and the other "Peligroso," although the sailors called it "Cache-diablo." On the following Sunday, November the 22nd, the General Pedro Sarmiento, with most of the people, went on shore, and when Pedro Sarmiento hoisted a great cross all worshipped it with much devotion, and sang "Te Deum Laudamus" in loud voices, on their knees. With great joy they gave thanks to God, knowing the mercies we had all received at His divine hands. This done, the Captain-Superior, Pedro Sarmiento, rose to his feet, and drawing a sword which hung to his belt, he exclaimed in a loud voice in the presence of all, that "they were all witnesses how, in the name of the sacred Catholic and royal Majesty of the King, Don Philip our Lord, King of Castille and its dependencies, and in the name of his heirs and successors, he took possession of that land for ever." In testimony of this, and that those present might keep it in memory, he cut trees, branches, and herbs with the sword he held in his hand, and moved stones, with which he made a heap in token of possession. As similar acts of taking possession have been fully recorded, and as the Viceroy particularly ordered that possession should be taken in the places where we landed, Pedro Sarmiento made the following statement before the Notary: 'In the name of the most Holy Trinity, Father, Son, and Holy Ghost, three Persons and one only true God, 195 who is Maker and Creator of all things, without whom no good things can be commenced, made, or preserved; and as the good beginning of whatever thing must be in God and for God; and in his name should be commenced for his honour and glory; in his most holy name be it known to all who may see this present testimony, instrument, and letter of possession how, this day, which is Sunday, the 22nd of November 1579, this royal fleet of the most powerful, most renowned, and most catholic Lord Don Philip, King of Spain and its dependencies, our Lord, having arrived, which sailed from the city of Kings in Peru by order of the most excellent Lord, Don Francisco de Toledo, Viceroy, Governor, and Captain- General of the Kingdoms and provinces of Peru, for the discovery of the Strait Called Magellan, of which there came as Captain-Superior the General Pedro Sarmiento to this land, now first discovered by the said Captain- Superior. Being anchored in this port, newly named "Nuestra Senora del Rosario,” in the bay also newly named "The Most Holy Trinity,” and the said General having landed with the greater part of the Ian:? and sea forces of the fleet, and the chaplains, he took a cross on shore, which was devoutly worshipped by all the people on their knees, and the chaplains sang the ”Te Deum Laudamus.” Then, in a loud voice, he said that in the name of his Majesty the King, Philip II, our Lord, King of Castile, Leon, and their dependencies, who may God preserve for many years, with increase of greater states and kingdoms for the service of God, and the well-being and prosperity of his vassals; and in the name of very powerful Lords the Kings, his heirs and successors in the time to come, as his Captain-Superior and General of this the said fleet, and by virtue of the order and instructions which, in the royal name, the Lord Viceroy of Peru gave him, he took and takes, seized and seizes, possession of this land where he has now landed, and which he discovered, for ever and ever in the said royal name, and in that of the royal crown of Castile and Leon as his own, to whom it really belongs by virtue of the Grant and Bull of the most holy father Alexander VI, Supreme Roman Pontiff, given motu proprio to the very high and catholic lords Don Fernando V, and Dona Isabel his wife, Kings of Castile and Leon of Glorious memory, and to their heirs and successors, being half of the world, that is to say, 180 degrees of longitude, as more largely is set forth in said Bull given at Rome on the 4th day of May 1493, in virtue of which these lands fall and are included within the demarcation and meridian of partition of the 180 degrees of longitude belonging to the said 196 royal crown of Castile and Leon, and as being within the line, he takes and took possession of these the said lands and districts, seas, rivers, anchorages, ports, bays, gulfs, and archipelagos of the said port of ’ ’Rosario," where at present this fleet is anchored. Thus he, as depicted, placed and places them in the power and possession and dominion of the said royal crown of Castile and Leon as its own property; as it is. In sign of possession he drew the sword that he wore at his girdle, and with it cut trees, branches, and herbs, and moved stones, and walked over the land and on the shore without any contradiction whatever; desiring that those present should be witnesses, and that I, the undersigned Notary, should give public testimony. Then incontinently taking a great cross on his back, with the troops of the fleet in order of battle, and armed with arquebuses and other weapons, they carried the cross in procession, the monks Friar Antonio Guadramiro, Vicar, and his companion singing a litany and everyone answering the responses. The procession being finished, the General planted the cross on a high rock, and made a heap of stones at the foot of it, as a memorial and sign of the possession of all these lands and seas and their bounds, with the continuous and contiguous discoveries; and he gave the name of 'Nuestra Senora del Rosario' to this port. As soon as the cross was set up they worshipped it a second time, and all offered up prayers, beseeching and suplicating our Lord Jesus Christ that he would be served by this act being for his holy service, and that our holy Catholic Faith would be aided and increased by the word of the holy evangel being preached and sown among barbarous nations that, until now, had been astray from the true knowledge and doctrine whereby they may be guarded and delivered from the deceit and dangers of the devil, and from the blindness in which they now live, that their souls may be saved. Then the monks sang in praise of the cross the hymn 'Vexilla Regis.' Before it, at an altar which had been set up, the Vicar, who was the first to say it in this land, said mass to the honour and glory of Lord God Almighty, and for the extirpation of the devil and all idolatry. He preached on this subject, and several confessed and took the sacrament. When the service was over, the General, as a more lasting sign and memorial of posses sion, caused a great tree to be felled, and from it to be made a large and lofty cross, on which he put the most holy name of our Lord Jesus Christ--I.N.R.I.— and at the foot of the cross he put Philippus Secundus 197 Rex Hispaniarum. Of all which I, Juan Desquibel, Royal Notary of this fleet, on board the ship Capitana, give my faith and true testimony. 27 Juan Desquibel, Royal Notary^' This act is very important for other reasons than its introduction of the papal donation, its extreme reli gious ceremonies, and its ample symbolic material as signs of possession. In the first place the act appears to have included a vast proportion of all the symbolic and reli gious ceremonies that were used by the later Spanish explorers and settlers of the seventeenth and eighteenth centuries. Secondly, and perhaps of greater importance, the act seems to have been the model of the acts which Viceroy Bucareli of New Spain formulated for claiming the Pacific Northwest in 1 7 7 4 . It is indeed strange that acts of Hezeta, Bodega, Arteaga, Martinez, Fidalgo, and Quimper should have been so closely related in ceremony, both religious and symbolic, as well as in their wording to Sarmiento’s act of 1579. When one considers that the Narrative and Route of the Voyage and Discovery of the Strait of the Mother of God, Formerly called Magellan,” in Markham, Narratives of the Voyages of Pedro Sarmiento de Gamboa, pp. 41-44. ] For the Spanish documentation see ”Relacion y Derrotero del Viage y Descubrimiento del Estrecho de Madre- de-Dios antes Llamado de Magallanes,” in Coleccion de Diarios v Relaciones, III, 38-39. 28"Ynstruceion que debe observar . . . D. Juan Perez, [1774],” MS, A.N., Mexico, Historia, Vol. 68. 198 various repetitive acts of the seventeenth century (such as Antonio Balcarcel's in Coahuila, Fernando del Bosque's in Texas, and Alonso de Leon's in eastermost Texas) were extremely brief and relatively simple, the similarity in ceremony and wording between the Magellanic acts of Sarmiento and those of the Pacific Northwest appears quite strange. But, taking Martinez' act at Nootka in 1789 as an example of the Northwest acts, the similarity is instantly striking. Martinez, like Sarmiento, began his act in a most devoted manner. In the Name of the Holy Trinity, Father, Son and Holy Ghost, One True God in three Distinct Persons, who is the creative principle and creator of all things, without whom nothing good can be instituted, achieved or preserved— and Whereas the principle of everything good must be in God--and therefore it behooves us to begin it in God--for the glory and honour of HIS MOST HOLY NAME. Therefore Know All Men To Whom these presents and present Chart of Possession shall come that: Today being Wednesday the 24th day of June 1789 on the arrival of the Frigate name "Nuestra Senora del Rosario" (Alias "La Princessa"), together with the packet-boat "San Carlos el Filipino" both belonging to His Most Mighty Illustrious and Catholic Majesty Carlos the Third, King of Castile, of Leon, of Aragon, of all the Sicilies, of Jerusalem, of Navarre, of Sardinia, of Corsica, of Cordova, of Murcia, Jaen, of the Algarves, of Algeciras, of Gibraltar, of the Canary Islands, of the Eastern Indies and Western Islands, and of the (foreshore) first land "Y Tierra prima del Mar Occeano" in the Oceania Sea, Archduke of Austria, Duke of Bologna, of Brabant, and Milan, Count of Aspurg, Flanders, Tyrol, and Barcelona, Lord of Biscay and Molina, The said frigate and packet-boat, by Command of His Exellency Don Manuel Antonio Florez Maldonado Martinez de Angul y Bodquin, Knight of the Order of Calatrave, Commander of Nolino and Laguna Rota, Lieutenant General of the Royal Armada, Viceroy 199 and Captain General of New-Spain, President of the Royal Audiencia, and Sub-Delegate General of Correos in the said Kingdom, Having sailed from the port of San Bias, on the Southern Sea, in the Government of the Viceroy, aforesaid, on the 17th day of February in the same year, for the purpose of discovery along the coast from Monterey northwards. This expedition being under the command-in-chief of Don Estevan Jose Martinez, Ensign of Marine, in the Royal Armada; and said expe dition being anchored in the port of Santa Cruz, one of the numerous harbors contained in the Bay of San Lorenzo de Nuca, with the aforesaid frigate of his command and the packet-boat of his following Said Commander-in-Chief having disembarked with the officers of both ships with the troops, and a number of the sailors, together with the^Fathers Chaplains Don Jose Lopez de Nava, and Don Jose Maria Diaz and the four Missionaries of the Order of San Francis of the Apostolic College of San Fernando de Mexico, Brother Severo Patero (President) Brother Lorenzo Lacies, Brother Jose Espi, and Brother Francisco Sanchez--The said Commander drew out a cross, which he worshipped devoutly on his knees, together with all those who accompanied him: then the Chaplains and Friars sang "Te Deum Laudamus"--and the canticle having been con cluded the Commander said in a loud voice: "In the name of His Majesty the King Don Carlos Hid— Our Sovereign whom may God keep many years, with an increase of our Dominions, and Kingdoms,--for the service of God, and for the interests of the mighty Lords and kings, his heirs and successors in the future as his commander of these ships, and by virtue of the orders and instruc tions which were given to me in his royal name, by the aforesaid His Excellency the Viceroy of New-Spain, I take, and I have taken, I seize, and I have seized possession of this soil, where I have at present dis embarked which had been formerly discovered by us, in the year 1774— and once more, on the present day,— for all time to come, in the said Royal Name, and in the name of the Royal Crown of Castile and Leon, as aforesaid— As if it was my own thing, which it is, and shall be and, which really belongs to the King afore said, by reason of the donation and the bull "Expedio Motu Proprio" of our Most Holy Father Alexander VI, Pontiff of Rome, by which he donated to the Most High and Catholic Monarchs Ferdinand V and Isabel his spouse, Kings of Castile and Leon, of illustrious memory, and to their successors, and heirs— one-half the world--by deed made at Rome on the 4th of May in the year 1493— by virtue of which these presents lands 200 belong to the said Royal Crown of Castile and Leon, and as such I take, and I have taken possession of these lands aforesaid, and the adjoining districts, seas, rivers, ports, bays, gulfs, archipelagos, and this Port of Santa Cruz, in the island named by Martinez— among the many which are enclosed in the Bay of San Lorenzo de Nuca--which bay is situated in latitude North 49° 181 and longitude 20° 18* West of the meridian of San Bias where I am at present anchored with the said frigate and packet-boat of my command, and I place them, and they shall be placed under the dominion, and power of the said Royal Crown of Castile and Leon, as aforesaid, and as if it was my own property, which it is.” And as a sign of such possession he drew his sword which had hung by his side, and with it he counted the trees, the branches, and the lands, he dis* turbed the stones on the beach and in the fields with out encountering any opposition, asking those present to be witnesses of these facts, and to me Rafael de Canizares, who am Notary appointed to this expedition by the Commander-in-Chief he ordered me to relate the facts in due form, as a public testimony, thereof.— Then taking a large cross on his shoulders, and the crews of both ships having formed in marching column, armed with guns and other weapons, the procession marched out, the Chaplains and Friars chanting the Litany of ”Rogation”--the whole troup responding--and the procession having halted, the Commander planted the cross in the ground, and made a heap of stones at the foot thereof— as a sign and in memory of the taking of possession in the name of His Catholic Majesty Carlos III. King of all Spain (whom God Keep)--of all these lands and neighbouring districts discovered, continuous and contiguous--and gave the name of "Santa Cruz” to this port, as has been said— And when the cross was planted, they worshipped it once more, and all prayed, demanding in supplication from our Lord, Jesus Christ, that He should accept their offering, because everything had been done for the glory and honour of his Holy Name, and in order to exalt, and enrich our holy catholic faith— and to introduce the word of the holy Gospel among these savage nations, which until the present time had been kept in ignorance of the true knowledge and doctrine,--which will guard them and deliver them from the snares and perils of the Demon and from the blindness in which they have lived,— for the salvation of their souls.— after which the chaplains and friars began chanting the Hymn "Vexilla Regis.”--Following this, a solemn high mass was cele brated on an altar which the Commander had caused to be 201 erected, by the Rev. Chaplain of our frigate, Don Jose Marfa Diaz, and the four friars aforesaid— this being the first mass which was said in this land in honour of Our Lord God Almighty,— and for the extirpation of the Devil and of all idolatry.--The sermon was given by the Very Rev. Father President— Severo Patero, Apostolic Missionary of the order of San Francis and of the Royal College of San Ferdinand of Propaganda of the Faith— of the City of Mexico. This function being concluded, the aforesaid Com mander as a further sign and testimony of the taking of possession, caused a tree to be cut, which he made into a cross, into which he engraved the Holy Name of our Lord Jesus Christ, with four capital letters I.N.R.I.-- and wrote at the foot of the cross: Carolus Tertius, Rex Hispaniorum.— In Witness Whereof these presents were signed by the Commander, and witnessed by the Captain of the Packet-boat, "San Carlos," Don Gonzalez Lopez de Haro; the first pilot of the Armada,^Don Jose Tovar, the chaplains aforesaid Don Jose Lopez de Nava, Don Jose Marfa Diaz, and the four friars of the College of San Ferdinand--And I the Notary appointed by the said Commander, authenticate these presents as a true testi mony of what took place— as it has been related here with.— Signed: Estevan Jose Martfnez--Gonzalez Lo^ez de Haro— Jose Tovar y Taniariz--Dr, Jose Alexandro Lopez de Nava--Fray Lorenzo Lacies— Fray Jose Espi--Fray Francisco Miguel Sanchez-- Before me Rafael Canizares This is a copy: Mexico 27th August 1789 Antonio Bonillaz [sic ^Howay, 1 1 The Spanish Settlement at Nootka," The Washington Historical Quarterly. VII (July, 1917), 164-167. Judge Howay1s translation has some obvious drawbacks besides his inconsistency in spelling saints' names in both Spanish and English or even half Spanish and half English. The principal error is that of attributing the latin phrase motu proprio to be the name of the Alexandrine Bull of Donation. Motu proprio should have been translated as by his own will, or by his own impulse. Original is inA.H.N., Estado, Leg. 4289. 202 Such a colorful ceremony, despite its traditional and medieval practices, was quite out of tune with the possession-taking practices of the other colonial powers. Although the most ludicrous portion of the Spanish act was their claim to ownership due to the papal donation, there were other serious faults present. Perhaps the greatest was the lack of an accurate hydrographic determination of area that was being formally claimed. No lesser person than the great navigator, Captain Alejandro Malaspina, recommended that such colorful ceremonies be scuttled and replaced by the less ambiguous and more universally accepted method of an accurate hydrographic location.^ However, Malaspina* s recommendation was never put into practice except by his own exploring expedition because Spain's expansive policy ended with the abandonment of claim to the Northwest Coast early in the nineteenth cen tury. Although the Spaniards are considered to have been the most ceremonious— the description of their acts most certainly testifies to this judgment--the English, as the comparison of their possession-taking will show, exhibited greater diversity. However, there are instances when English explorers and colonizers closely rivalled the on JUAlejandro Malaspina to the Conde de Revillagigedo, Acapulco, December 14, 1799, MS, A.H.N., Estado, Leg. 4288. 203 Spaniards in symbolism and pageantry. English possession-taking, which began with Cabot's act off the Canadian coast, cannot be classified in any manner during the Elizabethan colonial period. While Frobisher erected a stone column or cross ’ ’and solemnly sounded a trumpet and saide certaine prayers kneeling about the Ensigne, and honoured the place by the name of Mount Warwicke”; Drake took formal possession ”of the said Straits [of Magellan] and Territories, with Turf and Twigge after the English manner."^ However, almost a year later Drake performed an entirely different act in Nova Albion (California) as he ’ ’set up a monument of our being there; as also her Maiesties right and title to the same, namely a plate nailed upon a faire great poste, whereupon was ingraven her Maiesties name."^ This famous plate was found in 1936 about a mile and ■^"The Second Voyage of Master Martin Frobisher, Made to the West and Northwest Regions, in the Yeere 1577, with a Description of the Country and People: Written by Master Dionise Settle," in Hakluyt, The Principal Naviga tions . VII, 291-292. "The Second Circum-Navigation of the Earth: Or the Renowned Voyage of Sir Francis Drake, the First Generali Which Ever Sayled about the Whole Globe, Begun in the Yeere of Our Lord, 1577. Heretofore Published by Mr. R. Hakluyt, and Now Reviewed and Corrected," in Hakluvtus Posthumus, II, 129. ■^Drake, The World Encompassed by Sir Francis Drake. Being his Next Voyage to That of Nonibre de Dios. Collated with an Unpublished Manuscript of Francis Fletcher, Chap lain of the Expedition, pp. 225-226. 204 a half west-northwest of San Quentin in Marin County not far from San Rafael. The finder Beryle Shinn brought it to the attention of Herbert Eugene Bolton who was instru mental in having its authenticity proved by a battery of experts. However, there is still a lack of unanimity among historians regarding the genuineness of the plate, which is now on display at the Bancroft Library at Berkeley.^ Regarding the plate, Dr. Bolton had the following description: It is crudely made, fashioned as best it could be under the circumstances* This is one of the best testi monials to its genuineness. Approximately rectangular, even in shape it is irregular, one of its edges being slightly curved. At top and bottom there are generous notches through which to drive the spikes fastening it to the "fair great poste." The lettering is crude, made with a sharp tool, perhaps a cold chisel. One of the accounts says the letters were "scratched" on the plate, and all the curved lines look as though this were the case. The words are unevenly spaced and the lines are not very straight. The surface of the plate is uneven, with pits or depressions in places, as though it had been hammered. The relic bears indica tions of having been long in contact with the soil, for when found the incisions forming the letters were full of hard packed dirt.35 ^ C a l i f o r n i a Historical Society, Drake*s Plate of Brass. Evidence of His Visit to California in 1579 (San Francisco: California Historical Societv7r937). passim, hereinafter cited as California Historical Society, The Plate of Brass. ■^John Walton Caughey, California (Englewood Cliffs, New Jersey: Prentice-Hall, 1957), p. 56. ^Herbert E. Bolton, "The Plate of Brass" in Cali fornia Historical Society, The Plate of Brass, p. 11. The plate itself bore the inscription below: BE IT KNOWNE VNTO ALL MEN BY THESE PRESENT IVNE. 17. 1579 BY THE GRACE OF GOD AND IN THE NAME OF HERR MAIESTY QVEEN ELIZABETH OF ENGLAND AND HERR SUCCESSOR FOREVER I TAKE POSSESSION OF THIS KINGDOME WHOSE KING AND PEOPLE FREELY RESIGNE THEIR RIGHT AND TITLE IN THE WHOLE LAND VNTO HERR MAIESTIES KEEPEING NOW NAMED BY ME AN TO BEE KNOWNE VNTO ALL MEN AS NOVA ALBION G (C ?) DRAKE36 Four years after Drake posted his famous plate in California, his half-brother, Humphrey Gilbert, left a fairly complete record of the twig and turf ceremonies which he performed as he took possession of Newfoundland in 1583. Munday following, the Generali had his tent set up, who being accompanied with own followers, summoned marchants and masters, both English and strangers to be present at his taking possession of those Countries. Before whom openly was read & interpreted unto the strangers his Commission: by vertue whereof he tooke possession in the same harbour of S. John and 200 leagues every way, invested the Queenes Majestie with the title and dignitie thereof, had delivered unto him (after the custome of England) a rod and turffe of the same soile, entering possession also for him, his heires and assignes for ever: And, signified unto all men, that from that time forward, they should take the same land as territorie appertaining to the Queene of England, and himselfe authorised under Majestie to possesse and enjoy it, And to ordaine lawes for the government thereof, agreeable (so neere as conveniently might be) unto the lawes of England: under which all people coming thither hereafter, either to inhabite, or by way of traffique, should be subjected and governed. 36Ibid., p. 10. 