CHAPTER NINETEEN

The Peace of Westphalia

THE SETTLEMENT of the Peace of Augsburg in 1555, which ratified the constitution of the society of princely states, was thrown into doubt in 1608 when Prince Maximilian of Bavaria annexed and re-Catholicized the Lutheran city of Donauworth. The Augsburg settlement had given sovereign princes the right to determine the religion of their subjects according to each prince's religion; and it had permitted free emigration in order to allow the transfer of Lutherans or Catholics to a sympathetic prince or city. The Treaty had also barred any Catholic bishopric or free city from converting to Lutheranism, and it had required that any spiritual prince—certain cardinals and bishops—give up his office and lands upon becoming a Lutheran.*

The treaty, however, had simply made no provision for the seizure of a city; it had fixed frontiers as they had been in 1552. Re-Catholicization jeopardized all the Protestant holdings that were the result of Church lands having been secularized after 1552: the return of these properties—bishoprics, abbeys, cloisters, and countless parishes—not only meant the loss of incomes from these holdings but also the enforced conversion, or expulsion, of the populations involved. The collapse of the Augsburg Constitution invited the carnage of the Thirty Years' War, which might be thought of as a civil war within the young society of states.

Out of the anarchy that characterized the final stages of the Thirty Years' War, there arose a stronger, more coherent society of states whose legal structure was redefined by a new constitution for that society. This constitution is the set of treaties known collectively as the Peace of West-phalia. At the apex of this society was the kingly state of France, which had displaced Spain, the leading princely state. Richelieu, who died in 1642, had never deviated from the strategic plan with which he began: ¹ to cut the communications of the Spanish with their possessions in the Netherlands, and to obtain entry into the politics of the Empire. On his deathbed his confessor asked, “Do you forgive your enemies?” To which he replied, “I never had any, except those of the State.”²For a man who was targeted for assassination by the king's brother, among others, this shows a remarkable degree of personal detachment and a deep identification with the State. Indeed, this remark is the administrator's equivalent of the classic formulation of the kingly state— “L'tat, c'est moi” — the most famous utterance of the beneficiary of Richelieu's labors, who was four years old at the time of the cardinal's death.

Louis XIV, as the child became, continually asserted his own interpretations of the constitutional arrangements of the Peace of Westphalia and did his best to amend these arrangements by force. This raises two important points. First, “amendment” to an international constitution must be provided for or at least implicit in the constitution itself. The treaties of West-phalia accepted war as a legitimate means of changing the territorial settlement negotiated by the parties. Louis was not acting extraconstitu-tionally in his campaigns to expand his state and magnify his glory: the constitutional settlements that accompanied the subsequent wars of the seventeenth and eighteenth centuries invariably stated that they were merely partial renovations of the Westphalian agreements.³

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 sovereign 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.

At each important stage in Grotius's life, he was called upon to perform essentially professional duties as a lawyer that were of the greatest significance for his scholarly, philosophical work. Abstracting from a particular undertaking in a political, legal, or religious controversy, he found the underpinnings for his great jurisprudential essays, which cannot be usefully understood apart from these foundational ideas. These ideas might be stated as an epigram: history is the bridge between strategy and law; and law is the bridge between religion and politics. During his life, Grotius often suffered on account of his faith in these ideas, but had he lived somewhat longer, he would have been confirmed in their ultimate power.

In 1601 Grotius was appointed Latin historiographer for Holland. He undertook to provide an historical apologia for the United Provinces, comparable to other national histories produced by humanists of the sixteenth and seventeenth centuries. This history had an unusual significance for the Netherlands, however, owing to the Dutch revolt against Spanish rule. Most observers outside the Dutch Republic, and a considerable number within, entertained serious doubts about the legitimacy of the regime.* Foreign opinion was crucial to the Republic because the Dutch had had to rely on foreign intervention and assistance to resist Spain, the dominant military power of the era. In order to present the Dutch case in terms that made sense to the European learned public, Grotius drew a line of continuity between the Batavian Republic of antiquity and the Holland of his own day. This work, published as De Antiquitate in 1610, provided a classical justification for the constitutional theory on which the Dutch Revolt was predicated. On this theory, the counts of Holland in the Batavian periods were not “monarchs” in the then-contemporary sense of the kingly state, but only hereditary executive officers. This history absolved the Dutch from the accusation of revolution against the king of Spain, who was not, in Grotius's view, their lawful dynastic ruler. This was the first important instance of Grotius's professional practice providing the impetus for his theoretical ideas.

