colegrove diplomatic procedure prior to westphalia

8/8/2019 Colegrove Diplomatic Procedure Prior to Westphalia

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Diplomatic Procedure Preliminary to the Congress of Westphalia

Kenneth Colegrove

The American Journal of International Law, Vol. 13, No. 3. (Jul., 1919), pp. 450-482.

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DIPLOMATIC PROCEDURE PRELIMINARY TO TH E CON-GRESS O F WESTPHALIA

DURINGhe negotiations leading up to the Congress of \Vest-phalia a considerable number of problems of diplomatic procedurearose which occasioned serious delays in the conclusion of peace.The convoking of a general peace congress' of the majority of theEuropean states was a new departure in international practice; andin view of the great differences of these states in religion, politics,interests and language it was necessary to reach preliminary agree-ments on procedure before the actual work of making peace couldbegin. These agreemente were not easily an?l quickly made; and theeight or nine years of negotiations which preceded the Congress ofWestphalia a re a good illustration- of the fact that the diplomaticpractice of today is the result of an evolutionary process.

The corps diplonzatique did not take form until the end of thefifteenth century; and for a century and more following its appear-ance, ambassadors and statesmen consumed a large par t of their timein wranglings over the proper mode for conducting diplomatic busi-ness or the proper courtesies to be observed in international inter-course.

These wranglings and disputes were characteristic of the age.Form and ceremony had lost little of their med i~ val ignificance.Consequently at a time when diplomatic precedents were in the mak-ing, and when. the formalities and ceremonies of diplomatic practicehad not become stereotyped, the foreign representatives of princesand republics mere rightly cautious ill taking any step which mightresult in a loss of the dignity or prestige of their respective states,or which might constitute an unintentional admission of the disputedclaims of rival monarchs. The theoretical or ceremonial equality ofstates as now recognized in international law was by no means

450


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established, and the contest for pre-eminence among the crownsof Europe eiilbittered national feelings and embarrassed the workof diplomats. The Holy Roman Empire, whose jurists had so posi-tively claimed for it a universal jurisdiction, was crumbling intoslilaller units; princes and estates within the Empire, technicallysubordinate but practically independent of the Emperor, added totlic diplomatic confusion by their demands for direct participationin international affairs; while the situation was further complicatedby the cleavage of religious disscnsions, which divided the diplomaticfieid into two camps.

Thus questions of procedure in the first half of the seventeenthcentury offered an excellent excuse for any obstreperous state to delaypeace negotiations. More than this, these questions were formidableobstacles to the conclusion of peace even among belligerents gen-uinely desiring to end a war.

I. GOOD OF F IC E S A h 3 N E D I A T I O NThe approved usage of nations has long sanctioned proposals by

a neutral state to assist in the amicable settlement of the interna-tional disputes of other states. These proposals may be in the formof an offer of good offices, whereby the neutral state will serve simplyas the medium for an exchange of demands between the disput ingstates. Or the proposal may go as far as an offer of mediation, which,if accepted by both disputants, may entitle the neutral state to pre-side over and direct the negotiations for a pacific settlement. Suchis the precise distinction between good offices and mediation madeby modern authorities on international law. The jurists of the seven-teenth century, however, were not so explicit in the use of theseterms. International law was in its infancy and the vocabulary ofdiplomacy had not yet assumed the accuracy and precision whichwas to characterize it in a later period. Legal scholars, like HugoGrotins, who prided themselves on their classical learning, were loathto invent new terms not found in the Latin of Cicero and Livy, andconsequently they employed a variety of words and awkward phrasesto express ideas which a later generation were to condense into asingle word with a technical meaning. Even in the time of Grotius


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452 THE AMERICAN JOURNAL OF INTERNATIONAL LAWthe diplomatic vocabulary had adopted the term mediat ion. Butsince the word was not to be found in the language of the classics,the learned author of De jzcre bell i ac pacis, who as Swedish ambas-sador a t the court of France made a practice of decorating his officialcorrespondence with choice selections from the Latin poets, scornedto make use of the current expression, and employed such phrasesas conciliatio, arbitriunz, ad reconciliandos, and pacificatwnis nego-t i u m , without maintaining any difference between them.l

On the other hand, Bogislav Chemnitz, whose celebrated historyof the Swedish intervention i n Germany was published in the year1648, and who made frequent use of the word mediat ion, appears tohave discriminated between an accepted and an unaccepted offer ofthe diplomatic services of a thi rd sta te in the settlement of an in-ternational dispute. The former act he called an interposi t ion; while,if the offer was accepted, the ensuing process was called a n z e d i a t i ~ n . ~As to the phrase good ofices: This term is found in the diplomaticdocuments of the Thirty Yeara' War, but the jurists of the seven-teenth century made no effort to set it off from me dia t i~n .~ erhaps

1 Rikskansleren A xel Oxenst iernas Sk ri f ter och Brefvexl ing: Grot i i epis tola,ad Oxenstierna, 11, i i , 104, 228, 257, 320, 338, 343; Hugonis Grotii epistolce( A m s t e r d a m : 1 6 8 7 ) , ep . 496, 636, 671, 722, 745, 754. Grotius confused arbi tra-t io n and m edia t ion i n h i s De jure bel li ac pacis, lib. 11, cap. xxi i i , 7 - 1 0 ; l ib. 111,cap. xx , 46-49.

2 Chem ni t z , Konig l ichen Nwedischen i n Teu tsch land ge f i ihrten Kr iegs (S te t -t i n : 1 6 4 8 ) , I, 28, 33; 11, 28, 29, 142, 938. T h e ju r is ts o f t h e a g e o f L o u is XIVand o f the e igh teen th cen tury la id s t ress upon the ma t ter o f the acceptance o fa n o f fer o f media t ion as a prerequ is i te to th e ac t. Compare Samuel Pu f end or f ,De jure naturce et gentium ( 1 6 7 2 ) , l ib. V , cap. x i i , 7 ; J o h an n W o l f g a n g T e x t o r ,Synopstk juris gent ium ( 1 6 8 0 ) , cap. xx , 51 ; A b r a h a m d e W i c q u e f o r t , L ' d m ba s s a-deur et ses Fonctions ( 1 6 8 2 ) , 11, cap. x i ; Francisco Schmier , Jurisprudent iapublica universalis ( 1 7 2 2 ) , 3 0 7 ; Niko laus Hieronymus Gundl ing , Jus na turcea c g e n t i u m ( 1 7 5 1 ) , cap. xxiv , 4 5 ; and his Discours iiber das A7atur- und T'clcker-Rech t ( 1 7 3 4 ) , cap. xxxv, 144; Joh ann G ott l ieb Heineccius, Elementa juris naturcee t g e n ti u m ( 1 7 3 8 ) , l ib . 11, ccxx i ; Johann Jus t in Sch ierschmid , E lementa jur i ss oc ia li s e t g e n t i m ( 1 7 4 3 ) , 5 5 1 ; Chr is t ian W o l f f , us naturce rnethodo scient if icaper t rac ta tum ( 1 7 4 1 - 1 7 4 8 ) , V , 9 2 3 ; Henrici de Coccej i , Grot ius i l lus tratus seucomme ntari i ad Hugonis C ~ o t i i e jure bell i ac pacis ( 1 7 4 4 - 1 7 4 7 ) , 11, 6 6 2 ; 111,4 2 0 ; Samuel de Coccej i, Introduct io ad Henrici de Coceccii Gr ot ium i l lust ratu in( 1 7 4 8 ) , 5 09 .

8 In th e Tre a ty o f Hamburg negot iated be tween France and Sweden i n 1638,


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P R O C ED U R E P R ELI M I N A R Y TO THE CONGRESS O F W E S T P H A L I A 453they had enough to do in establishing the difference between media.tion and arbitration. I n the second half of the eighteenth century,Johann Moser pointed out, that the French Government in its corre-spondence of 1742 with Russia over the question of facilitating anamicable settlement of Russia's dispute with Sweden, had laid downthe fundamental distinction between good offices and mediation whichhas since then been generally a~cepted.~

I t was not for lack of offers of good offices and mediation by neutralnations that the Thirty Years' War was prolonged. I n fact, it willnot be too much to say that during no other war in the modern agehas greater activity been displayed on the part of non-belligerentstates in offering their services to effect a cessation of hostilities andto bring about preliminary negotiations for peace. Prominent amongthese peace-seeking powers should be named Denmark, Venice, Eng-land and the Papacy, all of whom were eager to play the r81e of medi-ator, if not the r6le of "arbiter of Europe.'' I n 1629, when makinghis peace with the Emperor, Christian IV of Denmark undertook toth e Lat in term oficia (trans lated by bons ofices in the French collection ofFrbdkric LBonard published i n 1693) is employed with the term opera, but evenhere I do not believe that we find a conscious attempt to separate good officesfrom mediation. "VII. E t quia ad tractatus cum haste instituendos et RexChristianissimus et Serenissima Regina Suecis crebis amicorum Principiumofficiis invitantur, ne quid in se desiderari possit honestas pacis universalis con-ditiones numquam recusaturis, quantocyus notum mediatoribus faciant sibi essedecretum de pace induciisve non nisi conjunctim agere, nihil absque mutuo con-sensu pacisci, et utramque causam simul e t eodum momento pertractare, u t ipsiMediatores s u m operam et szla oficia eo dirigant."-Hallendorff, Bverges Trak-tater med B'ramman.de Magter, V, ii, 426. The Latin text is also found in Lon-dorp, Acta publica, IV, 689; and Bougeant, Histoire des Guerres et des Ndgocia-tions qui prdcdderent le Trait6 de Westphalie (P ar is : 17 67) , I, 314. The Frenchtext is in Leonard, Recueil des Traitex de Paix, V ; Bernard, Recueil des Traitex,111, 385; Dumont, Corps Diplomatique, VI, 161. Compare the following extractfrom the dispatch of Mazarin to d'Avaux and Servien on June 14, 1644: "I1n'omettra pas aussi d'assurer ledit Roi, que le Roi a resolu d'employer ses oficesaupres du Duc de Transilvanie , pour empecher qu'il n'entreprenne rien contre laPo1ogne."-Le Clerc, Ndgociations secrEtes touchartt la Pa in de Munster et d'0sna-brug (1725), 11, 68.