206 These contents published, obedience was promised by- general voyce and consent of the multitude as well as of Englishmen as strangers, praying for continuance of this possession and government begun. After this the assembly was dismissed. And afterward were erected not farre from that place the Armes of England ingraven in lead, and infixed upon a pillar of wood. . . .37 Gilbert’s formal possession-taking, aside from the lack of religious ceremony, is quite similar to the color ful Spanish acts of the same period. However, it must be noticed that Gilbert, as Drake before had done, utilized a metal plate to commemorate the ceremony. This leaden plate, along with the formal ceremony of twig and turf, is found in the remaining acts of the Elizabethan period. Robert Dudley, who took possession at Trinidad in 1595, OO also used it in claiming the territory. ° Furthermore, the lead plate, as will be seen, was a commonly used symbol in the early period of English colonization which included both Elizabethan and Stuart reigns. Although the Stuart reign, insofar as English possession-taking is concerned, began with Robert Har- court's "turfe and twig” act in Guiana in 1608, it most evidently is true that the Stuarts' rule witnessed very 07 "A Report of the Voyage and Success thereof, Attempted in the Yeere of Our Lord 1583 by Sir Humfrey Gilbert Knight . . in Hakluyt, The Principal Naviga tions, VIII, 53-54. ^Warner, The Voyage of Robert Dudley, pp. 28 and 32-33. 207 OQ few examples, if any, of this type of ceremony. Perhaps it is purely coincidental but the most prominent feature of the Stuart acts was the predominant use of the cross as a sign of possession. Whether this use was inspired by royal orders, whether it just developed spontaneously, or was copied from Spain is not determinable from the documentation available. However, there is no doubt of its popularity among the English navigators. For out of the twelve different persons taking possession--whom the author has found— during the reign of the Stuarts, ten relied upon the cross for their acts of sovereignty. James Poole, who in 1610 made the first Stuart voyage to the northern areas of Spitzbergen and Canada, reintroduced the practice of erecting crosses which Martin Frobisher may have begun in 1577.^ Poole was soon fol lowed by William Baffin and Thomas Button who also erected crosses in Spitzbergen and Port Nelson on Hudson Bay, respectively.^ The following year, 1614, Robert Fotherbye 39"A Relation of a Voyage to Guiana Performed by Robert Harcourt of Stanton Harcourt in Countie Oxford, Esquire/' in Harris, A Relation of a Voyage to Guiana by Robert Harcourt. 1613. pp. 110-111. ^■0"A Voyage Set Forth by the Right Worshipful Sir Thomas Smith . . . in Which X Jonas Poole was Master . . in Purchas, Hakluytus Posthumus, XIV, 12. ^"A Journal of the Voyage Made to Greenland . . . Written by Master William Baffin," in Purchas, Hakluytus Posthumus, XIV, 14 and 52-53. "The Voyage of Captain Luke Fox," in Rundall, Narratives of Voyages towards the North- west in Search of a Passage to Cathay and India 1496 to . 208 and Baffin, who sailed under the former, took possession by erecting crosses at Spitzbergen.^ Fotherbye's act at MTrinitie Harbour" is, perhaps, the only one that has been recorded at length and from which historians can gain an insight to possession-taking ceremonies of the seventeenth century English navigator. Fotherbye gives a concise but impressive picture as he records: When Master Baffin was gone from the ship in the foresaid shallop, I went presently into the other shallop into Maudlin Sound, there to set up the King's Armes . . . when I was within the Sound, X found no Beeches bare . . . but I went to the Harbour, and there caused a Crosse to be set up, and the Kings Armes to bee nayled thereon; under which also I nayled a piece of sheet Lead, whereon I set the Muscovie Companies Marke, with the day of the moneth and the yeere of our Lord. Then cutting up a piece of Earth which afterward I carried aboard our ship, I tooke it into my hand and said, in the hearing of the men there present to this effect. I take this piece of Earth, as a signe of lawful possession (of this Country of King James his New-Land, and of this particular place, which I name Trinitie Harbour) taken on behalf of the Company of Merchants of New-Trades and Discoveries, for the use of our Sover- eigne Lord James by the grace of God, King of great Brittaine, France, and Ireland, whose Royal Armes are here set, to the end that all people who shall here arrive may take notice of his Majesties Right and Title to this Country, and to every part thereof. God Save King James.bo 2"a Voyage of Discoverie to Greenland, &c. Anno 1614, Written by Ro. Fotherbye," in Purchas, Hakluytus Fcsthumus, XIV, 66-78. In this journal it cannot be deter mined completely whether there were times that the arms of England were set without a cross. See pp. 67-68. Ibid., p. 66. Fotherbye*s act with its erection of a cross, nailing of the lead plate, and handling of the turf, brought to an end the possession-taking that occurred under James I. Whether the acts previous to and after Fotherbye*s were performed in the same manner is difficult to determine from the records. However, it is known that Baffin used a lead plate in 1613; and that Thomas James (who like his pre decessor, Luke Fox, erected crosses) fastened the King's arms cut in lead to a cross in 1632.^ Of the English colonizers who took possession during Charles I's reign, neither Leonard Calvert in Maryland nor George Weymouth in Maine appear to have done more than to set up a cross as a sign of possession.^ Finally, the last Stuart act, which occurred after the Restoration, does not appear to have been performed in the same manner as previous ones. Captain John Narborough, who performed and most briefly recorded the possession-taking at Port Desire, leads us to believe that he simply proclaimed possession over the ^"The Voyage of Captain Luke Fox, * * in Rundall, Narratives of Voyages towards the Northwest in Search of a Passage to Cathay and India 1496 to 1631, p. 178. James, The Dangerous Voyage, p. 95. Relation of Maryland; together with a Map of the Country, the Conditions of Plantation with His Majes ties Charter to Lord Baltimore, translated into English. London, 1635," in Clayton Colman Hall, ed., Narratives of Early Maryland. 1633-1684 (New York: Charles Scribner's Sons, 1910), pp. 71 and 74. 210 territory and fired three ordnance as a sign of posses s i o n . ^ However, there may have been other ceremonies which he may have omitted mentioning in his brevity. After Narborough's act of 1670 English possession- taking came to an end for almost a half century. The ceremony was revived in 1716 by Governor Alexander Spots- wood of Virginia who took solemn possession of the Shenan doah Valley which he named Euphrates. Although it is not possible to determine absolutely from the information available, it appears that this fun-loving leader initiated the custom of drinking to his Majesty's health in claiming new lands for his monarch. In due time they reached the Blue Ridge, probably near the present Swift Run Gap, and saw beyond, the wild valley of the Shenandoah. On the summit of the moun tain they drank the health of the King, and named two neighboring peaks, "Mt. George" and "Mt. Alexander" after his Majesty and the Governor; after which they descended into the valley and gave the Shenandoah the name "Euphrates." Here a bottle was buried— there were, no doubt, a number of empty ones,--containing a paper to testify that the valley of the Euphrates was taken possession of in the name of his Majesty George I. Then the adventurers reascended the moun tain, crossed to the lowland, and returned to Williams burg. 4-7 The practice of drinking to his Majesty's health was apparently ignored by John Byron in 1765 when he formally Zl6 Narborough, "A Journal," in An Account of Several Voyages, p. 40. ^John Esten Cooke, Virginia; A History of the People (Boston; Houghton, Mifflin and Company, 1903), pp. 314-315. 211 claimed the Falkland Islands. Byron, instead of erecting a cross, hoisted the Union Jack and solemnified the event by having three guns fired: a practice which was later utilized by many of the British navigators of the eight- AO eenth and nineteenth centuries. ° It was two years after Byron’s ceremony at the Falklands that we find an English navigator relying upon toasting his Majesty’s health in taking possession of terra nullius. At Tahiti, after Mr. Fumeax, on behalf of Captain Wallis, had "hoisted a pendant, turned a turf, and took possession . . . he then went to the River, and tasted the water, which he found excellent, and mixing some of it 49 with rum, every man drank to his Majesty’s health.1 1 This very pleasing feature of toasting his majesty's health became a very popular ceremonial with the British naval commanders who performed the task of taking posses sion of newly discovered lands. No lesser man than the great Captain Cook, who probably made more acts of sover eignty than any other Englishmen, utilized it. Cook, who like Byron and Wallis, had secret orders to take posses sion, not only varied his ceremony from that of Byron or ^William Robinson, "A Journal of the Proceedings of his Majesty’s Ship Dolphin Commencing April 21st, 1764 and Ending May the 6th, 1765," MS, P.R.O., Admiralty 51, 4535. ^"An Account of a Voyage round the World in the Years MDCCLXVI, MDCCLXVII, and MDCCLXVIII, By Samuel Wallis, Esq.; Commander of his Majesty's Ship the Dolphin,1 1 in Hawkesworth, An Account of Voyages Undertaken, I, 446. 212 Wallis but even among those he performed himself. At New Zealand, where he made the first act of his career, he simply hoisted the Colors and drank to his majesty’s health from a wine bottle. Some seven months later at Australia he again hoisted the Union Jack, but instead of toasting his monarch, he "fired 3 volleys of small arms, which were answered by the like number from the ship."50 However, he introduced even more radical variations on his third voyage, which took place at the same time that the Spaniards were so ceremoniously claiming the Northwest Coast of North America. At Tahiti, where Cook found a Spanish cross of possession, the great navigator did not destroy it, but took down the Cross, and on the Opposite side to the Spanish Inscription had carv'd as follows--GEORGIUS TERTIUS REX, ANNIS 1767-1769-1773-1774-1777— and erected it in the same place where it stood before. At Kyak Island Cook performed an ambiguous ceremony which could be used either as a claim of possession-taking or simply as a memento of his being there. Instead of hoist ing the Union Jack, Cook left a bottle at the foot of a tree. In the bottle he placed a paper, on which were ^®Cook, Journal of First Voyage, pp. 189 and 312. “ *kfA Log of the Proceedings of His Majesty’s Sloop Discovery, Charles Clerke Esq. commander. 1776-1777-1778. Kept by Thomas Edgar, Master," in Corney, The Quest and Occupation of Tahiti, II, 476. 213 inscribed the names of the ships and date, and two silver two penny pieces.The Captain's final act on Cook's River in present-day Alaska was essentially the same as his first one in New Zealand in 1770. Cook describes it tersely: In the afternoon, I sent Mr. King again, with two armed boats, with orders to land, on the Northern point of the low land, on the South East side of the river; there to display the flag; to take possession of the country and river, in his Majesty's name; and to bury in the ground a bottle, containing some pieces of English coin, of the year 1772, and a paper, on which was inscribed the names of our ship, and the date of discovery.53 The newer, simpler English method of taking posses sion, which began with Byron, Wallis, and Cook, continued to be used consistently thereafter. Vancouver, who per formed the last British acts on the Northwest Coast relied upon it, first when his lieutenant took possession of Chatham Island in the South Pacific and later when the same Broughton formally claimed Puget Sound in 1792.“*^ However, Vancouver was but one of the earlier users of this cere mony; for as the possession-taking activities of British in the nineteenth and twentieth centuries will show, Britain's ^Cook and King, Voyage to the Pacific Ocean, II, 350. • ^Ibid., p. 397. ^Vancouver, A Voyage of Discovery, I, 86 and 288- 289. 214 navigators continued to use more or less the same formula to the present day. Before considering the acts of sovereignty of the third great colonial power, France, it is important to note that a revolutionary practice in possession-taking was also introduced by the British when they renewed their possession-taking activities in the later eighteenth cen tury. This practice was no other than the publication of their discoveries and acts of sovereignty performed by their discoverers. Thus, Cook's voyage from 1776 to 1780 was published in 1784, and Vancouver’s expedition from 1790 to 1795 was published in 1798. These immediate publica tions were nothing less than an open proclamation to the world of Britain’s claims and possession-takings; such a policy was indeed a more judicious and influential practice than the antiquated Spanish idea of keeping discoveries and formal claims under the veil of secrecy. French possession-taking in the New World began immediately with the use of the cross as a sign of posses sion. Jacques Cartier, the first French explorer who relied upon the cross, erected some half dozen during his two voyages in the 1530’s. However, Cartier did not rely solely on the cross since in his second act during his voyage of 1534 and in his third one during the expedition of 1535-1536, he appended a cross-bar bearing the arms 215 of France and a motto.^5 Strangely, Cartier, despite the rich French background of medieval pageantry, did not record any ceremony. This absence of ceremony is also noticeably evident in Jean Ribault's possession-taking in Florida in 1562 as the Huguenot leader merely planted "a pillar or column of hard stone, with the King’s arms engraved thereon.”^ How ever, the absence of any elaborate ceremony in Ribault’s act is more understandable due to the religious beliefs of the party. The actual use of an elaborate ceremony did not appear until some fifty years later when Champlain took possession of Quebec. The explorer himself gives us a description: Having arrived at Quebec, we went to the chapel to render thanks to God that we had reached our destina tion. The next day I had the cannon loaded, which having been done, and holy Mass having been recited, a Recollect Father delivered an exhortation in which he pointed out to everyone the obligation they were under to devote themselves to the service of his Majesty and that of my said Lord of Montmorency, declaring that "Jacques Cartier’s First Account of the New Land Called New France Discovered in the Year 1534" and "Cartier’s Second Voyage, 1535-1536," in Biggar, The Voyages of Cartier, pp. 20, 64-65, 100, 172-173, and 225. -•6"Narrative of the First Voyage Made by Captain Jean de Ribault, by Order of Charles XX, King of France, to Take Possession of, and Found a Colony of French Protes tants in Florida, 1562," in French, Historical Collections of Louisiana and Florida, II, 176. 216 everyone must act in obedience to my commands, accord ing to his Majesty's patents, bestowed upon His Grace the Viceroy, and commission given to me as his Lieuten ant, which documents would be read publicly in presence of all, so that no one might plead ignorance of them. When after this discourse we had fcome out to the chapel, I assembled the people, and commanded Commis sioner Guers to read aloud His Majesty's commission and that given to me by His Grace the Viceroy. This having been done, everybody cried, "Long live the King"; the cannon was fired in sign of joy, and thus X took possession of the settlement and the country in the name of His Grace the Viceroy. The said Guers drew up an account of the proceedings for use when and where required.57 By the middle of the seventeenth century the more ceremonious act, of which Champlain appears to have been the originator, became very popular. Prouville de Tracy, the scourge of the Iroquois, after defeating the natives had the Te Deum recited, Mass celebrated, and a cross with the arms planted in order to take possession.-^® Daumont de Saint Lusson, who had been sent by the Intendant Talon of the lands between Montreal and the South Sea, took posses sion at Sault Ste. Marie, by reading his commission, erecting a cross, planting the arms of France on a nearby pole, singing the Vexilla Regis and Exaudiat, reciting his proclamation with sword in hand, and having the Frenchmen ■^Champlain, The Works of Samuel de Champlain, V, 5-7. CQ JOFaillon, Histoire de la Colonie Francaise, III, 147. 217 fire their muskets and shout "Vive le Roi."~^ However, St. Lusson's act of 1671, despite its color and pageantry, was moderate when compared to La Salle’s possession-taking of Louisiana on April 9, 1682, almost a month after his longer ceremony on the Ohio. This act, as will be seen, rivalled both Balboa's and Sarmiento de Gamboa’s, as the diarist's description is read: On the 8th we reascended the river, a little above its confluence with the sea, to find a dry place beyond the reach of inundations. The elevation of the North Pole was here about 27°. Here we prepared a column and a cross, and to the said column were affixed the arms of France, with this inscription: 'LOIS LE GRAND R01 DE FRANCE ET DE NAVARRE, REGNE: NEUVIEME AVRIL, 1682.' The whole party, under arms, chanted the Te Deum, the Exaudiat, the Domine Salvum fac Regem; and then, after a salute of firearms and cries of Vive le Roi, the column was erected by M. de la Salle, who, standing near it, said, with a loud voice, in French: 'In the name of the most, high, mighty, invincible and victorious Prince, Louis the Great, by the Grace of God King of France and of Navarre, Fourteenth of that name, this ninth day of April, one thousand six hundred and eighty-two, I, in virtue of the commission of his Majesty which I hold in my hand, and which may be seen by all whom it may concern, have taken, and do now take, in the name of his Majesty and of his successors to the crown, possession of this country of Louisiana, the seas, harbors, ports, bays, adjacent straits, and all the nations, people, provinces, cities, towns, villages, mines, minerals, fisheries, streams and rivers comprised in the extent of said Louisiana, from the mouth of the great River St. Louis, on the eastern side, otherwise called Ohio; Alighin [Alleghany], ^Saint Lusson’s Proces Verbal, June 14, 1671, in Collections of the State Historical Society of Wisconsin, XI, 26-29. Parkman, La Salle, pp. 42-43. 218 Sipofe, or Chukagona [Chicago] and this with the con sent of the Chaouanons [Shawnees], Chikachas and other people dwelling therein, with whom we have made alliance as also along the River Colbert, or Missis sippi, and rivers which discharge themselves therein, from its source and beyond the country of the Kious [Sioux], or Nadouessious, and this with their consent, and with the consent of the Motantees, Ilinois, Mesigameas, Natches, Koroas, which are dwelling there in, with whom, also, we have made alliance, either by ourselves or by others in our behalf; as far as its mouth at the sea, or Gulf of Mexico, about the 27th degree of the elevation of the North Pole, and also to the mouth of the River of Palms; upon the assurance which we have received from all these nations that we are the first Europeans who have descended or ascended the said River Colbert; hereby protesting against all those who may in future undertake to invade any or all of these countries, people or lands above described, to the prejudice of the right of his Majesty, acquired by the consent of the nations herein named. Of which, and of all that can be needed, I hereby take to witness those who hear me, and demand an act of the Notary, as required by law.T To which the whole assembly responded with shouts of Vive le Roi and with salutes of firearms. Moreover, the said Sieur de la Salle caused to be buried at the foot of the tree, to which the cross was attached, a leaden plate, on the side of which were engraved the arms of France and the following Latin inscription: LVDOVXCUS MAGNUS REGNAT. NONO APRILIS CIG IGC LXXXII ROBERTVS CAVELIER, CVM DOMINO DE TONTY LEGATO, R. P. ZENOBIO MEMBRE, RECOLLECTO, ET VIGINTI GALLIS, PRIMVS HOC FLVMEN, INDE AB ILINEORVM PAGO, ENAVIGAVIT, EJVSQUE OSTIVM FECIT PERVIVM, NONO APRILIS ANNI CIG IGC LXXXII. After which the Sieur de la Salle said that his Majesty, as eldest son of the Church, would annex no country to his crown without making it his chief care to establish the Christian religion therein, and that its symbol must now be planted; which accordingly was done at once by erecting a cross before which the Vexilla and the Domine salvum fac Regem were sung. 219 Whereupon the ceremony was concluded with cries of Vive le Roi.60 Aside from La Salle's omission of having Mass cele brated, his possession-taking certainly proved to be the most religious of any French possessory act. It would indeed be easy to attribute his propensity for religious ceremony to his former life as a Jesuit scholastic, but this does not appear to be satisfactory reason since the acts of Fathers Dollier and De Galinee on Lake Erie and M. de Saint Simon and Father Charles Albanel in the Hudson Bay area fail to mention any elaborate religious observ ances. Undoubtedly, the pomposity of La Salle’s act can only be attributed to his romantic spirit. However, lest the picture be obscured by his religious pageantry, it must be pointed out that La Salle, like the previous French explorers (excepting Champlain), faithfully planted the arms of his monarch. Almost in unbelievable words is the next French act claiming previously unclaimed territories described. Lemoyne D'Iberville, who like La Salle set out from New France, either did not bother much with religious rituals in taking possession or if he did use them, did not con sider them important enough to describe them in his ^Isaac Joslin, ed., The Journeys of Rene Robert Cavalier Sieur De La Salle (New York: A. S. Barnes and Company, 1905), I, 166-170. 220 official record. His entries in the Louisiana country are extremely concise: On the 4th, being Ash Wednesday, religious cere monies were performed by every one, then Mass was said, and after a cross was planted we breakfasted. . . . On Thursday, the 5th . . . We planted a cross and made several marks upon the trees, and fired off one of our swivels to give notice to the savages. . . . On Saturday, the 7th, we embarked, after having erected a cross, and marked some trees. . . . On Monday, the 9th, at seven o’clock, after having erected a cross, as usual we embarked. . . . Towards the evening we made a large cross, upon which we placed the arms of France, and next morning Monday, the 16th, we planted it in the ground. . . .61 From D’Iberville's possession-taking at Louisiana, the French ceremony appears to have become extremely simple. M. Du Tisne, who claimed the land of the Padoucas (Comanches) on September 27, 1719, "erected a column with the arms of the King placed upon it."62 Chevalier Fougeray, who took possession of Mauritius Isle on Septem ber 23, 1721, fixed a pole on the ground, decorated it with a white flag and placed a Latin inscription upon it. Fougeray then set up a cross on which he inscribed the arms 6k’Historical Journal or Narrative of Expedition Made By Order of Louis XIV, King of France, Under Command of M. D'Iberville, to Explore the Colbert (Mississippi) River and Establish a Colony in Louisiana," in French, Historical Collections of Louisiana and Florida, II, 58-75. 62"Annals of Louisiana from 1698 to 1722," in French, Historical Collections of Louisiana and Florida, I, 151-153. 221 of France.^ Some seventeen years later, Sieur de la Verendrye varied the manner of possession-taking at the Mandan villages in Dakota: To the principal chief I gave a flag and also a lead tablet the four corners of which X had ornamented with ribbon. This was placed in a box to be kept in per petuity in remembrance of my having taken possession of their land in the King's name. It will be care fully preserved from father to son, better than if I had buried it in the ground, where it might have run a risk of being stolen.