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.]