Chapter IV: Part 4

And if, up to the said twentieth day of this said month of June, no lands are discovered by the said ships of their Highnesses within the said one hundred and twenty leagues, and are discovered after the expiration of that time, then they shall pertain to the said King of Portugal as is set forth in the above.

[The faithful observance by the respective sovereigns, of every point of this treaty is provided for in the fullest of terms by the commissioners, by virtue of the powers delegated to them; and this is sworn "before God, the Blessed Mary, and on the sign of the Cross." The instrument must receive also the sanction of the Pope, who will be asked to confirm the same by means of a bull in which the agreements of the treaty will be given. [164] The commissioners bind themselves under the foregoing oaths and penalties that, "within the one hundred days immediately following the date of this treaty, they will mutually exchange approbations and ratifications of the said treaty, written on parchment, and signed with the names of their said constituents, and sealed with their seals." Don Juan, heir to the Spanish crown, shall sign the instrument as well as Ferdinand and Isabella, and the whole shall be witnessed in proper manner.]

Note on Correspondence of Jaime Ferrer

[For lack of space, certain documents to and by Jaime Ferrer, regarding the line of demarcation, cannot be included in this series. These documents--a letter from the Cardinal Despanya, Archbishop of Toledo, Don Pedro de Mendoza, Barcelona, August 26, 1493; a letter from Ferrer to the Catholic sovereigns, Barcelona, January 27, 1495; Ferrer's opinion regarding the treaty of Tordesillas (undated, but probably in 1495); and a letter from the Catholic sovereigns, Madrid, February 28, 1495,--will be found in Navarrete, _Coll. de viages_, tomo ii, edition 1825, pp. 97-110; edition 1858, pp. 111-117, part of núm. lxviii; and a translation of all but the first in Dawson's _Lines of Demarcation_ (printed in _Translations of the Royal Society of Canada_, 1899-1900, second series, vol. v, sec. ii, pp. 541-544,--also printed separately). Navarrete states that these documents, were printed in Barcelona in 1545, in a now rare book compiled by Ferrer under the title _Sentencias cathólicas del Divi poeta Dant_. In the first letter, signed "El Cardenal," Ferrer's presence is requested in Barcelona; he is to take with him his mappamundo and all his cosmographical instruments.]

Compact Between the Catholic Sovereigns and the King of Portugal, Regarding the Demarcation and Division of the Ocean Sea

Don Fernando and Doña Isabel, by the grace of God, King and Queen of Castilla, etc.: Inasmuch as, among other things in the treaty and compact regarding the division of the Ocean Sea, negotiated between ourselves and the most Serene King of Portugal and the Algarbes on either side of the sea in Africa, and Seignior of Guinea, our most dear and beloved brother, it was agreed and covenanted that, within the first ten months following the date of this treaty, our caravels and his, accompanied by astrologers, pilots, sailors, and others, agreed upon by ourselves and himself,--a like number on either side--shall be in the island of La Gran Canaria, in order to proceed to the determination and drawing of the divisional line of the said sea--which must be three hundred and seventy leagues west of the Cabo Verde islands, in a straight north and south line from the Arctic to the Antarctic pole, as covenanted between us by the said treaty of the division of the said sea, as is more fully set forth therein;--and inasmuch as we now consider that the line of the said division at the distance of the said three hundred and seventy leagues can be determined and calculated better, if the said astrologers, pilots, sailors, and others, come to a definite conclusion and agreement regarding the manner and order of procedure to be observed in the determination and marking of the said line, before the sailing of the said caravels, by so doing avoiding disputes and controversies that might arise regarding it among those going, if these had to be arranged after the departure; and inasmuch as it would be quite useless for the said caravels and persons to go before knowing that any island or mainland had been found in each one of the said parts of the said sea, and to which they must proceed immediately and orderly: Now therefore, in order that all this may be done to better advantage, and with the full and free consent of both sides, we agree and by this present letter consent that the said astrologers, pilots, sailors, and others determined upon with the said King, our brother--a like number on either side, and of sufficient number for this matter--must assemble and they shall assemble along any part of the frontier of these our Kingdoms and the Kingdom of Portugal. During the whole month of July first following the date of this letter these men shall consult upon, covenant concerning, and determine the manner of making the said divisional line of the said sea at the distance of the said three hundred and seventy leagues west of the said Cabo Verde islands, by means of a straight north and south line from the Arctic to the Antarctic Pole, as is set forth in the said treaty. And whatever they determine upon, unanimously, and whatever is concluded and marked out by them, shall be approved and confirmed through our letters-patent, by us and by the said King, our brother. And if after the said astrologers, pilots, and sailors, appointed as above said, shall have arrived at a conclusion, each one of the said parties going to that part of the said sea, according to the permission of the said treaty, and thereby observing the contents of said treaty, any island or mainland shall be found hereafter, which either of the parties consider to be so situated that the said line can be determined in accordance with the stipulations of the said treaty, and the one party shall cause notification to be given the other party that they shall cause the line abovesaid to be marked out, we and the said King, our brother, shall be obliged to have the said line determined and marked out, in accordance with the method determined upon by the astrologers, pilots, and sailors, and others abovesaid, and appointed as abovesaid, within the period of the first ten months reckoned from the date that either of the parties notified the other. And should it prove that the land thus found is not cut by the said line, a declaration of its distance from the said line shall be given, both on our own part and that of the said most serene King, our brother. They shall not, However, neglect to make the said declaration regarding any island or mainland which shall be found afterwards, during the period, nearer the said line. And in doing the aforesaid, they shall not neglect to observe the manner aforesaid, whenever any island or mainland is found in the neighborhood of the said line as aforesaid, and up to the said time of the said ten months after the notification of one party by the other, as aforesaid. It is our pleasure in this our letter to postpone and defer the departure of the said caravels and persons, notwithstanding the limit set and determined in the above-mentioned treaty in regard to it. And we therefore are pleased and consider it advantageous--for the better notification and declaration of the division of the said sea made by the said treaty between ourselves and the said King, our brother; and in order that both our subjects and natives and the subjects and natives of the said King our brother may be better informed henceforth as to the regions wherein they may navigate and discover,--to order (as in truth we shall order), under severe penalties, that the line of the said division be placed on all hydrographical maps made hereafter in our kingdoms and seigniories by those journeying in the said Ocean Sea. This line shall be drawn straight from the said Arctic to the said Antarctic pole, north and south, at the distance of the said three hundred and seventy leagues west of the Cabo Verde islands, as aforesaid, being measured as determined unanimously by the said astrologers, pilots, and sailors meeting as abovesaid. And we purpose and stipulate that neither this present letter nor anything contained herein, be prejudicial in any manner to the contents and compacts of the said treaty, but rather that they, all and singular, be observed throughout _in toto_ without any failure, and in the manner and entirety set forth in the said treaty; inasmuch as we have caused the present letter to be made in this manner, simply in order that the said astrologers and persons shall assemble and, within the said time, shall determine the order of procedure and the method to be observed in making the said line of demarcation, and in order to postpone and defer the departure of the said caravels and persons, until the said island or mainland, whither they must go, is known to have been found in each one of the said parts, and in order to command that the line of the said division be placed on the said hydrographical maps,--all of which is set forth most fully in the above. We promise and asseverate on our kingly faith and word, to fulfil and observe all of the foregoing, without any artifice, deceit, or pretense in the manner and in the entirety set down in the above. And in confirmation of the above, we cause this our letter to be given, signed with our names, and sealed with our leaden seal hanging from threads of colored silk.