°4 La Verendrye's second tablet, which was deposited in the vicinity of Pierre, South Dakota, on March 30, 1743 was found on February 16, 1913 by some children playing near Pierre. The lead plate bears the following inscrip tion: ANNO XXVI REGNI LUDOVICI XV PROREGE . . . ILLUSTRISSIMO DOMINO MARCHIONE . . . DE BEAVHARNOIS M.D.CC. XXXXI . . . PETRVS GAVLTIER DE LAVERENDRIE POSUIT. . . .^5 Six years after La Verendrye deposited the second tablet near Pierre, the first phase of French possession- taking came to an end with the acts of Celoron de Bien ville in the Ohio Valley in 1749. Celoron continued using the lead plate as a sign of possession. Unlike Sieur de la Verendrye, Celoron planted his plates in the earth, and ^ C h a r l e s Grant, The History of Mauritius, or the Isle of France and the Neighbouring Islands; From Their First Discovery to the Present Time (London: 1801), pp. 28-29. 6^La Verendrye, Journals and Letters, pp. 350-351. 65Ibid., p. 17. 222 thus reduced the French possession-taking ceremony to the most simple terms.^ Fortunately, the fourth plate, which was deposited near the mouth of the Great Kanawha, was found by a youngster who was playing on the shore of the river in March, 1846.^ The plate bears the following inscription: IAN 1749. DV REGNE DE LOVIS XV ROY DE FRANCE NOVS CELORON COMMANDANT DVN DE TACHEMENT ENVOIE PAR MONSIEVR LE MIS DE LA GALISSONIERE COMMANDANT GENERAL DE LA NOVVELLE FRANCE POVR RETABLIR LA TRANQVILLITE DANS QVELQVES VILLAGES SALVAGES DE CES CANTONS AVONS ENTERRE CETTE PLAQVE A LENTREE DE LA RIVIERE CHINODAHICHETHA LE 18 AOUST PRES DE LA RIVIERE OYO AUTREMENT BELLE RIVIERE POVR MONVMENT DV RENOWELLEMENT DE POSSESSION QVE NOVS AVONS PRIS DE LA DITTE RIVIERE OYO ET DE TOVTES CELLES QVI Y TOMBNT ET DE TOVES LES TERRES DES DEVX COTES JVSQVE AVX SOVRCES DES DITTES RIVIES VINSI QVE ONT IOVY OV DV JOVIR LES PRECEDENTS ROYS DE FRANCE ET QVILS SISONT MAINTENVS PAR LES ARMES ET PAR LES TRAITTES SPECIALMENT PAR CEUX DE RISWICK DVTRCHT ET DAIX LA CHPPELLE68 The planting of such inscribed plates indeed proves that the French ceremony of possession-taking could not have possibly become simpler when it was revived in 1764 by Bougainville in the Falklands as he erected a monument and buried some coins and a medal next to it as a sign of r r Galbreath, Expedition of Celoron to the Ohio Country in 1749, pp. 17, 26, 37, 39-40, and 50. ^Ibid., pp. 40, 71, and 125-126. ^Ibid., p. 41. 223 69 possession. Besides France, England, and Spain, the other colon izing nations of Europe also relied upon possession-taking for acquiring newly discovered lands. Of these nations, which then consisted of Holland, Sweden, and Russia, Holland appears to be the most prolific and diverse in taking possession. As early as 1598 the Dutch began taking possession when they claimed the island of Mauritius by erecting a tree and placing an escutcheon bearing the arms of Holland, Zeeland, and Amsterdam upon it.^® Besides the cross and escutcheon the Dutch also relied on erecting a post and nailing an engraven lead plate upon it as the plate that Narborough found on Le Maire’s Island attests.^! However, the Dutch, like their Portuguese rivals, also erected engraved stone pillars; and, like the other 7 9 colonizing pox^ers, also planted the colors. Yet, when they decided to obtain Manhattan Island, the Dutch did not ^ B o u g a i n v i l l e , "Viaje" in Biblioteca Indiana, p. 695. ^Prince Roland Bonaparte, Le Premier ^tablissement Des Neerlandais a Maurice (Paris: 1890), p. 28. 71 Narborough, MA Journal" in An Account of Several Voyages, pp. 35-37. ^"Instructions for the Yachts Haringh and Hasewint Having Destination Jointly to Discover and Explore the Southland, September 29, 1622," in J. E, Heeres, The Part Borne by the Dutch in the Discovery of Australia, 1606-1765 (London: Luzac and Company, 1899), p. 20. Tasman, "Voyage" in Barrow, Abrege Chronologique, pp. 217-218. 224 legally regard it as terra nullius since they purchased the land from the Indians for 60 guilders. Although this was only a symbolic amount, it did recognize the rights of the Indians: a recognition which England and Spain did not give until late in the eighteenth century. This recognition of Indian rights is also found in the Swedish colonization of New Sweden as the discontented Dutchmen, Samuel Blommaert and Peter Minuit, who led the expedition were instructed that the land on the west side of the Delaware "was to be bought from the savages. . . . The Swedish coat of arms was then to be erected. . . . Finally he was to build a house or fort . . . and it was to be called New Stockholm, with the firing of c a n n o n . " ^ Minuit was faithful to his instructions, for Amandus Johnson, the historian of New Sweden, tells us that when the purchase was concluded the sachems and Minuit with his officers and soldiers went ashore. A pole was erected with the coat of arms of Sweden upon it, and with the report of cannon followed other solemn cere monies, the land was called New Sweden, and Minquas Kill was given the name of E l b e .74 The last country to begin the practice of possession- taking did not follow the policy which the Swedes and Dutch 73Amandus Johnson, The Swedish Settlements on the Delaware: Their History and Relation to the Indians, Dutch and English, 1638-1664. With an Account of the South, the New Sweden, and the American Companies, and the Efforts of Sweden to Regain the Colony (New York: D. Appleton and Company, agents for University of Pennsylvania Press, 1911), I, 113. 74Ibid., p. 184. 225 originated by purchasing the land from the natives. Russia, whose possession-taking activities began late in the seventeenth century, does not appear to have followed any official policy concerning the taking of possession. As early as 1697 Volodimir Atlassoff "took possession of the river Kamtchatka by erecting a cross upon its banks."^ However, despite the great Russian discoveries and explora tion in the Northwest Coast of America, there is only evi dence of further possession-taking in the Kurile Islands where William Broughton, who had earlier accompanied Vancouver, found the Russian "crosses erected in different places, and the Russian Arms carved and painted."^ Thus, the Russians began their possession-taking activities in much the same way that the Spanish, French, English, and Portuguese had done. However, what is strange concerning their origin is not so much use of the cross as a sign of possession, but rather the general omission of acts of sovereignty in their explorations and colonization. Although the study of the ceremony of possession- taking, as practiced by the different colonial powers, is ^William Coxe, Account of the Russian Discoveries between Asia and America to Which Are Added The Conquest of Siberia, and The History of the Transactions and Commerce between Russia and China (London: T. Cadelli 1780), p. 4. ^^William Robert Broughton, A Voyage of Discovery to the North Pacific Ocean; Performed in His Majesty’s Sloop Providence, and her Tender in the Years 1795, 1796, 1797, 1798 (London: T. Gadell and W. Davies, 1804), pp. 124-125. completed by the consideration of the Russian acts, some thought should be given to the different ends to which the ceremony was used. The Spaniards, who relied principally upon symbolic acts of sovereignty, used the ceremony of possession-taking most extensively. In other fields this was true also.' Persons who had been appointed to high civil or ecclesiastical positions in the Spanish Empire took symbolic possession of their office. In the New World the receivers of encomiendas, land grants, and ranchos also took possession of their benefice. The recipients of town sites, water rights, and mission sites were generally placed in possession of them by some superior officer or official. Finally, the Spaniards also utilized symbolic acts for obtaining jurisdiction over presidio sites, ceded territory, seized ships, and conquered areas. The most common manner in which governors, presi dents of the audiencias, alcaldes mayores, and commandants took symbolic possession of their office was to have the official order of appointment proclaimed before the respective subordinates, who in turn took the document and placed upon their head. Depending upon the situation, the new appointee at times received a scepter or mace symbol izing the office, or paced through the main entrance of the main building as he opened doors as a sign of posses sion. Regardless whether any subsequent ceremony was 227 performed after the placing of the official orders upon the head of the subordinates, the ceremony was witnessed and formally recorded by a notary or an adequate substitute.77 In taking possession of ecclesiastical posts, the clergy followed a similar ceremony to that of the temporal officials. The official notice of appointment was read before the subordinates who subsequently placed it upon their heads. Upon the termination of the reading, the new appointee generally performed some symbolic act such as casting out silver coins to the assembly (a ceremony which is still in effect in the diocese of Seville) or the creation of some sign of possession as the erection of a bell or belfry. Naturally, the ceremony of possession was then solemnly recorded by a notary public or substitute.78 77"Testimonio del dia en que Don Pedro Baygerri tomo posesion del Gouiemo de las prouincias del rio de la plata," [February 19, 1653], MS, A.G.I., Audiencia de Chareas, Leg. 14. Toma de Posesion de Don Diego de Martos como Gobemador de la Provincia de Chucuito, [July 16, 1670], MS, A.G.I., Audiencia de Charcas, Leg. 14. "Testi- monio de aber sido rrepebido Don Diego de Portugal en la rreal audienpia de la Plata provincia de los Charcas presi- dente della en 27 de julio de 1620," MS, A.G.I., Audiencia de Charcas, Leg. 18. "Como el capitan Salazar dio la posesion de la casa fuerte de la Asumpcion a Yrala," [June 25, 1539], MS, A.G.I., Justicia, Leg. 1131. Portillo, Historia Antigua de Coahuila y Texas, pp. 49-52 and 183-184. Republica de Nicaragua, Coleccion Somoza: Documentos Para La Historia de Nicaragua (Madrid: Imprenta Juan Bravo, 1954), I, 580-581. The above acts are but a few examples of the ceremony. 78"r£estimonio de la possecion que el Arpobispo de Santo Domingo tomo de su Arpobispado, y juramento que hipo de el Patronato Real," [September 25, 1673], MS, A.G.I., Audiencia de Santo Domingo, Leg. 93. Toma de posesion de 228 Possession-taking was also used to acquire encomien das, land grants, and ranchos. Aside from the symbolic acts for the acquisition of uninhabited lands, acts of possession for acquiring encomiendas appear to be the most frequent ceremonies of this type that are found recorded in the Spanish archives. The actual ceremony, which was per formed after the official documents had been received and approved, varied in different situations. A common type consisted of having the local official, after the reading of the official document, deliver the Indian chieftains to the encomendero who symbolically grasped their hand. At other times the ceremony was augmented as the enconu=ndero would pace up and down the area while holding the hand of the principal Indian of his encomienda. Sometimes the cacique, instead of pacing up and down with his new master, would simply move the location of a chair from one room to another, and thereby signify symbolic possession-taking. However, as Silvio Zavala has indicated, the essential symbolic ceremony of encomiendas appears to have been the grasping of the master1s hand by the cacique who thereby acknowledged obedience. Besides the subsequent ceremonies of pacing, entering the native1s abode, or moving chairs, la parroquia de la Villa de San Niguel, Guatemala, [Decem ber 24, 1566], MS, A.G.I., Audiencia de Guatemala, Leg. 112. Portillo, Historia Antigua de Coahuila v Texas, pp. 143-149. 229 there were other ceremonies such as the cutting of tttfigs, drinking from fountains, and watering the area.^ Similar to the case of the encomendero was the land grantee who also took symbolic possession of his rancho or grant in order to obtain jurisdiction of his new land. An example of the ceremony that was used in such cases is preserved for us in the grant of the Rancho Ensenada de Todos Santos in Lower California in 1805, when Sergeant Estanislas Salgado witnessed and recorded the act. Salgado describes the act briefly as he writes to governor Arrillaga: In compliance with the foregoing order, assisted by the witnesses, two soldiers from the same troop, Ramon Agundes and Miguel Mesa, I proceeded to mark and measure two sites, for cattle raising, in the following manner: from the south, 10,000 varas, reaching up to the place called El Mancasero; from the north, 5,000 varas, up to the place called Arroyo de Carmerre; from the east, up to the Sierra Madre, 5,000 varas (no measurement being taken on the west, as the tract borders on the sea); and, having placed the correspond ing marks or posts, I took Don Josef Manuel Ruiz, lieutenant of the troop at the abovementioned presidio, by the hand and led him to the two sites; he then walked about and broke down some branches from the trees. All this I performed to give token of true, real, actual civil and natural possession granted him by His Majesty in peace and quiet, without any opposi tion and with the understanding that he shall acknowl edge the supreme authority of His Majesty in accordance ^^"Titulo de los rrepartimientos de Rodrigo Locano de Guanape y de Chao y de Guaman,” [July 17, 1554], MS, A.G.I., Audiencia de Lima. Leg. 118. "Posesion de los Indios," "[August 13" 1609], MS, ^A.G.I., Audiencia de Guatemala, Leg. 112. Leon Fernandez, ed., Coleccion de Documentos para la Historia de Costa-Rica (San Jose de Costa Rica: Imprenta Nacional, 18815"] l7 270-273, 279-281, 285-287, and 355-357. Silvio Zavala, De Encomienda y Propiedad Territorial en Algunas Regiones de la America Espanola (Mexico: Antigua Librerxa Robredo, 1940), p. 9. 230 with the usual procedure; and to give evidence of this the witnesses signed with me on the same day, month and year. Ensenada de Todos Santos, July 15, 1805. Ser geant Estanislas Salgado. Assistant witnesses: Ramon Agundes, Miguel Mesa, and Tomas, Xavier, and Nicolas, neighboring Indian landholders from the mission of San Miguel. Melchor, Juan Evangelista, and Atanacio, neighboring Indian landholders from the mission of Santo Tomas.80 However, it should not be thought that all judicial possession of grants was identical. The ceremonies, as in the taking of possession of offices and encomiendas, varied somewhat. An example of this variance occurred at the judicial possession-taking of the Rancho San Jose in Cali fornia where "a large oak was taken as a boundary, in which was placed the head of a beef and some of its limbs c h o p p e d . "81 At other times the sign of possession con sisted of nothing more than the burning of the owner's brand upon the tree marking the boundary.82 Just as the encomendero and grantees received pos session of their benefice, the missionaries also did like wise. The clearest and best preserved examples of possession-taking of missions occurred in Texas where the Franciscan fathers of Queretaro received the missions from 80”Grant of the Rancho Ensenada de Todos Santos," in Robert Glass Cleland, The Cattle on a Thousand Hills (San Marino, California: The Huntington Library, 1941), pp. 277- 279. 81charles C. Baker, "Mexican Land Grants," Annual Publications of the Historical Society of Southern Cali fornia, IX (February, 1891), 241. 82Ibid. 231 the Marques de Aguayo, the Governor of Coahuila, in 1721 and 1722. Taking the first acts of possession which were performed at the Missions of San Francisco, Concepcion, and San Jose as the prototypes of the ceremonies which were to be carried out in the other missions established by the Marques de Aguayo, we learn that there is little difference between these ceremonies and the ones employed for other situations. As a sign of symbolic possession the Father Presidente, Father Ysidro Felix de Espinosa, entered and came out of the church through both doors. After this part of the ceremony was finished, the Marques of Aguayo took the chief of the Neche Indians by the hand, led him in and out of the church, and then walked throughout the church grounds as the chief pulled weeds, picked up dirt and rocks which he scattered about as a sign of real possession. Finally, the Marques ordered that the complete ceremony be recorded and notarized.^ The possession-taking of missions gives an indica tion (as the result of the governor’s action of taking the Indian chief's hand) of the Spanish practice of giving the Indians possession of some property or office. Actually the Indian did not take possession of the property or OO OJ"Testimonio de la posesion de las misiones de San Francisco de los Nechas, de Concepcion de los Ainaiz, y de San Jose de los Nazones," [1721], MS, A.G.I., Audiencia de Guadalaiara, Leg. 117. 232 office but was placed in possession of it. In the early years of colonization the Indians were apparently taken by the hand and were explicitly told that they were placed in possession of the property which could be a new munici pality, or water rights, or land.^4- However, in the eighteenth century these acts which were performed by the Indians seem to indicate a change in procedure as the Indian began to indulge in the ceremonies of pulling grass or weeds, tossing pebbles, and watering the earth. Yet, they were still placed in possession of property by a Spanish official so that there appears to be a marked distinction between the Hispanic and the Indian element insofar as the ceremony of possession-taking was concerned. The Spaniard took possession of his office; the Indian was placed in possession of it by the Spaniard. Besides performing acts for the acquisition of offices and different types of property, the Spaniard also relied upon symbolic acts for acquiring jurisdiction over presidio sites, ceded territory, seized ships, and con quered areas. Although the different examples of such possession-taking are limited, the circumstances leading to these events determine to large degree the pageantry of the occasion. Thus, the very preparations necessary for ^Portillo, Historia Antigua de Coahuila y Texas, pp. 386-401. 233 establishing a presidio would naturally allow and pre suppose a rather pompous ceremony. This is indeed the case with establishment of the Presidio of San Francisco whose formal act September 17, 1776 has been recorded for us by Father Francisco Palou. It was then decided that the formal act of posses sion should take place, the day appointed for it being that on which our Mother Church celebrates the impres sion of the stigmata of Our Seraphic Father San Francisco, that is, the 17th of September, a most appropriate day, since he is the patron of the harbor, the new presidio, and the mission. And for taking formal possession of the mission the 4th of October was designated, which is the day dedicated to Our Seraphic Father San Francisco. The commander of the packet, his two pilots, and the greater part of the crew were present at the ceremony of taking formal possession, only those who were absolutely necessary remaining on board; and with the people from the presidio, troops as well as citizens, they made up a goodly number of Spaniards. There were also present four friar priests, all of our College, that is, the two missionary ministers of this mission, the chaplain of the bark, and Father Fray Tomas de la Pena, who had come from Monterey to examine the site for the second mission, of which he had been named minister. A solemn Mass was sung by the ministers, and when it was concluded the gentlemen performed the ceremony of taking formal possession. This finished, all entered the chapel and sang the Te Deum Laudamus, accompanied by peals of bells and repeated salvos of cannon, muskets, and guns, whose roar and the sound of the bells doubtless terrified the heathen, for they did not allow themselves to be seen for many days. The cere mony concluded, the commander of the presidio invited to it all the people, conducting himself with all the splendor that the place permitted, and supplying with his true kindness what would have been missed in other parts, for which all the people were grateful, express ing their gratitude in the joy and happiness which all felt on that d a y . 85 ^-*Fray Francisco Palou, Historical Memoirs of New California, edited by Herbert Eugene Bolton (Berkeley: University of California Press, 1926), IV, 125-126. 234 Undoubtedly, the commander of the Presidio invited the people to some sort of dinner on the grounds. This is indicated somewhat hazily by the last sentence. However, such an occurrence was not without precedent since at the Port of Monterey "all the gentlemen together with the fathers dined on shore of the harbor” after possession was taken.86 Perhaps of greater importance than the possession- taking of presidios was the ceremony performed for obtain ing judicial possession of ceded territory. As is known, such cessions occurred very seldom; therefore it is not strange that only the documentation for Ulloa's act of possession of Louisiana was found by the writer although it is common knowledge that Alejandro O'Reilly also performed the same ceremony two years after Ulloa. Apparently the ceremony of possession-taking of ceded territory was considered important not only by the Spaniards but also by the Louisiana French. For it was on the basis that Ulloa had failed to take official possession of Louisiana that the Frenchman Foucault justified his refusal to obey the orders of the Spanish g o v e r n o r . 86palou, Historical Memoirs of New California, I, 291-292. 8?Vicente Rodriguez Casado, Primeros Anos de Dominacion Espanola en la Luisiana (Madrid: Instituto Gonzalo^ lTernandez de Oviedo, 1942), pp. 103-104. 235 Although the performance of this ceremony was important from a legal viewpoint, actually insofar as the symbolic activities were concerned, it was by far one of the simplest acts performed by the Spaniards. It appears to have consisted of nothing more than lowering the French OO colors and raising the Spanish standard.00 Whether the official taking possession of seized ships, as Martinez performed at Nootka Sound, consisted of the same type of ceremony as was used in obtaining judicial possession of ceded territory cannot be determined from the documents available. However, it seems logical that such indeed would be the case. There is, however, no doubt that such a ceremony was at times utilized in the formal possession-taking of conquered territories as the act of possession at former English fort of St. Joseph, which was captured by the Spanish forces during the American Revolu tionary war, indicates.Yet, even in such cases, the formal act of possession may have varied since the Spanish forces took possession of the East Bank of the Mississippi ^Prise de possession de la Louisiane, Balize, 20 Janvier, 1767, MS, A.H.N., Consejo de Indias, Leg. 20854. Spanish Act of Possession of the Valleys of the St. Joseph and Illinois Rivers, February 12, 1781,” in Lawrence Kinnaird, ed., "Spain in the Mississippi Valley, 1765~1794," Annual Report of the American Historical Association for the Year 1945 (Washington, D.C.: United Btates Printing Office, 1949), II, 418, hereinafter cited as Kinnaird, "Spain in the Mississippi Valley." 236 River North of the District of Natchez by enclosing the instrument of possession together with a royal coat of arms in a tin box which they b u r i e d . ^0 This final act on the Mississippi River brings to an end the discussion of the different ceremonies of possession-taking during the fifteenth, sixteenth, seven teenth, and eighteenth centuries. Although the Spaniards continued to perform acts during the early years of the nineteenth century, and thereby relied upon the older and more pageant-filled ceremonies of possession-taking, possession-taking became a simpler ceremony as England, France, and Germany set the practice of merely raising the national standard and firing guns as the sign of symbolic acquisition. It is with these types of acts that the following chapters of this study will be concerned as possession is taken of the Pacific Islands, Africa, and Antarctica. 