4 Versuch des neuesten. Europaischem V8llcer-Rechts in. Friedens- und Kriegs-Zeiten. (1777-1780), VIII , 422. Yet Vattel failed t o observe th e differencein 1758. Compare hi s Droit des Gens, liv. IV, chap. ii, 17.


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454 THE AMERICAN JOURNAL OF INTERNATIONAL LAWinduce the Emperor and Gustavus Adolphus to settle their disputeby neg~tiation.~

As a result, a conference was held at Danzig between GustavusAdolphus and the Imperial plenipotentiaries; but this did not bringan amicable settlement, and soon the Snow King was marchingwith his army across Germany." I n the following years the Kingof Denmark repeated his offer of good offices and mediation; and,after the Peace of Prague, the Electors of Saxony and Brandenburgan d the Duke of Lunenburg pressed their inte~positionsupon thebelligerents, without much effecL7 From other states came numerousoffers of good offices and mediation, not the least hopeless and med-dlesome of these efforts toward peace on the part of neutrals beingthe mission of the Duke of Arundel to Vienna in 1636 with the Eng-lish Icing's offer to "interpose our mediation and credit with all thePrinces and States of our profession in religion within the Empireto persuade them to submit to the Emperor, and accept peace." Akinto the British fiasco was the presumptuous proposal of the Dukeof Parma in 1637 to mediate between France an d Spain-a proposalwhich Richelieu turned down in coldly polite words.Q

Did the rejection of offers of mediation furnish legitimate groundsfo r offense to the Powers which had tendered thei r services? This

5 Chemnitz, op, ci t . , I, 28-36; Khevenhiiller, Annales Ferdinandei , S,1146-1147.G. Droysen, G us t a f Ado l f , 11, 125-139.

6 The Powers in dispute a t Danzig did not l imit themselves t o th e mediationof Denmark alone. Note the following extract from the instructions given tothe Swedish plenipotentiaries in April, 1 6 3 0 : "111. Inquirent deinde, quinamMediatorum vice fungentur? E t si venerint e Dania, ab Electoribus Saxoniteet Brandeburgensi au t Civitatibus Hanseaticis, denique a Regibus Gall iz,Britannize aut ab Ordinibus Generalibus Belgii Legati, hi admittentur omnes,au t quotquot advenerint ab amicis. Nec repudiabuntur, si qui ab ElectoribusImperii conjunctim fuerint ablegati aut ab Infante Belgica vel Duce Bavaris.Quod si suos Rex Polonize prssto habuerit, suamque interpositionem obtulerit,ne illi quidem rejicientur."-Rikskansleren Amel Oxenst iernas Bkr i f ter ock Bref-vemling, 11, i, 588.

7 Chemnitz, I, 318-319; 11, 28-29, 116-118, 142-143, 231-232, 315-317, 435, 569,619, 924-938, 1028-1046; Khevenhiiller, op. cit . , XII, 260, 1722-1747, 2340.

8 S. R. Gardiner, H i s t o r y of Eng l and , VIII, 158-159; Khevenhiiller, XII, 1881,2095-2141.

9 Avenel, Papier s de Richel i eu , V, 1022; VIII, 323.


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PROCEDURE PRELIRIINARY TO THE CONGRESS OF WESTPHALIA 455

question was not discussed by Grotius in his D e jure bell i ac pucis,published in the year 1625. But the jurists of the later part of theseventeenth century who built upon the foundations of Victoria,Suarez, Gentili and Grotius, and who found the history of the Thi rtyYears' War to be a rich storehouse of materials to supplement thearchaic collection of cases and precedents from classical lore accumn-lated by their predecessors, had more to say on the subject. Pufen-dorf, the disciple of Grotius, attempted to establish the principle inhis De jzcre n a t z c r ~e t gentizcnz (1672) that a belligerent state wasunder obligation to accept an offer of mediation; and more than this,that neutral Powers might rightly compel a settlement upon termswhich they themselves should fix by joining forces against the statethat refused their manifesto.1 It was a project of amzed nzediati0.nin German affairs, such as Pufendorf defended, tha t attracted theflighty ambitions of James I of England and his son Charles through-out the greater part of the Thirty Years' W ar ; and perhaps it wasthe contempt which the Stuarts earned for themselves on the Con-tinent by their ineffectual meddlesomeness that drew from Pufendorfthe warning that only those princes should undertake "mediationby force of arms" who were able to compel submission to their award.

On the other hand, Johann Textor, in his Syn ops i s juri s gen t i z~nz(cap. XX, 50-61), published at Basel in 1680, took issue with Pufen-dorf and argued that no belligerent state was bound to accept ailoffer of mediation if it had good reasons for refusing. Furthermore,a refusal of an offer of mediation was not to be considered as alegitimate ground for offense or for a declaration of war. This posi-tion was also held by Wicquefort, whose celebrated treatise onL ' d m b a s s a d e u r e t ses Fonct ion s was published at The Hague in 1681.

11. TIIE P A P A L AN D THE VENETIAN OFFERS OF MEDIATION

When Richelieu changed his policy of covert alliances for oneof open warfare, the Papacy made a n earnest effort to persuade theCatholic princes to accept the mediation of the Vicar of Christ, sug-gesting that a conference of plenipotentiaries should be assembled

10 Lib. V, cap. xiii, 7.


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456 THE AMERICAN JOURNAL OF INTERNATIONAL LAWfor this purpose. The Papal offer of mediation was accepted; andthereupon Urban VIII very skilfully cut short the diplomatic skir-mishes as to the location of the proposed conference by himself nam-ing Cologne. To this city in October, 1636, came Cardinal Ginettia s l egatus a Zatere and commissioned to perform the office of mediatoramong the Catholic princes. The Empire and Spain hastened toapplaud the zeal of the Holy Father and hurried their plenipoten-tiar ies to Cologne in the hope of throwing upon France the odiumof refusing the opportunity to make peace.ll

The allies soon discovered that Richelieu at the outset had playeda clever trick upon them by naming his brother, the Cardinal ofLyons, as the plenipotentiary of France. No appointment could havebeen more disagreeable to the Spaniards. The celebrated contest bc-tween the crowns of France and Spain was then at it s height, andthe rank of Alphonse de Plessis as a prince of the Church wouldentitle him to a place in the congress superior to that which therepresentatives of Spain could claim. The objections of the Court ofMadrid to the Cardinal of Lyons were eminently legitimate objectionsi n the opinion of seventeenth century jurists, but nevertheless theyha d the appearance of delaying the negotiations, and gave Richelieuthe opportunity to pose as a great lover of peace when, af te r somedelay on his part , he withdrew the appointment "in order to removeany obstacle in the way of the good work of pacification." l2

The Papal offer of mediation had been conveyed to the Catholicprinces through the nuncios at the European capitals; but, althoughthe Swedish Queen had an ambassador at Paris, no invitation on thepart of the Papacy reached this dignitary. Such an oversight was,of course, consistent with the Roman attitude toward the ProtestantPowers. Before the days of Martin Luther, Innocent I11 had declaredth at the Head of the Catholic Church was the "supreme mediator overall lands on the earth"; but i n the seventeenth century the Papacy

11 Adam Adami, Relat io his tor ic a de pacif icat ione Osnabrugo-Monaster iens i ,cap. ii, 8 ; Mdmoires de Richelieu, IX, 71 seq.; Avenel, op. cit . , V, 222-223,463, 521-522, 525-526; Grotii epistolce ad Oxens t i erna 11, ii, 104, 169, 217, 236,260, 268, 289, 337; Bougeant, op. cit . , I, 261-264.

12 Avenel, VIII, 309; Mdmoires de Richel ieu, IX , 74, X, 108; Cfrotii ,epistolmad Oxens t i erna, 11, ii, 260, 264, 268, 273, 284, 286, 294.