[Dated at Madrid, April 15, 1495. [165] Signatures of the King and Queen, and the Royal Secretary.]

Bull, _Præcelsæ_, of Leo X

_November_ 3, 1514

[This bull, called _Precelse denotionis_, confirms and extends certain bulls of Leo X's predecessors, Nicholas V and Sixtus IV, reciting the bulls so confirmed and extended--two of the former and one of the latter. In the first bull, _Dum diversas_, authority is granted to King Alfonso V of Portugal to make war upon the infidels, to conquer their lands, and to reduce them to slavery. It concedes also plenary indulgence for their sins to all taking part in the expeditions against the Moors, or aiding the expeditions with gifts. [166] Its date is June 18, 1452. The second bull is dated January 8, 1454, and is called _Romanus Pontifex._ In it Nicholas "after reviewing with praise the zeal of Prince Henry in making discoveries and his desire to find a route to southern and eastern shores even to the Indians, granted to King Alfonso all that had been or should be discovered south of Cape Bojador and Cape Non toward Guinea and 'ultra versus illam meridionalem plagam' as a perpetual possession." [167] The third bull, the _Eterni Regis_ of June 21, 1481, confirms that of Nicholas V. It "granted to the Portuguese Order of Jesus Christ [168] spiritual jurisdiction in all lands acquired from Cape Bojador 'ad Indos.'" This bull also contained and sanctioned the treaty of 1480 between Spain and Portugal, by which the exclusive right of navigating and of making discoveries along the coast of Africa, with the possession of all the known islands of the Atlantic except the Canaries, was solemnly conceded to Portugal. [169] After thus reciting these bulls ("of our own accord ... approve, renew, and confirm the aforesaid instruments" [170]) Pope Leo extends and amplifies them in the following words:]

And for added assurance, we do by virtue of the authority and tenor of the above instruments, concede anew, [to the King of Portugal] everything, all and singular, contained in the aforesaid instruments, as well as all other empires, kingdoms, principalities, duchies, provinces, lands, cities, towns, forts, dominions, islands, ports, seas, coasts, and all possessions whatsoever, real or personal, wherever they may be, and all uninhabited places whatsoever, recovered, found, discovered, and acquired from the above-mentioned infidels by the said King Emmanuel and his predecessors, or to be hereafter recovered, acquired, found and discovered, by the said King Emmanuel and his successors--both from Capes Bogiador and Naon [171] to the Indies and any district whatsoever, wherever situated, even although at present unknown to us. And likewise we do extend and amplify the instruments above-mentioned and everything, all and singular contained therein, as aforesaid, and in virtue of holy obedience, under penalty of our [wrath,] we do, by the authority and tenor of the foregoing, forbid all faithful Christians, whomsoever, even although possessing imperial, regal, or any other dignity whatsoever, from hindering, in any manner, King Emmanuel and his successors in the aforesaid, and from presuming to lend assistance, counsel, or favor to the infidels. [The Archbishop of Lisboa and the Bishops of Guarda and Funchal are ordered to see that the provisions of this bull are observed. [172]]