90"Act of Possession of East Bank of the Mississippi River North of the District of Natchez, November 22, 1780," in Kinnaird, "Spain in the Mississippi Valley." CHAPTER VII THE NINETEENTH AND TWENTIETH CENTURIES The Nootka Convention of 1794 did not settle the disputed claims to the Northwest Coast permanently. Within a few years the sovereignty of the territory was again disputed, this time by England and the United States, and the role of possession-taking acts again became important. Prior to 1803, when the United States acquired Louisiana from France, and to 1804-1805 when Meriwether Lewis and William Clark explored the Oregon Country, the United States, despite the presence of its citizens in the Pacific Northwest for fur trading enterprises, possessed no cogent claim to the area.-*- However, the acquisition of Louisiana and the Lewis and Clark Expedition, coupled with the founding of Astoria in 1811, gave the United States the basis upon which it could dispute title to the territory with Great Britain after the War of 1812. Britain, on the other hand, whose claim to the ^-Captains Robert Gray and John Kendrick*s voyages to this area, although later utilized by the American government in claiming the area, do not appear to have objectively established territorial rights for the United States. Both Gray and Kendrick appear to have recognized Spanish jurisdiction at Nootka when Martinez imprisoned the British. Furthermore, neither Gray nor Kendrick discovered nor claimed any territory for the United States. 237 238 territory rested not only on the discoveries and possessory acts of Drake, Cook, and Vancouver, but also upon the temporary settlements and mercantile activities of her maritime traders, was also strengthening her position in the area: In 1806 two forts were established on Fraser and Stuart lakes respectively, and having founded Fort George in 1807 at the confluence of the Stuart and Fraser rivers, in 1808 the two adventurers who had named those streams went down the latter to its mouth, in latitude 49. . . . In 1810 Thompson, of the Northwest Company, after exploring the river that bears his name, wintered near the junction of the Canoe River and the main Columbia in about 52°. In the spring of 1811 he continued his journey down the river, taking possession by raising flags and huts at various points, to the Spokane in 48°; and there a post was established by Stuart or McDonald, in what month does not appear. Thompson was the first to explore the main Columbia above the mouth of the Snake, He doubtless intended to take possession for his company and for England at mouth of the Columbia, where he arrived in July; but he was too late.2 David Thompson may have indeed been too late to have taken possession of the mouth of the Columbia as he found the American settlement of Astoria, but Britain would not have too long to wait before it would solemnly claim that very spot. With the outbreak of the War of 1812, the mem bers of the Pacific Fur Company decided to sell out to the British North West Company since the British had already dispatched a warship to take over. Soon after the sale, ^Bancroft, History of the Northwest. II, 328-329. 239 which was effected in 1813, the warship, Raccoon, Captain Black commanding, arrived. Finding the fort in British hands, the captain took formal possession rather auspi ciously: After dinner the captain caused firearms to be given to the servants of the Company, and we all marched under arras to the square or platform, where a flag-staff had been erected. The captain took a British Union Jack, which he had brought on shore for the occasion, and caused it to be run up to the top of the staff; then, taking a bottle of Madeira wine, he broke it on the flag-staff, declaring in a loud voice that he took possession of the establishment and of the country in the name of his Britannic Majesty; and changed the name of Astoria to Fort George. Some few Indian Chiefs had been got together to witness this ceremony, and I ex plained to them in their own language what it signi fied. Three rounds of artillery and musketry were fired, and the health of the king was drunk by the parties interested, according to the usage on like occasions.3 Despite the sale of the post at Astoria and Captain Black’s formal act of sovereignty on behalf of Great Britain, the claims of the United States were not extin guished in the Northwest. According to the Treaty of Ghent, "all territories, places, and possessions taken by either party from the other during the war were to be restored after the peace without delay." Since Britain did delay, the United States, as the result of presidential ^Gabriel Franchere, "Narrative of a Voyage to the Northwest Coast of America in the Years 1811, 1812, 1813, and 1814 or the First American Settlement on the Pacific," tr. and ed. J. V. Huntington, in Reuben Gold Thwaites, ed., Early Western Travels 1748-1846 (Cleveland: The Arthur Clark Company, 1904), VI, 301-302. 240 orders, sent Captain James Biddle, commanding the U.S.S. Ontario, and J. B. Prevost, an American Commissioner, to claim the territory.^ For the student of possession-taking, the instructions which John Quincy Adams drafted to Prevost are most interesting: You are thence to proceed to the Columbia River with a view to assert the claim of Sovereignty in the name and behalf of the United States, by some symbolical or other, appropriate mode of setting up a claim to national authority and dominion; but no force is to be employed by Captain Biddle, if in the attempt to accom plish the object any unexpected obstruction should occur.5 Although Hr. Prevost failed to accompany Captain Biddle, Adams* instructions were well fulfilled by the naval officer: I sailed from Lima on the thirtieth of June (1818) and arrived off the Columbia River on the nineteenth of August at daylight. The entrance to this river is rendered difficult to vessels so large as the Ontario by the shoalness of the water on its bar, by its sinu ous channel, and by the strength and irregularity of its tides. As it was not indispensable to the service I had to perform that the ship should enter the river, I anchored outside the bar, and proceeded in with three boats well armed and manned with more than fifty officers and seamen. I landed at a small cove within ^"Samuel Flagg Bemis, John Quincy Adams and the Foundations of American Foreign Policy (New York: Alfred A. Knopf, 1950y] pp.282-283, hereinafter cited as Bemis, John Quincy Adams. ^J. Q. Adams to J. B. Prevost, September 29, 1817, in William R. Manning, Diplomatic Correspondence to the United States: Canadian Relations 1784-1860 (Washington. D.C.: Carnegie Endowment for International Peace, 1940), I, 262-263, hereinafter cited as Manning, Diplomatic Cor respondence, Canadian Relations. 241 Cape Disappointment on the north side of the river, and here, in the presence of several natives, displaying the flag of the United States, turning up a sod of soil, and giving three cheers, I nailed up against a tree a leaden plate in which were cut the following words: TAKEN POSSESSION OF IN THE NAME AND ON THE BEHALF OF THE UNITED STATES; BY CAPTAIN JAMES BIDDLE; COMMANDING THE UNITED STATES SHIP ONTARIO, COLUMBIA RIVER, AUGUST, 1818. While this was passing on shore, the ship fired a salute. When this ceremony was concluded, I proceeded up to Chinoake village and visited its chief, thence crossed the river and visited the settlement, which is 20 miles from Cape Disappointment, and on my way down the river I landed on its south side near Point George and took possession. I anchored with the boats for the night off Chinoake Point, and on the following morning I recrossed the bar and returned on board.® It was with Biddle's act, which indeed was copied from European tradition, that the United States not only first laid its sovereign claim to that territory but also inaugurated its practice of possession-taking for terra nullius. Moreover, soon after Biddle's ceremony, Prevost, who had remained at Peru, joined Captain Frederick Hickey, commanding H.M.S. Blossom, who had been instructed by his government to "co-operate in the restoration of Fort George to the United States." They entered the river on October 1. A few days later on October 6, Captain Hickey and Factor Keith, acting under orders of the British Government, formally and handsomely handed over the post to Prevost. He re ceived it in the name of the United States. At last ^Extract from the Log of the U.S.S. Ontario, Captain James Biddle, in "Documents," The Quarterly of the Oregon Historical Society, III (September, 1902), 310-311. 242 the Union Jack came down. The Stars and Stripes broke out in the autumn sun. Then the Blossom and its official passengers sailed back to South America.? Although both Biddle and Prevost's acts, as well as that of Black, claimed to acquire sovereignty over the Northwest, actually none of the acts could be nor were recognized as possessing any validity. Black's, insofar as possession-taking is precisely concerned, may have had a sounder foundation, since he performed it on territory that had been abandoned by the United States company. However, it was invalidated by the very articles of the Nootka Sound Convention. On the other hand, the two United States acts were not first acts upon previously undiscovered and un occupied territory. Furthermore, not only is there very serious doubt that Britain was obligated to restore the post of Astoria, but also it was understood that the restoration did not imply any recognition of an American title to the territory.^ Notwithstanding the obvious defects of these acts, they nevertheless were used to strengthen the claims of both disputants to title to Oregon ^Bemis, John Quincy Adams, p. 285. Extracts of Letter from Mr. Rush to the Secretary of State, Dated London, February 14, 1818," in American State Papers. Foreign Relations (Washington, D.C.: Gales and Seaton, 1834), IVj 853. "Extract of a Letter from Mr. Adams, Secretary of State, to Mr. Rush, Envoy Extra ordinary and Minister Plenipotentiary in London, Dated Department of State, Washington, May 20, 1818," in American State Papers. Foreign Relations. IV, 853-854. 243 and thereby entered into the negotiations which followed after the Convention of 1818 when joint occupancy was agreed upon. Soon after this Convention was signed, the import ance of possession-taking, not only by the United States but also by Spain, became of utmost significance. The United States by signing the Adams-Onis Treaty of 1819 received whatever title Spain had to the Northwest Terri tory. Thus, willingly or unwillingly, this country in order to assert the claim which it obtained from Spain, was forced to accept the Spanish doctrine of acquiring terra nullius by the practice of first possession-taking. The first instance in which the United States relied upon the title that it had received from Spain is found in the instructions which the indomitable John Quincy Adams sent to Richard Rush, American Commissioner, for the Oregon Question negotiation of 1824. Although the Spanish rights later proved to be most essential in the negotiations of 1826 and 1844-45, Adams, logically following his tenets of continental expansion, placed them in last place in enumer ating the claims of the United States to the region. The right of the United States to the Columbia River, and to the interior Territory washed by its waters, rests upon its discovery from the Sea, and nomination by a Citizen of the United States; upon its exploration to the Sea by Captains Lewis and Clarke; upon the settlement of Astoria, made under the protec tion of the United States, and thus restored to them in 1818, and upon the subsequent acquisition of all 244 the rights of Spain, the only European power, who prior to the discovery of the River, had any pretensions to territorial rights to the Northwest Coast of A m e r i c a . 9 The American position, which the British of course rejected, is interesting because at almost the same time Henry Middleton, the American Minister to Russia, was pro claiming the doctrine that "occupation was necessary to constitute title over terra nullius in the northwest area."Since the Northwest Territory was then unoccupied by Americans, the American claim simply amounted (1) to the so-called rediscovery of the Columbia River by Captain Gray, who neither claimed it for the United States nor questioned Martinez1 authority to act at Nootka; (2) to the somewhat late expedition of Lewis and Clark; and (3) to the symbolic acts which both Spaniards and Americans had made in the territory because neither Spain nor the United States had ever occupied the territory permanently, both having abandoned their settlements. Thus, the United States1 claims, whether they were so recognized by either the British or the Americans, were at this time essentially founded upon discovery and symbolic possession-taking, and were therefore completely contradictory to the doctrine 9jf. Q. Adams to Richard Rush, July 22, 1823, in Manning, Diplomatic Correspondence, Canadian Relations, II, 55-65. ^ S i m s a r i n , "The Acquisition of Terra Nullius," Political Science Quarterly, LIII (March, 1938), 125. 245 enunciated to the Russians. Moreover, Britain, who in 1817 had affirmed that the Oregon "territory itself was early taken possession of in his Majesty's name, and had been since considered as form ing part of his Majesty's dominions," now found it neces sary to reverse her position insofar as the validity of 1 1 possession-taking was again concerned. x Reporting to Mr. Adams on August 12, 1824, Mr. Rush gives us the new British position: As to the alleged prior discoveries of Spain along the coast, Britain did not admit them, but with great qualification. She could never admit the mere fact of Spanish navigators having first seen the coast at particular points, even when this was capable of being substantiated as the fact, without subsequent or effi cient acts of sovereignty or settlement following on the part of Spain, was sufficient to exclude all other nations from that portion of the globe.12 Yet England was not completely abandoning the validity of acts of possession for acquiring terra nullius. For the very sentence that followed shows that if such a theory were acceptable, England possessed a better title to the Pacific Northwest than the United States: Besides, they said, even on the score of prior dis covery of that coast, at least as far up as the 48th degree of north latitude, Britain herself had a claim ^-Charles Bagot to John Quincy Adams, Washington, November 26, 1817, in American State Papers, Foreign Relations, VI, 852. ■ ^ R i c h a r d Rush to John Quincy Adams, London, August 12, 1825, in Manning, Diplomatic Correspondence. Canadian Relations, II, 433-471. 246 over all other nations. Here they referred to Drake's expedition in 1578, who, as they said, explored that coast on the part of England from 37 to 48 north, making formal claim to these limits in the name of Elizabeth, and giving the name of New Albion to all the country which comprehended. Was this they asked to be reputed nothing in comparison to prior discoveries, and did it not even take in a large part of the very coast now claimed by the United States as prior discovery on their side? Such was the character of their remarks on this part of the title. . . . The following year England continued to hold "that the mere discovery without occupancy constitutes no title" although she continued to show that even on this basis her claim was sounder as the result of Meares' voyages.How ever, of more importance than just this claim to having discovered the territory of the Columbia prior to the United States, is the new British position concerning the nullification of the American claims derived from the Louisiana Purchase and the Adams-Onis Treaty of 1819. 1. The United States cannot claim, under treaty with Spain, any greater right than Spain then had: and as the Nootka Convention has no refer ence to discoveries of either party and is un limited in its duration, they cannot resort to any Spanish discovery in support of their presumed title to any part of the Country. 2. As, at the time of concluding the Nootka Con vention, Louisiana did belong to Spain, and she made no exception to the provisions of that Convention, on account of any presumed bounda ries of that Province having been established 13Ibid. ^Albert Gallatin to Henry Clay, London, Novem ber 16, 1826, in Diplomatic Correspondence, Canadian ' Relations, II, 528-531. 247 by former treaties with Great Britain, or of right of extending to the Pacific, the United States cannot claim any territory on that ocean as owners of Louisiana. . . . 3. This Convention (the Nootka) must be considered generally as having become an international law, at least for the Pacific, superseded the claims ascribed to mere prior discovery, set aside the exclusive pretensions of Spain to the North West part of the American continent and opened it to the commerce and settlements of all countries whatever including the United States. 4. Actual occupancy and regard to mutual con venience are therefore the only bases of any arrangement for the establishment of a boundary, for the partition, between the only powers having settlements or laying claims thereto, of a country which heretofore held in common. This new British position, insofar as the existing force of treaty was concerned, is of course correct since Spain and England had renewed all treaties of a commercial nature. However, it seems to this writer that the English government over-extended their interpretation of the Nootka Convention concerning the respective claims that the treaty had settled any question of title to the Northwest Pacific. Actually England not only wanted to avoid the question of title but succeeded in so doing in settling the dispute. It is not strange, therefore, that the United States rejected Britain's contention, and continued to base its title on first discovery. Since the United States kept pressing its claim, 15ibid. 248 which was based primarily on Gray's discovery of the Columbia and then upon the Spanish activities in the North west Coast, the English, though they denied the validity of discovery for obtaining title to terra nullius, were forced to show that their discoveries superseded that of Gray. In doing this, the British presented a realistic view con cerning the rights derived from prior discovery. Upon the question, how far prior discovery consti tutes a legal claim to sovereignty, The Law of Nations is somewhat undefined. It is, however, admitted by the most approved writers that mere accidental discovery unattended by exploration,--by formally taking posses sion in the name of the discoverer's Sovereign,--by occupation, and settlements, more or less permanent,-- by purchase of Territory, constitutes the lowest degree of Title, and it is only in proportion as first dis covery is followed by any or all of these acts, that such Title is strengthened and confirmed. . . . 1° However, the British viewpoint was expressed only for the purpose of controverting the United States claim based upon Gray’s discovery. It is in weakening Gray's finding that the British rely upon the greater activity of their seaman. Thus the possession-taking activities of the untruthful Meares and the gentlemanly Vancouver are brought out. If the discovery of the Country in question, or rather the mere entrance into the mouth of the Columbia river, by a private American Citizen, be . . . a valid Statement of British Claims to Territory on the Northwest Coast of North America,” enclosed with "Protocol of the Fifth Conference to Negotiate a Convention, Board of Trade, December 11, 1826," in Manning, Diplomatic Correspondence. Canadian Relations, II, 553-558. 249 ground of national and exclusive claim to all the country situated between the 42° and 49th parallels of latitude, then must any preceding discovery of the same Country by any Individual of any other Nation, invest such a Nation with a more valid, because of a prior claim to that Country. Now to set aside for the present Drake, Cook and Vancouver, who all of them either took possession of or touched at various points of the Coast in question, Great Britain can shew, that, in 1788, that is four years before Gray entered the mouth of The Columbia River, Mr. Meares, a Lieutenant of the Royal Navy, who had been sent by The East India Company on a Trading Expedition to the North West Coast of America, had already minutely explored that Coast from the 49°th to the 50^th North latitude; had taken formal possession of the Straits of De Fuca in the name of the Sovereign; had purchased land;--trafficked, and formed treaties with the Natives; and had actually entered the Bay of the Columbia, to the Northern Headland of which he gave the name of Cape Disappointment, a name which it bears to this day. . . . If therefore, any claim to these Countries as between Great Britain and The United States is to be deduced from priority of discovery, the above exposi tion of dates, and facts suffices to establish that claim in favor of Great Britain on a basis too firm to shake. It must indeed be admitted that Mr. Gray . . . was the first to ascertain that This Bay formed the outlet of a great River. . . . But can it be seriously urged that this single step in the progress of discovery wholly supersedes the prior discoveries both of the Bay and the Coast by Lieutenant Meares, but equally absorbs the subsequent exploration of The River by Captain Vancouver for near a hundred miles above the point, Mr. Gray's ship had proceeded;--the formal taking possession of it by that British Navigator, in the name of his Sovereign, and also all the other discoveries, explorations and tem porary possession and occupation of the Ports and Harbours on the Coast.17 •^Ibid. 250 Strangely, the American plenipotentiary did not answer the British statement by challenging Hr. Meares* veracity and the validity of Vancouver*s act of possession, but merely brushed aside the validity of such a ceremony. On the formality called "taking possession," though no actual possession of country is taken, and on the validity of sales of land and surrender of sovereignty by Indians, who are for the first time brought into contact with civilized man, who do not even know what cultivation is, with whom it is difficult to com municate even upon visible objects, the American Pleni potentiary thinks that he may abstain from making any remarks. Albert Gallatin's words rejecting the validity of acts of sovereignty reveal not only inconsistency in the American position but also a lack of understanding regard ing the foundation of both the Spanish and French claims. For by denying any validity to them, Gallatin actually destroyed the American claim based upon the restoration of Astoria; for this simply consisted of a symbolic posses sion. Secondly, with regard to Spain's claim, which the United States obtained, Gallatin failed to realize that the Spanish considered the right of prior discovery to exist only when formal possession was taken. Thirdly, the American plenipotentiary could have considerably weakened 18"statement of the United States Claims to Terri tory on the Northwest Coast of North America," enclosed with "Protocol of the Seventh Conference to Negotiate a Convention, Board of Trade, December 19, 1826," in Manning, Diplomatic Correspondence, Canadian Relations, II, 560-565. 