Restitution in Early-modern Peace Treaties: The Case of the Dutch-Spanish Peace Treaty of Münster (1648)—Part I
By: Randall Lesaffer
When Clive Parry endeavoured upon his collection of historic treaties in the late 1960s, he took Westphalia (1648) as its starting point. The first treaty included in The Consolidated Treaty Series, however, was not one of the actual two treaties which constitute the so-called Peace of Westphalia—the Treaties of Münster and Osnabrück of 24 October 1648 (1 CTS 271 and 1 CTS 119) but the Dutch-Spanish Peace Treaty, which was signed at Münster on 30 January 1648 (1 CTS 1).
The first Münster Peace Treaty is the third important peace treaty negotiated at the Westphalia Congress. It ended the Eighty Years War, which had started as a rebellion in the Low Countries and had turned into a war of secession of the Dutch Republic. It sealed the Republic’s victory. In the treaty the Spanish King Philip IV (1605–1665) recognized the ‘freedom and sovereignty’ from the Spanish crown of the provinces that constituted the Republic. Although this did not imply that the legal bonds between the Republic and the Holy Roman Empire had completely been severed—this would only transpire a few years later—it was a major step towards the international recognition of the Dutch Republic of the United Provinces as an independent power. As such, it is sometimes invoked as proof for the, largely mistaken, claim that Westphalia marked the birth of the European sovereign state system. The Dutch-Spanish Peace of Münster is also an important text in the history of international law. It not only sheds light on the development of the ius post bellum—the law regulating the transition from war to peace—from early-modern Europe, it is also a foundational text in this respect.
Between the middle of the 15th and the middle of the 18th century, European peace treaties expanded into lengthy and detailed legal instruments. Whereas at the end of the Middle Ages, peace treaties were relatively short documents, notwithstanding the repetitive language of the clauses, and focused on the political settlement of the disputes over which the war had been fought, by the 18th century peace treaties on average included many dozens of clauses which dealt in great detail with diverse aspects of ending the state of war and restoring normal peaceful relations between the former belligerents. This change resulted from a shift in the conception and realities of war.
At the end of the Middle Ages, wars had been conceived of as clashes between princes and their vassals and adherents. Although wars could be very devastating and long in duration, under the doctrine of the just war they were considered to be limited in scope. Wars were fought to defend or enforce a right which was disputed or had been violated by the enemy. As such, wars were not fought to destroy the enemy or to gain final victory, but to settle concrete disputes over rights. They served as substitutes for a law enforcement action.
Although the just war doctrine continued to animate discussion about the justification of war throughout the Early Modern Age, the general conception about the aims and scope of war changed against the backdrop of the rise of the sovereign state. The emergence of powerful dynasties, the growing centralization of government power, the expansion of the military machinery at the disposal of these governments, and the spectacular growth of the costs of war all contributed towards turning wars into all-out clashes between states rather than limited conflicts between princes and their retinues. By the midst of the 17th century, wars had become far more comprehensive affairs than before, and the more intense state of these conflicts often led to an almost complete severance of normal, peaceful relations between the states and their subjects. The expulsion or detention of enemy subjects, the confiscation of their property, the breaking off of diplomatic ties, trade boycotts, the imposition of contributions on enemy territories, and large-scale plunder and privateering became hallmarks of early-modern warfare. Such wartime measures and actions were generally regulated in great detail. In consequence, the state of war became a context in which very different legal conditions applied than in the state of peace. Peace treaties grew into elaborate legal documents as they needed to regulate the transition from the one legal state to the other. Therefore, they came to encompass an increasing number of clauses which dealt with the legal consequences of war and the restoration of peaceful relations. These clauses pertained both to the states themselves and to their respective subjects. Such clauses were often very detailed and lengthy, before they became standardized and were abridged. This development only occurred towards the middle of the 18th century.
A major aspect of the transition from the state of war to the state of peace concerned the restitution of private property. This pertained to both real and personal property that had been seized from enemy subjects during the war. Restitution concerned different categories of goods that had been seized, including goods that had been owned by enemy subjects in the territories of one of the belligerents and had been confiscated at the beginning of the war, property that had been seized upon conquest of a certain territory, and regular booty.
The Dutch-Spanish Peace Treaty of Münster was particularly elaborate regarding private property and rights. This was a logical development as the war had been unusually long and disruptive. The war had started as a rebellion. In its first phases, massive confiscations of goods belonging to rebellious subjects had been one of the major weapons of repression of the Spanish crown. After the conflict had taken the form of a regular war, confiscations, now from both sides, remained an important aspect of it as the frontlines periodically shifted and moved almost until the war’s conclusion.