Instructions from the King of Spain to His Ambassadors in the Negotiations with Portugal

[In this document, written in Valladolid, February 4, 1523, and signed by the king and the chancellor and countersigned by the king's secretary Cobos, the king lays down the following points:]

First, that the course of action mapped out for you, our said notary-in-chief Barroso, in answer to your letter reporting your conversation with the duke of Berganza regarding this treaty, seemed then, and seems still right and proper; since by this course we declare in effect our purpose and wish to fulfil _in toto_ toward the said most serene King, the treaty concerning the division and demarcation of the seas, negotiated between the Catholic sovereigns--my lords and grandparents--and King Don Juan of Portugal. I order you, likewise, to ascertain briefly what regions lie within the right of our conquest, and where are the limits of our demarcation, and those of the said most serene King of Portugal. And you shall ascertain in what manner restitution of whatever I may have appropriated of his possessions, with the profit accruing therefrom, may be made to the said most serene King, the latter making to our Royal crown the same restitution of whatever he may have appropriated, with all profits and revenues arising therefrom.

That we believe the reason for the refusal of the said most serene King to accept the expedients proposed, and for his recent reply to us, transmitted through you, the said notary-in-chief Barroso, was due to his not being informed thoroughly in regard to the said expedients, and of our past and present intention and wish to fulfil strictly in every point the said treaty; and to preserve and augment, by fair dealing on our part, our relations with, and love toward, the said most serene King. For these reasons we beseech him earnestly that he have the said expedients examined; that he treat and confer concerning them, singly and collectively; and that he inform us of whatever in them, singly or collectively, seems wrong or prejudicial to his rights--in order that we, through our great affection for him and our desire for its increase, may have his objections examined and discussed before our royal person by the members of our Council. This done we shall order what is unjust to be remedied, and the said most serene King, shall, in no wise, receive any hurt, in what by right pertains to him.

[The king orders further that his ambassadors confer discreetly and prudently with the Portuguese king and others, and advise him promptly as to the outcome, that he may take the proper steps. He continues:]

In case that you are unable to prevail upon the said most serene King to reëxamine the said expedients, and if he declares that he has seen them already, and that he has informed us, through you, the said notary-in-chief Barroso, of his dissatisfaction regarding them,--although without stating in detail his causes for dissatisfaction--and that he proposed now that we each send two caravels to determine the said demarcation, in the meantime neither himself nor myself despatching our fleets to Maluco, you shall reply in this manner: that whatever pertains to the sending of the said caravels to determine the said demarcation is in perfect accord with our desires, and we are quite well satisfied with the proposal, since such a procedure is in keeping with the said treaty, which will in this manner, be fulfilled so far as we are concerned. And you shall confer briefly with him and with those he shall appoint concerning the method of procedure--the tons burdens of the said caravels; the astrologers, cosmographers, notaries, pilots, and others who shall embark in each vessel; in what manner they shall be armed; and for what time victualed and provisioned. You shall stipulate that a certain number of our subjects shall embark in his caravels, and a like number of his subjects in ours, who shall all be designated by name, in order that the determination and measurements might proceed with more fairness and justice. Also all documents, both measurements and proofs, made for the verification of the above, shall be made in presence of the notaries sent in the said caravels by each of us. They shall be made before those notaries in such manner that one notary shall be present always for each one of us, and two others shall sign the said documents, which without such signatures shall be invalid. And you shall confer upon all other desirable topics, in order that the voyage be fair to us both, and the demarcation be made in accordance to the said treaty, and that those sailing in the said caravels have desire only to ascertain and declare the truth. Before concluding anything discussed and treated by you, you shall first advise us. But as regards saying that, during the time taken in fixing upon the said demarcation, neither of us shall send his fleets to the Maluco Islands, you shall reply to the said most serene King that, as he may see clearly, it is neither just nor reasonable to ask this of me, for the agreement and treaty neither prohibits nor forbids of it, and to do this would be to the detriment of my rightful and civil possession in the said Maluco Islands, and in the other islands and mainlands which will be discovered by my fleets during this time of fixing upon the said demarcation. He is aware that I am received and obeyed as king and lord of those Maluco Islands, and that those who, until the present, held possession of these regions, have rendered me obedience as king and rightful seignior, and have been, in my name, appointed as my governors and lieutenants over the said regions. He knows, too, that my subjects, with much of the merchandise carried by my fleet, are at the present time in these regions. For these reasons it is not reasonable to ask that I discontinue my possession of these districts during the time of determining the demarcation, especially since the said most serene King has never held possession, past or present, of any of the said Maluco Islands, or of any others discovered by me up to the present; nor has his fleet touched at or anchored therein.

