I. The Genesis, Composition, Procedure, and Goals of the Congress

The Peace Congress of Westphalia was intended to end four great military conflicts in Europe: the war between France and Spain (since 1629 or 1635 respectively), the wars between the northern Netherlands and Spain (since 1568 or 1621 respectively), between France and the Emperor together with a part of the imperial estates (since 1629 or 1635 respectively), and the war between the Emperor and another part of the imperial estates allied with Sweden (since 1630). The political name for the hoped-for results was "pax universalis", i.e. "universal peace", or "pax generalis". This goal was not achieved in 1648: a peace between France and Spain did not come about. However, a peace treaty between Spain and the Netherlands which ended the Eighty Years' War [1] was signed in Münster on 30 January 1648. It was followed on 24 October 1648 by the signing of the two treaties between the Emperor and Sweden [2] and between the Emperor and France, [3] which ended the Thirty Years' War and which we call the "Peace of Westphalia". An intelligent observer termed it a true "wonder of the world" that at least these three treaties were successfully concluded. [4] And indeed, there is no precedent in European history for a process as tortuous as the peace conference of Westphalia. The particular complexity of the events of 1648 becomes understandable if we examine the genesis of this assembly of diplomats.

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In the era of the Thirty Years' War, military operations rarely interrupted the continual attempts of nearly all the warring parties to make political contacts with one another. This was dictated by moral precept as well as by reasons of state. A condition of peace as the basic norm of state relations between the Christian powers of Europe was generally not questioned even in the era when denominations were being formed. Regardless of this fundamental Christian commandment of peace, it was clearly understood by nearly every party to the military conflict that it was in its political interest never to break the line of communication with the enemy (or enemies), so as to be prepared for any eventuality in the imponderables of future successes or failures on the battlefield. Each one professed to be in principle ready for peace - if his conditions were met. Constantly sounding these out required continuous bilateral or mediated contacts between the warring powers. Thus it was in the Thirty Years' War as well. The negotiators of all five great powers had long been holding exploratory political peace talks in Osnabrück (Sweden and the Emperor) and in Münster (France, the northern Netherlands, Spain, and the Emperor) before they began substantial negotiations in Westphalia: France and Sweden with the Emperor on 11 June 1645, Spain with France on 21 March 1646, and the Netherlands with Spain on 13 May 1646.

Thus Spain and the States General had already bilaterally discussed the prospects and conditions of ending their excessively long war several times since 1628. The same was true of the negotiations and contacts of the Emperor with France from 1630 onward. Similarly, after the Peace of Prague of 1635 (which affected most but not all of the imperial estates and left others dissatisfied) the Emperor had negotiated with Sweden, in part directly and in part via third parties. Most strikingly, before and after the French declaration of war against the Habsburgs in 1635 there had been a series of bilateral attempts on the part of Paris and Madrid to reach an understanding through secret diplomacy. These efforts were concealed from the politically interested public as much as possible and have had to be painstakingly reconstructed by modern historians. In the meantime, a great general peace conference had been publicly discussed since 1634. The key term was, as has already been mentioned, pax universalis.

The concept of such a conference originated with Pope Urban VIII (reigned 1623-1644). Like many of his predecessors since the 15th century, Urban VIII regarded his role in the family of Western states not as that of a ruler but as the padre commune, or father of all. Under the circumstances of the age of denominational conflict, this role entailed the special moral duty of settling the conflicts between the Catholic dynasties, especially that between the two Habsburg lines and the house of Bourbon. Since 1634 Rome had offered them its services as an intermediary (rather than as an arbiter). In principle, neither Madrid nor Vienna nor Paris could refuse this offer, for the papal office's special duty to use its influence to sway these great powers toward peace was a self-evident element of all foreign policy in Europe.

However, Cardinal Richelieu (1585-1642), Prime Minister of France since 1624, by no means wanted to confront both lines of the house of Habsburg at a peace conference without the presence of all his allies. He had resolutely defended these maxims even against the Pope, even though this placed him under considerable pressure to justify his position. For his most important allies were Protestant powers, above all Sweden (since 1631) and the States General of the Netherlands (since 1624/35), as well as Bernhard von Weimar and Hessen-Kassel (since 1635/36). [5] These powers rejected the Pope as an intermediary, nor did the Pope wish to be available in his official capacity for talks with heretical powers. Thus an alternative had to be found so that they could participate in the conference. This alternative consisted in transferring the role of mediator between Catholic and Protestant states to another neutral power, namely Venice.