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458 THE AME~ZICANJOURNAL OF INTERKATIOKAL LAWand the Baron d7Avaugour o the Regents with instructions to securethe promise of Sweden to relegate all peace negotiations to a generalcongress at which the allies might meet the Emperor with a unitedfr0nt.l-n carrying out these instructions Saint-Chamond succeededi11 obtaining from Oxenstierna a qualified acceptance of the proposalth at the Swedes should join the French at the Congress of Colognei n treating with the Emperor. This half-promise was included inthe Treaty of Wismar, signed on March 20 , 1636.17 For the momentit appeared as though an important step had been taken in thedirection of a universal peace congress.

Another formidable obstacle in the way of the congres:: remainedto be overcome. Could the hitherto unrelenting att itude of the Papacyupon the question of intercourse with the Protestant Powers beswerved in the interest of the peace of Europe? On July 5, 1636,the Cardinal of Lyons wrote from Rome to say tha t the Pope wouldnot raise insuperable objections to the presence of the Swedes atCologne, although their plenipotentiaries ~vouldbe ignored by thePapal Legate, and their negotiations must needs be conducted throughother channels.ls While this arrangement indicated a concession onthe par t of the Holy Father, Richelieu was well aware of the factthat i t would not satisfy the scruples of the Swedes. I n his ownmind he was convinced that the Papacy did wrong in not permittingits nuncios to treat with the Protestant Powers, that if the Papacyhonestly sought to bring about a general peace by means of its media-tion, then it was not enough for the Papal Legate at Cologne merelyto tolerate the presence of the Swedish plenipotentiaries a t the pro-posed congress, but that a formal invitation should be sent bythe Pope to the Protestant belligerents. These views Richelieu ex-pressed to the Holy Father through the French representative at

16 Avenel, VIII, 286, Ue'moires de Richelieu, VIII, 344.1 7 Avenel, V, 463. The fifteenth ar tic le of t he Treaty of Wismar read: "Is

eligatur tractatui locus qui eque cornmodus et tutus utrique sit qualis pro prz-sente rerum statu videtur esse ~01onia."-~allendorff, V, ii, 371. The treaty aspublished in Pufendorf's De rebus fluecicis, lib. x, 14, reads the same, except theword creditur is in the place of videtur. Inaccurate summaries of the tre aty a rein Londorp, op. cit., IV, 566; LBonard, V ; Bernard, 111, 375; Dumont, VI, 123.

18 Avenel, V, 526.


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P R O C E D U R E PRELIMINARY TO T H E C O NG RE SS O F W E S T P H A L I A 453Rome, and he also said the same things to the Papal Nuncio a t Paris.lgThe formal invitation, however, was not forthcoming; and whenRichelieu took it upon himself to request the Swedish Government tosend plenipotentiaries to Cologne, the Regents replied that they hadnot yet been invited by the mediator. Accordingly on February 21,1637, Richelieu instructed the French Ambassador at Venice to re-quest the Republic to offer i ts mediation to the Swedes.20

The Republic of Venice acted upon the suggestion of Richelieu andtendered its services to Sweden, proposing that the Protestant Pow-ers shodld submit to the mediation of its ambassador at C o l ~ g n e . ~ ~To the Regents of Sweden this offer was not altogether agreeable.During the year which had elapsed since the signing of the Treaty ofTVismar, the Swedish policy that ultimately led to the partition ofthe Congress of Westphalia into two separate conferences had al-ready taken definite shape. The Swedes were alarmed, and not with-out cause, lest in any congress of European Powers they would haveto play second fiddle to France. The apprehensions of the Scandi-navians in regard to the dangers tha t would be met in a. general peaceassembly had been stimulated by reports from Queen Christina's rep-resentative a t the Court of Louis XIII.This ambassador was Hugo Grotius, who owed his appointment tothe faithfulness with which the High Chancellor carried out one ofthe last wishes of Gustavus Adolphus; for the heroic Swedish kinghad been a careful student of the De jure belli ac pacis and had in-tended to give a suitable reward to its author before he died on thebattlefield at Liitzen. Throughout the negotiations over the Congressof Cologne, Grotius exerted himself to dissuade Oxenstierna fromsending plenipotentiaries to the conference, reminding him of thehumiliations which the representatives of Sweden would encounterin a city ,where the influence of the Pope was so great, and where hiscardinal was so highly respected.22 On Ja nu ar y 12, 1637, Grotiuswrote Oxenstierna, giving an account of an interview with Theodore

19 Mdmoires de Richeliezc, X , 88-91; Avenel , V , 765-766; G . Fagniez, PBreJoseph et Richeliezc, 11, 393.

20 A v e n e l , V I I I , 309.21 Pu fen dor f , De rebus Bzcecic is , lib. ix, 6 3 .22 Grof i i ev is to la? u d Oxenst ierna, 11, i i , 228, 262, 265, 272.


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Codefroy, the French historian and jurisconsult, who solemnly advisedthe Scandinavian Government against sending any plenipotentiariesto Cologne; for the town hated the Swedes, the Papal Legate wasunfriendly to the Protestants, and the good feeling between the allieswould be endangered by contests between their plenipotentiaries overthe precedence of their respective monarchs.23 Godefroy, it seems,took unusual pains to impress upon Grotius the fact that in any in-ternational congress France would demand the first place after theEmperor; and, since this distinguished historian had been appointedby Richelieu to the office of technical adviser to the French pleni-potentiaries a t the Congress of Cologne, Grotius had good grounds forbelieving that he spoke under orders from the cardinal himself andthat the premier of France was fa r from desiring the end of the war.

I n regard to the question of the pre-eminence of the crowns, Gro-tius pursued a line of conduct which tended to increase the dislike ofthe Swedes for negotiating in a general peace congress and which cul-minated in an episode forming one of the curious chapters in thebistory of the struggle for diplomatic equality in the family of nations.I n his letters to Oxenstierna, Grotius frequently complained that thecorps diplomatique and many of the French officials at Paris werenot as ready as they should be in observing the formalities due to theambassador of so powerful a state as Sweden.24 At the beginning of-the second year of his mission he became involved in a protractedquarre l concerning the dignity of the Kingdom of Sweden.

On February 18, 1637, at the public entry of the new ambassadorfrom the Netherlands into Paris, the servants of Grotius attempted$0 place his coach in the procession ahead of the coaches of the twopa,m71Bassadors from England.25 A skirmish ensued in which the Eng-lish, being the greater in number, were having the best of it, when theFrench master of ceremonies intervened and decided in favor of

23 Grotii epistolce ad Ome mt ie rm , 11, i i , 297 . Godefroy had a great reputa-ti on as a defender o f the French King's c laims t o pre-eminence. He was theaut hor o f th e Me'moira conce rmn t la pr8s6ance des rois de France sur les roisd 'Espagne (Paris: 1 6 1 3 ) , and o f other works o f similar nature.

24 Ibid., 11, i i , 227, 277, 312, 466; i v , 72 .25 Ibid., 11, i i , 3 1 2 ; J. L. de Burigny , V ie de Cro t ius (P ar is: 1 7 5 2 ) , I, 391.


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En gla nd . This affair was the occasion of several long interviews be-tween Grotius an d the B rit ish representatives, i n which the dignityof th e Kin gdo m of Swed en was grave ly discussed.

The Earl of Leicester declared that Sweden's claim to pre-emi-nence was a rather novel pretension. Grotius mad e answer th at th eSwedish Kingdom was the most ancient and extensive in Christen-dom. Leicester ref erre d to th e classification of kingdoms by th e Pope.Grotius retorted that nothing from that source had weight in theargument. When the English minister insisted that En glan d hadbeen converted to Christianity before Sweden, Grotius rejected theargum ent as one which might injure th e spread of th e C hristian fa i t hby impeding the conversion of the pagans and Mohammedans!*@As late as July 26, 1637, the ambassadors were still continuing theirconversations on this subject. Leicester contended th at a s De nm arkand Norway yielded precedency to England, Sweden ought to followthe ir example. Grotius replied tha t whatever the Danes an d Nor-wegians migh t do, made no difference in th e rig hts of Sw eden. Leices-ter asked how far back the antiquity of Sweden reached. Grotiusanswered tha t i t t ranscended the most ancient a nna ls; an d tha t with-out ,go ing far the r back i t was sufficient to cite the testimony ofTacitus, who described the Swedish nation a s very pow erful inwarriors a nd ships. The English minister declared that a long spa ceof time h ad elapsed since Tac itus wrote, i n which th e pages of his tor yhad nothing to say about the Swedes. Grotius proved tha t they h a dbeen mentioned in every age by the chroniclers. H e added tha t itha d been a m atter of some surp rise to find tha t when the tru ce wa ssigned in Holland the English permitted the French to be named firstin the documents, while in the treaties which Sweden made withFr an ce th ere was always one copy in which the name of Sweden wasp u t before th e nam e of Franc e. The conversation between the two,ambassadors then touched upon the subject of a general peace con-gress. If every monarch claimed the precedency, said Leicester,,it would be impossible for their plenipotentiaries to meet together in


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462 THE AM ER IC AN J OUR NAL OF INTERNATIONAL LAWone assembly. Gro tius though t th at a number of expedients mightbe devised to save the claims of each.27