251 its claim, based upon the Louisiana Purchase, since the very limits of what France considered the territory to enclose, were based on the acts of La Salle. Fortunately, the British negotiators failed to realize or did not care to press the new difficulties that could have arisen from Gallatin's statement. However, all the discussion concerning possession- taking as well as the basic claims of the disputants turned out to be useless as each nation refused to recognize the other. Consequently, both countries agreed to extend joint occupation of the territory indefinitely, but "subject to abrogation at any time by either party on twelve month's notice." As the result of the American immigration into Oregon in the 1830's and 1840's, particularly in 1843-45, when the country became predominantly populated by citizens of the United States, President Polk notified England that joint occupation would terminate in a year. Once again the United States and Great Britain entered into negotiations, but this time the legalistic arguments played very little part in the settlement of the dispute, and possession- taking appears not to have been considered at all. Whether England's decision to compromise upon the forty-ninth parallel was due to knowledge that the Columbia River was not another St. Lawrence River that formed an essential line of communication between Hudson's Bay and China, as 252 Samuel Eliot Morison and Henry Steele Commager state; or whether it was the result from Englandrs awareness of Congressional sentiment, as Frederick Jackson Turner says, is beside the question. At any rate, it must be noticed that the division of Oregon at the 49th parallel coincided with the existing distribution of respective American and British settlement. Thus, it happened that sovereignty in both areas was actually based upon occupation, and not upon any other basis. At about the same period that the validity of acts of possession was being debated during the Oregon Question, England, despite its stand on the controversy, was uti lizing possession-taking ceremonies in claiming the Australian frontier areas. However, in Australia the act of sovereignty, unlike its use in the Pacific Northwest, generally was not used by itself to obtain title, but was the first step of the process which was consummated by effective occupation. As early as February 1824 the government ordered the Admiralty to take possession of the northern part of Australia, lying between Bathurst Island and Coburg Peninsula, lest the Dutch, whose claim as dis coverers was cogent, might have occupied the territory. ■ ^ S a m u e l Eliot Morison and Henry Steele Commager, The Growth of the American Republic (3rd edition; New York: Oxford University Press, 1942), I, 593. Frederick Jackson Turner, The United States 1830-1850: The Nation and Its Sections (New York: Peter Smith, 1950), p. 553. 253 A year later the government, fearing the establishment of a French penal colony in New Holland, sent a naval ship to take formal possession and occupy the western coast of Australia. Finally, in 1837, nearly a decade after the Dutch had occupied northern New Guinea, the government "caused the Colonial Office and the Admiralty to erect a post at Port Essington, and hoist the colors at Cape York, the key of Torres Strait."^ As is known, both the British acts of sovereignty and occupation, which in many cases was only a token occupancy, were respected by the rival colonizing powers of the early nineteenth century. Due to the unchallenged acceptance of British sovereignty, which occurred despite French interest in the territory and Holland's prior dis covery and possession-taking, the role which possession- taking ceremonies played in the acquisition is undetermined. However, the role and importance which the solemn act of possession had in acquiring ownership of the Pacific Ocean lands and islands is clearly evident in the British acqui sition of New Zealand when the acquisitorial rivalry between Britain and France was at its height. Jean Ingram Brookes gives us an adequate but brief description of how the actions of navigators and nations were determined or ^Brookes, International Rivalry, pp. 3-7. 254 might be determined by a rival's act of possession upon a coveted territory. In March of 1834 the prophecies and fears of annexa tion of New Zealand hit Britain as the cutter Fairy brought news that Captain Laplace of the French corvette Favorite had landed men and guns and raised the flag at Koridada in the Bay of Islands. In re sponse to instructions which directed him merely to inquire if there were any foundation for the rumor, the ambassador in Paris reported that Laplace had no orders authorizing him. . . . But in the meantime the zealous agents of Great Britain in Australia . . . went much further. . . . In accordance with this attitude, therefore, the sloop of war Zebra was dispatched im mediately, her captain having instructions, if the report proved true, to inform Laplace that the British government has taken the islands of New Zealand under its protection at the request of the Maoris and would not tolerate the intrusion of any other nation. It was ascertained at length that Laplace had done nothing more politically suspicious than to survey the bay and set up signal flags which the natives had at once taken down under the impression that flags indicated occupa tion. 21 Nor was this the only time that the suspicion of the performance of an act of possession moved the colonials to over-reach their government in England or make false claims. When Captain Du Petit-Thouars, the imperialistic French navigator, arrived in New Zealand in 1838, James Busby, the British Resident, who had been sent out to restrain British subjects in that native sovereign state, in order to preclude any French act told the French navi gator that he had been "sent to hoist the British flag and 21Ibid., pp. 54-55. 255 keep it flying."22 Significantly, the actual British possession-taking of New Zealand presented a very similar picture to the above described activities. The British government, upon learning that the French were sending a colonization pro ject to South Island, which was already occupied by French whalers, immediately dispatched Captain Hobson of the Royal Navy to obtain Britain's sovereignty over any New Zealand territory which might be ceded to the crown. The day after the cession of the northern part of the island was effected by the Treaty of Waitangi, Hobson proclaimed the sover eignty over all North Island and saluted it with twenty-one guns.Then the Captain made a second proclamation claim ing the two southern islands upon the basis of discovery. However, Hobson did not rely solely upon his second pro clamation for obtaining title to the two southern islands since he had sent Major Bunbury to obtain signatures for the complete cession. Bunbury, however, in the meantime had taken possession of South Island and Steward Island upon the basis of cession and prior discovery respec tively.24 22Ibid., pp. 57-58. Guy H. Scholefield, The Pacific Its Past and Future and the Policy of the Great Powers from the Eighteenth Century (London: John Murray, 1919), pp. 204-205, hereinafter cited as Scholefield, The Pacific. ^Scholefield, The Pacific, pp. 206-208. 24Brookes, International Rivalry, p. 99. 256 Captain Hobson and Major Bunbury's possession-taking acts, which were performed on territory already occupied, but not formally claimed by Europeans, proved to be the necessary manifestation for powerful Britain to secure the islands permanently. However, although France respected the claims of Great Britain, she was not happy about them since her colonization scheme was frustrated at the very last stage of her project since within a few weeks after * Hobson's formal ceremony Captain Lavaud arrived with the corvette convoying the French emigrants. Although Lavaud refused to recognize the British claim, he was forced to accept it as a fait accompli because his monarch Louis Philippe had accepted it in just those terms.2- > Thus, the British acts of sovereignty in New Zealand proved to be successful in obtaining England's title to the territory. However, it would be naive to believe that French recogni tion of such acts was based upon anything else than British power to protect their interests. It is interesting to note, however, that in Hawaii, where British interests ran counter to American, the former nation's acts, though prior to any other nation's, proved fruitless. Although it is possible that the islands were discovered by the Spaniard, Juan de Gaetano, in 1555, the 25Ibid., pp. 99-101. 257 effective discovery was made by the immortal navigator, James Cook, in 1778. Cook, however, failed to take posses sion of them despite the fact that he performed more acts than any other Briton. In 1786 Portlock and Dixon as well as the Count de La Perouse visited the islands but also ignored claiming the country. Of all the navigators who sailed the seas, none has shown greater regard for the rights of backward peoples than La Perouse who refused to take possession of this territory as he stated: Though the French were the first who of late times had landed on the island of Mowee [Maui ?], I did not think it my duty to take possession of it in the name of the king: the customs of Europe are in this respect ridiculous. Philosophers have undoubtedly reason to sigh at seeing that men, for no other reason than because they are in possession of cannon and bayonets, reckon as nothing sixty thousand of their fellow creatures; and without respect for their most sacred rights, regarding as an object of conquest a land, which its inhabitants have watered with their sweat, and which during so many ages has served as a tomb to their ancestors.26 However, other navigators did not share La Perouse1s sentiments, and in 1794 Vancouver received a cession of Hawaii and hoisted the Union Jack and took formal posses- 27 sion. Vancouver’s possession-taking was not followed up, ^^J. F. G. De La Perouse, A Voyage Round the World. in the Years 1785. 1786. 1787, and 1788. ed. M. L. A. Millet-Mureau (London: 1798), II, 5 3 ~ . 27"A Log of His Majesty's Sloop Discovery commanded by George Vancouver Esquire, Kept by me Spelman Swaine," MS, P.R.O., Admiralty 51, 4532. 258 and in 1815 the subagent of the Russian American Company, Dr. Scheffer, hoisted the Russian flag, erected a fort, and attempted to have his government recognize the annexa tion.^ Since the Russian government as well as the suzer ain, Kamehameha I, repudiated both the act and the cession, the islands enjoyed a prolonged period in which foreign interests gained control gradually but did not attempt to acquire the territory by a possessory act. Such a period came to an end in February of 1843 when Lord George Paulet commanding H.M.S. Carysfort forced a cession from the OQ Hawaiian king and took possession. 7 Paulet*s act is important because it marks the first successful protest against the activities of British navi gators in the Pacific area. Upon the protest of the United States government, the British disowned Paulet*s act and reinstated the Hawaiian chief of state, and later agreed with the French 1 1 never to take possession, either directly, or under the title of protectorate" of the territory.3® Thus, the British not only paved the road for American annexation at the end of the century, but also renounced some very solid claims which were established by Cook's ^Scholefield, The Pacific, pp. 33-34. Brookes, International Rivalry, p. 23. ^^Greenhow, The History of Oregon and California, p. 373. 30Ibid. 259 discovery and Vancouver* s first possession-taking. It is apparent that in this period of intense Anglo- French rivalry, as indicated by the activities of these nations in Australia, New Zealand, and Hawaii, that the English were quite successful in retaining the lands which they claimed by formal possession-taking. To a certain degree, the same situation is true of the French although the territories which they acquired were smaller in size and less important from an economic viewpoint. Insofar as acquisition through acts of sovereignty is concerned, the French may be said to have acquired some title to the Marquesas, Tahiti, New Caledonia, and Clipperton Island by the use of such acts. Having lost out in the acquisition of Australia and New Zealand, France turned her attention to the Marquesas which until 1842 remained unoccupied by Europeans. The islands, however, had been claimed before: first, when Alvaro de Mendaha discovered them in 1595, and secondly when Captain David Porter took possession of Nukuhiva in 1813.^ But since neither nation had ratified the annexa tion of islands either by occupancy or public proclamation, 0*1 Justo Zaragoza, Historia del Descubrimiento de las Regiones Austriales. Hecho por el General Pedro FemandezT de Quiros (Madrid: Imprenta de Manuel G. Hernandez, 1876), III, 26. R. W. Robson, ed., Pacific Islands Year Book 1956 (7th edition; Sydney: Pacific Publications Pty, Ltd., 1956), pp. 160-161, hereinafter cited as Robson, Pacific Islands Year Book. 260 the islands apparently were considered terra nullius when the French government decided to annex them in 1841. Although no European power protested Abel Du Petit-Thouars' solemn possession-taking of the island and thereby France's title was tacitly recognized, that nation1s complete con trol was not obtained for many years because of hostility of the natives.^2 No sooner had Du Petit-Thouars taken possession of the Marquesas, than he determined to annex the independent colony of Tahiti where not only British missionary activity was predominant, but French influence was negligible and disliked. In proclaiming France's sovereignty over this island, which had previously been solemnly claimed by Wallis, Bougainville, and Boenechea in the seventeenth and eighteenth centuries, the French commander acted without orders from the homeland when he first obtained a cession of the island as a protectorate in 1842; however, when he took solemn possession in 1843, not only had he received instructions to do so from his government, but England had acquiesced, despite the activities of its naval officers and missionaries on the island, in recognizing the French title. Such a recognition by England is of course differ ent from the usual behavior concerning disputed terri tories, especially when she possessed not only prior claims ^Robson, Pacific Islands Year Book, pp. 161-162. Brookes, International Rivalry, pp. 105-106. 261 based upon discovery and possession-taking, but also addi tional claims based upon first occupancy as the result of the presence of her missionaries since 1797. Furthermore, the cession, which the Tahitians made, was forced and therefore illegal. But since France was not the Spain of Nootka, the British government considered the cession "voluntarily and completed in due form" and that "there did not seem to be sufficient ground on the score of ille- 33 gality to dispute the cession," Tahiti, moreover, was not the last island which France anticipated the English in acquiring. At New Caledonia the English again had the better original claim, since Cook discovered and named the island, but for a second time the French moved quickly enough to forestall England’s ambition. However, in this case the French anticipation was purely accidental since the French took possession on September 24, 1853 because the natives had previously eaten the crew of their survey ship Alcmene in 1850. "This action by France is said to have forestalled the annexation of the territory by Britain, which had been decided on."^ Britain's expansionist ambitions were contested not -^Scholefield, The Pacific, pp. 5-31. Robson, Pacific Islands Year Book, pp. 139-143. A I Robson, Pacific Islands Year Book, p. 425. 262 only by France, who had successfully taken possession of the Marquesas, Tahiti, and New Caledonia, but also by the growing European and Imperial power of Germany. Germany’s rivalry, although it came later than the French in the Pacific, was nevertheless just as successful if not more so. The first instance of a German attempt to annex a Pacific Island occurred in New Britain in 1878 when the S.M.S. Ariadne raised the German flag over the island. However, Bismark was not colonial-minded yet, and the Q C government repudiated the annexation. J Thus, Great Britain was allowed a second opportunity to seize the island which William Dampier had named. Unfortunately for Britain, the home government did not recognize the danger of German expansion in the Pacific, nor did it encourage the Australian expanionistic ambitions. As early as April 16, 1846, Lieutenant Charles B. Yule, H.M.S. Bramble, took formal possession of New Guinea, but this act was ignored by the mother country.^ Captain John Moresby, H.M.S. Basilisk, feeling that the foreign acquisition of New Guinea would be a standing ■^Rodgers, Australasia, p. 298. 36 ’ ’Log of the Proceedings on board Her Majesty’s Surveying Schooner Bramble, Lieutenant Charles B. Yule, Commander. Between the 1st. January and 30th. June 1846," MS, P.R.0., Admiralty 53, 3590. 263 menace to New Queensland, provisionally annexed the island in 1873, but the annexation was annulled despite Australian anger.^ Some ten years later, the Resident Magistrate of Thursday Island in the colony of Queensland, took posses sion at Port Moresby on April 4, 1883, but again the home government repudiated the act. The repudiations of New .Guinea by Britain proved fatal to Australian interests; for Germany was by this time developing a colonial policy that would amputate Queensland’s expansioniStic ambitions not only in New Guinea but likewise in the Bismarck Archi pelago. When the home government sent Commodore James Erskine to take formal possession of New Guinea, no longer was he to claim all of eastern New Guinea but only the southern portion of this territory since Britain had— without Queensland's knowledge--capitulated to German protests and power. Thus, not only was the effectiveness of the British act predetermined by the Anglo-German negotiations, but Germany was also awarded the northern part of eastern New Guinea. But far from adhering to the spirit of the negotiations, Germany, relying upon her power and English timidity, hoisted her flag as a sign of possession not only in New Guinea but also at New Britain, ^Scholefield, The Pacific, p. 111. Rodgers, Australasia, p. 299. \ 264 38 New Ireland, and Sable Island. Thus, Germany by merely hoisting its flag, which it backed up by both a powerful army and navy, was able to acquire title to these islands which were virtually uninhabited by Europeans at the time. German acquisitorial ambitions, however, were not solely directed at the unoccupied territory of the Pacific. In August 1885, the German gunboat litis was sent by its government to take formal possession of the Carolines since Spain had never effectively occupied the territory. The German commander, who was not deterred by the presence of the two Spanish warships, the Manila and San Quintin, promptly annexed the island. Few acts of possession have aroused nations as much as this. Despite the weakness of Spain, Spanish pride was outraged and the people of prin cipal cities of the realm clamored for a declaration of war. Fortunately for Spain, Bismarck agreed to the arbitration of Pope Leo XIII and war or humiliation was 3 Q avoided. 7 Leo XIII*s arbitration is particularly important to For the British-German rivalry and negotiations see Scholefield, The Pacific, pp. 126-148. Robson, Pacific Islands Year Book, pp. 289-291. For Commodore Erskine’s act see Great Britain, Foreign Office, British and Foreign State Papers (London: William Ridgway, 1891), LXXV, 265-266. 39Pfo Zabala y Lera, Historia de Espana y de la Civilizacion Espanola: Edad Contemporanea (Barcelona: Sucesores de Juan Gili, 1930), II, 52. 265 the subject because of the light which it casts upon Spain's title to the New World. Although he awarded Spain title to the Caroline Islands, he did not do so upon the basis of the papal donation of Alexander VI. Ignoring Alexander's grant completely, the Pope based his decision on the various Spanish acts performed in benefit of the native population.^® Such a decision is, of course, most important because it affects the later claim of uti possidetis of Argentina and Chile to the Antarctic, claims which they historically base upon the papal donation. The papal decision, which pointedly ignored the grant of Alexander as the basis for claiming territory, was not the only contribution that Germany's Imperial ambitions made in determining the role that acts of sovereignty played in the acquisition of terra nullius. In Africa, where England, France, and Germany scrambled for further territory, the act of possession played a similar role as in the larger Pacific Islands during the same period of the late 1800's; namely, that when one of the colonizing nations proclaimed possession or protection over some territory, it was not the act per se that was respected but rather the fear of reprisals or war which rendered it ^"Proposition Faite par Sa Saintete le Pape Leon XIII, Comme Mediateur dans la Question des Archipels des Carolines et Palaos Pendante entre l'Allemagne et l'Espange. Rome, le 22 Octobre, 1885,’ ' in British and Foreign State Papers. LXXVI, 293-294. 266 effective. However, the partition of Africa was not based upon claims made spontaneously by discoverers and explorers, but upon the diplomatic decisions of the com peting nations. Two powers competing for footholds in the same region agreed upon some natural boundary, or line of latitude or longitude, on either side of which the one would not interfere with the other. Preserves were, so to speak, marked.out in advance of actual Protectorate or annexa tion. ^ Thus, the act here simply became the manner of manifesting to the world that an agreement over aboriginal occupied land had been consummated and that the different parties were now visibly inaugurating their dominion or protection. The symbolic act in Africa, therefore, was not the initial step by which a colonizing nation claimed a territory, but rather the final ceremony by which a claim established by diplomacy was perfected. Despite the change in the essen tial role of the act, the ceremony of possession-taking, as reflected by various African documents, did not undergo any external modification.^ ^Charles Lucas, The Partition and Colonization of Africa (Oxford: Clarendon Press, 1922), p. 97. ^For British acts at Walfish Bay, St. Lucia Bay, Bechuanaland, and Coast of Pondoland see British and Foreign State Papers. LXIX, 1177; LXXV, 607-608; LXXVI, 986-987; and LXX, 709-710. For French at Okila see British and Foreign State Papers, LXXII, 242-243. For German act on South-West Coast of Africa see British and Foreign State Papers, LXXV, 546. 267 Besides the change noted above concerning the essen tial role of the act of sovereignty, it must be noted that in the African scramble the basis for acquiring unoccupied territory was for the first time definitely agreed upon. In Africa, unlike the New World and the Pacific, effective occupation became the foundation for obtaining legal title and, therefore, disputes concerning the validity of sym- / *5 bolic acts never arose between the colonizing powers. However, such a doctrine was only applicable to Africa as the acquisition of the Pacific Islands by Britain and the United States will prove. Prior to the African scramble there is evidence that mere symbolic possession-taking was ample for obtaining sovereignty or protectorate status (which eventually ended in complete title) over the native territory of the smaller Pacific Islands. As early as December 23, 1866, Captain Swinburne, H.M. S. Hutine, landed on Starbuck Island, one of the Line Islands, and "hoisted Union Jack at Flag Staff on shore and took possession in Queens name."^ As in the General Act of the Conference at Berlin . . . respecting (1) Freedom of Trade in the Basin of the Congo; (2) the Slave Trade; (3) Neutrality of the Territories in the Basin of the Congo; (4) Navigation of the Congo; (5) Navigation of the Niger; (6) Rules for Future Occupa tion of the Coasts of the African Continent. Signed at Berlin, February 26, 1885," in British and Foreign State Papers, LXXVI, 4-20. ^"Log of H.M.S. Mutine. For the Period Commencing on the 18th day of May 1866, Ending 28th day of August, 1867," MS, P.R.O., Admiralty 53, 9315. 