At this point in the autumn of 1636 the congresso per la pace universale was to begin its work in Cologne. A papal Cardinal Legate came with a large entourage, and the imperial and the Spanish delegations soon arrived. But this "Cologne Congress" was never opened because Richelieu, citing a series of different reasons, repeatedly postponed the arrival of the French negotiators. The pretext he used was the diplomats' alleged or actual need for passports in order to attend the conference. The issue raised was twofold:

- who should be granted a letter of safe conduct, and

- how should the function of the letter's bearer at the future conference be officially described in this document?

In political terms this meant that the issuance and acceptance of these travel documents, which would be personally signed by the monarchs, would predetermine an important part of the future peace treaties. Therefore the problem of the passports became a paramount issue in European politics for years; and therefore the Cologne Congress, with a parallel congress in Lübeck/Hamburg that was established in 1638 for negotiations between the Empire and Sweden, never got under way. The participants haggled over the terms to be used in the letters of safe conduct.

Words and documents were only the superficial cause of this quarrel. Beneath them lay clear political goals; the quarrel over the passes was a strategy of war. Thus the changing demands and concessions reflected the quickly changing scenes of the theatre of war, in whose German sector Sweden and then France had clearly won ground since 1638. On the other hand, in 1640 the Spanish monarchy was confronted with formidable problems in regard to its future acquisition of resources, first by the Catalan rebellion and then by the defection of Portugal, which had since 1580 brought its vast colonial possessions into the Castilian empire.

This is the political background of the preliminary treaties of Hamburg of 25 December 1641, which were intended to define the organizational framework of the peace conference of Westphalia. The Emperor, negotiating for Spain as well as himself, through the mediation of Denmark came to an agreement with France and Sweden on three points:

1. who should receive a pass from whom and for what function within the future or current congress; a special clause permitted the participation of the Emperor's opponents within the imperial estates;

2. that the separate congresses of Cologne and Lübeck/Hamburg should be regarded as a single peace conference, [6] which should be transferred to the neighbouring cities of Münster and Osnabrück to facilitate their activities; both of these cities should be declared neutral territory until peace had been concluded.

France had already agreed in the summer of 1641 to this transfer and merger in the convention extending its military alliance with Sweden. [7] This was a tremendous success for French diplomacy. In this manner it had formally included the great powers that were its allies, Sweden and the States General, in its own peace negotiations. In the event, however, this did not prove to be an adequate deterrent to the signing of separate peace treaties.

3. A precise date was agreed upon for the beginning of the conference: immediately after ratification on 25 March 1642. However, the ratification did not take place until 3 April 1643. Thus the conference was scheduled to begin on 11 July 1643.

In Hamburg, however, no armistice for the duration of the peace negotiations was agreed upon. Attempts were made to reach such an agreement several times in the course of the congress, but none of them were successful. The military operations were not ended until the peace treaties were signed. [8] All of the stipulations of the peace treaty were agreed upon while the war itself continued.

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Today the word "congress" is taken to mean a meeting that includes plenary sessions of all participants, held as a rule at the beginning and the end of the conference. There was never a "plenary session" of this kind either in Osnabrück or in Münster. This is one reason why the question of when the peace conference of Westphalia "began" and "ended" cannot be answered simply by naming two specific dates. Rather, the "conference" began via facti, through the successive arrivals of the envoys in the years 1643 till 1646, and it ended in a similarly unspectacular way through the departure of the negotiators between 1647 and 1649. The largest number of diplomats present was probably in the period from January 1646 to July 1647. [9] A total of 109 delegations participated in the peace conference of Westphalia and negotiated with, alongside, and against one another. [10] Sixteen European states were represented by them. In addition, 66 envoys of the imperial estates and 27 other representatives of various interest groups in the imperial territories were present in Münster and/or Osnabrück. In many cases they also represented the vote of other imperial estates, which thus saved themselves the expense of having their own representatives; or they looked after the affairs of other interested parties as their representatives. Thus a total of 140 imperial estates and 38 other parties were represented at the congress either by their own envoys or by those of other parties.

This broad representation of the imperial estates went far beyond the Hamburg agreements of 1641. Insofar as a quasi-Imperial Diet had established itself alongside the representatives of the great powers, the framework and the goal of the peace conference were naturally very much altered. The "congress of universal peace" retained its goal of ending the wars between the great powers, but it also took upon itself the additional task of amending the constitution of the Empire. This was the result of the massive political pressure exerted by the victorious powers Sweden and France in the years 1644/45 on the stubbornly and lengthily resisting Emperor, who had surrendered step by step after a catastrophic defeat at the hands of Swedish troops near Jankau in Bohemia (6/7 March 1645). In the end, in view of his desperate military situation he was forced on 29 August 1645 to summon all of the imperial estates to a peace congress and, in doing so, to relinquish his right under international law to be the sole representative of the Empire. Many, though not all, came. Thus the originally planned conference of diplomats of the five great powers (with their allies and adherents), which would have permitted a fairly good general overview, was transformed into a mammoth congress. This colourful assemblage is reminiscent of a General Assembly of the United Nations of today, where the global superpower USA sits beside a dwarf state like Mauritius. And they were no longer arguing solely about the politics of the great European powers, but also seeking the most lasting possible solutions to highly complicated disputes over the constitution of the Empire. This heterogeneity was what Contarini was referring to when he spoke of a "wonder of the world".