Although the parleys between Grotius and the Englishmen appearto have been conducted with decorum and moderation, the learnedrepresentative of Sweden launched himself into a highly offensivequa rrel with D r. Renaudot, the editor of the Gazette. Renaudot hadpublished an account of the battle of the coaches, in which the nameof Eng lan d was mentioned before th at of Sweden. Gro tius dem andedt h a t in ano ther issue of the Gazette the name of Sweden be mentionedkefore that of En gland in order to square th e account. Upon Renau-dot 's replying that he took orders from no one but the King and theCard inal, Grotius retorted w ith unseemly anger, tha t unless the editorof the Gazette gave satisfaction he should feel to his sorrow thatSweden was powerful enough to secure justice! 28

It was in the midst of the above-mentioned quarrels over diplo-matic courtesies that the Venetian offer of mediation at the Congressof C ologne reached Sweden. Th e let ter i n which th e offer was made,addressed the Queen as Serenissi?na Regina Szcecice, although a monthbefore its dispatch, Grotius had intimated to Oxenstierna that theVenetians were well aware of the fact that the only proper addressto the Swedish Queen was Sevenissima ac Potentissima Regina Szbscicz, similar to the formula which Venice accorded to the King ofEngland.29 The blunder in diplomatic et iquette committed by theVenetian Government thus furnished the Swedes with legitimategro un ds for delaying their acceptance of th e proffered m ediation an dBather Bougeant, the celebrated historian of the negotiations preced-in g the Peace of W estphalia, lays at th e doors of Venice an d Swedena considerable pa rt of the responsibility f or the fai lu re of th e Con-gress of Cologne.30 T his verdict, however, is kind t o th e mem ory ofthe masterly Richelieu, whom the Spaniards and Imperialists at thistime denounced as th e one obstacle to peace in Euro pe. On his side,Richelieu was too clever a diplomat to allow the Em pe ro r and Olivarez

27 G r o t i i e p i s t o l ~ d Oxenstierna, 11, i i , 376. 2 s Ib id . , 11, i i , 316. z g lb id . , 11, i i , 320. so His to ire du Trait6 d e W e s tp h a l ie , I , 263.


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464 THE AMERICAN JOURNAL OF INTERNATIONAL LAWgood offices of the Danish King to inveigle Sweden into a separatepeace. The good offices of Saxony, Lauenburg and Waldeck were alsoemployed in behalf of the Emperor, but with little success, for theFrench diplomacy had long before prepared the alliance against theonslaught of would-be mediators whose efforts for peace might advancethe Hapsburg policy of Divide et i r n ~ e r a . ~ ~he Treaty of Wismar,negotiated by Oxenstierna and Saint-Charmond in 1636, had providedthat " no negotiations shall be begun for peace or an armistice withthe Emperor or his allies, either directly or indirectly, secretly oropenly, without the joint action and common consent of the King ofFrance and the Queen of Sweden." S5 All proposals submitted throughthe good offices of neutral Powers were to be communicated withoutdelay to the other ally, and no answers to such proposals were tobe made except conjointly and with common consent of the allies.Two years later, when d'Avaux and Salvius negotiated the newFranco-Swedish alliance at Hamburg (March 8, 1638), the languageof the treaty reads as if the allies were heartily weary of the numer-ous activities of the Powers who were offering their mediation. Afterrenewing the promise to treat with the Empire only conjointly andwith common consent, the allies now bound themselves precisely toacquaint the so-called mediating Powers with this promise and deter-mination, in order that these "mediators may direct their activitiesand their good offices acc~rdingly."~~

The negotiations at Hamburg between the belligerents were con-ducted by exchange of messages through the good offices of the Kingof Denmark. At the beginning, the Imperialists proposed, as we havealready seen, to treat with Sweden alone; but d'Avaux and Salviusinsisted that the crowns of France and Sweden must negotiate to-gether, and the King of Denmark was compelled to proceed in accord-ance with this demand.37

Nevertheless, d'Avaux had reason to suspect, much to his chagrin,that secret meetings between Salvius and the Imperial agents fre-

84Pufendorf, De rebus Buecicis, lib. xi, 67, 68; xii, 68, 69.86 Hallendorff, 11, ii, 370.86 Ibid., V, ii, 426.87 Pufendorf, De rebus Sueciois, lib. viii, 78; ix, 61; x, 68-73; xi, 62, 66;xii, 73-80; xiii, 83-90; Bougeant, I, 347-348, 402-406, 415-419, 447-448, 461-472.


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quently occurred. Christian's representative at Hamburg, Dr. LorensLangermann, who exercised the office of mediator, appears to havefully deserved the esteem of the negotiators. Under his mediation,the preliminary Treaty of Hamburg, providing for the convening ofthe long-awaited congress, was finally signed on December 25, 1641.In the preamble of this document, the negotiating Powers paid tributeto the great services of the King of Denmark in words which con-tained much eloquent truth, notwithstanding his well-known par-tiali ty, saying: "We make known to each and all interested, thatafter having attempted for several years to establish a mode of nego-tiating for a universal peace, and after having encountered numerousdifiiculties in our preliminary negotiations, at last, by the grace ofGod and by the authoritative interposition of the King of Denmarkas Mediator, we have ordered these things as between us. .. . " 38

N. THE RIGHT OF REJECTION OF MEDIATORSI n his Synopsis jwis gentium, published in 1680, Johann Textor

proposed as a principle of international law that a Power which hadaccepted the mediation of another state reserved the right to rejectthe diplomatic agent appointed by that state to perform the office ofmediator; and he cited the objection made by Louis XIV in 1675 tothe appointment of Archbishop Guinigi as mediator a t the Congressof Ny ~n eg en .~ ~nother precedent taken from the period of the ThirtyYears' War could also have been cited, namely, the recall of thePapal mediator appointed for the Congress of Westphalia in 1643.

The Treaty of Hamburg, which made the preliminary arrange-ments for the general peace congress, contained no provision in regardto the mediating Powers. I t seems to have been tacitly understoodthat the Papacy would mediate between the Catholic Powers at Miin-ster and that the King of Denmark would mediate between Sweden

38 Hallendorff, V, ii, 501. The Latin text is also in Liinig, Teutsches Reichs-Archiven, Partis specialis contilzuatio, I , i, 399; Abreu y Bertodano, Coleccionde 10s Tratados de Espafia, 111, 651; Meiern, Ac ta pacis Westphalicce, I , 8 ;Gartner, Westphalische Friedens-Ca~ztxley, , 5, 10; Pufendorf, De rebus Suecicis,lib. xiii, 9 0 ; Rougeant, I , 472. French texts are in LBonard, 111, 71; Bernard,111, 384; Dumont, VI, 231. A Dutch translation is in Aitzema, op. cit., 11. 759.

39 Cap. xx, 56.


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466 TH E A M E R I C A N J O U R S A L 06 I S T E R S A T I O N A L L A Wand the Empire at Osnabriick, l-ihile the good offices and mediation ofthe Republic of Venice \vould be continued in the future as in thepast. I n the meantime, Cardinal Ginetti, weary of his long and un-fruitful mission at Cologne, had returned to Rome; and althoughFabio Chigi, as Papa l Kuncio, \.;as acting in his place, the Popecommissioned Cardinal Rosetti as Zeyatus a lafere for the negotiationsat Munster. This appointment was uil iortunate; for, as Textor says,"no one is bound to consent to a mediator whom he holds in suspi-cion," and Cardinal Rosetti was far from enjoying the confidence ofthe French G o~ er nr ne nt .~ ~ a the famouse had been part isan ofbeauty, the Duchess of Chevreuse, whom Richelieu banished fromParis in 1626 and who intrigued and plotted against him in almostevery court of Europe; and he was also regarded as biased in favor ofSpain as against France. So far as Mazarin's objections to CardinalRosetti were concerned, however, there may have been considerabletr ut h in the accusation made at the time that the Premier of Francecounted on winning the favor of the mediator who would be ap-pointed in Rosetti's place and who would owe his appointment to theFrench rejection of his predecessor. B t any rate, soon after learningthe name of the Pope's choice, Rlazarin protested by letter to CardinalBichi, who was then on a mission for France at the Papal Court. Ofcourse, the Pope was piqued, but nevertheless he was conlpelled torecall his nominee; and thereupon directed the nuncio at Cologne toappear a t Miinster for the opening of the Congress, \.;bile he showedhis displeasure by withholding from Fabio Chigi the exalted rank ofZegatzis a Zatere which Rosetti had enjoyed.41

The disputing states were aware that the Papacy could not be adisinterested mediator at every stage of the negotiations. The HolyFather was not well disposed toward the Protestant Powers; he wasintent upon conserving the property of the Church throughout Eu-rope; and he was interested in maintaining a balance of power in

40 Cap. xx, 52. Likewise Wicquefort said: "Le Ministre Mediateurs doitestre aussi bien desinteressb que le Prince qui l'employe." Op. ci t . , 11, 161.