268 case of Caroline Island, which is another Line Island that was formally claimed on July 9, 1868, by Captain Naves, H.M.S. Reindeer, no power has ever challenged Britain's title to the coral atoll.^ It is after the signing of the Treaty of 1885 at Berlin, when occupation definitely became the basis for obtaining title in Africa, that the acquisition of sover eignty over the Pacific Islands solely by means of symbolic acts really began in earnest. Beginning in May of 1892 and ending on June 17, Captain Edward Davis, H.M.S. Royalist, hoisted the Union Jack over thirteen islands as he pro- claimed a protectorate over the Gilbert group. ° It was not until November 19, 1915, that Great Britain went to the trouble of annexing them as part of the British Dominions. Six years after Davis’ action on the Gilberts, Richard Exham, the Acting Consul at Rarotonga, declared the south ern Cook Islands to be a protectorate of the Crown in September 20, 1888.^ In the same year Sir William Wiseman, Log of HMS 'Reindeer* for Period Commencing 13th of February, 1868. Ending 27th of June 1869," MS, P.R.0., Admiralty 53, 9729. 46"proclamation Issued on the Occasion of the Estab lishment of a British Protectorate over the Gilbert Islands.— Apamama, May 27, 1892," in British and Foreign State Papers, LXXXIV, 276. "Log of HMS Royalist for the Period Commencing on 8th of June 1891. Ending>25 of August 1892," MS, P.R.0., Admiralty 53, 15479. ^"Proclamation, Declaring a British Protectorate over the Hervey or Cook Islands.— Rarotonga, Sept. 20, 1886," in British and Foreign State Papers, LXXIX, 1328. H.M.S. Caroline, took formal possession of Penrhyn (one of the northern Cook Islands), Fanning, and Christmas (both of AO which belong to the Line Islands). Neither the southern Cook Islands, which were annexed to New Zealand in 1901, nor Penrhyn and Fanning Islands have ever been disputed by another nation, but Christmas Island, as will be seen later, did become at a much later date the center of a jurisdictional dispute between the United States and Great Britain. British annexation of Pacific Islands continued during the next two decades after the acquisition of Penrhyn and Fanning. Suvorov or Suwarrow Island (one of the northern Cook Islands that was first recorded by Lieutenant Lazareff of Russian-American Company in 1814) was declared a protectorate in 1889, apparently by Com mander Tupper in H.M.S. Pvlades.^ Like the rest of the Cook group, the island was annexed to New Zealand in 1901. British Proclamation, Taking Possession of Penrhyn Island in the Pacific Ocean.--March 22, 1888,” in British and Foreign State Papers, LXXIX, 1326-1327. "British Proclamation, Taking Possession of Fanning Island in the Pacific Ocean, March 15, 1888," in British and Foreign State Papers, LXXIX, 1325. "British Proclamation, Taking Possession of Christmas Island in the Pacific Ocean.— March 17, 1888," in British and Foreign State Papers, LXXIX, 1326. Great Britain, Hydrographic Department, Admiralty, Pacific Islands Pilot (6th edition; London: H.S.O., [1931]), III, 158. Robson, Pacific Island Year Book, pp. 124 and 132. A month after the declaration at Suvorov, Washington Island, belonging to the Line Islands, was annexed to Great Britain by Commander Nichols, H.M.S. Cormorant, May 29, 1889 despite its discovery by the American captain, Edmund SO Fanning. w However, the great year for British acquisi tion in the Pacific area was 1892. In this year Captain H. W. S. Gibson, H.M.S. Curacao, formally claimed as pro tectorates Gardner Island (Phoenix Group), Danger Island (northern Cook Islands), Nassau Island (northern Cook group), and the Ellice Islands.Finally, in 1902, Cap tain G. F. Jones formally proclaimed Britain's title to the three completely uninhabited islands of Oeno, Henderson, and Ducie by placing "a board on each bearing the inscrip tion 'This island is a dependency of Pitcairn and is a property of the British Government.'” A repetitive act was performed in 1937 on these uninhabited islands as H.M.S. Leander "visited each, and erected on each a signboard, CO affirming British sovereignty."-^ Great Britain, it has been seen, was very successful • ^Pacific Islands Pilot, III, 278. •^"Log of H.M.S. Curacao, Commanded by Captain H. W. S. Gibson, Commencing 5 November 1891, Ending 2 April 1893," MS, P.R.O., Admiralty 53, 13224. -^Robson, Pacific Islands Year Book, p. 167. Pacific Islands Pilot, III, 4. 271 not only in claiming the vast majority of islands un occupied by Europeans, but also in retaining her dominion over them during the latter decades of thd nineteenth cen tury. However, this nation was not completely successful in accomplishing both feats. About the middle of the century, a new young nation appeared not only to seek previously unclaimed lands in the Pacific, but even to question the British title to islands formally claimed by that country. This young nation was the United States of America. The first United States claim to a Pacific Island appears to have been made in 1823 when Captain Coffin, an American whaler, took possession of the southern group of S3 the Bonin Islands (Ogaswara Jima). However, this first American Pacific claim was not to go unchallenged. For four years later the British also formally claimed the island and opened the way for a territorial dispute. T h e B r i t i s h c l a i m w a s m a d e b y C a p t a i n B e e c h e y , H.M.S. Blossom, who set a board as a sign of possession.^ In 1830 the British Consul at Hawaii organized a coloniza- tion party to occupy the islands. Although the coloniza tion project was British in its origin, an American, ^^Robson, Pacific Islands Year Book, p. 174. ^^William Herbert Hobbs, The Fortress Islands of the Pacific (Ann Arbor: J. W, EdwardlFj 1945 ), pp. 101-102. 55Ibid. 272 Nathaniel Savory, eventually became leader of the colony. Despite Savory's pleas to the United States government to annex the islands, there was no official move made. How ever, Commodore Matthew Perry, while on his way to Japan in 1853, appointed Savory governor; Great Britain then asserted her claim, and an Anglo-American dispute ensued. While the British and Americans were disputing, the Japanese, claiming right of prior discovery (1591), took over the islands in 1875 and began various settlements. However, the Bonins were formally occupied by the United States in 1944, and have remained under the American flag, which was the first flag raised there.^ Actual government support of possession-taking activities of United States citizens did not materialize until Congress passed the famous Guano Islands Act of August 18, 1856. It was this act that actually encouraged the performance of acts of sovereignty and led to future controversies with Great Britain concerning the title of certain islands. For the act definitely animated such results by stating: That when any citizen or citizens of the United States may have discovered, or shall hereafter discover, a deposit of guano on any island, rock, or key not within the lawfuly jurisdiction of any other government, and not occupied by citizens of any other government, and ^^Robson, Pacific Islands Year Book, p. 174. 273 shall take peaceable possession thereof, and occupy the same, said island, rock, or key may, at the discretion of the United States, be considered as appertaining to the United States: Provided, however, That notice be given of such discoverer or discoverers, as soon as practicable, to the State Department of the United States, of such discovery, occupation, and possession, verified by affidavit, describing said island, rock, or key, and the latitude and longitude thereof, as near as may be, showing that such possession was taken in the name of the United States, and that satisfactory evi dence be furnished to the State Department that such island, rock, or key was not, at the time of discovery thereof, or of the taking possession and occupation thereof by the claimants, in the possession or occupa tion of any other government or of the citizens of any other government.57 Although this act specified that both possession- taking and actual occupation were necessary for obtaining title, nevertheless certain conflicts with other nations resulted. Such conflicts generally developed because another nation had either previously taken symbolic posses sion of a guano bearing island or because the United States citizens abandoned the land after the deposits were ex hausted and it was later claimed by a rival power. It is not strange then that title disputes should have arisen concerning the islands of Canton, Jarvis, Christmas, Palmyra, and Baker. Shortly after the passage of the Guano Act, Canton Island of the Phoenix group was formally taken possession of by Captain Greene of the U.S.S. Brig Agate on behalf of •^11, U. S. Statutes at Large (December 3, 1855- March 3, 1859), pp. 119-120. 274 the Phoenix Guano Company. By 1859 the company had met all the requirements demanded by the Guano Act and the island CO was officially annexed to the United States. However, it was the British companies which worked the guano deposits in the last years of the century, and Britain annexed the islands in 1889 to the Phoenix group. As far as can be determined no official protest was ever launched by the United States, and Great Britain continued to claim title to the now abandoned island. Problems, however, developed in the 1930,s: Officials from "H.M.S. Leith" landed on August 6, 1936, and posted a sign asserting British sovereignty; the sign was confirmed on June 3, 1937, by H.M.S. Wellington." American and British (New Zealand) scientific parties landed on Canton in June, 1937, to observe a solar eclipse; and, while there was the utmost friendliness between the two, each erected signs asserting the sovereignty of its respective country. On August 31, 1937, two British officials, with radio equipment, landed on Canton, and British officials remained there continuously thereafter. An American party of seven, including Hawaiian colonists arrived on the barren sand-bank on March 7, 1938; and, after they had set up camp beside the British, the two parties fraternised, and left the argument to Washington and London. Washington and London solved the dispute, at least CO Beatrice Orent and Pauline Reinsch, "Sovereignty over Islands in the Pacific," The American Journal of International Law, XXV (July, 1941), 460, hereinafter cited as Orent and Reinsch, "Sovereignty over Islands in the Pacific." -^Robson, Pacific Islands Year Book, p. 76. 6°Ibid. 275 temporarily by mutual agreement in 1939, when they con curred to control jointly both Canton and Enderbury Islands without prejudicing their respective claims. ^ However, not all the disputes arising from competi tive possession-taking were resolved in this manner by the two English speaking peoples. Jarvis Island, which was taken possession of by Commander Davis, U.S.S. St. Mary’s, in 1856, remained under American occupation until 1879.^ Although the British incorporated the island into their possessions in 1889, the United States did not relinquish its claim as Lieutenant Commander Samuel W. King command ing the Eliza Francis formally repossessed the island in 1924. In 1935 the United States government secretly sent the Coast Guard cutter Itasca to occupy Jarvis as a settle ment consisting of four Hawaiian Americans was permanently established. The island was then ceremonially repossessed and a lead plaque asserting United States sovereignty was r o planted.0,3 Both the American possession-takings and the token occupation appear to have been sufficient to obtain ^53, U. S. Statutes at Large, Part III (1939), pp. 2219-2222. ^ Sen. Ex. Doc. 11, 35th Cong., 1st Sess., pp. 574- 576. I i Pi ^ i William Atherton Du Puy, "Our New Islands: Three New American Possessions, Small but of Future Importance," Current History, February, 1937, pp. 60-62. ! 276 title to the island since Britain has never contested the American action. While in the two above disputes American navigators were the first to take possession of terra nullius, in the dispute over Christmas Island (a Line Island) the British appear to have been the first people to have formally claimed it. For on December 31, 1777, the indomitable James Cook buried a bottle containing the following inscription: Georgius Tertius, Rex, 31 Decembris, 1777 Resolution, Jac. Cook. Pr. Discovery, Car. Clerke, Pr.^ England, as was her custom in those days, did not ratify Cook’s discovery and apparent -sign of possession, and the island was not rediscovered until the middle of the nine teenth century. In 1858 Captain J. L. Pendleton, John Marshall, took possession on behalf of A. G. Benson and Associates, an American company. Shortly afterwards, the British granted one of their companies permission to work the guano beds, but in 1872 the island was again taken possession of by the U.S.S. Narragansett. In 1888 64- Cook and King, Voyage to the Pacific Ocean, II, 186. / r John Basset Moore, A Digest of International Law (Washington, D.C.: Government Printing Office, 1906), I, i572-573, Captain Wiseman, H.M.S. Caroline, formally took possession of Christmas.^ Wiseman's action, however, did not deter American claims to the Island and title to it is still 67 disputed by the United States and Great Britain. Thus, it appears that Captain Cook's probable act is still receiving some recognition, even though it may be purely coincidental. In the Palmyra Island dispute, the situation was quite different to that of Christmas Island. Palmyra was not only first discovered by an American, but was also first formally claimed by Dr. Gerrit P. Judd on behalf of the American Guano Company. Three years later, 1862, the territory was again taken possession of, but this time it was by Captain Zenas Bent who represented the independent government of Hawaii. Neither Dr. Judd nor Captain Bent's acts deterred Commander Nichols, H.M.S. Cormorant, from annexing the island to Great Britain in 1889. However, his action was soon counteracted not only when the island spe cifically enumerated in the annexation of Hawaii, but also when the U.S.S. West Virginia took formal possession in 1912. American title does not seem to have been contested British Proclamation, Taking Possession of Christmas Island in the Pacific Ocean.— March 17, 1888," in British and Foreign State Papers, LXXIX, 1326. 6^ G r e e n Haywood Hackworth, Digest of International Law (Washington, D.C.: Government Printing Office, 1940), I, 508, hereinafter cited as Hackworth, Digest of Inter national Law. seriously by Britain since the United States not only built a naval base there prior to World War II, but both British £0 and American maps now show it as American. In the remaining island disputes between Great Britain and the United States, only the one concerning the title to Bake£ and Howland Islands are sufficiently import ant to be considered in this portion of the study dealing with effectiveness of acquiring terra nullius in the Pacific Islands through the use of symbolic acts of posses sion. Both Baker and Howland were discovered by American vessels, but were not formally claimed until guano was discovered on them. Although the islands were never annexed by a formal ceremony of possession-taking, Britain included them in the Phoenix group. The United States did not contest the British action until 1934 when it relied upon the original claims resulting from the Guano Act of 1856.^ In 1936, after it had sent token occupation parties of Hawaiian-Americans, Baker, Howland, and Jarvis Islands were placed by President Franklin Roosevelt under Hobbs, The Fortress Islands of the Pacific, pp. 80-81. Robson, Pacific Islands Year Book, pp. 73-74. Hackworth, Digest of International Law, I, 487-489. ^Hobbs, The Fortress Islands of the Pacific, pp. 85-86. Robson, Pacific Islands Year Book, p. 77. Orent and Reinsch, "Sovereignty over Islands in the Pacific," pp. 456-459. Hackworth, Digest of International Law, I, 506. the control and jurisdiction of the Department of the Interior.Thus, American title was insured by decree and actual occupation. The Anglo-American rivalry in which seven rather militarily important Pacific Islands were disputed reveals that on the whole acts of sovereignty were sufficiently influential in determining the final ownership of the islands. In only one case, Canton Island, is the outcome definitely not in accord with right of prior discovery and first possession-taking. However, even in this situation, where an American effected the first formal claim, final sovereignty over the island is still undetermined; and a condominium exists between Great Britain and the United States. Although it may be stated that on Christmas Island, the British took first possession of the land, and the Americans ended up owning it, it must be said that there is reasonable ground for doubting that Cook did 71 actually mean his inscription as a sign of possession. ^ However, it is not in reference to these few disputes that validity of possession-taking for acquiring the lesser ^Executive Order No. 7368, Federal Register, March 14, 1936-December 31, 1936; Vol. I, Part I, p. 405. 71-It is this writer's opinion that such an inscrip tion should be considered as a possession-taking activity although it was not in accordance with the British practice of hoisting the flag. Pacific territories should be determined. Rather, it is in reference to the territories acquired by Great Britain, Germany, and even the United States in Oceania regions that the validity of acts of possession should be judged. Indeed, the validity of possessory acts in the Pacific area is further strengthened by the undisputed acquisition of Wake and Midway Islands by the possession-taking activities of the United States.^2 An event which further strengthens the theory that possession-taking in Pacific Islands was recognized as the legal means of acquiring sovereignty over terra nullius is the Clipperton Island dispute between Mexico and France. Clipperton Island, which was discovered by one of Dampier's lieutenants in 1705, was not formally claimed until 1858 when French Lieutenant Victor Le Coat de Kerweguen took possession of it. Until 1897, when three persons were found working guano, the island apparently remained unmolested. France, upon finding these three Americans who had hoisted the Stars and Stripes, protested to the United States government. No sooner had the protest been made to the United States, which disclaimed any sovereignty over the island, than Mexico sent a gunboat, ^Homer Votaw, "Wake Island," United States Naval Institute Proceedings. LXVII (January, 1941), 52-55. Sen. Ex. Doc. 79, 40th Cong., 2nd Sess., pp. 1-7. Robson, 1 Pacific Islands Year Book, p. 72. 281 La Democrata^ which raised the Mexican standard over the island. After much discussion between the French and Mexican governments the case was presented to Victor Emmanuel IX, King of Italy, for arbitration. The king rejected not only Mexico's claim to historic right to it from lack of proof of original Spanish discovery, but also because there was no evidence of any manifestation of sovereignty by Mexico until 1897. To Mexico's further allegation that France had not effectively occupied the uninhabited island, the king responded: It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was com pletely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of the state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby com pleted. . . .73 Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island," The American Journal of International Law, XXVI (July, 1932), [393-394. Therefore, in 1931 King Emmanuel awarded France the ownership of Clipperton Island simply on the basis of a symbolic act of possession. The precedent which the award set is, of course, of great value to the nations whose navigators not only discovered new island territories but took possession of them, particularly if such islands were completely uninhabited; or if inhabited by natives, the possession-taking party succeeded in obtaining the aborigines’ consent to occupation. For in either case, symbolic possession-taking was tantamount to effective occupation, and was per se sufficient for obtaining title to terra nullius. It is no wonder, in view of King Emmanuel’s deci sion, that nations such as Argentina and Chile refuse to submit their Antarctic dispute with Britain to inter national arbitration. As will be seen, not only the Clipperton Island arbitration but also that of the Caroline Islands would weaken their claims to Antarctica. CHAPTER VIII ANTARCTICA AND THE ACT OF POSSESSION The quest for Antarctica, which includes both the continent and its adjacent islands, is the remaining territorial dispute on this planet in which possession- taking has played an important role in determining the activities of nations. Although the presence of a southern continent was rumored long before the finding of the New World, its actual discovery did not come until the nine teenth century. Unlike the Americas, Antarctica was not susceptible to colonization; and therefore did not arouse acquisitorial disputes and rivalries until almost a hundred years after it was first seen. It was only at the begin ning of the twentieth century that rival European and Hispanic American countries realized the importance of a Southern Continent as a source of prime resources. Once the possibility was realized, the scramble to assert sovereignty over various portions was begun. The modem period of antarctic exploration can be said to have begun with the expedition of Pierre Bouvet, who set out to settle the question of the existence of an austral continent. Bouvet not only failed to find the continent in question but also neglected to take possession 283 284 of Bouvet Island which he discovered.^ However, he helped stimulate French interest in the quest and in 1771 Yves Joseph de Kerguelen-Tremarec set out with the same purpose; but he discovered Kerguelen Island where he formally took possession in the name of the French king in 1775. However, it was not the intentionally sponsored expeditions, such as Bouvet and Kerguelen*s, which actually explored the regions of the Antarctic first. This honor was left to the whalers and sealers who began operations in the southern seas. Among these men, Captain William Smith, master of the English brig Williams, merits first recogni tion because he not only was aware of his discovery of the South Shetland Islands but also was cognizant of his duty to claim them for his nation. For on returning from his first voyage of discovery, before he took possession, he wrote in his Memorial to the Admiralty: "that on Memorialist's arrival at Monte Video the Report of his discovery got into Circulation, that the Americans at that Port and Buenos Ayres offered your Memorialist large sums of Money to make known unto them the Discovery he had made, But your Memorialist having %ugh Robert Mill, The Siege of the South Pole: The Story of Antarctic Exploration (London: Alston Rivers, Ltd., 1905), pp. 45-51, hereinafter cited as Mill, The Siege of the South Pole. Edwin Swift Balch, Antarctica (Philadelphia: Allen, Lane and Scott, 1902), pp. 61-64. Antarctic Explorations," Littel's Living Age, ICGVI (September 7, 1895), 618-619. 