The "invitation" (as it was then called) of the imperial estates to participate in the negotiations in Münster and Osnabrück at meetings similar to the Imperial Diet was the first important political result of the peace negotiations of Westphalia. To be sure, this is not mentioned at all in those passages of the preamble to the treaties with the Emperor that refer to contemporary history. These passages refer solely and explicitly to the Hamburg treaties of 1641 as the framework of the peace conference in terms of contractual law. Nonetheless, the inclusion of the imperial estates in the treaties was a step that had far-reaching consequences. Previously, the Emperor together with the Electors had been responsible for the Empire's foreign policy; the Emperor alone had engaged in peace negotiations and signed peace treaties. The "admission" of all of the imperial estates to the peace conference meant in fact sharing with them the right to decide on war and peace for the Empire, in any case as far as the Peace of Westphalia was concerned. For this reason, they also participated in the signing of the treaties on 24 October 1648, although their presence in Westphalia was "actually only an ornamental accessory" to the great powers' conflicts over power politics. [11]

II. The Negotiation Procedures of the Great Powers

Only a part of the great powers' negotiations fit the model of negotiation advanced by the preliminary negotiations in Hamburg. According to this model, everything always had to proceed by means of intermediaries according to the schema: Party A communicatess to the intermediary - verbally or in writing, with a variable degree of commitment if necessary - its position on Problem X, and Party B gives an answer to this which will be relayed to A in the same manner, etc. Thus the adversaries never face one another directly, not even under the auspices of the intermediary, but instead deal with one another only indirectly through the intermediary. Negotiations are conducted in a triangle.

This was the model prescribed in 1641. However, in Osnabrück the intermediary, Denmark, was never able to initiate the negotiations, for in December 1643 Sweden declared war on the Danish King Christian IV (1588/96-1648) before the Swedish delegation had completely assembled at the congress venue. [12] Thus the Danish king's mediation had the ground cut from under its feet. Even after a peace treaty was signed by the two Nordic powers (on 23 August 1645) a Danish mediation was not revived. For Sweden in principle attached no value whatsoever to mediation in peace negotiations, preferring direct negotiations with the representatives of the Emperor and the imperial estates. The negotiations between Spain and the Netherlands in Münster also took place without intermediaries. Both sides knew what they wanted, and neither Spain nor the States General desired the interposition of a third party when clarifying still unresolved matters of dispute or changes in the peace objectives. Understandably, they were the first to reach the desired outcome of their negotiations. [13]

France was a different case. Its negotiations with the Emperor proceeded solely through the two mediators, the Papal Nuncio Chigi [14] and Ambassador Contarini; the same was true of its negotiations with Spain. Between the early autumn of 1646 and the spring of 1647, and once again from the end of 1647 until the summer of 1648, the States General also intervened as mediators in the treaties between France and Spain. The negotiations now took place not in a triangle but in a rectangle.

As a result of this procedure the French and the Spanish delegations never sat down together at the negotiating table and the French and the Imperial delegations did so only three times, [15] although they stayed in Münster simultaneously for five years. To be sure, there were direct contacts between the leading politicians of the three delegations, though these were neither frequent nor regular. [16] They might yield significant developments and certainly were not a waste of time. But in terms of contractual law they were private affairs. For this reason, in the terminology of the documents they were clearly distinguished from the formal (and "official") congressus through the use of the diplomatic concept of discursus.