4 1 ChBruel, L e t t r e s d u C a r d i n a l M ae a r in , I , xci, 190, 315, 546; Glrtner, op.c i t . , I, 599; 11, 440, 458; Rleiern, op. ci t . , I, 34, 62; R e l a t i o n e d e C o n t a r i n i , inp o n t e s r e r u m A u s t r i a c a r u m , XXVI, 297; G r o t i i e p i s t o l a , a d O x e m t i e r m , 11, iv,2 5 , 74, 78, 90, 390; Bougeant, 11, 2-3; Adam Adami, cap. iv, 4.


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Italy.42 Thus the presence at Munster of an additional mediator sentby the Republic of Venice was welcomed by the various belligerents,although the Republic-like the Papacy-was not in a position toperforin the office of mediation in an altogether impartial manner,being also interested in the balance of power in Italy. I n fact, Con-tarini received instructions from his government upon this point.43The scope of the two mediators at Munster was not the same. Themediation of the Papal Nuncio extended over the negotiations ofthe Catholic Powers, namely, the Emperor, the Kings of France andSpain, the Elector of Bavaria, the Dukes of Savoy, Lorraine andothers. The mediation of the Venetian Ambassador had a larger fieldcomprising not only the Catholic Powers but also the Republic of th e.Netherlands and the Protestant states of Germany. On the eve of theCongress, the Swedish Government made an attempt to extend theVenetian mediation over the conferences at Osnabruck in the placeof the mediation of the Danish King.

The belated desire on the part of the Swedes to secure the media-tion of the Venetian Republic, within four years after having prac-tically rejected the offer of the services of this Power, involves theepisode of the involuntary retirement of Christian IV as a mediatorat the Congress of Westphalia-an episode which well illustrates themanner by which the complexities of the diplomatic situation wereincreased by the lapse of time. After the signing of the Treatyof Hamburg, on December 25, 1641, the King of Denmark hadcontinued his services as mediator during the long wrangle overthe ratification of this treaty and the exchange of safe-conducts.When at last these documents were delivered into the hands of themediator by the various belligerents, the Danish King served as themedium for the vigorous protest of the Empire against the delayof the French in sending plenipotentiaries to the Congress. TheVienna Government had been prompt in dispatching its envoys toW e ~ t p h a l i a . ~ ~n July 30, 1643, Graf von Nassau arrived a t Munster,and Graf von Auersberg had already proceeded to Osnabruck. In

42 Bougeant, 11, 4; Meiern, I, 60; Adam Adami, cap. iv, 4. 43 Bougeant, 11, 4. 44 Meiern, I, 36-37 ; Gartner, I, 655-659.


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468 THE AXERICAN JOURNAL OF INTERNATIONAL LAWthe following month the representatives of Denmark reached Osna-bruck, while the Venetian envoy and one of the Swedish plenipoten-tiaries reached the congress in the middle of November. Thesetardy arrivals were bad enough, but the delay of the French andSpanish delegations exceeded all bounds of diplomatic courtesy.Toward the end of February, 1644, the Imperial plenipotentiarieswrote to the Papal Nuncio at Cologne, who in the capacity of prin-cipal mediator evidently intended to be the last envoy to arriveat the congress, begging him to set out for Munster, since the Frenchwould never come unless they knew that he was on his way. A monthafte r the writing of this letter, the French plenipotentiary, Countd'Avaux, made his belated appearance in Munster, followed two dayslater by Fabio Chigi.45 A year had passed away since the ratifica-tion of the Treaty of Hamburg, and more than two years since thesigning of t hat treaty. I n the meantime, an event had occurred whichbrought an end to the mediation of the King of Denmark.

For a number of years the friction between Denmark and Swedenhad been accumulating. The Danes saw a menace to their inde-pendence in th e rapid expansion of the Swedish power; while, onthe other hand, the Swedes were annoyed by the fact of the Danishcontrol of the 0resund. Throughout the preliminary negotiations fora universal peace, in which negotiations Christian IV persistentlyplayed the part of the solicitous mediator, the Swedes complainedthat his jealousy of their expanding power had caused him to conductthe mediations in a manner far from impartiaL4'j By the beginningof the year 1644 the two nations were at war, and Christian I V wasno longer in a position to act as mediator, although it proved to bea painful process to separate him from that office.47 The ru pturebetween Sweden and Denmark hindered the negotiations, if it did notactually threaten the break-up of the Congress of Westphalia, forthe Empire refused to accept the offer of mediation which the Vene-

45 Adam Adami, cap. iv, 2, 3 ; Meiern, I, 32, 33, 38, 57, 58, 63, 186, 191, 195;GHrtner, I , 346, 496, 505, 660; 11, 154, 155, 845, 569, 667.46 Pufendorf, De r e b u s Suecicis, lib. x, 93; Chemnitz (Stockholm: 1856), 111,

i, 7 ; IV, i, 17. J. A. Friderica, Denmarks yare politiske H4storie, 1699-1660,:11, ch. v.

4'1 Meiern, I, 81, 179-182; Glirtner, 11, 340, 356, 406, 431, 444; 111, 456.


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tian Republic tendered at this crisis, advancing the absurd proposi-tion that the King of Denmark had been commissioned to preside overthe entire negotiations at Osnabriick and therefore could not be dis-placed by another!48 Considerable time was consumed in hagglingover this point, concurrently with the long controversy at Miinsterover the form of the credentials of various plenipotentiaries; but inthe end the proposal to negotiate in writing without a mediator wasadopted.4g Thus was removed one of the final obstacles to the open-ing of the negotiations directly bearing upon peace, and on November23, 1644, the Swedish Ambassadors received the first proposition ofth e Emperor as a basis of the peace treaty.

V. C O N G R E SS : ITS O R I G I N A N D M E A N I N GA congress is usually defined as a formal meeting of the pleni-

potentiaries of several states for the purpose of negotiation. I n mod-ern treatises on diplomatic procedure i t is customary to begin the listof the great European congresses with the Congress of Westphalia;and the student of international law, unless he is cautious, will assumethat in 1644 a new diplomatic practice sprang full-fledged into being.50This, however, is not a correct view, for although the Congress ofWestphalia was the first assembly of plenipotentiaries from nearlyall of the great Powers of Europe, yet there had been earlier gather-ings of diplomatic representatives of several states, as, for instance,

48Meiern, I, 201, 211, 2155218, 256-257, 266; Gartner, 11, 338, 347, 361, 363,371, 449, 483, 681; 111, 18.4@Meiern , I, 218-219, 266, 309-311; Gartner, 111, 316, 456, 501; Le Clerc,

I, 150, 290; Wicquefort, 11, 172, 206.50 A. F. Berner, Eongresse und Friedemchlusse der n eu re re n Z d t in J . C.Bluntschli-I


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470 THE AMERICAN JOURNAL OF INTERNATIONAL LAWthe negotiations at Cateau-Cambrksis in 1559 between the plenipoten-tiaries of Spain, France and England. Moreover, the term congresswas employed in diplomatic speech long before the assemblage ofnegotiators a t Miinster and Osnabriick, and i t did not have its origin,as a late writer has implied, in the Lat in phraseology of the peacetreaty of 1648.

The Lat in word which the diplomats of the sixteenth and earlyseventeenth centuries used for designating an assembly of monarchsor plenipotentiaries, was co n ven t u s . Grotius employed it in his Dejuve bel l i ac pncis and in his letters as Swedish ambassador at Paristo the Chancellor of Sweden, where he repeatedly used the term inreferr ing to the Congress of Cologne in 1636 and the following years.51Richelieu an d the French diplomats spoke of these conferences asassemble'es." But the Italians called them congresses-a term byno means of recent invention, for Guicciardini in his S t o r i a d'ltalia,written about the year 1540, referred to the celebrated conferencebetween Louis XI1 and Ferdinand of Aragon a t Savona in 1507 as a

I n the seventeenth century we find that Mazarin, thepapal nuncios, and the Venetian ambassadors at the European capi-tals, employed the term in their diplomatic corre~pondence.~~c o n g ~ e s s o . ~ ~

TheSpaniards also used it.55 I n the meantime, the Latin expression adc o ~ z g v e s s u mbecame a stock phrase in the Imperial German corre-spondence upon the subject of the proposed assemblage of negotiatorsfor peace; frequently the phrase was changed to the hybrid form zumcongressurn; and, before the plenipotentiaries exchanged their creden-tials at Miinster and Osnabriick, the Imperialists had abandoned thisround-about method of referring to the assembly, and had adopted

51 De jure belli ac pacis, lib. 11, cap. xxiii, 8; Grotii epistolce ad Oxenstiernu,11, ii , 217, 276, 289, etc.

52 Avenel, V, 705, 974; VI, 37, 275, 1024, 1030; VIII, 139, 300, 311, 324,337, 373.53 Edition of G. Rosini (Pisa: 18 22 ), 111, 192. Guicciardini called the nego-tiations at Mantua in 1512, a conyregaz im. - Ib id . , V, 19 .54 Compare ChBruel, op . cit. , I , 218 ; Barozzi and Berchet, op. cit., 11, ii, 306,

3 5 5 ; Glrtner, I, 17, 28, 30, 594.2 5 Coleccidn d e Docum,entos ingditos para la Hbtoria d e Espaiia, =I,

4, 7, 8 ; -4. Chnovas del Castillu, op. cit., I, 392, 396, 397.


