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sided over by Monsieur Dinichert or one of his secretariat, a neutral; diplomatic courtesy characterized their procedure; they were often disputatious and argumentative to a degree; occasionally they were at high tension; but they were not always funereal and totally devoid of humorous features; not infrequently we smiled, and once in a while we laughed out loud, thus dissipating a surrounding atmosphere that threatened to become too highly charged. For example, our German conferees could not conceal their amusement over the "animate vectors" mentioned in Article 7, Section III, of our draft; by appearing to join in that amusement and good-humoredly yielding to their objection to that particular descriptive expression of disease carriers, we gained the point of incorporating the substance, if not the form, of this article in the agreement.
It is with a sense of no little satisfaction that we compare and check off side by side and item by item the original American proposal and the completed joint agreement. Not one single essential feature of the former fails of incorporation in the latter.
NOTE. The author has in his possession a quantity of original notes and memoranda, personal and official, pertaining to the Conference. He would be more than glad to discuss with any interested reader any particular point that may have been suggested by the foregoing account.
DIPLOMATIC PROCEDURE PRELIMINARY TO THE CONGRESS OF WESTPHALIA
DURING the negotiations leading up to the Congress of Westphalia a considerable number of problems of diplomatic procedure arose which occasioned serious delays in the conclusion of peace. The convoking of a general peace congress of the majority of the European states was a new departure in international practice; and in view of the great differences of these states in religion, politics, interests and language it was necessary to reach preliminary agreements on procedure before the actual work of making peace could begin. These agreements were not easily and quickly made; and the eight or nine years of negotiations which preceded the Congress of Westphalia are a good illustration of the fact that the diplomatic practice of today is the result of an evolutionary process.
The corps diplomatique did not take form until the end of the fifteenth century; and for a century and more following its appearance, ambassadors and statesmen consumed a large part of their time in wranglings over the proper mode for conducting diplomatic business or the proper courtesies to be observed in international inter
These wranglings and disputes were characteristic of the age. Form and ceremony had lost little of their mediæval significance. Consequently at a time when diplomatic precedents were in the making, and when the formalities and ceremonies of diplomatic practice had not become stereotyped, the foreign representatives of princes and republics were rightly cautious in taking any step which might result in a loss of the dignity or prestige of their respective states, or which might constitute an unintentional admission of the disputed claims of rival monarchs. The theoretical or ceremonial equality of states as now recognized in international law was by no means
established, and the contest for pre-eminence among the crowns of Europe embittered national feelings and embarrassed the work of diplomats. The Holy Roman Empire, whose jurists had so positively claimed for it a universal jurisdiction, was crumbling into smaller units; princes and estates within the Empire, technically subordinate but practically independent of the Emperor, added to the diplomatic confusion by their demands for direct participation in international affairs; while the situation was further complicated by the cleavage of religious dissensions, which divided the diplomatic field into two camps.
Thus questions of procedure in the first half of the seventeenth century offered an excellent excuse for any obstreperous state to delay peace negotiations. More than this, these questions were formidable obstacles to the conclusion of peace even among belligerents genuinely desiring to end a war.
I. GOOD OFFICES AND MEDIATION
The approved usage of nations has long sanctioned proposals by a neutral state to assist in the amicable settlement of the international disputes of other states. These proposals may be in the form of an offer of good offices, whereby the neutral state will serve simply as the medium for an exchange of demands between the disputing states. Or the proposal may go as far as an offer of mediation, which, if accepted by both disputants, may entitle the neutral state to preside over and direct the negotiations for a pacific settlement. Such is the precise distinction between good offices and mediation made by modern authorities on international law. The jurists of the seventeenth century, however, were not so explicit in the use of these terms. International law was in its infancy and the vocabulary of diplomacy had not yet assumed the accuracy and precision which was to characterize it in a later period. Legal scholars, like Hugo Grotius, who prided themselves on their classical learning, were loath to invent new terms not found in the Latin of Cicero and Livy, and consequently they employed a variety of words and awkward phrases to express ideas which a later generation were to condense into a single word with a technical meaning. Even in the time of Grotius
the diplomatic vocabulary had adopted the term mediation. since the word was not to be found in the language of the classics, the learned author of De jure belli ac pacis, who as Swedish ambassador at the court of France made a practice of decorating his official correspondence with choice selections from the Latin poets, scorned to make use of the current expression, and employed such phrases as conciliatio, arbitrium, ad reconciliandos, and pacificationis negotium, without maintaining any difference between them.1
On the other hand, Bogislav Chemnitz, whose celebrated history of the Swedish intervention in Germany was published in the year 1648, and who made frequent use of the word mediation, appears to have discriminated between an accepted and an unaccepted offer of the diplomatic services of a third state in the settlement of an international dispute. The former act he called an interposition; while, if the offer was accepted, the ensuing process was called a mediation.2 As to the phrase good offices: This term is found in the diplomatic documents of the Thirty Years' War, but the jurists of the seventeenth century made no effort to set it off from mediation. Perhaps
1 Rikskansleren Axel Oxenstiernas Skrifter och Brefvexling: Grotii epistolæ ad Oxenstierna, II, ii, 104, 228, 257, 320, 338, 343; Hugonis Grotii epistola (Amsterdam: 1687), ep. 496, 636, 671, 722, 745, 754. Grotius confused arbitration and mediation in his De jure belli ac pacis, lib. II, cap. xxiii, 7-10; lib. III, cap. xx, 46-49.