A second significant example occurred in 1604. An admiral of the Dutch East India Company had taken a Portuguese carrack, the trading ship Santa Catarina, as a prize in the Straits of Malacca. This capture had offended the Mennonite shareholders of the company who regarded war as offensive to Christian beliefs. They threatened to withdraw from the company and set up a rival firm in France. The directors of the company, which had been founded by Oldenbarneveldt, turned to Grotius for a legal opinion evaluating the incident. In order to show that the prize taking was not an act of piracy, Grotius had to show why the war was lawful. Then as now, criminal acts of terrorism had to be carefully differentiated in law from acts of war. Grotius's essay, completed in 1606, is commonly known as De Jure Praedae Commentarius and was the basis for his masterpiece, De Jure Belli ac Pacis. The latter work represents a process of generalizing from the examples adduced in De Jure Praedae.*

In 1607 Grotius was appointed Advocate, or attorney-general, of Holland. He was twenty-four. He was by now firmly associated with Oldenbarneveldt, who led one of the two great political movements in the United Provinces, and who was opposed by Prince Maurice.²⁸ Grotius's close ties with the Dutch East India Company brought him his first diplomatic mission as a member of a delegation to the Anglo-Dutch trade conference on Asian affairs in 1613. During these meetings Grotius was already well known enough to ask for, and be granted, a private meeting with King James I. Typically, however, the subject of this meeting was theology, not East Indian trade.

In Holland Oldenbarneveldt had become the champion of the Arminians, a liberal wing of the Calvinist church that attempted to soften the strict and pitiless doctrine of predestination. As with most religious conflicts of this period, this one played into international politics: the strict Calvinists, or Anti-Remonstrants, accused the Arminians of being papists and idolaters. Oldenbarneveldt's party was linked to France, a Catholic state; Maurice's party was linked to Britain. Grotius, reflecting a lifelong conviction that the Reformed churches—Anglican, Lutheran, Calvinist, and others—should all unite, and eventually unite with the Roman Catholic, took his case to King James. The English king, a sophisticated intellect but utterly without a taste for attempting difficult political crusades, seems to have merely endured Grotius during a memorable interview. Grotius believed he had persuaded England to act as mediator between the Dutch factions, and even to favor the Arminians. This proved overoptimistic. The English did not intervene, and the king later recalled, “[Grotius] was some pedant, full of words and no great judgment.”²⁹

That same year, 1613, Grotius was chosen by Oldenbarneveldt to be pensionary for Rotterdam, making him Oldenbarneveldt's chief lieutenant in Holland. For the next five years he was deeply involved in attempting to heal the schism in the Dutch Reformed Church while asserting the independent federal status of the States of Holland. Grotius and Oldenbarneveldt apparently underestimated the mortal threat they posed to the centralizing goals of Prince Maurice of Nassau, who was, as we have seen in Book I, attempting to create in the Dutch provinces something like a kingly state with a unified church. The States of Holland and other states had resisted this effort and had persistently refused to accept the actions of the States-General, had refused to pay their share of national taxes, and had even raised a militia.

On August 29, 1618, Maurice struck. Oldenbarneveldt, Grotius, and the pensionary for Leiden were arrested. A special tribunal convicted Oldenbarneveldt and Grotius of high treason. Oldenbarneveldt was executed on May 13, 1619; Grotius was imprisoned for life at Loevenstein Castle. He was thirty-five. Like Machiavelli, he had risen as the brilliant protégé of a forceful and controversial leader, and had fallen with him; like Machiavelli he would spend the rest of his life writing and plotting his return to power; and like Machiavelli (and Thucydides), his ultimate fame would rest on the tracts he wrote while helplessly watching events in his native land in which he played no effective part.

In Loevenstein Castle Grotius was allowed to continue his studies. During this period he wrote a treatise on Dutch law (which treatise was used in South Africa well into the nineteenth century) and a widely published book on the truth of the Christian religion. Books were brought to him in large crates. Fittingly, for such a bookish person, he managed to escape by hiding in one of these library chests. He fled to Antwerp, then to Paris, where he was welcomed by Richelieu and given a pension. Because he was a Calvinist, however, he was denied any university post. It was in Paris that he wrote De Jure Belli ac Pacis.