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P R OC E DU R E P R E L I M I N a R Y T O T H E C OX G RE SS O F W E S T P H A L I A 471the abbreviation ; the Ital ian word, which has ever since been re-tained in the vocabulary of dipl~macy.~~

M. T H E SEAT O F T H E C O N G R E S SThe Treaty of Hamburg provided that the plenipotentiaries for

negotiating the general peace were to meet at two towns in West-phalia,-Miinster and Osnabriick,-although these two conferenceswere to be regarded as constituting one and the same congress, andpresumably the results of the negotiations were to be amalgamatedinto one and the same treaty. This division of the congress into twoseparate groups was due partly to the Papal policy of unfriendlinesstoward the Protestant Powers, an d partly to the fear of the Swedesthat their prestige and interests would be injured by treating in thesame conference with their ally, France. Early in the year 1636,Oxenstierna had given a qualified assent to the proposal for sendingplenipotentiaries to Cologne; but the Papacy failed to give the Smed-ish Government a formal invitation to accept its mediation a t Cologne,and by the time that the Venetian offer of mediation reached Stock-holm, the Swedes had begun to fear the pre-eminence of France inany general peace congress.57

Yet France and Sweden were bound by solemn agreement to nego-tiate only concurrently with the Empire. Such had been the stipula-tion of the Treaty of Wismar (March 20, 1636).58 Neither ally wasto receive proposals from the enemy for peace or for suspension ofhostilities without the knowledge of the other, and there was to be nonegotiation except conjointly and with common consent. Thus it wasclear that if France used the mediation of the Papacy in treat ingwith the Empire and Spain, and if the Swedes refused to undergothe humiliation of coming to Cologne without a n invitation from the

5 6 lfeiern, I, 25, 27, 31, 65; Gartner, I, 55, 63-65, 74, 76, 109, 127, 176,181, 183, 199, 201, 204, 605. The French appear to have been somewhat reluctantto adopt the term cotqr2s. Compare Furetikre, Dictioizaire Unkversel (1G90), I ;lliehelet, X w v e a u D i c t i o n n a i r e P r a n ~ o i s(1719), I , 322; Dictwnnaire Universe1E ' ran~o i s e t La t i n (1732), 11, 121; Richelet, Dictionnaire de la Langue Fram~ o i s e(1759),I, 559.

67 Hallendorff, V, ii, 371; Avenel, V, 463.68 Hallendorff, V, ii, 370.


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472 THE AMERICAN JOURNAL OF INTERKATIONAL LAWprincipal mediating Power, then the negotiations must needs be con-ducted simultaneously in two different places. Accordingly, whend'Avaux and Salvius concluded the new Franco-Swedish alliance atIl'amburg, it was agreed that in the peace negotiations France shouldtrea t a t Cologne, and Sweden at Hamburg or Lubeck, while a t e itherplace the German adherents of France and Sweden might attend andparticipate in the negotiations. The two conferences were to be inclose communication. The treaty also provided:

An agent of Sweden shall be present at Cologne and an agentof France a t Hamburg, both without power for treat ing with thecommon enemy and without votes in the proceedings, but with theunderstanding that they shall attend the sessions and report upon thenegotiations to their plenipotentiaries, and also give their advice ifnecessary. But nothing shall be concluded in either conference with-out the knowledge and consent of both allies.59Of course, the cities of Cologne and Hamburg were too far apart-

to say nothing of the distance between Cologne and Lubeck-for thesuccessful conduct of such negotiations as were contemplated in thetreaties of 1636 and 1638. And it was a happy decision on the partof the French to propose a pai r of towns in closer proximity.60 Riche-lieu disliked the plan of holding separate conferences : it would excitejealousy, he said, between the two sets of negotiators, and still morebetween the mediatbs, who would dispute the glory of being thefirst to achieve the drafting of a treaty and thus too hastily concludea peace! Acting upon instructions from Paris, d'Avaux proposed toSalvius that the Swedes should treat with the Emperor at Osnabruck,Frankfurt-am-Main, or else Cologne, while the French should treatwith the Emperor at Munster, Mayence or 'CVesel. Later in the nego-tiations d'Avau2 himself limited the proposal to Munster and Osna-bruck. Both of these towns were in Westphalia; the former waswithin the jurisdiction of the Elector of Cologne and was a place

59 "Intersit tamen tractatui Coloniensi Agens Suecicus, Hamburgensi Gallicus,uterque tam sine potestate agendi cum hoste communi quam sine voto, sedhonesta cum sessione, u t audian t, re feran t ad Plenipotentiar ios quisque suos, etsicubi opus, prrestentes moneant: Kihil autem illis insciis a u t inconsultis.ptrobique tractetnr."-Hallendorff, V, ii, 427.

60 Avenel, VIII, 371 ; Bougeant, I, 392-393.


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P RO C ED U RE P R E L I M IN A R Y T O T H E C O N GR ES S O F W E S T P H A L I A 473altogether fitting and proper for a legate of the Pope to appear. Onthe other hand, Osnabriick was a Protestant town, or at least thegreater number of the burghers had inclined toward the Lutheranfaith in the Reformation, and at the present moment it was occupiedby the military forces of the Swedes. The distance between the twotowns was but thir ty miles, so that the couriers of the plenipotentiaries. could easily pass from one to the other in less than a day's ride. Andall in all, the selection of these two places seemed the most practicalsolution for complying with the unusual requirements as to unanimityof negotiation in two separate conferences demanded by the Franco-Swedish trea ty of 1638, as well as for meeting the scruples and preju-dices of the Papacy and of all other Powers concerned.Salvius at first objected to the French proposal to change thestipulations of the treaty of 1638 in regard to the place of the peaceconferences. No diplomat ever knew better than he how to playthe game of quid pro quo and how to take exceptions to propositions,if for no other reason than for the purpose of gaining concessionselsewhere. The German Diet also raised objections to Miinster andOsnabriick, proposing instead the towns of Speier and Worms, orFrankfur t and Mainz. I n the end, however, the French proposal pre-vailed. The new alliance between France and Sweden, signed onJu ne 30, 1641, stipulated that the future peace congress should be heldin two towns near together, like illiinster and O~nabriick;~~hile thepreliminary treaty of peace signed on December 25 , 1641, by theplenipotentiaries of the Empire, France and Sweden, contained thefollowing provision :

The places for conducting the general negotiations shall be Osna-briick and Miinster in Westphalia. . . . The two congresses shall beregarded as one. And not only the roads between Osnabriick andJIiinster shall be secure for the parties concerned to go and come withcomplete freedom and safety, but also a station between the two citiesas shall be convenient for the intercommunication of the particularnegotiators shall enjoy the same security as the aforesaid cities.626lHallendorff, V, ii, 473. The Latin text is also in Bougeant, I, 425. A

summary in French is in Lkonard, V; and Bernard, 111, 414.62 "Loca universalis tractatus sint Osnabruga, et Monasterium in IT-estphalia. . . Uterque congressus pro uno habeatur; atque ideo non solum itinera inter

utramque urbem omnibus, quorum interest, ultro citroque libere, secureque com-


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474 TIlE A N E R I C A N J O U R N A L O F I N T E R N A T IO N A L L AJJTVII . I S A T R U C E S E C E S S A R Y B E F O R E A P E A C E C O N G R E S S?

Alberico Gentili In 1588 defined a truce as an agreement whichsuspends hostile acts without interrupt ing the state of war; and acentury later Testor gave the vivid German definition: e i ~ zXtill-s t a d d er I V ~ f e n . ~ ~earlp all of the early writers referred to a truceas a preliminary step to negotiations for peace. Bu t it n-as not claimedthat a suspension of hosiilities was a prerequisite f o r such negotia-tions. However, among the papers of the French plenipotentiariesat the Congl-ess of Westphalia is to he fou:ld a memoir which attemptsto answer among other questions: "I s it necessary to make a truceor suspension of arms before treating of peace?') The memoir de-clares tha t it was the general practice among nations that negotiationsfor peace should be preceded by a suspension of h ~ s t i l i t i e s . ~ ~uchprocedure assured the belligerents of some degree of security andtranquillity for the deliberations on peace, and constituted a logicaland easy transition from a state of war to a state of peace. There-upon the writer laid down the conditions,-mostly to the advantageof France,-upon which his country would be willing to sign a truce.What these conditions were, or how much truth there was in theSpanish accusations in 1643 that Slazarin desired not a peace bntonly a long truce, is a matter for difference of opinion. The signifi-cant thing for the student of the development of international law isthe attempt here made to lay down a rule that a peace congressshould begin with a suspension of hostilities.

The rule formulated by the French Government in 1643 could besupported by numerous precedents. The conferences at Cambrai in1528 and at Cateau-Cambrksis in 1559 mere preceded by signedtruces.65 But, on the other hand, many a peace has been negotiatedwithout a formal suspension of hostilities, as in 1598, when Henrin le a r i p os se , t u t a s u n to : S e d e t q u i cu n q u e l o c us i n t e r j e c tu s p a r t i c u l a r i t r a c t a n -t ium conven tu i p ro mutua communica t ione v ideb i tu r commodus , eadem, quadict ie urbes, securi ta te fruatur ."-Hallendorff , V, ii, 502.