285 the Good of his country at heart (if any should be derived from such Discovery) and as he had not taken possession of the land in the name of his Sovereign Lord the King resisted all the offers from the said Americans, determined to revisit the new-discovered land."3 Smith returned accordingly to the place of his dis covery, King George Island of the South Shetlands, and proceeded to make the first juridical claim within the Antarctic area. "On the 17th day of October, 1819--your memorialist landed and took formal possession of the new discovered land in the Name of His Majesty George the Third and named the land New South Britain, and after making , every possible discovery, made sail for Valparaiso.". William Smith’s discovery was followed by official action as Edward Bransfield of the Royal Navy was instructed by his superior, Captain Shirreff, to claim the islands: "In case of your meeting with any foreign vessel upon the Coast, which may be about to make settlements there, you will inform the Captains or Masters that the country has already been taken possession of, but more strongly to insure the right of Great Britain, you will yourself on each separate quarter of Land, take posses sion of it in the name and behalf of His Majesty King George the Third his Heirs and successors, planting a board with an Union Jack painted on it, and words written under to the above purposes. . . Thus just after Great Britain had refused to recog nize Spain’s title to the Pacific Northwest and just before ” 3 Memorial to Admiralty by William Smith, quoted in Christie, The Antarctic Problem, p. 72. ^Ibid., p. 74. ^Edward Bransfield’s Instructions, quoted in Christie, The Antarctic Problem, p. 76. 286 she asserted that occupancy was the basis for obtaining sovereignty over the Oregon Country, we find officials of the Royal Navy claiming ownership over the South Shetlands solely by formal possession-taking. Bransfield, as would be expected, faithfully ful filled his orders. On January 22, 1820, Mr. Bransfield proceeded in her to effect a landing, where he might plant the Jack, and take possession of it in the name of New South Britain, in the name and behalf of H.M. George IV, his heirs and successors. At eight o’clock, observed the boat land on a shingle beach, which bore from the brig N.N.W.; observed soon after, with the aid of our glasses, the Jack planted; we hoisted on board the brig our ensign and pendant, and fired a gun; he likewise buried a bottle, contain ing several coins of the realm, given by different people for that purpose.” Bransfield, besides taking possession of the South Shetland Islands, appears to have been the first to have sighted continental land.^ Although Bransfield's visual discovery is generally put forward by British authors, it was not an effective discovery since he neither knew what he had seen nor had he formally claimed the continent. Furthermore, the English commander's discovery has been disputed by American writers and scholars who assert that ^The Literary Gazette and Journal of Belles Lettres. Arts, Sciences &c., November 3, 1821, pp. 691-692, herein- i after cited as The Literary Gazette. ^The Literary Gazette, November 24, 1821, p. 746. Christie, The Antarctic Problem, pp. 78-80. 287 the continental territory was discovered by Nathaniel Palmer, an American sealer, who encountered the Russian explorer Thaddeus von Bellingshausen in the area of the O South Shetlands in early 1821. However, Palmer1s dis covery, if it were acceptable, would fall into exactly the same category as that of Bransfield; namely that it was an ineffective discovery since Palmer neither recognized his discovery nor claimed the territory. In the same year of 1821 when Bransfield, Palmer, Bellingshausen, as well as various other American and British sealers were active in the Antarctic seas, George Powell, a British sealer, landed on the larger island of the South Orkney group, Coronation Island, where he per formed the following ceremony: "We . . . took possession in the name of King George the Fourth, leaving a bottle, containing a note, stated the particulars of the discovery; and, as I imagined it to be the first land discovered since the coronation of our most gracious sovereign, I named it 'Coronation Isle.'"9 A decade after Powell, John Biscoe, who was sent by the Enderby Brothers, made the most extensive exploration ^Walter Sullivan, Quest for a Continent (New York: McGraw-Hill Book Company, Inc., 1957), pp. 23-27. Lawrence Martin, "Antarctica Discovered by Connecticut Yankee, Captain Nathaniel Brown Palmer," The Geographical Review, XXX (October, 1940), 529-552. 9G e o r g e Powell, Notes on South Shetlands . . . (London: 1822), quoted in Christie, The Antarctic Problem, p. 97. 288 of the area till that date and took formal possession of an island in the Biscoe Island Group which he named Pitt.^ Although the island has later been confused with the main land, it was not joined to what today is called Graham Land or Palmer Peninsula. However, there seems to be no doubt that Biscoe thought that his Graham Land was part of the mainland, and that his intention was to claim the continent for Great Britain. Biscoe was not the only British navigator to claim continental territory by performing an act of sovereignty upon an island. Captain James Clark Ross, who made his voyage after Dumont D'Urville had discovered Adelie Land and John Wilkes had recognized the existence of the Con tinent, performed an act on Possession Island off Victoria Land on January 12, 1841, when he found the mainland in accessible. ^ On January 6, 1843, Ross landed on Cockburn Island, in the vicinity of Erebus and Terror Gulf, and took 19 formal possession in the name of the queen. The difficulty which Ross and his predecessors had in effecting a landing on the continent continued to be encountered by the succeeding English, German, and •^Mill, The Siege of the South Pole, pp. 161-162. n Ibid., pp. 275-276. 12Ibid.. p. 320. 289 Norwegian expeditions of Captain George Nares, Captain Eduard Dallmann, and Captain C. A. Larsen. Finally, on January, 1895, Captain Leonard Kristensen, commanding the Norwegian Antarctic, was able to put the first party on 13 continental land on Victoria Land. However, Kristensen1s party did not formally claim the territory. The only nation, besides Britain, that ever formally claimed Antarctic territory before the establishment of the Falkland Island Dependencies and the discovery of the South Pole, was Belgium. The Belgian expedition, a private affair, was led by Lieutenant Adrien de Gerlache of the Belgian Navy. Although the expedition did not touch the mainland, nevertheless the members of the expedition dis covered many islands, but did not take formal possession. On our way back we were discussing the matter of raising flags and the formality of taking possession of newly discovered lands. The conclusion at which we arrived was, that the first chart of a new country was quite as good a deed to the title of land, as the empty formality of pinning a bit of bunting to a temporary post and drinking to the health of the Royal Ruler, as is the custom of British explorers. Thus far we have not unfurled a flag, nor have we made any other efforts to take formal possession of the many new lands which we have discovered, except by our attempts at scien tific exploration. This is in sharp contrast tc the British, German and Russian, and all the ancient ex plorers whose first act always was to land and say, "This by the help of God, the consent of the Pope, ^Balch, Antarctica, pp. 201-202. 290 and the permission of the King, belongs to us and to our countrymen." ■*■'+ Whether other non-English explorers felt the same as Gerlache cannot be determined. Yet, it must be noticed that the German, Swedish, Scottish, and French expeditions that followed the Belgian and took place between 1898 and 1908, did not take possession. Therefore, it is evident that until 1908, when the British formed the Falkland Islands Dependencies, no nation actually challenged Britain*s claim through symbolic possession-taking except Belgium. On July 21, 1908, Great Britain issued its famous Letters Patent establishing and defining the limits of the Falkland Island Dependencies. These Letters did not make any new claims to territory, but simply extended the machinery of government— effective occupation— to areas which had been taken possession of by British navigators and explorers.^ Frederick A. Cook, Through the First Antarctic Might; A Narrative of the Voyage of the "Belgica" among Newly Discovered Lands and over an Unknown Sea about the South Pole (New York: Doubleday and McClure Company, 1900), p. 240. British Letters Patent Appointing the Governor of the Colony of the Falkland Islands to be Governor of South Georgia, the South Orkneys, the South Shetlands, the Sandwich Islands and Graham’s Land, and Providing for the j Government thereof as Dependencies of the Colony.-- IWestminster, July 21st 1908,” in Christie, The Antarctic j ;Problem, pp. 301-302. 291 By providing for their government Britain merely applied in practice the theory of effective occupation which came into mode among students of International Law in the late nineteenth century. Undoubtedly, the only case in which the British over-reached their previous claims was in respect to the islets which the Belgian expedition, which was not a nationally sponsored affair, had perhaps obtained some right to by charting. However, neither the Belgian nor any other interested government in Graham Land area protested the British proclamation. Shortly after the issuance of the Letters Patent, Britain further extended its claim to the Antarctic main land when Sir Ernest Shackleton's expedition formally claimed the territory stretching from McMurdo Sound (Victoria Land) to about one hundred miles south of the Pole, but also the area of the magnetic pole.^ Britain, however, was not the only nation whose explorers were inspecting the Antarctic during this early period of the twentieth century. Between 1908 and 1910 Dr. Jean B. Charcot made his second expedition to the western coast of Graham Land where he discovered but did ^Ernest Shackleton, The Heart of the Antarctic: Being the Story of the British Antarctic Expedition. 1907- 1909 (London: William Heineman, 1914), pp. 210 and 262-269, hereinafter cited as Shackleton, The Heart of the Ant arctic. 292 not claim Charcot Island. In the last year of Charcot's journey Captain Roald Amundsen set out on his quest for the South Pole. Amundsen, despite his conquest of the Pole which he crowned by hoisting the Norwegian Standard, seems to have taken formal possession in almost the same terri- 1 7 tory which Shackleton claimed for Britain. For a week before he arrived at the Pole, when his party had passed Shackleton's deepest penetration to the Pole, the Norwegian wrote: We did not pass that spot without according our highest tribute of admiration to the man, who— together with his gallant companions--had planted his country's flag so infinitely nearer to the goal than any of his precursors. Sir Ernest Shackleton's name will always be written in the annals of Antarctic exploration in letters of fire.l° Amundsen's possession-taking act, which gave Norway her first juridical claim in Antarctica, was followed by the one that the Australian Expedition, which was led by Sir Douglas Mawson in 1911-1914, performed in December, 1912 on both the south magnetic pole and Queen Maud Land.^ ^Roald Amundsen, The South Pole: An Account of the Norwegian Antarctic Expedition in the "Fram," 1910-1912, translated by A. G. Chater (London: John Murray, 1913), II, 122. Shackleton, The Heart of the Antarctic, pp. 210 and 310. ■^Amundsen, The South Pole, II, 114. •^Douglas Mawson, The Home of the Blizzard; Being the Story of the Australasian Antarctic Expedition, 1911- 1914 (London: William Heineman, [1914]), I, 296; II, 104- 105. Although Britain would later rely upon the claims made by Sir Douglas* expedition, she preferred to consolidate and strengthen her title to the Falkland Islands Dependencies. In 1917 Great Britain issued again Letters Patent in clari fying and amplifying the limits of her colony. Whereas in the first set of Letters she had definitely specified the islands and continental areas to be governed as part of the British Dominions, the second Letters Patent of March 28, 1917 established a sector which laid claim to all terri tories within such a delimitation regardless of whether 20 they had been discovered and formally claimed. While some authorities, such as J. S. Reeves, may seriously ques tion the validity of the sector idea since it can set up claims in advance of discovery, Britain* s claim in the 21 Antarctic case does not appear to be such a device. On the whole Great Britain--whose navigators not only dis covered the vast proportion of the islands and the mainland area but also were the first to claim it formally and undisputedly--appears to be merely setting the boundaries 20"Letters Patent, Passed under the Seal of the United Kingdom, Providing for the further Definition and Administration of Certain Islands and Territories as Dependencies of the Colony of the Falkland Islands,” in Christie, The Antarctic Problem, pp. 302-303. 21J. S. Reeves, * George V Land* in "Editorial Com ment,” The American Journal of International Law, XXXVI |(January! 193471 118. to lands obtained by solemn possession-taking. In view of the Spanish claims in the New World, the French claims in New France, and the English claims in North America, the British boundaries were far from extensive. Perhaps it was the modesty of such claims that allowed them to go un challenged for over a quarter of a century. The second British sector to be established, the Ross Sea Dependency, was created by a British Order in Council of July 30, 1923. The territory of Ross Dependency, like that of the Falkland Islands Dependency, was an area that had been formally claimed by British explorers; namely, Shackleton in 1909 and Mawson in 1912. Although this new British sector, which was to extend from meridians of 150 West to 160° East, included some of the polar region claimed by Amundsen, the Norwegian government did not protest. However, the British action did have some inter esting repercussions. The French government by the decrees of March 27 and of November 27, 1924 placed Adelie Land (lying between 136° 20* and 142° East longitude) tinder the jurisdiction of Madagascar, and thereby virtually annexed the territory which Admiral Dumont DTUrville formally took 09 possession of from a nearby island in 1840. But more ^Gilbert Gidel, Aspectos Juridicos de la Lucha por la Antartida (Valladolid: Universidad de Valladolid, 1951), Ipp. 103-108. Mill, Siege of the South Pole, p. 205. 295 important than the French action was the move of the United States. In 1924, shortly after the first French decree when American public opinion was demanding an official claim to the territory discovered by Wilkes, Secretary of State Hughes not only rejected American title to Wilkes Land but also France’s to Adelie Land and Britain's to both the Ross Sea and the Falkland Islands Dependencies. It is the opinion of the Department that discovery of lands unknown to civilization, even when coupled with a formal taking of possession, does not support a valid claim of sovereignty, unless the discovery is followed by an actual settlement of the discovered country.23 By uttering such words, Mr. Hughes, though rejecting the policy by which the United States had de facto acquired many Pacific islands, safeguarded any future enterprises which the United States might choose to make. Furthermore, the Secretary of State had forced Norway, through his prior rejection of any claims which that nation might make as the result of Amundsen’s discoveries and symbolic possession- taking, not only to accept the doctrine that symbolic acts merely obtained inchoate title, but perhaps even to delay a formal proclamation annexing the Norwegian's discoveries ^^charles E. Hughes to A. W. Prescott, May 13, 1924, in Hackworth, Digest of International Law. I, 399. 296 to the mother country.^ However, Norway's new position, that symbolic possession-taking acquired only inchoate title, proved profitable to that nation. For on acquiring Bouvet Island in 1927, Norway rejected Britain’s claim, resulting from an alleged symbolic act of sovereignty per formed in 1825, on the basis that the asserted British inchoate title would have become invalidated by lack of o c activity during a period of over a hundred years. Regarding Secretary Hughes' stand, it is interesting to note that if it influenced the diplomatic views, it certainly did not deter explorers from seeking to obtain rights to terra nullius by formal possession-taking. For on December 31, 1929 Sir Hubert Wilkins took possession of Charcot Island (which Dr. Charcot had discovered but not claimed in 1910) by flying over the land and dropping the Union Jack upon it.^6 About a month earlier than Sir Hubert, Richard E. Byrd had flown over Marie Byrd Land and formally claimed it for the United States.^ On January 13, ^Charles Evans Hughes to H. H. Bryn, April 2, 1924 in Hackworth, Digest of International Law. I, 399-400. H. H. Bryn to Charles Evans Hughes, April 2, 1924 in Hackworth, Digest of International Law, I, 400. ^Hackworth, Digest of International Law, I, 468- 470. ^Hubert Wilkins, "Further Antarctic Explorations," The Geographical Review, XX (July, 1930), 376-377. | ^ R i c h a r d Evelyn Byrd, Little America, Aerial j Exploration in the Antarctic: The Flight to the South Pole I(New York: G. P. Putnam's Sons, 1930), pp. 407-408. 297 1930, Sir Douglas Mawson, who led the British, Australian, New Zealand Antarctic Research Expedition, took possession of Enderby Land. Later in the same year and early in the next, Mawson made five landings formally claiming the eastern portion of the continent.^® Almost at the very same time that Mawson was exploring and annexing territory for Australia, Captain Riiser-Larsen, a Norwegian, who met Mawson in Antarctica and agreed to explore west of 45° East longitude, had flown over the coast in the vicinity of Enderby Land, landed in coastal water near Cape Ann, and took formal possession in an islet. ^ Finally, on December, 1935, Lincoln Ellsworth, an American, unofficially claimed the territory between 80° and 120° West longitude, which he 3 0 named James W. Ellsworth Land. The performance of the above-mentioned acts, with the exception of Byrd's, was not made in vain. In 1933, as the result of Mawson's efforts, Australia was granted by Britain the sector between 45° and 160° East longitude, but not including French Adelie Land. Six years later, 1939, ^Sullivan, Quest for a Continent, p. 118. ^Hjalmar Riiser-Larsen, ’ ’The 'Norvegia' Antarctic Expedition of 1929-1930," The Geographical Review, XX (October, 1930), 564. Qn Lincoln Ellsworth, "The First Crossing of Ant arctica," The Geographic Journal, LXXXIX (March, 1937), 200-201. Lincoln Ellsworth, "Ellsworth's Own Diary," Natural History. XXVII (May, 1936), 403. j 298 Norway, in order to protect its interest in Queen Maude Land from the ambitions of the Third Reich, placed the territory lying between the Falkland Island Dependencies O I and the Australian Dependency under Norwegian sovereignty. Thus, the original claims resulting from the possession- taking activities of British and Norwegian explorers led to formal annexation by these nations. And, as in the dis covery of the New World, nations in the twentieth century were actually seeking to acquire perfect sovereignty and dominion over vast unoccupied territories by the perform ance of symbolic acts. Such a policy was officially opposed by only one important power, the United States. Following the pre cedent begun by Charles Evans Hughes, Secretary of State Cordell Hull rejected New Zealand’s claim to the Ross Sea Dependency, when New Zealand protested against the imagined opening of a United States Post Office in Little America. In 1939, after the Norwegian government had officially proclaimed its sovereignty over Queen Maude Land, the State ^"Norwegian Sovereignty in the Antarctic,1 1 The American Journal of International Law. Supplement: Official Documents, XXXIV (April, 1940), 83-85. ■^Sir Ronald Lindsay to Cordell Hull, January 29, 1934 in Hackworth, Digest of International Law, I, 456-457. Cordell Hull to Sir Ronald Lindsay, November 14, 1934 in Hackworth, Digest of International Law, I, 457. 299 Department officially challenged Norway's right to annexa tion by stating "that the United States reserves all rights which it or its citizens may have in the area mentioned.1 J Later in the same year, the Department rejected France's claim to Adelie Land quite emphatically: My government understands that France bases its claims to the territory in question on the discovery of the coast of that region by the distinguished French explorer, Admiral Dumont d'Urville in 1840; on subse quent publication of the facts of his discovery and the action taken by him in connection therewith; and on ths decrees of March 27, 1924, November 21, 1924, and April 1, 1938. So far as my government is aware, Admiral Dumont d'Urville did not even land on the coast claimed for France by him, nor has any French citizen visited the area south of the 60th parallel south lati tude and between 136th and 142nd meridian east longi tude since then. . . . I am instructed to inform Your Excellency that in the light of established principles of international law the United States Government cannot admit that sovereignty accrues from mere discovery.34 The United States, however, was not the only nation that refused to recognize the claims that the European powers made to Antarctica. Chile, when it was officially notified by the Norwegian government of its annexation of Queen Maude Land, replied that it "reserved all Chilean Counsellor of the Department of State to the Norwegian Minister, January 16, 1939 in Hackworth, Digest of International Law, I, 460. ■^Counsellor of the Department of State to Ambas sador Bullitt, May 16, 1939 in Hackworth, Digest of Inter national Law, I, 460. 300 3 3 rights in the territory in question." In 1940, a year later, President Pedro Aguirre Cerda issued the decree of November 6, 1940 where he declared: All lands, islands, islets, reefs of rocks, glaciers (pack-ice), already known or to be discovered, and their respective territorial waters, in the sector between longitudes 53° and 90° West, constitute the Chilean Antarctic or Chilean Antarctic territory.3° By this proclamation Chile denied all validity to Britain’s possession-taking acts, claimed part of the British sector as Chilean territory, and ultimately (as the Chilean doctrine of contiguity and propinquity reveals) relied upon both the papal donation and the Spanish sym bolic possession-taking for its so-called title to Ant arctica. Actually Spain never claimed Antarctica since its navigators failed to discover it and to perform any possession-taking act. However, the fact that its navi gators, like Magellan and Sarmiento, took formal possession of the territory of the Straits of Magellan gave Chile, by the doctrine of uti possidetis, title (which Argentina dis puted) to Tierra del Fuego. But even Chile was forced to rely further upon the practice of possession-taking to strengthen its claim to Tierra del Fuego because in 1843, ■^Christie, The Antarctic Problem, p. 281. 36"Chilean Decree No. 1747 of 6 November 1940," in Christie, The Antarctic Problem, p. 304. Newsweek, XVI (November 18, 1940), 3lT 301 when France considered this unoccupied land as terra nullius, the Chileans at the suggestion of British friends sent Captain Juan Guillermos (John Williams) to take formal possession of the territory. Guillermos fulfilled his orders, fortunately anticipated a French possession-taking expedition by one day, and the territory upon which the Chilean claim to Antarctica is based, became Chilean.^ Whereas the Chilean government relied upon a pro clamation for advancing their claims to its sector, the Argentine nation proceeded quite differently. Although Argentina had indicated its interest in the Antarctic by such acts as the creation of the Comision Nacional del Antartico in 1940, it did not put forth any official claim until its naval ship 1° de Mayo visited Deception Island, Port Lockroy of the Melchior Archipelago, and Winter Island where besides hoisting the Argentine standard, it deposited an inscribed plate and a bronze cylinder containing a note that set forth the Argentine rights to the territory. Although Great Britain1s attention was focused on pro secuting the war, nevertheless, the British, after finding the Deception Island plate which they removed and returned 3^Alfonso Aguirre Humeres, Relaciones Historicas de Magallanes: La Toma de Posesion del" Estrecho y Fundacion de una CoIonia por la Republiea de Chile en 1843 (Santiago de Chile: Imprenta de Chile, 1943), pp. 223-226, 179-180, and 218-221. Brookes, International Rivalry, pp. 115-116. 