Second, the domestic constitutional archetype of the State does not of itself determine the constitutional content of the international arrangement within which it sits; neither does the international constitutional form necessarily determine the domestic constitutional architecture. A kingly state may exist within a society dominated by princely states. An epochal settlement, like the Peace of Westphalia, however, recognizes and legitimates the dominant domestic constitutional order because that archetypal order has been forged in the conflicts that are composed by the peace settlement, and its triumph is reflected in the consensus that that triumph has wrung from the exhausted combatants.
THE CONSTITUTION OF 1648: THE PEACE OF WESTPHALIA
“Peace was made at Münster and Osnabrück by a truly European Congress,” wrote the historian E. A. Beller.4 Such a Congress—a broad multi-lateral forum of parties—was required by the breadth of the conflict, which had involved many states, and by the scope of the constitutional consensus finally necessary to resolve the war. Westphalia provided the model for subsequent international constitutional conventions. In an important sense, Westphalia was to the states of Europe in 1648 what Philadelphia became for the states of the American colonies in 1789: the birthplace of a new constitution for a small society of states.5
The Congress was convened on December 4, 1644, after six months of diplomatic wrangling, in two separate cities. Catholic estates, Spain, France and her ally the Dutch, representatives of the emperor, and a papal mediator met in Münster. Thirty miles away, at Osnabrück, Protestant estates met under the leadership of Sweden, with an imperial representative but without a mediator.6 The negotiations ended with the signing on October 24, 1648, of a treaty of peace between the Empire and Sweden, and of a treaty between the Empire and France. A separate peace treaty between Spain and the Dutch States General was signed on January 30, 1648. The Peace of Westphalia—the 1648 constitution for the states of Europe*—was composed of these agreements.
At the outset, the Swedes and French insisted that they would only treat with the emperor if the Congress included the German estates. Eight months elapsed before the emperor agreed to this demand. This had the consequence of tying the imperial constitution to that of the international community: the provisions insisted on for the Empire in its relationship to the estates were made a part of the international constitution agreed to by all state parties.
The key negotiators were Count Maximilian von Trautmansdorff for the empire; Johan Oxenstierna and Johan Adler Salvius for Sweden; and Claude, Comte d'Avaux, and Abel Servien, Marquis de Sablé, representing France. All parties were acutely conscious of the ongoing fighting: Salvius, writing to Cardinal Mazarin, who had succeeded Richelieu, urged him to intensify the war effort—“the shield,” he wrote, “is what the negotiation must rest on.”7 Similarly, the emperor, when things appeared to be going well for his forces, cautioned Trautmansdorff in October 1645 not to accept an armistice too quickly, and if one was agreed to, to make it for a short duration. Indeed it was not until early in 1646 that France and Sweden felt confident enough of their position in the field to put forward their negotiating terms.
It should not be concluded, however, that the insistence on military predominance was the only principle governing the timing of the settlement. Had this been the case, no agreement might ever have been concluded as each side hoped to better its position at precisely the moment the other side appeared willing to negotiate. There were strong motives for a peace settlement for its own sake in every camp, and these desires sometimes split the delegations. Thus Salvius kept up a backchannel to Christina, the queen of Sweden, who, in order to win peace, favored making concessions beyond those thought prudent by her chancellor, Oxenstiena,* who happened to be the father of Salvius's co-negotiator. Three years into the Congress she had written to her ministers at Osnabrück, “I want you to be fully persuaded that above all I long for a secure and honorable peace…. [I]t is therefore my will that you… no longer dawdle…. Let not the fantasies of ambitious men detract you from this goal.”8
As the situation grew more desperate, the emperor, too, urged his delegates not to delay. “To let the peace-making come to nothing… would, with regard to the beloved fatherland and the whole of Christendom, be irresponsible to us.”9 Even the French, whose forces were in the ascendant in the field, were willing to make concessions to achieve consensus. When the Swedes expressed anxiety over statements made by a French delegate, the French negotiator reassured his Swedish counterpart that he would exhort the Germans to be pragmatic and let the religious quarrel be decided in the next world.10
What were the elements of the consensus that had to be put into place for there to be peace? On the German side, Catholics and Protestants were united in their desire not to dismember the empire. This came as a shock to the French, 11 who assumed that the German princes would wish to separate into sovereign states, as had the Italians, in order to maximize the sovereignty and wealth of their domains. The French and the Swedes wanted a collective security system, but distrusted each other sufficiently that they were unable to achieve it, and so pressed instead for various key territorial cessions that might prove of strategic value later. Spain wished to renew her link with the Dutch provinces, even if this required an amicable divorce from her former possessions there. The emperor wanted a set of rules, agreed to by all parties, that would allow him an entirely free hand in his hereditary properties and would bind the imperial estates (and their foreign allies) to a more detailed version of the Peace of Augsburg, ending the interpretive battles over that covenant that had fractured Germany.12 The critical common aspect of all these goals is that they depended on consensus: warfare alone could not gain some of them, and could gain others only temporarily. This is a lesson that the epochal war—because it is broken by false peaces—teaches the participants, and which each century seems to have to relearn. This requirement of consensus and the fundamental nature of the political objectives sought, together brought about the constitutional achievement at Westphalia. Randle was writing of the Peace of Westphalia when he concluded:
The erection of a new order follows from the intention of the peacemakers to provide a systematic, revised basis for interstate relations, and to avoid the catastrophe of another multilateral war. Even apart from the intentions of the negotiators, the new constitution will arise… from the peace settlement itself. In the resolution of the multiplicity of issues of the war, particularly [those] which require the concurrence of many parties,… the peacemakers will be obliged to work toward a comprehensive settlement—one that will function to modify and order the relations of all the actors in the state system.13
When the settlement finally came, most of the territorial goals of the French and the Swedish were met. The Swedes had sought Pomerania, the Baltic port of Wismar, twenty million imperial dollars, the bishoprics that controlled the Weser and Elbe, and the province of Silesia. They got only a portion of Pomerania, but it was that crucial part containing the lucrative port at Stettin; Wismar; the bishoprics of Bremen and Verden; and five million dollars. These cessions were of critical strategic importance to Sweden and her Baltic trade. Because Pomerania was a possession of the Elector of Brandenburg, “compensation” was given him, of such an extent—Magdeburg, Minden, Halberstadt—that he emerged, after the Habsburgs, as the largest territorial prince in the Empire, a development that made possible the eventual emergence of Prussia and the territorial state in the next century.
The French demanded the fortresses of Metz, Toul, Verdun, Breisach, and Phillipsburg, as well as Breisgau, Alsace, and the four “forest cities” on the Rhine. All of these claims were met, excepting Breisgau and the four cities. In a complicated settlement, the French received certain rights in Alsace that the treaty language left ambiguous.
A fundamental constitutional arrangement was provided to the German estates that explicitly prevented the creation of a unified kingly state for Germany. More than three hundred effectively soverei
gn princes, free cities, and bishoprics, the treaty stated, had “territorial superiority in all matters ecclesiastical as well as political.” They had the right to agree to and ratify treaties; they could declare war—indeed, war could not be declared by the empire without their consent. They could ratify peace treaties; they could levy taxes. The imperial diet was required to reach amicable agreement to settle all religious questions, rather than by majority vote. These provisions of the “Westphalian constitution… remained the fundamental constitutional law of the empire until its dissolution a century and a half later.”14
With respect to the religious issues at stake in the war, Beller concluded that “[t]he solutions found… were essentially a broadening and a clarification of the Peace of Augsburg.” This supports the view that the earlier treaty was itself constitutional in nature, and that interpretive disputes arising with regard to the earlier treaty presaged the epochal character of the Thirty Years' War.
Four important omissions, partisan provisions, and undetermined points had haunted the Peace of Augsburg. Each was addressed at West-phalia. First, Westphalia officially recognized Calvinism. Second, the year 1624 was made the decisive date for the conversion of church properties. Third, the “Ecclesiastical Reservation” was applied to both sects: if either a Protestant or a Catholic bishop changed his faith, he would be forced to resign. Fourth, the fundamental Augsburg constitutional principle—cuius regio eius religio, subsumed in the Westphalian provision of “territorial superiority in all matters ecclesiastical as well as political”—was elaborated by certain ameliorating additions: if the prince changed his faith, he could not interfere with the religion of his subjects; rights of public worship, as of 1624, could not be changed by the conversion of the prince; and the prince retained the right of expulsion, but with the important qualification of a five-year grace period during which property could be sold or transported by the expelled parties.15
It is also important to see the Peace of Westphalia as a constitutional renovation of the Peace of Augsburg, the first constitution of the European society of states, because that is the way contemporaries saw it. It was widely held among the delegates that
the present war had been caused by the inadequacies of the 1555 religious settlement, which had not clarified the rights of Protestant and Catholic estates with sufficient precision. A chief reason that the war had been so prolonged and acrimonious was that each party could convince itself that it was fighting for fundamental rights…. The conviction prevailed among the delegates that, provided the rights of each of the participating actors could be established definitively, no source of conflict would remain.16
With slight exceptions in Silesia and lower Austria, the emperor refused to make any concessions to the Protestant subjects in his hereditary, Habsburg lands. Similarly, although Westphalia set the year 1618 as the date for restitution and amnesty, the emperor refused to be bound by this in his own hereditary realm, recognizing that the wholesale transfers of property after the imperial victory at White Mountain would thus be undone. This concession by the Congress must be seen not as simply a peculiar artifact of the negotiations, but as entirely consistent with the overall scheme by which the emperor was reinforced in his dynastic role, but denied the unifying role he had sought with respect to the imperial, non-Habsburg lands. Henceforth, the Habsburg emperors would focus their attentions on Vienna; Brandenburg—the chief actor, with France, in the ensuing period—would dominate the affairs of central Germany. The controversies that had combined political and religious conflict were finally settled.
The pope strongly opposed Westphalia and denounced it in a bull. It is significant, however, that the treaty itself anticipated this objection and required all signatories, Catholic and Protestant, to bind themselves to ignore any ecclesiastical objections to it. Thus was the role of the Christian community of states replaced by the rule of state consent.17
Two new states were recognized: the United Provinces of the Netherlands and the Swiss Confederation. Their admission to the European society of states on the basis of provisions in the Westphalian Peace is yet another confirmation of the constitutional nature of the treaty. The great powers also claimed for themselves the authority to declare the public law of Europe. War was recognized as a legitimate form of resolving conflicts, hence the importance of the legal recognition the Peace accorded the strategic cessions of fortresses and ports sought by France and Sweden. The concept of the just war was nowhere mentioned. It had become irrelevant. No state was allowed to be destroyed, however, and compensation was to be awarded to those states that gave up strategically advantageous possessions.
This last rule is important to stress, as well as its corollary that mere possession was not equated with legitimacy. When Salvius discussed with some of the German delegates the proposal to compensate Brandenburg for part of Pomerania, which was being taken by Sweden, he completely dismissed the argument that Sweden could claim Pomerania by right of conquest and that, therefore, compensation was not required. Similarly, the port of Wismar was owned by the duke of Mecklenburg-Schwerin, who had been dispossessed by the emperor and restored by the Swedes. If Wismar was to go to Sweden, then the duke too had to be compensated because he held the legal right to Wismar, even though it was the Swedish conquest that restored him to possession.18 Indeed Sweden took these territories as imperial fiefs, so that their cession to Sweden did not involve a loss of territory to the empire but an inclusion of Sweden among the various imperial estates, with accompanying duties owed to the emperor. From the outset, Sweden had maintained that it would only achieve its strategic objectives “cum totius Imperii omniumque interessatorum consensu” —with the consent of the whole Empire and of all of the interested parties. Even France ended up purchasing the Habsburg rights to the three fortresses it sought from the empire. The Treaty of Münster fixed the price at three million livres, a substantial sum, and to this the Treaty further added a French obligation to assume Habsburg debts.19
With such a mixture of principles, procedural rules, and jurisdictional allocations, it is hardly surprising that the “Westphalian settlement of 1648 was perceived as… a new constitution for the European state system…. [So it] struck the political actors of the day, as well as jurists and historians.”20
In Book I's discussion of the development of the State, I dissented from the famous conclusion of the historian C. V. Wedgwood, who pronounced the Thirty Years' War “the outstanding example in European history of a meaningless conflict.”21 Her conclusion is even less defensible with respect to the society of states and the Peace that followed the War. The extension of the maxim cuius regio eius religio imposed common restrictions on states, adumbrating the emergence of a new society of states characterized by their sovereign equality. At the same time, the notion that the ruler of a state had the right to determine the religion of that territory the state controlled enhanced the movement toward absolutism in the member states of this new society.22 “[T]he Thirty Years War was, after all, fought over the juridical definition of the position of the States and the Emperor,”23 and, one might add, “of the legal position of all the states of Europe vis-à-vis one another.” It is hard for us to recognize this from our current vantage point of cynicism about law and the prevailing view that law is a mere disguise for that power. This was not the view in early seventeenth century Europe, however, when law was the connecting bridge between politics and religion, and where the constitutional law of the Peace of Augsburg had set the terms of the geopolitical conflict. As Roelofsen reminds us, it was “only towards the end of the seventeenth century, with the famous ‘partition treaties' between William II and Louis XIV, that considerations [of legal title] were seriously weakened in favour of more power-political droit de convenance.”24
The idea of a juridical order without a higher political or ecclesiastical authority is so novel, and so far-reaching, that it has given immortality to the name with which it is mainly associated, that of the seventeenth century
lawyer Hugo Grotius. His De Jure Belli ac Pacis is one of the cardinal books of European history25 and he was regarded in his lifetime, as he is today, as one of the leading intellectual figures of the Baroque period. Gus-tavus Adolphus took De Jure Belli ac Pacis with him on his campaigns, and claimed to have based the political structure he sought for Europe on Grotian ideas. In our time, Grotius's fame has had a revival, and there is a good deal of literature on the “Grotian Tradition” and even the “Grotian Moment”26—that moment at which a new world order is put into place. In the following section, we will review briefly Grotius's rather disheartening biography; his views on international law, of which most commentators, perhaps too simply, regard him as the father; and the importance of these ideas for construing the international constitution of the period, the treaties that made up the Peace of Westphalia.
CONSTITUTIONAL INTERPRETATION:
THE INTERNATIONAL LAWYERS
GROTIUS
Hugo Grotius27 was born in Delft in 1583. His father was the chief city official of Delft, curator of the University at Leiden, and a close ally of the most dynamic Dutch political figure of the day, Johan van Oldenbarneveldt. Oldenbarneveldt was, at that time, Advocate for the States of Holland (which was the most important of the federal entities making up the United Provinces).
Grotius was a celebrated child prodigy: he wrote Latin elegies at the age of eight, entered the university at eleven, and is said to have converted his Catholic mother to Calvinism with irrefutable arguments when he was twelve. At fifteen he went with Oldenbarneveldt, now the grand pensionary of Holland, on a diplomatic mission to France where the king, Louis XIII, introduced the young Grotius as “the miracle of Holland.” On this visit to Paris, Grotius determined to study law at Orleans. In 1598, at the age of fifteen, he emerged with his doctorate and returned in 1599 to practice law in The Hague.
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