6 3 De jure bel l i , lib. 11, cap. xi i . Com pare Textor , Synopsis juris gentium,cap . x ix , 1.

64 Le Clerc , I, 158.65 Du mo n t , IV , 515; V, 27.


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P R O C E D U R E P R E L I M I NA 4 R Y T O T H E C O N G R ES S O F T V E S T P H A L IA 475I V of France shamefully abandoned his solemn oaths to the Englishand Dutch and accepted the mediation of the Papacy in the negotia-tion of the Treaty of Vervins with Spain. Although it may appearinconsistent for a state to negotiate and fight at the same time, yeti t is not reasonable to set up a rule that will tend to hamper or limitthe beginning of any negotiations which may in the end lead topeace. At any rate, the French view did not carry the day in theThirty Pears' War against the opinion of the Imperialists and Span-iards, who believed that they had much to gain and little to loseby keeping their armies actively employed.

The agitation for a general truce had begun with the proposalof the Papacy for a suspeilsion of arms during the Congress of Co-logne. Richelieu agreed to this policy on condition that the truceshould be made on a basis of uti poss idet is , but the sanguine hopes ofOlivarez to gain territory from France had defeated the proposal in1637.66 Negotiations for a general armistice continued in the follow-ing years, but without a successful outcome. No agreement wasreached, even after the assembling of the diplomats at Munster andOsnabriick. Throughout the duration of the Congress of West-phalia (1644-1648) the armies of the belligerent states continued thestruggle with varying fortune on either side.

V II I. N E U TR A L IZ A T IO N O F T H E S E A T S O F T H E C O NG R ES SThe two towns chosen for the Congress of 'CVestphalia were within

the area of hostilities. Miiilster had suffered from the ravages of theProtestant armies and Osnabriick was still occupied by a Swedishgarrison. I n view of the fact that no truce had been concluded, thenegotiators of the Treaty of Hamburg agreed that it was not sufficientto rely upon the safe-conducts mutually exchanged among tile bel-

66 Concerning the negotiations upon a general truce, see: Mdmoires de Riche-lieu, IX, 403-418; X, 85-156, 521-539; Avenel, V I, 21, 241; VII, 771, 778, 1026;VIII, 314, 316, 319, 322, 329; Chkruel, I, xciii, 653, 890; Le Clerc, 11, 7-11;Girtner, 11, 598, 649; Grot i i epistolr~nrl Ome~tstierna,11, ii, 202, 329, 469, 490;Pufendorf, De rebus Nuecicis, lib. ix, 67 ; xi,, 76-79; xii, 55-61; xiv, 66; Bougeant,I, 279-280, 358-364; 11, 36-37, 82-84: Adam Adami, cap. ii , 14 ; A. Cdnovas delCastillo, I, 186-191, 310-316; G. Fagniez, op. cit . , 11, 392-399; A. Waddington,op. c i t . , I, chap. iii.


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476 THE AMERICAN JOURNAL OF INTERNATIONAL LAWligerents nor upon the diplomatic immunities of the plenipotentiaries.I n order to protect the congress from all direct inconveniences attend-ing the conduct of hostile operations, it was proposed at Hamburgto neutralize the two Westphalian towns as well as the roads betweenthem.

The neutralization of local territory was by no means an unpre-cedented step. Among a large number of earlier cases may be citedthe neutralization of the town of Vervins in 15'98, when Henri IVof France negotiated peace with Spain under the mediation of theP a p a ~ y . " ~The Thirty Years' War, from beginning to end, was re-plete with cases of neutrality and neut ral i~ ati on.~~ndeed, neutral-ity in a great variety of forms played such an important r61e in thediplomacy of this period and in its political literature, that somemodern authorities on international law reproach Grotius for nothaving used the material so close at his hand and for not havingdevoted more space to the subject of neutrality and neutralization inhis D e jur e beZli ac pacis. These authors overlook the all-importantfact that the men of the seventeenth century were by no means eman-cipated from the slavish preference for classical learning and scholas-ticemethods. No doubt Grotius made a more effective contribution tothe science of international law in 1625 by not breaking abruptly withthe past, even if it had been possible for him to do so. However thismay be, the Thirty Years' War soon proved to be a rich laboratoryfor those jurists, like Zouche and Textor, who were beginning to de-velop the science of international law along its empirical as well asits philosophical side, and who were undertaking to build up a bodyof rules drawn from actual experience in the realm of internationalintercourse. I n 1680, Johann Textor included a long chapter onneutrality and neutralization in his text-book on the Law of Nations(cap. xxvi), citing and commenting upon cases drawn from the his-tory of the Thirty Years' War and the age of Louis XIV, and pub-

67 Dumont, V, 541.6s For accounts of neutrality and neutralization in the Thirty Years' War,see P. Schweizer, ffeschichte der Schweiserischen Neutralitat, I , 27-36, 213-280;

S. Schopfer, Principe Jzcridique de la Neutraliti, 103-28; R. Dollot, Originesd? Icc ~ e u t r a l i t g e la Belgique et la SystBme de la BarrjBre, 30-99; E. Nys,Etu des de Droit Ilzternatio ~zal et de Droit Politiqzce, 11, 72-77.


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PROCEDURE PRELIMINARY TO THE CONGRESS O F WESTPHALIA 477lishing extracts verbatim taken from the public records for the pur-pose of illustrat ing and for tifying his propositions,-a remarkablestep in the development of international law!

I n the Treaty of Hamburg of December 25, 1641, the signatoryPowers provided for the neutralization of the seats of the Congressas follo~vs

The peace negotiations shall be at Osnabriic'k and Miinster inWestphalia, from which towns all garrisons and troops must departas soon as the exchange of the safe-conducts of the plenipotentiariesshall be effected. During the Congress the said cities are to be ab-solved of their oaths of allegiance to one and the other party, andshall be in a state of neutralization. I n the meanwhile the custodyof the two cities shall be in the hands of the Magistrates and Bur-gesses of the said cities and their proper soldiers. On their side, theMagistrates shall give a Reversal or solemn assurance that they willfaithfully and securely safeguard the congress and religiously pre-serve and protect the persons, suite and equipment of the plenipoten-tiaries ; and if anything is required of the Magistrates for the commongood of the negotiators, they shall perform i t accordingly, executingnothing in favor of one party or the other, but only on the request ofboth corps of plenipotentiarie~.~"I n a subsequent article i t was provided that the roads between the twotowns were to be neutralized and made secure and free for the useof the plenipotentiaries and their suites. A place was to be selectedmidway between the two towns as a junction for the communicationof the plenipotentiaries, which also was to be neutralized. Finally,if the congress should break u p without concluding a treaty of peace,the neutrality of Miinster and OsnabrGck was to continue for sixweeks following upon the rupture of negotiations; after which timethe towns were to receive back the troops formerly garrisoned there.

69 rZ oca universalis tr actatu s s int Osnabruga e t Monasterium in TVestphalia,ex quorum utroque sta tim post cornmutatos, u t inf ra-dicetur, salvos conductus,educantur militaria partium presidia, et durantibus congressibus dicts civitatessacramento erga utriusque partis sol uts ad neutralitatem obligentur. Magistratuiinterim proprio cum milite et civibus sua cujusque urbis custodia relinquatur.Ipse vicissim dato reversali obstringatur ad fidelitakm et securitatem toti con-ventui prsestandam, et tractantiurn res ac pewonas, comitatumque sancte haben-dum et custodiendum. Et si quid ab eo pro communi tractatus bono requisitumfue rit , pr es te t se quidem obsequentem; neutrius tamen part is jussa exequatur,nisi ab utroque Legatorum corpore collegiatiln insinuata."-Hallendorff, V, ii, 501.


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478 TH E A ME RI CA N JOUR NAL OF INTERNATIONAL LAWThe form of the Reversal, or solemn assurance to be given by the

Magistrates of the two towns, was adopted at Hamburg at the timeof signing the treaty. I t pledged the Biirgermeisters and the Rathsto perform the obligations imposed upon them by the Treaty of Ham-burg, and it absolved both towns from their oaths of allegiance-onthe pa rt of Munster to the Emperor and the Elector of Cologne, andon the pa rt of Osnabruck to the Emperor and the Bishop of Osna-brii~k.~OAccordingly, after the ratification of the Treaty of Ham-burg (May 23,1643) and the exchange of safe-conducts, the Imperialagent, Johann Cranen, and the Elector of Cologne at Miinster, on May27, 1643, in the presence of a French representative, notaries andother dignitaries, absolved the Biirgermeister and Rath of their al-legiance and received their Reversal as provided in the Treaty ofHamburg. At the same time the neutral ity of the town was pro-

The next step was for one of the Imperial plenipotentiaries toproceed to Osnabriick and repeat the ceremony of neutralizationat that place. But the Swedish garrison still occupied the Peters-berg, and Graf von Auersberg complained to the Danish King asmediator that the Swedes were not carrying out their obligations.After waiting several weeks for the Swedish troops to withdraw, theactunz relaxationis jurafnenti et insti tutce neutralitatis in the nameof the Emperor was eventually celebrated a t Osnabriick. On July 8,Salvius, one of the Swedish plenipotentiaries, executed a similardocument on the part of Queen Christina, while shortly afterwardsthe commandant at Osnabriick received his orders to march.72IX. SAFE-CONDUCTS, THE EQUALITY OF STATES AND OTHER PROBLEMS

I11 his De jure belli, published in the year 1588, Gentili devoteda chapter to the question of safe-conducts, and Zouche included com-mentaries upon this subject in his Ju ris et judicii fecialis sive jurisinter gente6, published in 1650. During the Thi rty Years' War thesubject was one of considerable importance. At several times in thepreliminary negotiations for peace, it engaged the paramount atten-

70 G a r t n e r , I, 5-14. 7 1 Ibid., I, 269-327 ; Meie rn , I, 14-22.7 2 l b i d . , I, 1 0 , 328, 343, 346, 365, 370-401; Meiern , 1, 22.


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PROCEDURE PRELIRlINARP TO TI-IE CONGRESS OF \VESTPHALII 479tion of the diplomats. The delay of Spain and the Emperor to grantsafe-conducts to the Swedes, the Dutch and the Protestant princes ofGermany was one of the causes for the failure of the Congress ofCologne ; while the preliminary peace negotiations at Hamburg wereobstructed for two years and more by the insistence of the Frenchupon the insertion of phrases in the safe-conducts to be given by theEmperor which would constitute a recognition by the Emperor ofthe sovereignty and independence of the Protestant German princes.73Finally, the treaty of December 25, 1641, provided that within thespace of two months the belligerents should deposit in the hands ofthe ambassadors of the King of Denmark a t Hamburg the requisitenumber of safe-conducts properly executed according to a form pre-scribed by the mediator.

Instead of two months, however, two years and a half passed awaybefore the exchange of safe-conducts took place. Immediately follo~v-ing the signing of the Treaty of Hamburg, the Imperial plenipoten-tiary, Graf von Liitzow, was recalled for having been, as d'Avauxbitterly complained, so simple as to believe th at the House of Austriasincerely wished peace.74 But the Emperor might well regret a t reatywhich permitted his rebellious vassals to treat with him as iadepend-ent Powers, and which gave full latitude to French intervention inGerman affairs. Among the nunlerous reasons assigned for the refusalat TTienna to rat ify the treaty, the new Imperial plenipotentiarymentioned the neutralization of JIiinster and Osnabriick as deroga-tory to the dignity of the Emperor, whose safe-conducts should bedeemed sufficient protection to the negotiator^.^^ This position theGermans were unable to maintain in the subsequent negotiations; andlike several other provisions which were unfavorable to the Emperor.the stipulation for the neutralization of Miinster and Osnabriickremained in the treaty as ratified on Ju ly 22, 1642.76 The end of the

73 Avene l , VI I , 1034; VIII, 323, 337; didmoires de Richel ieu, X , 500.812:Bougeant , I , 347-358, 452-469; Pu f end or f , D e r ebus Suec ic i s, l i b . x, 72-87; x i ,6 2 - 6 6 ; x i i i , 88-90; Adam Adam i , cap . i i , 1 0 - 1 2 ; i i i , 2-3 .

74 Bougeant , I , 481.78 Pu fen do r f , De rebus Suecic is , l ib . x i v , 5 1 - 5 2 ; Liinig, Li terce proceru~~b

Europce, I , 3 3 7 - 3 5 7 ; Londorp, V, 775-782; Le Clerc, I, 113-134.76 H al l endor f f , V, i i , 501.


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480 THE AMERICAN JOURNAL OF INTERNATIONAL LAWdiplomatic tangles, however, had not yet been reached. More delaysensued over the question of the Spanish ratification an d exchange ofsafe-conducts; and the plenipotentiaries might have continued theirwranglings for another year had not the King of Denmark brusquelyfixed upon April 18, 1643, as the day for the delivery of the properdocuments preliminary to the Congress of We~tphalia.~~

Another diplomatic problem, the ever-recurring quarrel over thepre-eminence of the crowns, also appeared in the negotiations atHamburg, and was further complicated by the persistent refusal ofthe French i o recognize Ferdinand I11 as Emperor of the HolyRoman Empire. When the final dr af t of the Treaty of Hamburgbegan to take form, d'Avaux attempted to persuade Salvius that theIcing of France should be named before the Queen of Sweden.78 Sal-vius objected; and it was ultimately agreed that Liitzow should giveto d'Avaux a copy of the treaty signed by himself in which thename of the French King and the town of Miinster appeared beforethe name of the Swedish Queen and the town of Osnabriick, while theorder of these names should be reversed in the copy handed toSalvius. Af ter the recall of Liitzow, his successor, Graf von Auers-berg, declared that the former ambassador had exceeded his powersan d had treated with the crowns of France and Sweden as if theywere the equals of the Emperor.79 Bu t this contention did not appearto be well founded. Withal, while the legal pre-eminence of the Em-peror was not injured in the preliminary negotiations, the Swedes wona victory over the claims of the French. By refusing to come toCologne, and by insisting upon two sets of treaties from the Imperialseal, they did more than merely avoid a contest of their claim forequality in the family of nations. They gained recognition from theHapsburgs that in the world of diplomacy Sweden had equal statuswith France.

77 G a r t n e r , I, 77.78 Pufendor f , De rebus Suecicis, lib. xiii, 9 0 ; Chemnitz (Stoclrholm: 1856 ) ,IV, i, 76.79 Pufendor f , De rebus Suecicis, lib. xiv, 52.


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X. CONCLUSION

In conclusion, we should observe that the period of the ThirtyYears' War served as a laboratory for the jurists of the latter half ofthe seventeenth century, who began to develop the science of inter-.national law along empirical lines. Particularly, the period of eightor nine years of negotiations for peace which preceded the Congressof Westphalia afforded a large number of precedents and cases indiplomacy and law similar to those which Zouche, Textor and Wicque-fort employed to illustrate their texts, and which in time crowded outthe classical and biblical allusions of Victoria, Suarez, Gentili andHugo Grotius. I n the matter of diplomatic procedure, the variousproblems connected with mediation occupied a large part of the atten-tion of the diplomats. Numerous offers of good offices and mediationwere made by the neutral Powers,-Denmark, Venice, England, thePapacy, and many lesser states. The ensuing struggle on the partof Richelieu to prevent these offers of good offices and mediation fromwrecking the Franco-Swedish alliance, the difficulties arising out ofthe Papal refusal to mediate between the Catholic and ProtestantPowers, the delicate task of ousting the King of Denmark as a medi-ator at Osnabriick after he had become a belligerent, and the quarrelover the personnel of the mediators and the peace delegations, gaverise to a considerable number of diplomatic precedents. Throughoutthese negotiations the policy of Richelieu moved steadily toward thegoal of a universal peace congress, and in the end his great purposewas achieved. The Congress of Westphalia was thus the first of thegeneral conferences in which the majority of European Powers wererepresented. The practice of negotiating in diplomatic assemblieswas not, however, a new procedure, as witness, for instance, the Con-gress of Cateau-Cambrksis in 1559. Even the term congress wabalready'found in the diplomatic vocabulary; and the custom. of neu-tralizing the seat of a congress had previously been established. Theholding of the Congress of Westphalia simultaneously in two townsthir ty miles apart was the result of the Papal policy of intolerancetoward the Protestant Powers and of the well-founded fear of theSwedes regarding the overbearance of France in the peace negotia-


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482 THE AMERICAN JOURNAL OF INTERNATIONAL LAWtions. No general truce preceded the congress. The proposal of thePope for a truce and the contention of the French th at a suspensionof arms must necessarily precede a peace congress, did not carry theday. Throughout the sitting of the Congress of Westphdia, thearmies of the belligerent states actively continued their hostile opera-tions. Numerous other details of diplomatic procedure, such as theform of the safe-conducts, and the question of the equality of statesin the assembly, hindered the making of peace.

The eight or nine years of negotiations preliminary to the Con-gress of Westphalia cannot properly be separated from the four yearsof iiegotiations.at the congress itself, although i t is convenient to con-sider them apar t in a study of diplomatic procedure, for the purposeof inquiring into the problems involved in the calling together of thefirst great congress of the European Powers. Of course, throughoutthis period, the chief obstacles to peace were the eagerness of thebelligerents to support their claims by force of arms and the demandof Richelieu for a universal congress. For nearly a decade the Im -perialists desperately fought this demand. If they could have brokenthe Franco-Swedish alliance, or if they could have driven the Frenchand Swedish armies out of Germany, the Thirty Years' War wouldhave. had a different ending. The final aiopt ion of the French pro-gram for a general peace congress was a brilliant triumph of Frenchdiplomacy over the Hapsburg policy of Divide et inzpera. Althoughthe various belligerents took advantage of every question of procedurewith the intention of retarding such peace negotiations a s did iiotappear to be fo r their own interest, yet, on the other hand, these puob-lems constituted in themselves a very real hindrance in the way of thepacification of Europe. KENNETHCOLEGROVE.

colegrove diplomatic procedure prior to westphalia

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