302 to the Argentine embassy, took serious interest in the situation. It was in answer to the British protests that the Argentine government in 1943 first officially stated "its sovereign rights over all the Antarctic lands and 9 0 dependencies." The Argentine claim, which was first delimited by the plates deposited to include all territory lying between 25° and 68° 34’ West longitude and later enlarged to 25° and 74° West longitude by the map of the Instituto Geo- grafico Militar del Ministerio de Guerra, is not solely based upon historical and geographical principles of con- 30 tiguity. 7 Argentina, having received a meteorological station at Laurie Island (South Orkney Islands) from the Scottish expedition of Sir William Bruce in 1904 and having maintained it since then, has placed great emphasis upon the doctrine of effective occupation for securing sovereign title over terra nullius.^ OO r Republica de Argentina, Comision Nacional del Antartico, Soberania Argentina en la Antartida (Buenos Aires: Ministerio de Relaciones Exteriores y Culto, 1947), pp. 69-72, hereinafter cited as Soberania Argentina en la Antartida. ■^Sullivan, Quest for a Continent, p. 266. Soberania Argentina en la Antartida, pp. 63-66 and 87-91. Christie, The Antarctic Problem, pp. 263-266. ^Soberania Argentina en la Antartida. pp. 43-53, 60-66, and 87-91. Gidel, Aspectos Jundicos de la Lucha por la Antartida, pp. 119-121. Christie, The Antarctic Problem, p. 266. Argentina and Chile’s claims, which conflict with the British title to Graham Land and various Antarctic islands, have had interesting consequences beyond the denial of acts of sovereignty as the means of acquiring complete title to terra nullius. Whereas both Argentina and Chile relied upon historical and geographical pre cedents for claiming the Antarctic territory of Graham Land and whereas Great Britain based her right of ownership upon discovery and first possession-taking, all three nations have now proceeded to solidify their claims by erecting permanent bases upon the adjacent islands and the mainland. Great Britain, as early as 1944 when World War II was raging, considered the Argentine and Chilean counter claims sufficiently important to send an expedition to Antarctica and establish bases at Deception Island and at Port Lockroy / 1 on Wiencke Island. Argentina and Chile, who together at this moment have more bases than Great Britain, began the establishment of permanent bases in 1947, the year in which the Argentine-British dispute attained serious propor tions.^ Besides the establishment of permanent bases, ^ The Illustrated London News, CCXII (February 28, 1948), 242. W. L. S. Fleming, "Contemporary International Interest in the Antarctic," International Affairs, XXIII (October, 1947), 553. ^The Illustrated London News, CCXII (February 28, 1948), 242. 304 another serious consequence which has arisen is the failure of the two Hispanic American countries to accept BritainT s proposal of presenting the dispute to the World Court for arbitration.^ By rejecting the British proposal these nations have prevented a decision which would certainly have clarified the titles, if any, which discovery and first possession-taking accrue in this present age. Aside from these serious consequences, there have been others of the opera-comique type. An outstanding example of this is the failure of both the Argentine and British governments to recognize each other*s postal stamps which lay claim to the disputed territory.^ Somewhat more serious was the incident at Hope Bay in January of 1952 where the Argentine forces opened fire upon a British party seeking to reestablish a meteorological station. However, the Argentine ardor quickly cooled down, after some con sultations between the British Embassy and the Argentine Foreign Office, and the British party landed promptly.^ R. A. Leeper to Juan Bramuglia, Buenos Aires, December 17, 1947 in Christie, The Antarctic Problem, pp. 305-308. German Vergara D. to John Hurleston Leche, Santiago de Chile, January 31, 1948 in Christie, The Antarctic Problem, pp. 314-316. ^Christie, The Antarctic Problem, pp. 270 and 272. The Spectator. CLXXXXI (November 5, 1948), 583-584. ^David Winston Heron, "Antarctic Claims," Foreign Affairs, XXXII (July, 1954), 661-662. 305 Although incidents, such as the escorting of Argentine vessels by British ships in Antarctic waters in February of 1954, continue to occur, these nations have not proposed any satisfactory action--aside from Britain's proposal of t x arbitration--to settle the dispute. This failure of the three interested nations has led other nations to seek a solution to the problem of Ant arctica. As early as 1948 the United States, which has interest in the Antarctic but has not set forth any spe cific claim, proposed a conference among Great Britain, France, Norway, New Zealand, Australia (who have estab lished sectors based upon discovery and possession-taking), and Chile and Argentina (which advance geographical and historical claims) to work out the knotty problem of owner ship.^ Although the conference was purposely called out side of the United Nations to avoid Russian emergence in Antarctica, the American strategy failed as the Russians officially stated not only their interest but also their 48 right to participate. Thus, not only Argentina and Chile ^Time Magazine, LXIII (March 29, 1954), 32. ^Peter A. Toma, 1 1 Soviet Attitude towards the Acqui sition of Territorial Sovereignty in the Antarctic," The American Journal of International Law, L (July, 1956), 624. j ^Ibid. Edward Shackleton, "Antarctica," UN World, September, 1949, p. 21. were disputing claims based upon discovery and first possession-taking* but so was Russia although she had not claimed any specified area. However* Russia, unlike Argentina and Chile, based her claim upon the discoveries of Bellingshausen who discovered, but made no effort to annex, the islands of Peter I and Alexander 1.^ Another nation having less interest in Antarctica than the United States and Russia that has sought a differ ent solution to the Antarctic problem is India. Seemingly rejecting the bases for the various claims, India attempted to present the problem in the agenda for the Eleventh Session of the United Nations General Assembly in 1956. India's move was unsuccessful as Britain, Chile, and 50 Australia quietly worked against it. Thus, the dispute between Britain, Chile, and Argentina for the American Sector continues to exist. Although the opposition to the sector claims (which are based upon discovery and first possession-taking) of ^Toma, 1 f Soviet Attitude towards the Acquisition of Territorial Sovereignty in the Antarctic," The American Journal of International Law, L (July, 1956), 611-626. Thaddeus von Bellingshausen, The Voyage of Captain Belling shausen to the Antarctic Seas 1819-1821 (London: Hakluyt Society, 1945), Series II, No. 92, pp. 411-420. ■^Robert D. Hayton, "The American Antarctic," The American Journal of International Law, L (July, 1956), 610. Newsweek, XLVIII (November 19, 1956), 78. 307 Antarctica continues to increase, and the importance of possession-taking thereby diminishes, there has not yet appeared a better manner of laying a claim to terra nullius, even in this age of the United Nations. As Andrew G. Haley has brought out in his speech to the Inter national Law Club of Harvard Law School, man's conquest of the moon will again bring forth the problems encountered in the discovery of the New World. By planting the red star or the Soviet flag on the moon via a rocket, he said, the Russians would be able to lay claim to the moon. He likened such a claiming feat as comparable to Columbus planting of the Spanish flag and claiming America for Spain.51 In view of the failure of the family of nations to agree upon a different manner of acquiring title, at least inchoate title, it appears that possession-taking, disputed as it may be, will remain with us and play an important part in originating jealousy and dispute. Thus, the history of possession-taking acts of sovereignty has been traced from its origin till the present time. Although conclusions have been presented throughout the study as the different disputes and theories arose, they naturally failed to give an uninterrupted sum mary of the development and effectiveness of possession- taking. It was specifically for this purpose that the - ^The Stars and Stripes, November 30, 1957. 308 following observations are now made. Chronologically speaking, the first conclusion of observation that can be deduced from this study is that acts of sovereignty did not spontaneously nor artificially originate with the discovery of terra nullius. The origin of the ceremony of possession-taking, of which an act of sovereignty is but a phase, goes back to the introduction of Germanic Law into Romanized Europe. To the Roman Law concepts of acquisition of property and res nullius, Germanic Law added the external ceremonial of cutting twigs or branches and holding sod or earth as a sign of posses sion. Such a fusion of Roman and Germanic elements of law was, of course, first used for the acquisition of deriva tive title to land and property. Later, with the discovery of the Atlantic Islands by the Portuguese, the ceremony was transferred to obtaining title to terra nullius. It was through the possession-taking activities of the Portuguese that acts of sovereignty were first used as an inter national practice which was to be continued by other nations. However, it cannot be said that the other colonizing nations, which began their colonial enterprises after Portugal, imitated this country by seeking title of newly discovered lands through acts of sovereignty. For in a period when secrecy was rigorously practiced, the activities 309 of Portuguese discoverers were unknown to their rivals. Therefore, it must be judged, until contrary documentation should appear, that discoverers of the nations which fol lowed the Portuguese also took possession because it was the tradition of Western Europe. Thus, in a certain sense, these later discoverers were also initiating the practice of acquiring terra nullius by possession-taking acts. Of the colonizing nations which followed Portugal in claiming newly discovered territory through acts of sover eignty, no national state relied more upon possession- taking than Spain. Although it is commonly stated that Spain obtained title to the New World from Alexander Vi's Donation, the study of Spanish possession-taking and the Columbian patents show that Spain relied more, much more, upon the possession-taking acts of its navigators and explorers than on the papal donation for its title. The reason for this situation is found in the Spanish Crown's belief that the papal donation was simply a confirmation of the new land that Catholic monarchs considered as their property by right of discovery and possession-taking. Thus, possession-taking became for Spain the means by which terra nullius was legitimately acquired. Although some scholars and jurists, such as B. H. Hinsdale and Chief Justice John Marshall, have recognized that Spain did not found her title to the New World 310 basically upon the Alexandrine Donation, but rather upon discovery; it is almost incredible that present-day Spanish and Hispanic-American authors simply fail to acknowledge the fact. These authors, failing to recognize the rivalry which existed between the papacy and the temporal rulers, insist upon basing Spain’s title to the New World upon Alexander’s Bull, which they claim was universally accepted throughout Christendom. Unfortunately, such a doctrine besides being historically incorrect, removes Spain’s right to the newly discovered territories from the European judicial tradition and places it merely upon the whims and caprices of whoever was sitting in the Chair of Peter. Needless to state, neither Ferdinand the Catholic nor his fellow monarchs would have ever allowed such pontifical pretensions to go unchallenged. Perhaps the reason that prompts the Hispanic speak ing writers to espouse the papal donation as the basis of Spain's title to the New World is that it gives the Hispanic-American nations a more cogent claim to Ant arctica. For, if they were to accept that Spain obtained ownership of her domains in North and South America simply by possession-taking, England’s claim to Antarctica would be far stronger than that of their Hispanic cousins, Argentina and Chile. Thus, it happens that vested interests may in some 311 degree blind Spanish speaking historians from recognizing the role which acts of sovereignty actually played in the colonial history of their nations: a role profitable both to Spain and to them. Spain was not the only nation to profit from the practice of symbolic possession-taking in the acquisition of terra nullius. Great Britain, Spain's greatest rival of the colonization era, also profited from it. But unlike the Spain, who always maintained a consistent doctrine regarding the validity of acts of sovereignty for obtaining title to lands uninhabited by Europeans, Britain's position would waver according to the advantages or disadvantages to be derived in obtaining a coveted territory. Great Britain, like Spain, first claimed the terri tory of ancient Virginia by virtue of John Cabot's act of possession in 1496. She, furthermore, followed a very similar pattern in the Americas to that of Spain as her navigators and explorers of the sixteenth century almost unanimously not only took possession of every new area dis covered, but repeated the ceremony on previously discovered territories, such as Canada, Spitsbergen, Guianas, and ancient Virginia. Despite the utterances of Elizabeth, who stated that title was obtained only by settlement, Britain both in the seventeenth and eighteenth centuries con sistently relied upon the symbolic acts of sovereignty 312 which her representative had performed, to claim title to territory that she regarded as terra nullius. Furthermore, Britain, like Spain in Florida, defended her claims arising from symbolic possession-taking whenever the situation warranted. Thus, on the basis of previous possession- taking the British in the seventeenth century not only ousted Dutch authority in New York, but also intruded in New France and established the Hudson Bay settlements des pite the fact that strong military action was needed in both cases. Yet, Great Britain was not consistent, nor did she intend to be in her policy regarding the validity of symbolic acts. When her explorers and navigators had taken first possession, as in northern Canada and New England (ancient Virginia), she demanded that her title be re spected. On the other hand, when the explorers of another nation had performed the first acts, Britain respected such a title if it suited her ambitions, and did not hesitate to use belligerent activity to nullify it. It was in such a manner that Britain obtained: (1) the Carolinas and Georgia which Spain and even France had previously claimed; (2) the Ohio Valley that La Salle and his fellow Frenchman had taken possession of; and (3) the Falklands and the North west Pacific where not only possession had been taken but even token occupation realized. 313 Britain's disregard of the first acts of other colonizing powers did not, however, continue unabated. As France regained her military power in the mid-nineteenth century and Germany became a great power under Bismarck, Britain, along with these nations, followed a consistent policy in recognizing the effects of symbolic acts of sovereignty in the Pacific Islands. It was during this era, where the military power of these three colonial nations was quite equal, that the validity of possession- taking was universally recognized. Not once did these nations dispute an island or even the Australian mainland when possession had been taken and proclaimed by the home government. Thus, Britain's recognition in the nineteenth century of acts of possession to obtain title per se hinges on realistic appreciation of the rival claimant's ability to defend her claim. Unfortunately Britain's somewhat unprincipled posi tion concerning the recognition of symbolic acts has lately been utilized by her rivals upon the Antarctic. Argentina and Chile, whose own territory was in many cases guaranteed by Spain's acts of possession, waited until Britain was burdened by World War II and needed the friendship and trade of the Americas to reject her claim, resulting from discovery and symbolic possession-taking, to Antarctica. Quite similar to the British position on the 4 314 validity of acts of sovereignty was the stand that France, the third great colonial power, took. However, France's position was even more contradictory than that of Great Britain's. France was indeed the first nation to reject the validity of possession-taking when her Huguenot colonists attempted to establish their colony in Florida in the mid-sixteenth century. Almost a century and a half later, in 1699, during the Hudson Bay Controversy she officially became the first country specifically and offi cially to deny that symbolic possession-taking obtained sovereign rights to an unoccupied area. Yet, it was during these very years of the controversy that Sieur De La Salle, Saint Lusson, and the Sulpicians were claiming all the Mississippi Valley by nothing more than symbolic acts of sovereignty. Moreover, these very claims, which were sub sequently strengthened by the acts of La Verendrye in North Dakota in 1739 and 1743 and of Celoron in the Ohio Valley in 1749 not only contributed to the French and Indian Wars but were militarily defended by France. Therefore, France, like England, found herself actually relying upon symbolic acts of possession for asserting her title to the Missis sippi Valley, but at the same time denying that her rivals' acts possessed any juridical value. In the nineteenth century France, along with Great Britain and Germany, due to the possibility of war, 315 followed a consistent policy of recognizing the acts of sovereignty which other nations performed in the Pacific Ocean lands. Therefore, it was not until after the Era of Discovery had elapsed, that these nations actually recog nized the rights to unoccupied territory which acts of sovereignty conferred. However, such a recognition resulted not from the acceptance of a principle of inter national law but rather from fear of military reprisals. Actually at the present time, France has continued the policy of recognizing the validity of symbolic acts not only to obtain title to unoccupied islands but even to continental territory. Her own claim to Adelie Land in Antarctica is fundamentally based upon Dumond D'Urville’s discovery and possession-taking. Furthermore, she has--as all who have established sectors in Antarctica have done-- recognized the other claimants' title which is ultimately based upon discovery and possession-taking. Thus, France like her former rival, England, is presently consistently defending the validity of symbolic acts, a doctrine which is not in accordance with her early practice in the six teenth and seventeenth centuries. The colonial powers which came after France, England, and Spain did not rely as much upon possession- taking as these three nations had. Holland, whose navi gators performed acts of sovereignty on the lands which 316 they discovered, never once formulated any claims to any territory based solely upon symbolic possession-taking. More than any other nation, Holland, perhaps following Hugo Grotius' doctrine, recognized only occupation as the means of obtaining title. Not only did she overlook the symbolic claims which Tasman made on her behalf in Australia, but she contested the territories in both North and South America that Portugal, Spain, and England claimed by virtue of possession-taking. Of the nations which rejected the juridical validity of symbolic acts, Holland was the only nation that maintained and has maintained a consistent policy. Unlike Holland, the United States actually main tained an inconsistent policy in recognizing the validity of symbolic possession-taking. Although the United States government has explicitly rejected title to Antarctica based upon first possession-taking, a uniform policy regarding the validity of acts of sovereignty has not been followed, especially when the consequences would have been detrimental to the expansioniStic ambitions of the nation. Prominent examples of our wavering attitude toward recog nizing the validity of acts of possession to acquire title are found in the Antarctic Problem, the Louisiana Purchase, the Oregon Question, and the acquisition of some Pacific Islands. Thus, the American attitude is essentially the 317 same as that demonstrated by the British and French, namely, that the validity or effectiveness of possession- taking depends, not upon the legality of the act itself but upon its effect on American territorial interests. It is precisely this utilitarian view, which the great powers of the world follow, that leads to the disputes, controversies, and even wars that arise from dis puted claims. Possession-taking because of its traditional background could become by international agreement a satis factory method of obtaining title to specific unclaimed areas. 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Black, Ltd., 1933. Rodgers, J. D. Australasia. Vol. VI of A Historical Geography of the British Dominions. Edited by C. Lucas. 2nd ed. Oxford: Clarendon Press, 1925. Rodriguez Casado, Vicente. Primeros Anos de Dominacion Espanola en la Luisiana. Madrid: Instituto Gonzalo Fernandez de Oviedo, 1942. Rumeu de Armas, Antonio. Piraterias y Ataques Navales contra las Islas Canarias. Madrid: Instituto Jeronimo Zurita, 1945. Vol. I. Scholefield, Guy H. The Pacific Its Past and Future and the Policy of Great Powers from the Eighteenth Century. London: John Murray, 1919. Sullivan, Walter. Quest for a Continent. New York: McGraw-Hill Book Company, Inc., 1957. Turner, Frederick Jackson. The United States 1830-1850: The Nation and Its Sections. New York: Peter Smith, 1950. Twiss, Travers. The Oregon Territory, Its History and Discovery. New York: D. Appleton and Company, 1846. 337 Tyler, Lyon Gardiner. England in America, 1580-1652. Vol. IV of The American Nation: A History. New York: Harper and Brothers, 1904. Van Alstyne, Richard W. American Diplomacy in Action. 2nd ed. Palo Alto, California: Stanford University Press, 1946. Wagner, Henry Raup. The Cartography of the Northwest Coast of America to the Year 1800. Berkeley: University of California, 1937. Vol. I. Williamson, James A. A Short History of British Expansion: The Modern Empire and Commonwealth. 2nd ed. London: Macmillan and Company, Ltd., 1930. Zaragoza, Justo. Historia del Descubrimiento de las Regiones Australes. Hecho por el General Pedro Fernandez de Ouiros. Madrid: Imprenta de Manuel G. Hernandez, 1876. Zavala, Silvio. De Encomienda y Propiedad Territoriales en Algunas Regiones de la America Espanola. Mexico: Antigua Librerra Robredo, 1940. Legal Monographs Gama Barros, Henrique da. Historia da Administracao Publica em Portugal nos Seculos XII a XV. 2nd ed., edited by Torquato de Sousa Soares. Lisboa: Livraria sa da Costa, 1949. Vol. III. Gidel, Gilbert. 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Creator Servin, Manuel (author)

Core Title The Act Of Sovereignty In The Age Of Discovery

Degree Doctor of Philosophy

Degree Program History

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag history, general,OAI-PMH Harvest

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Language English

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Advisor Cutter, Donald C. (committee chair), Bowman, Francis J. (committee member), Caldwell, Russell Leon (committee member), Moreno, Laudelino (committee member), Rowland, Donald W. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-32362

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