You shall say to him that, inasmuch as I have not asked that he discontinue to hold his possessions in Malaca and other regions discovered by him, although I have been assured on many different occasions by many different persons of learning and judgment--a number of whom are natives of the Kingdom of Portugal--that these regions pertain to me and to my crown, being, as these men declare, within the limits of our demarcation, he will recognize quite fully the injustice of asking me to discontinue sending my fleets to Maluco and other regions where I am in civil and rightful possession, and am obeyed and regarded as legitimate seignior, as aforesaid.

Should the said most serene King propose to you that it would be a fair expedient to us both that, during the time of determining the demarcation, since we claim that Malaca and many other islands where he carries on trade lie within the limits of our demarcation and pertain to us, he will desist from despatching his vessels and fleets to those regions, provided that I do the same as regards whatever of the Maluco and other islands discovered by me in those regions, and claimed by him as lying within his demarcation; or should he propose any other expedient or innovation not in this present writing, you shall make answer that such expedient is new, and that we have no knowledge of it. On this account you shall request that he allow you to consult with us. After this discussion you shall advise me of the matter.

[The instructions conclude by urging the ambassadors to proceed prudently, and to impress the Portuguese monarch with the affection felt toward him by Carlos, and the latter's desire for its continuance. The ambassadors are to act in complete harmony with one another, and to carry on negotiations jointly at all times, one never presuming to act without the other's full knowledge. Exact reports must be submitted by them, in order that their king may give definite instructions.]

Letter of Carlos I of Spain to Juan de Zúñiga--1523

The King: Juan de Zúñiga, knight of the order of Santiago, [173] my servant. I have not hitherto written you of transactions in the negotiations respecting Maluco, to which the most serene and illustrious King of Portugal, my very dear and beloved cousin, sent his ambassadors, as I believed that, our right being so apparent, the treaty would be kept with us, or at least some good method of settlement would be adopted. This the ambassadors have not cared to do, although on our part we have done everything absolutely possible--much more than is usual between princes or relatives. I speak of this because my steadfast wish to preserve forever the kinship and love existing in the past and present between the most serene King and myself has been made manifest by my deeds. I am exceedingly sorry to find that this has been not only of no advantage, but rather, because of the meager results obtained, a disadvantage. And on this account the said ambassadors are returning without having come to any conclusion. By them I write to the said most serene King as you will observe in the copy of the letter enclosed herein. [174] Now because you should be informed of the transactions at this discussion,--both that you might, in our behalf, give a full account thereof to the said most serene King, and that you might discuss the same there [in Lisbon] wherever convenient,--I have determined to put you in possession of the facts in this letter, which are as follows. As soon as the said ambassadors had arrived, and after the letters from the most serene King had been presented to me, and their embassy stated by virtue of our faith in these letters, they requested me to appoint persons with whom they might discuss the questions upon which they were to mediate for their sovereign. I did this immediately, appointing for this purpose certain members of my Council whom I, considered the best informed for that particular negotiation, and men of straightforward principles. These men, in company with the aforesaid ambassadors, examined the treaty presented by the latter, which seemed to have been drawn up and authorized by the Catholic King and Queen, my grandparents, and by King Don Manuel, his [King João III] father, of blessed memory. They listened to all the ambassadors had to say, and all together conferred regarding and discussed the questions many times. Afterwards, inasmuch as the said ambassadors besought me to give them a hearing, I did so, the above-named and others of my Council, whom I had summoned for that purpose, being present.

The result of their proposition was to present the said treaty to me and petition that I order the observance thereof, and in consequence thereof, have Maluco surrendered immediately to the said most serene King of Portugal. This they said we were bound to do, by virtue of the said treaty, which contained, they declared, a section whose tenor is as follows. [175]

In this manner they continued to assert that since Maluco had been found by the King of Portugal, we were bound to make petition for and accept it from him, if we claimed it as lying within the bounds of our demarcation, and not to take possession of it by our own authority; and that the King of Portugal being assured of our contention, which they neither denied nor mistrusted might prove correct, was quite prepared to surrender it to us immediately, according to the terms of the said treaty, of which, in the said name, he wished to make use, and they petitioned that we observe the same. And therefore, as being a matter in which all negotiations and conferences were in good faith, both because of the prominence of those engaged in them, and because of the relationship between them, they declared that they had no wish to profit by any other right or allegation, but only to petition that the contents of the said treaty be kept to the letter.