The merging of the congress proceedings that was agreed upon in 1641, in which France had such a vital interest, was not facilitated by the actual working method of the peace conference, especially since the five great powers started out from very different respective interests and legal positions. Sweden was not at war with Spain but only with the Emperor and parts of the Empire, and on questions concerning the imperial constitution it was always obliged to take into account its Protestant clientele in the imperial estates. For Catholic France, keeping pace with Sweden and tolerating its policy toward the different denominations required constant and often strenuous efforts, which at times strained its endurance to the breaking-point. But these efforts finally made possible the simultaneous signing of the peace treaties of Münster and Osnabrück in 1648. This strategy did not work with the States General. The longer it took their ally France to influence them in their fundamental and specific decisions, the less could they be persuaded to move toward a coordinated policy at the congress. Incidentally, the States General were not formally at war with the Emperor or the Empire, so they needed no peace treaty with them. For this reason, they did not leave the national federation in 1648, as one can still read in many sources today. The Peace of Westphalia contains not a single word about the Netherlands' position in regard to the Empire in terms of constitutional law. [17]

Because Spain was also not at war with Sweden, it did not participate in the negotiations in Osnabrück. On the other hand, in September/October 1648 it was unable to prevent Vienna from signing the Peace of Münster, spectacularly abandoning the older line of the Habsburgs and thus fulfilling one of France's most important war objectives. To be sure, the possibility of this separation had been apparent since 1645, but it was by no means a certainty. Obviously neither Madrid nor Vienna marshalled all the means at their disposal to agree on and consistently implement a truly joint policy at the congress towards France. Thus at the peace congress of Westphalia the house of Habsburg as a whole had no unified policy in regard to war objectives. Finally it became inevitable for the Emperor to opt for the Peace of Münster, which forbade him as head of the Empire and Archduke of Austria to give any future military aid to his cousins in Madrid, [18] because otherwise the imperial estates threatened to sign the treaty without the Emperor and he would thus have put the imperial throne at risk as well.

In contrast, Spain continued its war with France after 1648. Indeed, both powers had agreed to the nearly complete text of a peace treaty in 1648. In the end, all that was still required were clauses concerning the fortification of Nancy, the capital of Lorraine, and the precise delimitation of the Spanish cessions at the northeastern, southeastern, and southern borders of France - points of secondary and tertiary political significance. But when these points alone remained in 1648, neither of the two sides was willing to concede even one more inch. Why? France felt strong enough, despite the impending Fronde, to still bend Spain to its will. Indeed it did manage to do so in 1659. But Spain's decision in 1648 to continue its war against France was also not an irrational act of folly. Was Spain not still regarded as the most powerful monarchy of Europe? This gigantic empire with its vast resources in Europe and overseas seemed to be less threatened in the summer of 1648 than was the French monarchy with its child-king, [19] state bankruptcy (on 18 July 1648), and barricades in its capital Paris from 26 until 28 August 1648 as a prelude to the Fronde.

The failure of the two Catholic monarchies, France and Spain, to sign a peace treaty in Münster in 1648 was a matter of the gravest significance for all of the European states. The year 1648 brought a certain pax generalis only for the Old Empire, but not for all of Old Europe. [20] Contarini pointed this out to the French representatives most clearly at the official congratulatory reception on 24 October 1648. [21] Thus the three peace treaties of Westphalia of 1648 did not initiate an era of secure peace for Christianity as a whole. [22] Outside Germany the warfare continued. In eastern, northern, southern, and western Europe during the 1650s the world of the states was still, or once again, in flames.

In this turbulent world the Old Empire became and remained an island of relative peace, at least for the moment and not without exceptions. [23] After 1648 the political community of the "Holy Roman Empire of the German Nation" was unable to implement an offensive power policy either at the organizational level or in response to current developments. However, in the Peace of Westphalia it did not disintegrate into countless large, middle-size, small, and tiny powers and polities that were totally independent of each other but still unmediated parts of the Empire. [24] Rather, it remained in its internal structure a more or less functioning association, bound by law and peace, until the time of Frederick the Great (reigned 1740-1786). However, it failed as a defensive association in the task of protecting imperial territory from the aggressive foreign policy of Louis XIV. But it would be hasty to ascribe this later failure solely and inevitably to the constitutional settlements laid down by the Peace of Westphalia. The history of the defense of the Empire after 1648 did not proceed along a one-way street.