2 Chemnitz, Königlichen Swedischen in Teutschland geführten Kriegs (Stettin: 1648), I, 28, 33; II, 28, 29, 142, 938. The jurists of the age of Louis XIV and of the eighteenth century laid stress upon the matter of the acceptance of an offer of mediation as a prerequisite to the act. Compare Samuel Pufendorf, De jure naturæ et gentium (1672), lib. V, cap. xii, 7; Johann Wolfgang Textor, Synopsis juris gentium (1680), cap. xx, 51; Abraham de Wicquefort, L'Ambassadeur et ses Fonctions (1682), II, cap. xi; Francisco Schmier, Jurisprudentia publica universalis (1722), 307; Nikolaus Hieronymus Gundling, Jus naturæ ac gentium (1751), cap. xxiv, 45; and his Discours über das Natur- und VölckerRecht (1734), cap. xxxv, 144; Johann Gottlieb Heineccius, Elementa juris naturæ et gentium (1738), lib. II, cexxi; Johann Justin Schierschmid, Elementa juris socialis et gentium (1743), 551; Christian Wolff, Jus naturæ methodo scientifica pertractatum (1741-1748), V, 923; Henrici de Cocceji, Grotius illustratus seu commentarii ad Hugonis Grotii De jure belli ac pacis (1744-1747), II, 662; III, 420; Samuel de Cocceji, Introductio ad Henrici de Coceccii Grotium illustratum (1748), 509.
3 In the Treaty of Hamburg negotiated between France and Sweden in 1638,
they had enough to do in establishing the difference between mediation and arbitration. In the second half of the eighteenth century, Johann Moser pointed out, that the French Government in its correspondence of 1742 with Russia over the question of facilitating an amicable settlement of Russia's dispute with Sweden, had laid down the fundamental distinction between good offices and mediation which has since then been generally accepted.*
It was not for lack of offers of good offices and mediation by neutral nations that the Thirty Years' War was prolonged. In fact, it will not be too much to say that during no other war in the modern age has greater activity been displayed on the part of non-belligerent states in offering their services to effect a cessation of hostilities and to bring about preliminary negotiations for peace. Prominent among these peace-seeking powers should be named Denmark, Venice, England and the Papacy, all of whom were eager to play the rôle of mediator, if not the rôle of "arbiter of Europe." In 1629, when making his peace with the Emperor, Christian IV of Denmark undertook to the Latin term officia (translated by bons offices in the French collection of Frédéric Léonard published in 1693) is employed with the term opera, but even here I do not believe that we find a conscious attempt to separate good offices from mediation. "VII. Et quia ad tractatus cum hoste instituendos et Rex Christianissimus et Serenissima Regina Sueciæ crebis amicorum Principium officiis invitantur, ne quid in se desiderari possit honestas pacis universalis conditiones numquam recusaturis, quantocyus notum mediatoribus faciant sibi esse decretum de pace induciisve non nisi conjunctim agere, nihil absque mutuo consensu pacisci, et utramque causam simul et eodum momento pertractare, ut ipsi Mediatores suam operam et sua officia eo dirigant."-Hallendorff, Sverges Traktater med Främmande Magter, V, ii, 426. The Latin text is also found in Londorp, Acta publica, IV, 689; and Bougeant, Histoire des Guerres et des Négociations qui précéderent le Traité de Westphalie (Paris: 1767), I, 314. The French text is in Léonard, Recueil des Traitez de Paix, V; Bernard, Recueil des Traitez, III, 385; Dumont, Corps Diplomatique, VI, 161. Compare the following extract from the dispatch of Mazarin to d'Avaux and Servien on June 14, 1644: “Il n'omettra pas aussi d'assurer ledit Roi, que le Roi a resolu d'employer ses offices auprès du Duc de Transilvanie, pour empêcher qu'il n'entreprenne rien contre la Pologne."-Le Clerc, Négociations secrètes touchant la Paix de Munster et d'Osnabrug (1725), II, 68.
4 Versuch des neuesten Europäischen Völker-Rechts in Friedens- und KriegsZeiten (1777-1780), VIII, 422. Yet Vattel failed to observe the difference in 1758. Compare his Droit des Gens, liv. IV, chap. ii, 17.