Certain members of our Council, being informed of the matter made answer that my wish and intention had ever been, and still was, to observe the said treaty, and not to violate it in any manner (as in truth is and has ever been so). When this treaty should be examined and understood in the true light of reason, it would be found to be in our favor; and our intention was clearly founded upon it; and especially were we acting in good faith, according to the declaration of the said ambassadors that it was only necessary to examine the tenor of the said treaty and abide by its contents. Furthermore, in the same section, upon which they, in the name of the said most serene King of Portugal, based their contentions, would be found also the declaration, that if the Castilian ships should find any mainland or island in the Ocean Sea, which the said most serene King of Portugal should claim or allege to have been found within the limits of his demarcation, we were bound to surrender it to him immediately; and he could not be ignorant, nor could he claim ignorance of this, since it was all together in one and the same section. Therefore it was quite evident, since Maluco had been and was found by Castilian and not Portuguese ships, as they declared, that we, according to the terms of the same treaty, held it lawfully, at least in the time taken in arriving at and concluding the true determination of demarcation; and the most serene King of Portugal, when he wished anything, must petition for, and ask it from us, and it being found to be in his demarcation, must accept it from us. All the above they said in my name; asserting that whenever it should appear to be as above stated, we should carry into effect and fulfil immediately everything according to the said treaty. They said that Maluco had been found and occupied first, as must be admitted, by our ships--a fact well known everywhere, as we believe you are aware--inasmuch as nothing else was ever heard or known. The present declaration of the ambassadors was a complete innovation, at which, and reasonably, we must express surprise, since the fact was so well known that no one could pretend ignorance of it.

And, in proof thereof (to continue the above), our present possession, which had been public and without any opposition by the said most serene King of Portugal, was sufficient. And this possession of ours had been continued with his knowledge, suffrance, and good grace, and had been likewise known and suffered by the most serene King Don Manuel, his father. It was now a cause for surprise, that, in an affair of such moment, after such a long interval, and after two generations had consented to it, the effort of obstruction and hindrance should be made, as if it were a matter that had just arisen. It was declared that whoever heard of it, believed it to be more for the purpose of vexing and annoying us at this time, seeing our necessities and our so just employment against the tyrants of Christendom, [176] than for the purpose of obtaining justice. For until the present we would have been able to have been advised of it, and to have informed ourselves, and therefore we, on our part, possessed the good faith in the observance and understanding of the said treaty, alleged by the said ambassadors.

Further, it could not be denied that Maluco had been found and taken possession of first by us, a fact supposed and proved by our peaceful and uninterrupted possession of it until now; and the contrary not being proved legally, our intention in the past and present is inferred and based upon this possession.

From the above it follows plainly that, inasmuch as we found and took possession of Maluco, and hold and possess it at present, as is quite evident that we do hold and possess it, if the said most serene King of Portugal, our brother, claims it, as being of his conquest and demarcation, he must petition us for it, and his representations proving correct, he must accept it from us. Herein is the said treaty obeyed to the letter, as the said ambassadors petition, and observed with the good faith alleged by them.

And in case anything has been obtained in Maluco, or any information has been acquired concerning Maluco, or any Portuguese has gone thither, or is there now, for the purpose of trade or barter, or for any other cause--none of which are known or believed to be so--it does not follow nor can it be asserted that Maluco was found by ships of the King of Portugal, as is required by the said treaty, and therefore the foregoing being, in fact, outside the terms of the treaty, we are outside of its jurisdiction and obligation.

Furthermore it was declared in our behalf, that, although Maluco had been discovered by ships of the King of Portugal--a thing by no means evident--it could not, on this account, be made to appear evident, or be said that Maluco had been found by him. Neither was the priority of time, on which he based his claims, proved, nor that it was discovered by his ships; for it was evident, that to find required possession, and that which was not taken or possessed could not be said to be found, although seen or discovered.

Leaving out of consideration the decision of the law, even the general opinion which was on my side and which comprehends and binds by virtue of common sense those who recognize no superior, and which all of us were and are bound to follow, pointed to the same thing, and it was proved clearly by the said treaty on which we both founded our pretensions, without any necessity arising of dragging _ab extra_ any other right or allegation; because if he who found land, found it in the other's demarcation, he was bound to surrender it to him, according to the terms of the said treaty, it is evident, and follows plainly, that he who found the land must first hold and possess it, because not holding it he could not surrender it to the other, who petitioned him for it, on the grounds that it had been found within his demarcation. If any thing else should be declared, it was in violation of the terms of the said treaty, which must be understood and fulfilled effectually.

From the above it followed clearly that the finding of which the said treaty speaks, must be understood and is understood effectually. It is expedient to know, by taking and possessing it, that which is found; and consequently the most serene King of Portugal, nor his ships, can, in no manner, be spoken of as having found Maluco at any time, since he did not take possession of it at all, nor holds it now, nor has it in his possession in order that he may surrender it according to the stipulations of the said treaty.

And by this same reasoning it appeared that Maluco was found by us and by our ships, since possession of it was taken and made in our name, holding it and possessing it, as now we hold and possess it, and having power to surrender it, if supplication is made to us. It appearing to fall within the demarcation of the most serene King of Portugal, it follows from this, that supplication must be made to us by him, and if it is found to lie within his demarcation, he must receive it from us, and not we from him, in accordance with the said treaty, which being understood to the letter, as the ambassadors petition, thus proves and determines the question.

