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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." 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.


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.

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In conclusion, we should observe that the period of the Thirty Years' War served as a laboratory for the jurists of the latter half of the seventeenth century, who began to develop the science of international law along empirical lines. Particularly, the period of eight or nine years of negotiations for peace which preceded the Congress of Westphalia afforded a large number of precedents and cases in diplomacy and law similar to those which Zouche, Textor and Wicquefort employed to illustrate their texts, and which in time crowded out the classical and biblical allusions of Victoria, Suarez, Gentili and Hugo Grotius. In the matter of diplomatic procedure, the various problems connected with mediation occupied a large part of the attention of the diplomats. Numerous offers of good offices and mediation were made by the neutral Powers,-Denmark, Venice, England, the Papacy, and many lesser states. The ensuing struggle on the part of Richelieu to prevent these offers of good offices and mediation from wrecking the Franco-Swedish alliance, the difficulties arising out of the Papal refusal to mediate between the Catholic and Protestant Powers, the delicate task of ousting the King of Denmark as a mediator at Osnabrück after he had become a belligerent, and the quarrel over the personnel of the mediators and the peace delegations, gave rise to a considerable number of diplomatic precedents. Throughout these negotiations the policy of Richelieu moved steadily toward the goal of a universal peace congress, and in the end his great purpose was achieved. The Congress of Westphalia was thus the first of the general conferences in which the majority of European Powers were represented. The practice of negotiating in diplomatic assemblies was not, however, a new procedure, as witness, for instance, the Congress of Cateau-Cambrésis in 1559. Even the term congress was already found in the diplomatic vocabulary; and the custom of neutralizing the seat of a congress had previously been established. The holding of the Congress of Westphalia simultaneously in two towns thirty miles apart was the result of the Papal policy of intolerance toward the Protestant Powers and of the well-founded fear of the Swedes regarding the overbearance of France in the peace negotia

tions. No general truce preceded the congress. The proposal of the Pope for a truce and the contention of the French that a suspension of arms must necessarily precede a peace congress, did not carry the day. Throughout the sitting of the Congress of Westphalia, the armies of the belligerent states actively continued their hostile operations. Numerous other details of diplomatic procedure, such as the form of the safe-conducts, and the question of the equality of states in the assembly, hindered the making of peace.

The eight or nine years of negotiations preliminary to the Congress of Westphalia cannot properly be separated from the four years of negotiations at the congress itself, although it is convenient to consider them apart in a study of diplomatic procedure, for the purpose of inquiring into the problems involved in the calling together of the first great congress of the European Powers. Of course, throughout this period, the chief obstacles to peace were the eagerness of the belligerents to support their claims by force of arms and the demand of Richelieu for a universal congress. For nearly a decade the Imperialists desperately fought this demand. If they could have broken the Franco-Swedish alliance, or if they could have driven the French and Swedish armies out of Germany, the Thirty Years' War would have had a different ending. The final adoption of the French program for a general peace congress was a brilliant triumph of French diplomacy over the Hapsburg policy of Divide et impera. Although the various belligerents took advantage of every question of procedure with the intention of retarding such peace negotiations as did not appear to be for their own interest, yet, on the other hand, these problems constituted in themselves a very real hindrance in the way of the pacification of Europe. KENNETH COLEGROVE.






Downes v. Bidwell.80 This is really the most important judgment in all the Insular Cases so far as a determination of the present status of Porto Rico is concerned. It is interesting because in it the now famous doctrine of non-incorporation is developed. It will be well, however, to state at the outset that in this case there was no majority opinion of the court and that the decision was reached merely by the concurrence of a majority of the judges in what is styled in the syllabus of the case as the conclusion and judgment of the court.

In view of the great diversity of opinion evinced by the judges in this case, as will later appear, it was regarded at the time by very able lawyers and commentators of note as a very doubtful precedent which the court might not feel in the future bound to accept as the settled law of the land. So far, however, it has stood the test of time, and although the recent passage of the so-called Jones-Shafroth Act, extending to Porto Ricans a large measure of self-government and the privilege of American citizenship,81 seemed to reopen the question of the juridical status of Porto Rico and require the rejection or modification of the doctrines laid down or relied upon in this important decision, its conclusions have been affirmed and ratified and are largely * Continued from previous numbers of this JOURNAL, Vol. IX; pp. 883 et seq.; Vol. X, pp. 65, 312.

80 182 U. S. 244.

81 Public No. 368, 64th Cong. The text of this law will also be found in the Supplement to this JOURNAL, Vol. XI, pp. 66-93; see "Some Historical and Political Aspects of the Government of Porto Rico," in The Hispanic-American His torical Review, Vol. II, No. 4.

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