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Restitution in Early-modern Peace Treaties The Case of the Dutch-Spanish Peace Treaty of Münster (1648)—Part II

By: Randall Lesaffer

Both the Twelve Years Truce and the Peace Treaty of Münster (1 CTS 1) were very elaborate in their treatment of private property and private rights, and they also poured into their definite form the basic principles that would form the hallmark of the practice of peace making until the late 18th century. The peace makers at Münster not only drew on the text of the Antwerp Truce of 1609, but also on the learning experience from the execution phase of that treaty, which had been crystallized in the interpretative agreement of The Hague of 7 January 1610.

The key clause relating to private property in the Münster Peace Treaty was Article 24. It was taken almost word for word from Article 13 of the Antwerp Treaty of 1609, but with the amendment made to it by Article 6 of the interpretive treaty.

The clause provided for the restitution of all goods that had been ‘seized and confiscated’ because of the war to their original proprietors or their heirs. This first and foremost extended to goods that had been confiscated or sequestered by government order but, theoretically, also applied to plunder and loot. It ruled that the former owners or their heirs could take their property back without having to resort to the courts and voided all decisions that had been taken by the former enemy with regard to these goods. The article also allowed the owners to sell or otherwise alienate the returned property.

In this respect the clause differed from the original text of Article 13 of the Antwerp Truce, which had made such action conditional upon the permission of the government of the land where the goods were situated. The prohibition on selling returned property without permission derived from the logic of a temporary truce. The truce suspended the state of war and thus the wartime measure of confiscation was lifted. But the question of final ownership was left in the balance as the eruption of new hostilities could lead to new seizures and a different outcome at the permanent conclusion of the war.

Nevertheless, in January 1610, under pressure from noble and other estate owners from both sides, diplomats from the Dutch Republic and the Spanish Netherlands lifted the prohibition on selling returned goods without permission. Although the lifting of this prohibition clashed with the legal nature of the truce, it was exactly the temporary character of the restitution which induced owners to sell off their lands in enemy territory and led them to lobby for the unrestricted right to do so. In the draft of 71 articles, which the Dutch diplomats had brought in on 17 May 1646 when negotiations still aimed at a truce, the text of 1610 had already been integrated into the restitution clause that became Article 24 of the Münster Treaty.

Apart from Article 24, the Münster Peace Treaty included a very similar article which expressly applied the same principles and rules to ecclesiastical goods and benefices (Article 43). This too was taken from the Antwerp Treaty (Article 20).

Among numerous clauses which further detailed the rules and extent of restitution, the Antwerp and Münster Treaties also included two major exceptions to the principle of the restitution of seized and confiscated property. Articles 31 and 32 of the peace treaty covered the case of property that had been sold by the treasury of the confiscating government during the war. The first of these articles ruled that in such instances the former owner could not reacquire his property, but was to receive an annuity of 1/16 of the property’s price. However, according to Article 32, if the sale of the property had been ordered by the judiciary to settle a debt of the original owner, he did not hold a right to compensation through an annuity but could buy back the property from its new owners. Again, these articles were copied from the Antwerp Truce (Articles 15 and 16) and the interpretative agreement of 1610 (Article 10).

The second exception was far more important. It excluded from the restitution all personal property and movables as well as all income gained on realty during the war. This, like the previously described provisions, became one of the guiding principles of early-modern peace-making law. The exception was retained in Article 54 of the Münster Treaty and was literally taken from Article 25 of the Truce of 1609.

The different treatment of immovable and movable goods was dictated by practical concerns. Whereas the restitution of estates, lands, and houses was feasible albeit far from easy and straightforward, the identification, return, or value assessment of movable goods that had been seized or plundered would have been nearly impossible and would have led to endless disputes.  Moreover, there was also a legal logic underneath the distinction.

This logic came from the old Roman law doctrine of postliminium. Under classical Roman law, the ius postliminii implied that a Roman citizen who had been taken captive by the enemy lost all his rights, including his citizenship and property, but regained them upon his return (Digest Early-modern writers on the laws of war and peace such as Balthasar de Ayala (1548–1584) and Alberico Gentili (1552–1608) applied this rule to land and immovables which had been confiscated or taken by the enemy. Gentili argued that a landowner could not be reproached for surrendering his land to the enemy because of the impossibility of moving the land to safety. As the ius postliminii could only be granted for losses that had been suffered involuntarily, this implied e contrario that movables that had not been taken to safety and were captured by the enemy would not be returned to their original owner.

Whereas the distinction between real and personal property could thus be explained by reference to the traditional doctrine of postliminium, the doctrinal foundation for the general principle of restitution itself was found in the just war theory and its use by states for the justification of war. Among the main writers on the law of nations from the 17th century, Hugo Grotius (1583–1645) was the clearest on this point. Throughout the Early Modern Age, princes and governments continued to invoke the just war doctrine to justify the resort to force and war. Declarations and manifestos of war generally applied the discourse of just war in explaining the war as an action to enforce rights which had been violated or denied by the enemy. Under the discriminatory logic of just war, this meant that the enemy had no right to wage war and did not benefit from the laws of war, which granted almost limitless rights to cause damage to the enemy, and that the enemy was thus liable for all costs and damages pursuant to the war. According to Grotius, the confiscation of enemy goods was a measure to guarantee financial compensation for these costs and damages after the war.

If the claim—generally made by each side in a war—that the war was just on one side was the basis for the confiscation of property, the surrender of that property in the peace treaty collapsed this basis. While the discourse of just war dominated justification of war at its inception, it did not play a role in peace treaties. With a single exception, early modern peace treaties between sovereign powers did not render a verdict on the responsibility for the war. They applied the logic of legal or formal war—bellum solemne with Grotius—under which both sides had a right to wage war and benefited from the protection of the laws of war. This found its expression in amnesty clauses, whereby all wartime actions were acknowledged to have been legal and the compensation for the damage they had caused was waived. The restitution of confiscated property followed from there.  As confiscations were generally made under the pretext of a guarantee for compensation of war damage, the amnesty clause undermined their legal basis and made restitution the natural outcome. Later peace treaties would better express the logical sequence between amnesty and restitution as the restitution clauses were often placed close behind the amnesty clauses (eg the Treaty of Peace of Nijmegen [Nimeguen] between France and the Dutch Republic, 10 August 1678, Article 5, 14 CTS 365) or were integrated with the amnesty clauses in a single article (eg Treaty of Peace of Aachen [Aix-la-Chapelle], 18 October 1748, Article 2, 38 CTS 297).

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).
Alberico Gentili, De Iure Belli libri tres (1598, text of 1612, Classics of International Law, Oxford/London: Clarendon Press/Humphrey Milford, 1933) 3.17.
Hugo Grotius, De Iure Belli ac Pacis libri tres (1625, text of 1646, Classics of International Law, Oxford/London: Clarendon Press/Humphrey Milford, 1925) 3.2.20, 3.13.2-3,, and
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.