III. The Amendment of the Imperial Constitution

The inclusion of the imperial estates in the peace negotiations made the processes of developing a consensus and reaching decisions much more difficult and slower for the peace congress, for an Imperial Diet was a complicated institution with elaborate procedures. It consisted of three collegia for three different estates. At the top of the hierarchy of imperial estates was the council of seven Electors, [25] followed by the curia of (about 70) spiritual and secular rulers, including the imperial prelates, counts, and lords, who had no individual votes. Finally, the third curia included the more than 60 imperial cities, of which 39 signed the Peace of Westphalia. The Council of Rulers established itself, after difficult debates and taking Sweden into consideration, in the summer of 1645 in Münster as well as in Osnabrück. Both parts were to negotiate separately and vote together, whereas the Council of Cities was de facto an Osnabrück body and the Council of Electors generally negotiated in Münster. [26] Incidentally, a formal "imperial consideration" [27] required the unanimous vote of at least the Council of Electors and the Council of Rulers. [28] But in questions of religious law the three collegia of the Imperial Diet were less significant than the denominational groups that had emerged and cut right across them, the Corpus Evangelicorum (whose main meeting-place was Osnabrück) and the Corpus Catholicorum (whose main meeting-place was Münster). Both of them existed de facto rather than officially or in terms of constitutional law, and they had become customary even before 1555. Thus the 140 imperial estates represented in the Peace of Westphalia were associated with six different institutions, four pertaining to estates and two to denominations. In each of these collegia the leading role in developing a consensus fell to experienced jurists, because imperial politics as well as denominational politics was nearly always a matter of applied ius publicum and/or ius ecclesiasticum, that is to say, a dispute over the law. For this reason procedural issues carried particular weight, here as well as in deliberations concerning the constitution.

The amended imperial constitution of 1648 regulated a variety of matters: its central portion dealt with imperial religious law; another dealt with the freedom of transit and trade, the customs system, general law of contract, and, not insignificantly, an incomplete list of important areas of jurisdiction of the imperial estates in internal and foreign policy.

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Since the "admission of the imperial estates" the general political rights of the territorial rulers, the iura statuum, had ceased to be the focus of the debate for those negotiating in Osnabrück and Münster. Indeed, only twenty years later these constitutional regulations were derisively criticized [29] by a jurist who was later to become famous. But only since the 19th and 20th centuries - periods in which the model of the powerful, institutionally-organized nation-state was held to be the only correct historical criterion of value - have they been interpreted as virtually the distinctive (and damnable) element of the Peace of Westphalia. In the course of the peace negotiations at that time they did not play a large role; in any case, they were not very controversial in the final text of the treaty. [30] At the wish of Hessen-Kassel, they were included in the propositions of the monarchs (Sweden and France) of 11 June 1645, and were accepted by the Emperor to the greatest possible extent in his responses on 25 September 1645. [31] The estates' right to participate in peace agreements was also accepted. [32] In their reports, separated according to estates, of 27/28 April 1646 on the complete texts of the future peace treaties, the imperial collegia approved most of the Emperor's constitutional proposals without requesting any amendments.

Thus after the summer of 1645 there was general agreement on the fundamental political rights of the territories, including the right to enter into alliances with foreign states. [33] This was in accordance with imperial convention and was - contrary to a widely held opinion - by no means prohibited by the Peace of Prague (1635). [34] Moreover, although the estates' respective rights of participation in imperial policy had been abstractly standardized in 1648, there were no "standing orders" as to the implementation of these rights of participation, so various possibilities of future development still remained open. And because absolutely nothing was said in the Peace of Westphalia about the Emperor's discretionary powers, Vienna's policy was not permanently tied down in this respect. Even a prohibition against electing an Emperor's successor while the Emperor was still alive [35] was not instituted, even though France had a particular interest in such a prohibition. This practice, which had made possible the uninterrupted - with one exception - succession of the house of Habsburg to the emperorship from the 15th to the end of the 18th century, was steadfastly supported by the Electors and the spiritual rulers and seldom criticized by the secular rulers of the Empire. A revision was postponed until a future Imperial Diet and thus ad kalendas graecas. It never took place. [36]

Thus it must be emphasized that the imperial estates as a whole were not fundamentally hostile to the Emperor at the peace congress of Westphalia. Not until the spring of 1648 did they take full advantage of their newly gained authority in the politics of the congress, because of the Emperor's political and military weakness at that time. Now they pushed the sovereign of the Empire so firmly to the wall that he had to part from Spain - this had not been possible before. In 1646 and 1647 they had in some respects still been something of a support for the Emperor's policy at the congress.

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On the thorniest point of all, religious law within the Empire, the creation of a consensus took place in a fluid rectangle formed by two great powers, Sweden and the Emperor, and the imperial estates' two denominational bodies, the Corpus Evangelicorum and the Corpus Catholicorum. Thus it was four very unequal powers that in the spring of 1648 in Osnabrück reached final agreement on religious law within the Empire. This agreement was negotiated by the Emperor's representatives, Sweden, and the Protestant imperial estates, with the consent of the politically stronger Catholic imperial estates (and despite the objections of the politically weaker or powerless ones). [37] This majority decision of the imperial estates precluded any future majority decisions on religious law by the imperial estates. [38] Instead, the essential basic principle was the totally equal status [39] of the three great churches recognized in the constitution: the Catholics, the Lutherans, and the Reformed Church. The respective possessions of each church had been determined on the qualifying date of a "normal year" (1 January 1624).