This classic work is, one suspects, more cited than read. Martin Wight aptly speaks of “trying to pick a path once again through the baroque thickets of Grotius' work, where profound and potent principles lurk in the shade of forgotten arguments, and obsolete examples lie like violets beneath gigantic overgrown rhododendrons.”³⁰ There is much to learn, however, from Grotius's method, which consists of abundantly collecting examples, usually from antiquity, to illustrate various points. This method is both the basis for and the consequence of his fundamental commitment to natural law, a subject that will be taken up presently.

For ten years Grotius tried to find a way back into Dutch politics. The death of Maurice in 1625 encouraged him, as did the support promised him in his correspondence with Frederick Henry, Maurice's heir. The city of Rotterdam had not dared to appoint another Pensionary because Grotius had been appointed for life. Finally, in 1631 he returned to the Dutch Republic, but in April the next year he was declared a fugitive by the States of Holland and he fled once again, this time to Hamburg.

Gustavus Adolphus's admiration for Grotius was well-known through-out Europe. After the Swedish king's death, Oxenstierna interviewed Grotius at Frankfurt-am-Main in 1634 and engaged him as the Swedish ambassador to the French court. This was a crucial period in French-Swedish relations: the Treaty of Compiègne, which brought France into the Thirty Years' War, was negotiated in 1635. Moreover, it was a difficult time for Sweden: after the Swedish defeat at Nördlingen, France became the dominant partner in the alliance and a competitor for postwar leadership.

Grotius served for ten years in Paris, despite repeated requests for his recall by Richelieu, who apparently detested him. It is usually said that Grotius was a failure as a diplomat, a “typical example of the intellectual in politics, lacking in political tact and common sense and more at home in the world of ideas.”³¹ Whether this was so, the French-Swedish relationship was not managed by Grotius. The real negotiations with France were carried on in Hamburg by Johan Adler Salvius and by Oxenstierna himself. When Grotius was finally dismissed, it was probably the result of his being caught between the queen's peace program, which offered a conciliatory attitude toward France, and Oxenstierna's less flexible policies.

It was Grotius's identification with the chancellor and the old guard in Swedish affairs that probably led to his dismissal. Incompetence is seldom a complete bar to diplomatic appointment, even for intellectuals, and Grotius was, and had been for a long time, a celebrated figure in the European republic of letters. During these years when he repeatedly angered the French over his refusals to accept French rules of precedence—rules that were to cause no little conflict at Westphalia—his main activity was not diplomacy but theology. His studies of the dogmatic disputes between the Protestant and Catholic churches favored unification, a position that brought forth abundant and wrathful tracts from Lutheran and Calvinist theologians.

Widely regarded as a failure in Paris, he was not included in the Swedish mission to Westphalia. He was, however, asked to be a member of the Swedish Council of State. This he declined, and began the journey back to Paris from Stockholm. A shipwreck cast him on the coast of Pomerania, the scene of Gustavus's great triumphs of 1630. There he died of exhaustion at Rostock. Three years later the Peace was signed and his immortality sealed, because the Peace presupposed the “juridical order without a higher political authority” of which he had been the most ardent and celebrated advocate. Hedley Bull concluded that the “idea of international society which Grotius propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father of this… general peace settlement…. [I]n their broad impact on the course of international history, the theory of Grotius and the practice of the Peace of Westphalia marched together.”³²

Grotius himself regretted his career. He frequently remarked that he ought not to have gone into law but stuck with literature, a frequent complaint of law professors with literary tastes. He sent his two sons into the army, not to the university as his father had sent him. And his last words are reported to have been “By undertaking many things, I have accomplished nothing.”³³ Like other great men he seems to have forgotten that it takes an army of successors, often misinterpreting the great man's works or perverting them for their own reasons, to really accomplish something. Whether that posthumous army is summoned to any particular thinker's banner is usually not a matter of the great man's doing, as Oldenbarneveldt might ruefully have told him.