Apart from being elaborate, the Münster Treaty was also of great historic significance in the articulation of the laws of peace-making with relation to private rights. It drew on the tradition of peace and commercial treaties between Burgundy, England, and France from the late 15th century which had laid the groundwork for later treaties with regard to the subject of private property. Clauses from these treaties had made their way into the great Franco-Spanish peace treaties from the 16th century, and thus formed part of the lore and practice of peace-making of both the Spanish and Dutch negotiators. In the Peace of Münster, the basic principles of restitution and the general treatment of private property were retained, but were articulated into a more elaborate law than ever before. Through the central role the Dutch Republic played in the peace-making of the later 17th and early 18th centuries—with the peace conferences of Nijmegen (1678–1679), Rijswijk (1697), and Utrecht (1713)—the clauses from the Münster treaty worked their way into European practice.
Yet the relevant clauses from the Münster Peace Treaty were not novel. When negotiations between the Dutch and Spanish diplomats began in earnest in the spring of 1646, the Dutch delegates placed a draft of 71 articles on the table. Of these 71 clauses, which largely survived the negotiations, 60 clauses came from the Twelve Years Truce of Antwerp of 9 April 1609 or from the interpretative treaty of 7 January 1610. The clauses with relation to private property and its restitution were almost entirely derived from these treaties.
At first, it seems strange that clauses which had originally been written for a truce were copied into a peace treaty. This fact can, however, be explained from the complex negotiation history of both the Twelve Years Truce of 1609 and the Münster Peace Treaty of 1648. In fact, these treaties went through a reverse shift from peace to truce during the negotiations at Antwerp and from truce to peace during the negotiations at Münster. When negotiations between the Dutch Republic and the Spanish Netherlands under Archduke Albert (1559–1621) and Archduchess Isabella (1566–1633) began in 1607 and 1608, they were meant to lead to a final peace settlement. The failure to reach compromise on trade to the Indies and the position of the Catholic religion within the Dutch Republic precluded the achievement of a definite peace and changed the goal of the negotiations into a long truce. By that time, many of the clauses had already been written and only limited changes were made. The opposite happened at Münster in 1646. When the Dutch diplomats proposed their draft of 71 articles, the parties were engaged in negotiations about a new truce. It was only in the ensuing months that the Dutch Republic made a proposal and the Spanish crown accepted the proposal to strive for a definite peace treaty. This led to some necessary, but in the end, only minor changes.
Treaty of Antwerp, 9 April 1609, in Jean Dumont (ed.), Corps universel diplomatique du droit des gens (Amsterdam/The Hague: Brunel, Wetstein, Smith, Waesberge, & Chatelain/Husson & Levier 1728), vol. 5 pt. 2, 99–102.
Treaty of The Hague, 7 January 1610, in Jean Dumont (ed.), Corps universel diplomatique du droit des gens (Amsterdam/The Hague: Brunel, Wetstein, Smith, Waesberge, & Chatelain/Husson & Levier 1728), vol. 5 pt. 2, 119–20.
Jörg Fisch, Krieg und Frieden im Friedensvertrag. Eine universalgeschichtliche Studie über Grundlagen und Formelemente des Friedensschlusses (Stuttgart: Klett-Cotta 1979).
Randall Lesaffer and Erik-Jan Broers, ‘Private Property in the Dutch-Spanish Peace Treaty of Münster (30 January 1648)’, in Michael Jucker, Martin Kintzinger, and Rainer Christoph Schwinges (eds.), Rechtsformen internationaler Politik. Theorie, Norm und Praxis vom 12. bis 18. Jahrhundert (Zeitschrift für Historische Forschung, Beiheft, 45, Berlin: Duncker & Humblot 2011) 165–95.
Hans Neufeld, The International Protection of Private Creditors from the Treaties of Westphalia to the Congress of Vienna (1648–1815) (Leiden: Sijthoff 1971).
Heinhard Steiger, ‘Was haben die Untertanen vom Frieden?’, in Heinz Duchhardt and Martin Espenhorst (eds.), Utrecht – Rastatt – Baden 1712–1714. Ein europäisches Friedenswerk am Ende des Zeitalters Ludwigs XIV (Göttingen: Vandenhoeck & Ruprecht 2013) 141–65.