The imperial religious law of 1648 was in its nature an amendment of the religious Peace of Augsburg of 1555 and, like nearly everything in the Peace of Westphalia, it was a compromise - the most controversial and most difficult one. It confirmed major points of the programme of state church law developed by Lutheran jurists in the late 16th century, but its principles and implications were very inconsistent with the Evangelical side's fundamental concepts of faith and law as well. For the idea that the qualifying date of a "normal year" should decide which denomination prevailed in a given territory could not be justified in terms of any Protestant theology; at most, it could be accepted as an emergency regulation, an unavoidable evil. In contrast, the Emperor and the concurring Catholic imperial estates had to make much greater concessions regarding their state church law; the bi- and tridenominational imperial church law of 1648 could be justified only in political terms, under the force of circumstances. Thus the transformation of large parts of the imperial church's possessions in northwest Germany into secular-Protestant duchies and principalities was totally contrary to the basic norms of the Corpus Iuris Canonici, which was in force throughout the world. So the concurring Catholic rulers were under considerable pressure to explain their stance. Therefore they had first-rate writers justify their assenting votes in scholarly treatises that refuted other tracts which strictly condemned this kind of concession. This was not a matter of details but a grave matter of conscience: the question of whether or not the religious law established by the Peace of Westphalia could be tolerated by the Catholic church at all. The Nuncio had constantly said "no", and the Pope solemnly reaffirmed this "no" in 1650, after everything was over.

Thus the difficult question of dogma, moral theology, and church law of whether peace could be concluded at all on these conditions, was discussed not only in the council chambers of the rulers' residences and the imperial cities, but also publicly by those who had access to the scholarly world, and there were many such people in Germany. But the decisions were reached in the governing collegia of the rulers' courts and implemented by the diplomatis in Westphalia. Those involved in this process had secured all kinds of professional theological support, especially since good reasons could be adduced for nearly every option; the stringency with which these reasons were applied depended essentially on whether, and to what extent, one regarded the political and military inevitability of the compromise in question as given. But this was a problem that could not be dealt with solely with the perspective and the conceptual arsenal of a theologian and a jurist.

The negotiations regarding the future religious law of the Empire lasted almost three years. They began with the propositions of the two monarchs to the Emperor's representatives on 11 June 1645 [40] and ended on 7/18/24 March and 21 April 1648. During this period about three dozen documents, many of them very detailed, were presented and made the object of extremely tenacious negotiations. From these negotiation documents, the gradual genesis of the religous law of 1648 (= Art. V and VII of the Peace of Osnabrück) can be reconstucted to the last comma, though there is no room here to do so. We will content ourselves with a rough chronological overview that ignores the repeated toing and froing within the individual phases:

1. The beginning was Sweden's demand, made on 11 June 1645, that the status quo of 1618 in regard to church matters be restored; that negotiations be started in regard to all controversial questions of the religious Peace of Augsburg; and that representatives of the Reformed church [41] be included in these negotiations. After the Emperor's representatives had on 25 September 1645 accepted the initiation of such negotiations in principle, first the Lutheran imperial estates discussed a maximum agenda based on their Gravamina and presented it on 25 December 1645, and then the Corpus Catholicorum replied on 8 February 1646 with its Counterappeals. These two programmatic formulations, which fill half a book, defined the respective starting positions. On a number of crucial points they were based on mutually incompatible concepts and norms that ruled out all compromise. For example, one fundamental question was whether the religious peace of 1555 was a contract (as the Lutherans claimed) or a law (according to the Catholics). Nearly everything else depended on the answer to this question. But this sort of problem could not be clarified as a purely legal question; rather, it assumed a prior political decision. For this reason, among others, direct negotiations between the Corpora of the two denominations made no substantial progress. Therefore these negotiations were broken off on 5 May 1646 without any agreement having been reached, and Trauttmansdorff [42] was requested by both sides to act as an intermediary.

2. At this point the Emperor's representatives, in particular the chief intermediary himself, took over the negotiations in an initial contact with a committee of the Corpus Evangelicorum. Their first conclusion was marked by a Final Declaration on 30 November 1646. It could no longer be delivered in the name of all Catholics, so instead it referred to the approval of "a considerable number of noble Catholic estates", whereas a simultaneous survey by the Evangelical side revealed that there were still 53 "undecided differences of principle in puncto gravaminum" between the two denominations.