What is the “Grotian view,” if by that question one asks “for what principles does Grotius's posthumous army fight?” Generally, a “Grotian view” is taken to mean the assertion of a duty on the part of the individual state to serve the interests of the society of states as a whole. A weaker version of this simply asserts that there are such interests; a stronger version claims that only such interests can justify certain activities of the State, such as war. Thus the Grotian view is to be distinguished from the Hobbesian view that international society can have no legal rules because there is no sovereign to organize and maintain the collaboration among states that might replace the constant struggle of each state against every other state. Although the Grotian society of states is perhaps anarchic, it does not exist in a naked state of nature. The rationale for the Grotian view is that there exists a great society of all mankind—humani generis societas—and all human institutions are governed by the rules of that society. Thus the Grotian perspective is also quite different from the Kantian view that perpetual peace can only be achieved through the construction of suprastate institutions.

Six corollaries follow from the Grotian view: that natural law is a source (though not the only source) of the rules that govern states (because man is a creature of nature, and all his activities are governed thereby); that international society is universal and not merely limited to Christendom or the European states system; that individuals and nonstate actors can have a role in the application of the rules of international law; that the universal traits shared by all mankind can give rise to cooperative requirements, and these requirements can be a source of justice; that suprastate institutions are not necessary for the rule of law to be applied to states; ³⁴ and that, being a source of law, the individual person is a bearer of rights.³⁵ Taken together, this infrastructure of ideas provides a surprisingly modern and surprisingly accurate description of international law as it actually is— universal yet pluralistic, occasionally the source of cooperation, functioning in the absence of a universal sovereign but difficult to enforce and rarely functioning very authoritatively, a discipline that embraces not only the relations among states, but also the human rights of individuals. Whether this intellectual infrastructure was actually supplied by Grotius, or is the invention of his highly capable and imaginative disciples, I am not certain. For our purposes it is enough to see that the constitutional aspects of the Peace of Westphalia are consistent with this vision of international law, though this may well be because it is a source of that vision rather than its product.

Of greater relevance to our study, however, is the Grotian method, and not simply the views advocated by those who are deemed “Grotians.” This method supplies the ways of interpretation that are indispensable to a constitution. It was the absence of such accepted interpretive methods that had proved so destructive of the previous constitution, the Peace of Augsburg. Grotius's work is a milestone in human thought, a humanist achievement that links Erasmus and Adam Smith, but it lies not in the precepts of Grotius (the infrastructure so effectively and inspiringly described by Bull) but rather in the mundane and quotidian incidents of practice.

Our starting place must be this brilliant observation by Mattingly:

[Grotius] was only trying, like most of his contemporaries, to justify what men were doing or thought they ought to be doing… But he was the first person to see, or to make clear that he saw, that, to be persuasive, the argument must be couched in the terms not of the interests of a single unitary commonwealth of which the princes and republics of Christendom were subordinate members, but in terms of the interest in their own self-preservation of the independent, ego-centered, absolutely sovereign states whose aggregate composed the heterogeneous, pluralistic international society of western Europe. That was what the future was going to be like.³⁶

In other words, Grotius linked his arguments to the newly emerging society of kingly states.

Grotius's method was to completely forgo the rich store of glosses, commentaries, opinions, and precedents of the immediate past—the past just preceding and following Augsburg—in favor of Cicero, Plutarch, and Livy. Biblical citations and classical references to the political behavior of the Greeks abound in Grotius; indeed the sheer assembly of all the classical instances that can be brought to bear on contemporary problems can be dazzling, even overwhelming. This is the method of the exemplary: finding and citing examples of previous state behavior, organized according to the principal problems facing the new state society of Europe. Nothing like this appears again until The Federalist Papers, which became for the American constitution a rich source of interpretive methods. Grotius did this for the European constitution.

Rousseau, with his customary eye for the corrupt and self-serving, saw through this method entirely. In The Social Contract, he wrote: “Grotius denies that all human government is established for the benefit of the governed and cites the example of slavery. His characteristic method of reasoning is always to offer fact as a proof of right. It is possible to imagine a more logical method, but not one more favorable to tyrants.”³⁷

But that was the point: Grotius's method—the exemplary, offering “fact as a proof of right”—enables law to act as an ameliorative bridge between religion and politics, channeling real and otherwise insoluble conflicts into more detached, legal terms. Rousseau's method, and that of the political philosophers who were his contemporaries, was instead to imagine a just rule and demand that the State adhere to it. Whatever the justice of Rousseau's method, and I think there is less than is commonly assumed, it is not a method that provides interpretive modalities. It is a pamphleteer's method, not a lawyer's. What the lawyers were trying to do, Mattingly reminds us, “was to rationalize the usual conduct of European governments, or justify the position of a client or patron in a dispute.”³⁸ Pre-cisely—and this is what gave Grotius his uncanny ability to anticipate what would be the course of the international society whose fate was being negotiated at Osnabrück and Münster as he lay dying in Rostock.

This is the true ground of Grotius's otherwise elusive concept of natural law. It is no more than the way things are done; not the substance of the law, not the things being done themselves—this Grotius called the “volitional law”—and not the divine law, but the ordinary, everyday methods of arguing and putting forward interpretations. Grotius appears to have believed that with this approach he might find a receptive audience for his ideas about uniting the conflicting theologies of post-Reformation Europe. Here he attempted too much: law might be a bridge between religion and politics, but not between religions. Only a true humanist could have thought otherwise.

Grotius's methods of interpretation, those that are implied by the “exemplary” approach to interpretation, are capable of embracing many sorts of problems. They allow for the destabilization of governments, the use of propaganda, the revoking of a pledged word by means of the clausula, the right of intervention—as much as they are a call to solidarity among states. Mainly these methods provide for the legitimacy of all civil authority, a rather useful idea when a new constitution for a society of new forms of the State is coming into being. Grotius defined sovereignty as that power “whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will.” Thus when the State adopts the constitutional order of the kingly state—and has not only seized for itself a monopoly on violence, but admits no ecclesiastical superauthority (even as to ecclesiastical matters)—it has also achieved legitimacy. De Jure Belli ac Pacis is a compendium of methods by which the treaties and rules of Westphalia can be applied. It does not prescribe the content of those rules.

It is doubtless true that there was “little that guardians of raison d‘état… in the class of Richelieu and Father Joseph could learn from Grotius. Yet their secret archives, diplomatic correspondence, sophisticated treaties… all attest to the competence… and the growing richness of the practice of European international law.”³⁹ Richelieu and Gustavus Adolphus did not seek guidance (though Gustavus admired Grotius greatly). Their successors, however, needed interpretive methods to put into effect the system these leaders had designed and successfully fought for. Through the numerous editions and translations of De Jure Belli ac Pacis the idea of an international society of kingly states was chiefly spread.⁴⁰ In Grotius, the successors to Richelieu and Gustavus found ways to support the rights of kings to sovereignty, the denial of the supervening authority of the pope, the right to use force to vindicate the Westphalian system, the equal rights of Protestant and Catholic states, the rights of states to navigate the oceans and to conduct trade without the permission of other states, and the validity of agreements made with non-Christian powers. Most significantly for the Westphalian constitution, Grotius gave arguments for the use of war to uphold the general settlement.

The fact must also be recognized that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations… For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now, after the organization of states and courts of law, is in the hands of the highest authorities, not properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one.⁴¹

Sovereignty thus implies rather than denies a duty owed to the society of sovereign states. Both Richelieu and Gustavus Adolphus had envisioned a collective security system that would emerge from the Thirty Years' War. Although both had died by the time of the congress, Richelieu's written instructions were followed unaltered. Minutes taken by the papal and Venetian envoys disclose that the French “proposed, for the safeguarding of the peace, a general league between all those concerned in this pacification… with the reciprocal obligation for each and any of them to take up arms against him or those who might infringe the present treaty.”⁴² Just such obligations are at the center of the Grotian rationale. In the end, the proposal foundered on Oxenstierna's suspicions of France, on the exclusion of the Franco-Spanish conflict, and on French hauteur. Grotius's moment was not complete.

Grotius had written in 1625,

I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse was had to arms for slight reasons, or for no reason; and when arms were once taken up, all reverence for divine and human law was thrown away; just as if men were thenceforth authorized to commit all crimes without restraint.⁴³

That is to say, strategy had been severed from law by war.

Grotius's reaction to this situation had been to persuade states that they had a common interest served by adherence to the rule of law, and that pursuing this interest would strengthen them as states. The Grotian ethos would serve states by giving them the means to agree upon rules of their own devising, rules that no state acting alone could enforce upon the others. The Westphalian congress was the perfect forum for developing such a consciousness: not only did it bring together the representative actors for a lengthy period of time, the work of the congress demanded consensus reduced to written law (the treaties of Osnabrück and Münster). This consensus was the result of the successful effort at defining a common interest.

Grotius believed that this common interest, which was the basis for law, arose from the inherent sociability of man. Nowadays we might say that human beings only become complete in association with one another, that every associational society has a constitution, and thus the nature of man gives rise to law. Men seek law naturally, as roses turn themselves to the sun, because law permits and enhances their development. Other philosophers, notably Thomas Hobbes, believed that man's inherent nature was for power and that the role of law was to prevent the savage competition to which man's nature would otherwise lead him. Thus men seek law to compensate for their natures, as wolves submit to the pack rather than starve singly. Either approach supported the legitimacy of the individual kingly state, but there were profound differences between these two views regarding the law of the society of such states. There being no sovereign, Hobbes denied that an international law could exist; by contrast, Grotius denied that there had to be a supreme sovereign for there to be a law of the society of kingly states or sovereigns, and he implied that kingly states could only achieve complete legitimacy as part of a society of sovereigns to whom they owed certain duties.

It is often said that Hobbes and later Spinoza extrapolated from the life of the individual human being to that of the State. If the natural condition of men was one of endless war, then the superimposition of an absolute ruler, the sovereign State—Leviathan—did not terminate the state of nature, but merely transferred it to another plane. States are enemies by nature. Agreements to cooperate will be preserved only so long as fear of the consequences of breaking agreements binds the parties. Grotius, by contrast, extrapolated from the lives of persons in a society to that of states in a society. The natural condition of a society is one of potential cooperation—no man is an island sufficient unto himself. Not fear but aspiration binds states to their agreements.

PUFENDORF

Grotius's successors responded to Hobbes and Spinoza by asserting that man's capacity for reason removes him from the anarchic condition of animals and permits him to choose freely to be bound by law. The State, pre-cisely because it is a sovereign, will seek agreements and uphold them generally because it is rational to do so as a way of life for the State, whether or not upholding a particular agreement is to its advantage at a particular moment in time.⁴⁴ By means of this argument, Hobbes and Samuel von Pufendorf—the latter the most famous of Grotius's immediate followers—are brought into a measure of agreement: “Hobbes' opinion that the law of nature and the law of nations were the same was accepted by Pufendorf. He also accepted the assumption that separate states, having no common political superior, stood in the same relations to each other as men in a state of nature.”⁴⁵

Pufendorf, moreover, believed that the law of nature provided the only basis for international law, because there was no other source for law such as exists in a society with a sovereign. Indeed he went so far as to deny the key Grotian insight that international law arose from the customs and practices of states, maintaining instead that only those rules that are derived from universal reason were lawful, this being the means by which natural law was apprehended. The law of gravity governed heavenly bodies; the law of states was to be derived by much the same rational means.

This is not the place to dwell on the shortcomings of Pufendorf; Leibniz has done this definitively.⁴⁶ Nor is it necessary to complain about the habits of philosophers that addict them to imagining “states of nature” from which to extrapolate, heedless of the one natural state they know something about, namely the one they are in at the moment, which must be presumed to govern to some degree their speculations about other such environments. Indeed I think it equally likely that both Hobbes and Spinoza found their inspiration for the natural state of man in what they observed in the behavior of kingly states—Hobbes focusing on the domestic scene, Spinoza on the international—and reasoned back from this paradoxical interface of absolute domestic authority and apparent international anarchy to the nature of man, rather than the other way around.

However that may be, the political actors of the time confronted the problem of post-Westphalian law and order—namely, that in the absence of a universal sovereign every kingly state, which Westphalia had made the sole preserver of the liberty, authority, and even the life of the political society largely composed of such states, would attempt to aggrandize itself to the limit of its power. They solved this problem in a somewhat less reified, though no less abstract, way than the philosophers. Like the philosophers, the politicians and diplomats of this era were impressed by the power of reason to discover the principles of nature, and the power of rational systems to exploit those principles. This solution thus had much in common with the mathematics of the Age, but it was not achieved by or expressed in philosophical terms. Rather it was expressed in law, arrived at, as we shall see, by the legal means of a constitutional convention and the achievement of consensus at that congress.