VII.

IS A TRUCE NECESSARY BEFORE A PEACE CONGRESS? Alberico Gentili in 1588 defined a truce as an agreement which suspends hostile acts without interrupting the state of war; and a century later Textor gave the vivid German definition: ein Stillstand der Waffen.63 Nearly all of the early writers referred to a truce as a preliminary step to negotiations for peace. But it was not claimed that a suspension of hostilities was a prerequisite for such negotiations. However, among the papers of the French plenipotentiaries at the Congress of Westphalia is to be found a memoir which attempts to answer among other questions: "Is it necessary to make a truce or suspension of arms before treating of peace?" The memoir declares that it was the general practice among nations that negotiations for peace should be preceded by a suspension of hostilities. Such procedure assured the belligerents of some degree of security and tranquillity for the deliberations on peace, and constituted a logical and easy transition from a state of war to a state of peace. Thereupon the writer laid down the conditions,-mostly to the advantage of France, upon which his country would be willing to sign a truce. What these conditions were, or how much truth there was in the Spanish accusations in 1643 that Mazarin desired not a peace but only a long truce, is a matter for difference of opinion. The significant thing for the student of the development of international law is the attempt here made to lay down a rule that a peace congress should begin with a suspension of hostilities.

64

The rule formulated by the French Government in 1643 could be supported by numerous precedents. The conferences at Cambrai in 1528 and at Cateau-Cambrésis in 1559 were preceded by signed truces.65 But, on the other hand, many a peace has been negotiated without a formal suspension of hostilities, as in 1598, when Henri meari posse, tuta sunto: Sed et quicunque locus interjectus particulari tractantium conventui pro mutua communicatione videbitur commodus, eadem, qua dictæ urbes, securitate fruatur."-Hallendorff, V, ii, 502.

63 De jure belli, lib. II, cap. xii. Compare Textor, Synopsis juris gentium, cap. xix, 1.

64 Le Clerc, I, 158.

65 Dumont, IV, 515; V, 27.

IV of France shamefully abandoned his solemn oaths to the English and Dutch and accepted the mediation of the Papacy in the negotiation of the Treaty of Vervins with Spain. Although it may appear inconsistent for a state to negotiate and fight at the same time, yet it is not reasonable to set up a rule that will tend to hamper or limit the beginning of any negotiations which may in the end lead to peace. At any rate, the French view did not carry the day in the Thirty Years' War against the opinion of the Imperialists and Spaniards, who believed that they had much to gain and little to lose by keeping their armies actively employed.

The agitation for a general truce had begun with the proposal of the Papacy for a suspension of arms during the Congress of Cologne. Richelieu agreed to this policy on condition that the truce should be made on a basis of uti possidetis, but the sanguine hopes of Olivarez to gain territory from France had defeated the proposal in 1637.66 Negotiations for a general armistice continued in the following years, but without a successful outcome. No agreement was reached, even after the assembling of the diplomats at Münster and Osnabrück. Throughout the duration of the Congress of Westphalia (1644-1648) the armies of the belligerent states continued the struggle with varying fortune on either side.

VIII.

NEUTRALIZATION OF THE SEATS OF THE CONGRESS

The two towns chosen for the Congress of Westphalia were within the area of hostilities. Münster had suffered from the ravages of the Protestant armies and Osnabrück was still occupied by a Swedish garrison. In view of the fact that no truce had been concluded, the negotiators of the Treaty of Hamburg agreed that it was not sufficient. to rely upon the safe-conducts mutually exchanged among the bel

66 Concerning the negotiations upon a general truce, see: Mémoires de Richelieu, IX, 403-418; X, 85-156, 521-539; Avenel, VI, 21, 241; VII, 771, 778, 1026; VIII, 314, 316, 319, 322, 329; Chéruel, I, xciii, 653, 890; Le Clerc, II, 7-11; Gärtner, II, 598, 649; Grotii epistolæ ad Oxenstierna, II, ii, 202, 329, 469, 490; Pufendorf, De rebus Suecicis, lib. ix, 67; xi, 76-79; xii, 55-61; xiv, 66; Bougeant, I, 279-280, 358-364; II, 36-37, 82-84; Adam Adami, cap. ii, 14; A. Cánovas del Castillo, I, 186-191, 310-316; G. Fagniez, op. cit., II, 392-399; A. Waddington, op. cit., I, chap. iii.

ligerents nor upon the diplomatic immunities of the plenipotentiaries. In order to protect the congress from all direct inconveniences attending the conduct of hostile operations, it was proposed at Hamburg to neutralize the two Westphalian towns as well as the roads between them.

The neutralization of local territory was by no means an unprecedented step. Among a large number of earlier cases may be cited the neutralization of the town of Vervins in 1598, when Henri IV of France negotiated peace with Spain under the mediation of the Papacy.67 The Thirty Years' War, from beginning to end, was replete with cases of neutrality and neutralization.68 Indeed, neutrality in a great variety of forms played such an important rôle in the diplomacy of this period and in its political literature, that some modern authorities on international law reproach Grotius for not having used the material so close at his hand and for not having devoted more space to the subject of neutrality and neutralization in his De jure belli ac pacis. These authors overlook the all-important fact that the men of the seventeenth century were by no means emancipated from the slavish preference for classical learning and scholastic methods. No doubt Grotius made a more effective contribution to the science of international law in 1625 by not breaking abruptly with the past, even if it had been possible for him to do so. However this may be, the Thirty Years' War soon proved to be a rich laboratory for those jurists, like Zouche and Textor, who were beginning to develop the science of international law along its empirical as well as its philosophical side, and who were undertaking to build up a body of rules drawn from actual experience in the realm of international intercourse. In 1680, Johann Textor included a long chapter on neutrality and neutralization in his text-book on the Law of Nations (cap. xxvi), citing and commenting upon cases drawn from the history of the Thirty Years' War and the age of Louis XIV, and pub67 Dumont, V, 541.

68 For accounts of neutrality and neutralization in the Thirty Years' War, see P. Schweizer, Geschichte der Schweizerischen Neutralität, I, 27-36, 213-280; S. Schopfer, Principe Juridique de la Neutralité, 103-28; R. Dollot, Origines de la Neutralité de la Belgique et la Système de la Barrière, 30-99; E. Nys, Études de Droit International et de Droit Politique, II, 72-77.

lishing extracts verbatim taken from the public records for the purpose of illustrating and fortifying his propositions, a remarkable step in the development of international law!

In the Treaty of Hamburg of December 25, 1641, the signatory Powers provided for the neutralization of the seats of the Congress as follows:

The peace negotiations shall be at Osnabrück and Münster in Westphalia, from which towns all garrisons and troops must depart as soon as the exchange of the safe-conducts of the plenipotentiaries shall be effected. During the Congress the said cities are to be absolved of their oaths of allegiance to one and the other party, and shall be in a state of neutralization. In the meanwhile the custody of the two cities shall be in the hands of the Magistrates and Burgesses of the said cities and their proper soldiers. On their side, the Magistrates shall give a Reversal or solemn assurance that they will faithfully and securely safeguard the congress and religiously preserve and protect the persons, suite and equipment of the plenipotentiaries; and if anything is required of the Magistrates for the common good of the negotiators, they shall perform it accordingly, executing nothing in favor of one party or the other, but only on the request of both corps of plenipotentiaries.

69

In a subsequent article it was provided that the roads between the two towns were to be neutralized and made secure and free for the use of the plenipotentiaries and their suites. A place was to be selected midway between the two towns as a junction for the communication of the plenipotentiaries, which also was to be neutralized. Finally, if the congress should break up without concluding a treaty of peace, the neutrality of Münster and Osnabrück was to continue for six weeks following upon the rupture of negotiations; after which time the towns were to receive back the troops formerly garrisoned there.

69 "Loca universalis tractatus sint Osnabruga et Monasterium in Westphalia, ex quorum utroque statim post commutatos, ut infra dicetur, salvos conductus, educantur militaria partium præsidia, et durantibus congressibus dictæ civitates sacramento erga utriusque partis solutæ ad neutralitatem obligentur. Magistratui interim proprio cum milite et civibus sua cujusque urbis custodia relinquatur. Ipse vicissim dato reversali obstringatur ad fidelitatem et securitatem toti conventui præstandam, et tractantium res ac personas, comitatumque sancte habendum et custodiendum. Et si quid ab eo pro communi tractatus bono requisitum fuerit, præstet se quidem obsequentem; neutrius tamen partis jussa exequatur, nisi ab utroque Legatorum corpore collegiatim insinuata."-Hallendorff, V, ii, 501.

70

The form of the Reversal, or solemn assurance to be given by the Magistrates of the two towns, was adopted at Hamburg at the time. of signing the treaty. It pledged the Bürgermeisters and the Raths to perform the obligations imposed upon them by the Treaty of Hamburg, and it absolved both towns from their oaths of allegiance-on the part of Münster to the Emperor and the Elector of Cologne, and on the part of Osnabrück to the Emperor and the Bishop of Osnabrück. Accordingly, after the ratification of the Treaty of Hamburg (May 23, 1643) and the exchange of safe-conducts, the Imperial agent, Johann Cranen, and the Elector of Cologne at Münster, on May 27, 1643, in the presence of a French representative, notaries and other dignitaries, absolved the Bürgermeister and Rath of their allegiance and received their Reversal as provided in the Treaty of Hamburg. At the same time the neutrality of the town was proclaimed.71

The next step was for one of the Imperial plenipotentiaries to proceed to Osnabrück and repeat the ceremony of neutralization at that place. But the Swedish garrison still occupied the Petersberg, and Graf von Auersberg complained to the Danish King as mediator that the Swedes were not carrying out their obligations. After waiting several weeks for the Swedish troops to withdraw, the actum relaxationis juramenti et institutæ neutralitatis in the name of the Emperor was eventually celebrated at Osnabrück. On July 8, Salvius, one of the Swedish plenipotentiaries, executed a similar document on the part of Queen Christina, while shortly afterwards the commandant at Osnabrück received his orders to march.72

IX.

SAFE-CONDUCTS, THE EQUALITY OF STATES AND OTHER PROBLEMS In his De jure belli, published in the year 1588, Gentili devoted a chapter to the question of safe-conducts, and Zouche included commentaries upon this subject in his Juris et judicii fecialis sive juris inter gentes, published in 1650. During the Thirty Years' War the subject was one of considerable importance. At several times in the preliminary negotiations for peace, it engaged the paramount atten70 Gärtner, I, 5-14. 71 Ibid., I, 269-327; Meiern, I, 14-22. 72 Ibid., I, 10, 328, 343, 346, 365, 370-401; Meiern, I, 22.