The Declaration of 30 November 1646 corresponded (except for some not very substantial alterations) to a further Imperial Declaration of 27 February 1647, which began a new round of negotiations. Now Trauttmansdorff negotiated with the Swedes concerning the imperial constitution, with more or less strong resistance within the Corpus Catholicorum. For their part, the Swedes coordinated their moves with a part of the Corpus Evangelicorum. The outcome of these negotiations was the articles on religious law in a draft of the entire peace treaty (also known as the Trauttmansdorffianum) that was drawn up by the Emperor's representatives and published on 13 June 1647.

3. The religious law of the Trauttmansdorffianum already basically contains the later text of the treaty, [43] but in 1647 it was still at the centre of the disputes of nearly all camps with one another and within themselves. There were three main fronts: the Reformed church against the Lutheran, Catholics against Protestants, and Catholics willing to compromise (representatives of the Emperor and the imperial estates) against Catholics unwilling to compromise (imperial estates). The climax of these disputes was a resolution of the Corpus Catholicorum of 7 October 1647 in Münster which adamantly withdrew all of the concessions that had been made since the summer of 1646 by the Emperor's representatives to the Protestants. After November 1647 this objection, which had been emphatically supported by the Nuncio, [44] was disregarded by the Emperor's representatives in cooperation with the Catholic "principalists"; [45] the latter two groups carried out the last round of negotiations in Osnabrück. There the final preliminary treaties concerning the individual parts of the imperial religious law were agreed upon and signed, as has been described, between January and March/April 1648. [46]

It is well-known that the regulations of imperial constitutional law in the Peace of Westphalia - which claimed to be a perpetua lex et pragmatica Imperii sanctio, [47] a claim that the Imperial Diet of 1654 confirmed as norma iudicandi [48] - proved to be uniquely durable. They remained in force without any changes until 1800 and during this period they enjoyed the greatest respect. This applied in particular to the religious law, which seemed compatible with the ideas of tolerance that had set the norm since the Enlightenment. Such an interpretation was understandable from the perspective of the 18th century, but it falls far short of the objectives of the protagonists of 1648. The latter did not develop and justify their positions and changes of position by logical recourse to an established and coherent system, [49] and they did not construe the state and state church law with reference to the individual, [50] as has become customary since the Enlightenment. Instead, they assumed the existing social structures of the great churches, whose coexistence as denominations could be encompassed in the language of the professional jurist - when need be, in cunning clauses and quibbling formulas of compromise. [51] Incidentally, the "force of necessity" [52], as well as pure opportunism, also dictated terms. The politically stronger imperial estates did not want to continue the war any longer. They were prepared to make many concessions as long as their own national interests were safeguarded. Thus the principle of the denominational state remained valid in their own territories, but for the polity of the Holy Roman Empire the concepts and stipulations of this principle were twisted until they fit. This was certainly not done out of indifference toward the norms of the individual denominations, but rather because no other solution could be found. Reality was too complicated to simply reduce to a single concept.



IV. The Territorial Changes of the Empire in 1648

It was considered quite unusual that the victorious war enemies Sweden and France had an important say in the amendment of the imperial constitution. In contrast, the transfer or surrender of parts of the Empire to Sweden and to France, and the territorial shifts and alterations within the Empire were a rather normal matter, that is to say, the age-old customary redistribution of possessions and power after peace is concluded at the end of a war. In the Peace of Westphalia this was dealt with by referring to two different titles of legitimation. The first one was "amnesty" and "restitution"; the second was "satisfaction" and "recompense".

The key words "amnesty" and "restitution" were closely related to the goal and the basic principle of making peace, as is stated in the identical words of the peace treaties of Münster and of Osnabrück - a description that has become classic: general, lasting, and true peace is a commandment of Christianity. Therefore all the actions of the political powers that had taken part in the war and the individuals who had got caught up in it were considered well and truly past: whatever had happened in the Empire since 1618, it was to be forever forgotten and granted amnesty and impunity. [53] After peace had been made there should be no more talk of war guilt or even collective guilt. The consequence of this intention was that essentially, everything in the Empire had to be restored to the situation that existed before the war began in Bohemia and the later (Swedish and French) interventions took place: [54] peace requires amnesty, and amnesty requires restitution. In any case, this fundamental principle had to be qualified with many exceptions. In the church sphere, this was regulated within the context of the renewal of peace between the religions; for the secular sphere, the detailed Article IV of the Peace of Osnabrück includes 45 paragraphs of special provisions regarding the state possessions of the three princely houses of the Palatinate, Baden, [55] and Württemberg, [56] as well as sixteen families of imperial counts. [57] Most of these cases were excepted from the general restitution in the Peace of Prague of 1635, and since that time they had not been settled satisfactorily, or at any rate not conclusively. The points at issue were the annulment of the consequences of the formal bans declared during the war, state church law, and the law of dynastic inheritance.

The most difficult task was to settle the problem of the Palatinate, since almost every participant of the peace conference had an interest in it, for one reason or another - most of all, of course, the two Wittelsbach rulers, of the Palatinate and Bavaria, who were most directly affected. Karl Ludwig (1617-1680), pretender to the Palatinate Electorate, basically demanded the restoration of the entire inheritance of his father, the former "Winter King" of Bohemia, who had died in 1632 and had lost this inheritance in 1621 when he was outlawed in the name of the Emperor. This inheritance comprised the Lower Palatinate on the right and left banks of the Rhine, the Upper Palatinate, and the Elector privilege. But this territory had long since been apportioned. The Emperor had granted the Lower Palatinate on the left bank of the Rhine to Spain and on the right bank to Maximilian I (1573-1651, duke of Bavaria since 1597). In 1623/28 the Emperor had also elevated Maximilian I to the rank of Elector and formally sold him the Upper Palatinate, though in actual fact it was traded for Upper Austria. Maximilian, whose seat was in Munich, received this territory from the Emperor as security against the payment of thirteen million florins to cover the Emperor's war debts of 1620/21 - but on the condition, secured by contract in 1628, that if the Upper Palatinate should later be lost the legal claim to repayment of the debt - or alternatively Upper Austria - would revive. If a restitution of the Upper Palatinate were put on the agenda, the Emperor would be among those most affected. In contrast, for the other forces and groups at the conference the topic of the Palatinate was a kind of bargaining chip. The position one took or altered on the issue of the Palatinate was determined primarily by the perceived gain or loss to one's own interests and aims in regard to other negotiating points. This applied to all of the parties: the Lutheran, Reformed, and Catholic imperial estates, especially the Council of Electors, and above all to France and Sweden. In their propositions of 11 June 1645 these monarchs had put an end to all the hopes and expectations in Vienna and Munich of reaching an understanding with the ruler of the Palatinate, independently of the peace conference, concerning his return to the Empire. For they made the solution of the Palatinate problem a condition of the universal peace - France did so indirectly and with reservations (out of consideration for Bavaria), Sweden directly. From this point on, the peace conference negotiated not only about the Electorship but also about the fate of the territories that were formerly part of the Palatinate Electorate, both along the Rhine and in the Upper Palatinate. On 15 August 1647 a preliminary treaty concerning the future articles on the Palatinate was signed by the Emperor, France, and Sweden, and in 1648 it became part of the peace treaties. [58]

We can pass over the details of the different phases of the negotiations. The peace settlement resulted in, first of all, the return of the powerless Palatinate Electors from exile to Heidelberg (under considerably reduced conditions compared to 1621) and, secondly, a very great success for the congress policy of the Electorate of Bavaria. In 1648 the latter had permanently secured all of the gains it had made in the first period of the Thirty Years' War. In this process it had been supported by France since the end of November 1645, though not without reservations or considerable fluctuations, and by the Emperor since the end of 1646. The great majority of the imperial estates also ratified these agreements on 16/18 March 1647, as finally did Sweden on 6 April 1647.

The contents of the articles on the Palatinate can be summarized under four points:

1. Maximilian, Elector of Bavaria, retains hereditary possession of his former rank of Elector of the Palatinate, thus remaining the first among the secular Electors, as he has been since 1623. This right extends to his brothers and their descendants. [59]

2. Bavaria remains in the hereditary possession of the Upper Palatinate and can there, through a veiled clause, be exempted from the "normal year" 1624 specified in religious law.

3. For Karl Ludwig, an amendment of the imperial constitution creates a new, eighth Electorship whose legal inheritance extends to the entire "Rudolfian" line of the house of Wittelsbach. [60] He is enfeoffed with it as soon as he has formally accepted the peace treaty and, together with his brothers, given the oath of obedience to the Emperor that is customary in enfeoffments.

4. Karl Ludwig receives back as a hereditary possession the somewhat diminished Lower Palatinate on the right and left banks of the Rhine, with certain conditions and exceptions based on state church law and property law.

Thus the "amnesty" of the ruler of the Palatinate was by no means a simple return to the status quo ante; rather, it meant extensive acceptance of the changes that had taken place in the meantime. Karl Ludwig promptly protested against this and recalled his negotiators. Nonetheless, the articles on the Palatinate, which had come into being as the result of very tenacious and complicated negotiations, did bring about permanent peace. Therefore they were regarded by many contemporaries, as well as by later observers until the end of the Old Empire, as being by and large a successful solution. Most of the fears that had been voiced regarding the creation of an eighth Electorate, because it was feared that in future elections of the Emperor eight voters could create a tie-vote, were not justified. