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.

67

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. 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.

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."1

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 instituta 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.

tion of the diplomats. The delay of Spain and the Emperor to grant safe-conducts to the Swedes, the Dutch and the Protestant princes of Germany was one of the causes for the failure of the Congress of Cologne; while the preliminary peace negotiations at Hamburg were obstructed for two years and more by the insistence of the French upon the insertion of phrases in the safe-conducts to be given by the Emperor which would constitute a recognition by the Emperor of the sovereignty and independence of the Protestant German princes.73 Finally, the treaty of December 25, 1641, provided that within the space of two months the belligerents should deposit in the hands of the ambassadors of the King of Denmark at Hamburg the requisite number of safe-conducts properly executed according to a form prescribed by the mediator.

74

Instead of two months, however, two years and a half passed away before the exchange of safe-conducts took place. Immediately following the signing of the Treaty of Hamburg, the Imperial plenipotentiary, Graf von Lützow, was recalled for having been, as d'Avaux bitterly complained, so simple as to believe that the House of Austria sincerely wished peace. But the Emperor might well regret a treaty which permitted his rebellious vassals to treat with him as independent Powers, and which gave full latitude to French intervention in German affairs. Among the numerous reasons assigned for the refusal at Vienna to ratify the treaty, the new Imperial plenipotentiary mentioned the neutralization of Münster and Osnabrück as derogatory to the dignity of the Emperor, whose safe-conducts should be. deemed sufficient protection to the negotiators.75 This position the Germans were unable to maintain in the subsequent negotiations; and like several other provisions which were unfavorable to the Emperor, the stipulation for the neutralization of Münster and Osnabrück remained in the treaty as ratified on July 22, 1642.76 The end of the

73 Avenel, VII, 1034; VIII, 323, 337; Mémoires de Richelieu, X, 500-512; Bougeant, I, 347-358, 452-469; Pufendorf, De rebus Suecicis, lib. x, 72-87; xi, 62-66; xiii, 88-90; Adam Adami, cap. ii, 10-12; iii, 2-3.

74 Bougeant, I, 481.

75 Pufendorf, De rebus Suecicis, lib. xiv, 51-52; Lünig, Literæ procerum Europa, I, 337-357; Londorp, V, 775-782; Le Clerc, I, 113-134.

76 Hallendorff, V, ii, 501.

diplomatic tangles, however, had not yet been reached. More delays ensued over the question of the Spanish ratification and exchange of safe-conducts; and the plenipotentiaries might have continued their wranglings for another year had not the King of Denmark brusquely fixed upon April 18, 1643, as the day for the delivery of the proper documents preliminary to the Congress of Westphalia."

Another diplomatic problem, the ever-recurring quarrel over the pre-eminence of the crowns, also appeared in the negotiations at Hamburg, and was further complicated by the persistent refusal of the French to recognize Ferdinand III as Emperor of the Holy Roman Empire. When the final draft of the Treaty of Hamburg began to take form, d'Avaux attempted to persuade Salvius that the King of France should be named before the Queen of Sweden.78 Salvius objected; and it was ultimately agreed that Lützow should give to d'Avaux a copy of the treaty signed by himself in which the name of the French King and the town of Münster appeared before the name of the Swedish Queen and the town of Osnabrück, while the order of these names should be reversed in the copy handed to Salvius. After the recall of Lützow, his successor, Graf von Auersberg, declared that the former ambassador had exceeded his powers and had treated with the crowns of France and Sweden as if they were the equals of the Emperor.79 But this contention did not appear to be well founded. Withal, while the legal pre-eminence of the Emperor was not injured in the preliminary negotiations, the Swedes won a victory over the claims of the French. By refusing to come to Cologne, and by insisting upon two sets of treaties from the Imperial seal, they did more than merely avoid a contest of their claim for equality in the family of nations. They gained recognition from the Hapsburgs that in the world of diplomacy Sweden had equal status with France.

77 Gärtner, I, 77.

78 Pufendorf, De rebus Suecicis, lib. xiii, 90; Chemnitz (Stockholm: 1856), IV, i, 76.

79 Pufendorf, De rebus Suecicis, lib. xiv, 52.