It was especially declared that we, in this reasoning, made no request of the King of Portugal. And inasmuch as we were the defendant we neither wished to, nor ought we to have any desire to assume the duties of the plaintiff, because if the King wished anything from us for which he should petition us, we were quite ready to fulfil in entire good faith all the obligations of the said treaty.

Furthermore it was declared that, supposing--which is not at all true--that the King of Portugal had found Maluco first, and that he should claim that we should restore it to him, asserting that he had been despoiled of it by our having taken possession of it on our own authority, when we should have petitioned and received it from him; or alleging that we did not disturb or trouble him in the possession of what he does not have, nor ever had in his possession, it was quite clear that the case was not comprehended in the said treaty. Neither was it provided for nor determined in the treaty, which was not to be extended, nor did extend to more than was expressly mentioned and set down therein, which it did determine. Rather this appeared to be a new case, omitted and unprovided for by the treaty, which must be determined and decided by common sense or common law.

Accordingly, since this matter was outside of the said treaty, we were not bound by the treaty, nor in any other manner to leave our right unexamined, nor was it either reasonable or proper to restore immediately in order to have to petition later, thus making ourselves, contrary to all ideas of equity and good faith, original criminal, prosecutor, or plaintiff; especially as it would be impossible or very difficult to recover what we should restore. For this very reason even the restitution of what was well known to be stolen was deferred by law, until the case of ownership was decided.

Furthermore the right of our ownership and possession was evident because of our just occupation. At least it could not be denied that we had based our intention on common law, according to which newly-found islands and mainlands, belonged to and remain his who occupied and took possession of them first, especially if taken possession of under the apostolic authority, to which--or according to the opinion of others, to the Emperor--it is only conceded to give this power. Since we, the said authorities, possessed these lands more completely than any other, and since the fact of our occupation and possession was quite evident, it followed clearly and conclusively that we ought to be protected in our rule and possession, and that whenever anyone should desire anything from us, he must sue us for it; and in such suit must be the occasion for examining the virtue and strength of the titles, the priority, and the authority of the occupation alleged by each party to the suit.

Meanwhile, and until it should be stated legally before one or the other, and that there ought to be a better right than ours, which we neither knew nor believed, we would base our intention upon common law. Therefore we held and possessed Maluco justly, since our title to acquire dominions therein was and is just and sufficient; and from common law arose, both then and now, our good faith and just intention. Our good faith and the justice of our side was apparent by these and other reasons, by the said treaty in what falls within its scope, and by common law and common sense in what falls outside it, or by all jointly. There was no reason or just cause in what the ambassadors petitioned, as formerly in this matter of possession, Silveira, ambassador of our brother, the most serene King of Portugal, the first to come upon this business, had been given thoroughly to understand. Now inasmuch as my wish has ever been, past and present, to preserve the relationship existing between the said most serene King and myself, and in order that the affection and alliance we have ever had may continue to increase, as is in accordance with our desire and actions regarding this matter, as well as upon everything most intimately connected with it, I commanded the members of our Council to review this question in private, and with care; and I charged them in the strongest possible manner that upon God and their own consciences they should declare to me their opinion When it had been examined and discussed again thoroughly, all these members agreed, _nemine discrepante,_ that, from everything observed up to the present, we held Maluco rightly. Now because, as you will understand, since all the members of my Council say the same thing, I ought to believe them, and it would neither be honest nor reasonable to disregard their opinion, especially in a matter upon which I acting alone could not nor can be well informed, I commanded that, according to the above, their opinion would be the answer to the said ambassadors, giving them to understand thoroughly the causes and reasons abovesaid, and others, which although clear and evident, the ambassadors would not accept. Rather they continued to persist that Maluco ought to be surrendered to them. They said they had information that Maluco had been found by the King of Portugal, and by his ships. But that information being unauthorized and in the same the witnesses being subjects of the King of Portugal, (you see how much advantage, honor, and increase it is to this nation to succeed in this undertaking), and it being a thing beyond the bounds of reason, and a matter of no credence or damage, we did not permit examination of it; for even though the evidence should prove damaging to the King of Portugal, he could not be compelled to abide by it, as it had not been presented in a regular court of law, nor sufficiently empowered by him. It was a departure from the principal matter of negotiation. And then too the said ambassadors, although other information better than their own was offered on my part, would not accept it, nor would they abide by it. Although, as you see, I ought not to depart from the said treaty, which was the only petition made me by the said ambassadors, they not wishing to stick to the truth, persisted obstinately in so doing, and then it was sufficient to have satisfied themselves as to its full observance.

But paying no heed to this, nor to the harm ensuing to us in persuading them, on account of my great affection to my cousin, the said most serene King of Portugal, and those causes already declared, proposals were made to the said ambassadors in my behalf, to wit, that it be considered immediately by the court of demarcation, and for this persons be appointed in accordance with the said treaty and the prorogation of it, and within a convenient period, which would not lengthen greatly the business in hand, nor be so short that it would seem that the matter could not be concluded in the time named, and the said declaration and demarcation should be determined. While this was being done, neither he nor I would despatch ships, nor engage in any new undertaking. This would be without hurt to either one of us, so that, if the demarcation was not determined in the time appointed, each one's right would remain and continue fully in force. This expedient, although, it was very prejudicial to our evident and peaceful possession to discontinue it by any compact, and withal a compact made with the side opposing us, the ambassadors would scarcely listen to, declaring that they were not empowered by the King of Portugal to discuss any halfway measures. And afterwards, although with great urging on our part they consented to write the latter concerning this question (and they say they did write him concerning it), they gave out that the reply received was in the way of a refusal.

And notwithstanding that it was seen and known that they did not wish to abide by the said treaty, nor to adopt a middle course or any reasonable conclusion, another expedient was proposed by certain members of our Council, to whom I committed the matter, namely, that while the court of demarcation was sitting, as aforesaid, each side should have entire liberty to despatch ships, if he so wished. For by this means the King of Portugal could take no offense, since this expedient was the same for both. Rather, if any harm resulted, it appeared to be against our right, for of our own free will we permitted them to make expeditions, from which would follow the disturbance of our peaceful and continued possession. Upon every point, although they were given the choice between the said expedients, they answered as at first maintaining an obstinate silence and asserting that they were not authorized. Thus by their own decision and choice they left everything to us.

Then because there remained nothing more to attempt, and in order to convince them thoroughly, and that the King of Portugal, our cousin, might know our intention thoroughly, it was proposed to them that since they were not abiding by the treaty upon which they based their pretensions, nor accepted the expedients proposed to them, that they themselves should propose other expedients, so that if they seemed proper (as were those proposed to them), they might be deliberated upon. To this they answered for the third time that they had no authority to discuss halfway measures, but that Maluco should be surrendered to them. Seeing that all these compliments and offers of expedients made to them on my part, which were submissions rather than compliments, rather proved a loss than a gain to the negotiations, they were abandoned, and the question remained as at first. Inform the most serene King of Portugal in regard to these entire proceedings, for it is the truth. And see that he understands fully my wish, which is as above stated to you; and that I have not failed on my part to do all required by the said treaty, nor to consider any proper and reasonable expedient. Advise me fully of all that is done in this matter. Pamplona, December 18, 1523. I the King. [177] [Countersigned by the secretary Cobos. Signature of the chancellor and of Carvajal]

Treaty Between the Emperor and the King of Portugal Concerning the Limits and Possession of Maluco

[This treaty was negotiated in the city of Vitoria, being signed February 19, 1524. The negotiators acting for Spain were the following: Mercurinus de Gatinara, Grand Chancellor of his Majesty; Hernando de Vega, Commander-in-chief in Castile of the order of Santiago; García de Padilla, Commander-in-chief of Calatrava; and Doctor Lorenzo Galindez de Carvajal: "all members of the Council of the most exalted and powerful Princes, Don Cárlos, by the divine clemency Emperor ever august, and King of the Romans, and Doña Juana, his mother, and the same Don Cárlos, her son, by the grace of God King and Queen of Castilla, Leon, Aragon, the two Sicilas, Jerusalen, etc." Those acting for the Portuguese monarch were Pero Correa de Atubia, seignior of the city of Velas, and Doctor Juan de Faria, "both members of the Council of the most exalted and excellent Lord, Don Juan, by the grace of God, King of Portugal, of the Algarbes on this side of the sea and in Africa, seignior of Guinea, and of the conquest, navigation, and commerce of Ethiopia, Arabia, Persia, India, etc." The respective monarchs delegated full powers to these representatives to negotiate, in their names, this treaty, in which the ownership of Maluco was to be determined. The Spanish letter of authorization was signed in Vitoria, January 25, 1524. (Navarrete omits the Portuguese letter of authorization.) The treaty proper follows:]

Thereupon the said Representatives of the said King and Queen of Castilla, ... etc., and of the said King of Portugal, ... etc., said: That, inasmuch as some doubt exists, between the said Lords, their constituents as to the possession and ownership of Maluco, each one claiming that it falls within the bounds of his demarcation--which must be determined in accordance with the terms of the compact and treaty negotiated between the Catholic Sovereigns Don Hernando and Queen Doña Isabel, King and Queen of Castilla, ... etc., and the most exalted and excellent King, Don Joan, King of Portugal, ... etc., (may they rest in peace),--therefore they, jointly and severally, in the said names, and by virtue of the said powers, incorporated above, for the sake of peace and concord, and for the preservation of the relationship and affection between their constituents, authorize, consent to, and ratify the following:

First, there shall be appointed by each one of the parties to this treaty three astrologers, and three pilots and sailors, for the determination of the demarcation, which must be made according to the terms of the said treaty. These men must assemble, and they shall assemble, by the end of the month of March first following, or before that time if possible, at the boundary line of Castilla and Portugal, between the cities of Badajoz and Yelbes; in order that by the end of the month of May next following, of this present year, they may determine, in accordance with the terms of the said treaty, the said demarcation--taking a solemn oath as soon as they have assembled, and before attending to anything else, in the form prescribed by law and before two notaries (one for each side) with public declaration and testimony, swearing in the presence of God and the blessed Mary, and upon the words of the four holy Gospels, upon which they shall place their hands, that, laying aside all love and fear, hate, passion, or any interest, and with regard only to securing justice, they will examine the rights of the two parties involved.

Likewise three lawyers shall be appointed by each side, who, within the same period, and at the same place, and after having taken the said oath with all the solemn forms and in the manner abovesaid, shall inquire into the possession of Maluco, and receiving the proofs, documents, treaties, witnesses, and rights that shall have been presented before them, shall determine the possession, doing everything that seems necessary for making the said declaration, just as they would do in court. Of the three above-mentioned lawyers, he who is named first in the commission shall take charge of assembling all the other deputies of his side, in order that greater care may be exercised in the negotiations.

Further, during the said period and up to the end of the said month of May, next following, neither of the parties to this treaty shall despatch expeditions to Maluco, for purposes of trade or barter. But if, before the end of the said period the question of possession or ownership shall be determined, then the side, in whose favor the right of each of the said questions is declared, may despatch expeditions and may barter. And in case the question of ownership and demarcation is determined, then that of possession shall be understood to be decided and absorbed. If only the question of possession is determined by the said lawyers, without their being able to determine that of ownership, as aforesaid, then what still remains to be determined of the said ownership, and likewise of the possession of the said Maluco, shall, in accordance with the terms of the said treaty, remain in the same condition as before this present compact. All of the above must and shall be investigated without any prejudice to the rights of ownership and possession of either side, in accordance with the said treaty.

But if, before the conclusion of the said period, it shall appear to the lawyers first named in the commissions, as aforesaid, that the settlement can, in all probability, be concluded and determined with some further continuation of the time set, as above said; or if another good way or manner of procedure, by which this matter could be determined better under one head or another, to wit, that of possession or that of ownership, should offer itself to them, the two lawyers, as aforesaid, may, in either of these cases, prolong, for so long a time as seems convenient to them, the brief determination of the matter. During the period of the said continuation, these lawyers, and all the other deputies, each one in his own capacity, may investigate and ascertain, and they shall investigate and ascertain, just as if this extension of time were within the principal period named in their commission. But the said time shall be understood to be continued under the same conditions and obligations as hereinbefore stated.

And all the actions taken in this case shall be signed by the two notaries appointed in his name by each of the parties to this treaty, as aforesaid. Each notary shall write the actions taken by his side, and the other, after having confirmed and collated them, shall sign them.

_Iten_ [_Item_]: each one of the sides must obtain the ratification and confirmation of these articles from their said constituents, within the twenty days first ensuing.

[The strict observance of the above is promised in the fullest of terms by the representatives of the two sovereigns, in the names of their respective constituents. The oath is taken in the usual way, "before God, and the blessed Mary, and on the sign of the Cross, upon which they placed their right hands, and upon the words of the four holy Gospels, wheresoever they are written most completely, and on the consciences of their said constituents, that they, jointly and severally, shall keep, observe, and fulfil all the above, and every part and parcel of it, really and effectually, casting out all deceit, fraud, and pretense; and they shall, at no time, nor in any manner, contradict it; and under the said oath they swore not to seek absolution from our most Holy Father, or from any other legate or prelate who may give it them, and even if it be given them, of his own accord, they shall make no use of it." Within twenty days of the date of the treaty, the respective representatives must exchange confirmations written on parchment and signed with the names and sealed with the hanging leaden seals of their constituents. The signatures affixed to the treaty are: Francisco de Valenzuela, secretary and knight of the order of Santiago; Pedro de Salazar, captain of their Majesties; Pedro de Ysasago, Contino [178] of their Majesties; Gregorio Casgas, Alvaro Mexia, and Sebastian Fernandez, servants of the said ambassador Pedro Correa de Arubia; Juan de Samano; and those of the negotiators.]

The Junta of Badajoz

Extract from the Records of the Possession and Ownership of the Moluccas

_Record of Possession_

April 11. On the bridge over the river Caya, situated on the boundary line between Castilla and Portugal the twenty-three deputies exhibited their authorizations. This first day passed in reading the treaty of Vitoria, negotiated February 19, 1524, and the letter of commission of the nine judges for Spain; the recall of Esteban Gomez, who _does not understand why he should take part in negotiations for our service_, and the appointment in his place of Fray Tomás Duran under date of Búrgos March 20, 1524; the appointment of the nine Portuguese judges; the appointment of one attorney for Spain, and two attorneys for Portugal; and a secretary for Spain, and the same for Portugal.

II They took the solemn oath to act in the sight of God and conscientiously.

III The judges ordered the attorneys of either side to state their side of the case, and to proceed with the matter.

IV The attorneys disputed as to who should act as plaintiff. Each one wished the other to act in this capacity. The Spanish attorney asserted that this affair was at the instance of Portugal, and that the ambassadors had been sent for this purpose by that country. The Portuguese attorney asserted that there was nothing upon the matter in the treaty, as was well known to Spain. In this wise passed the day.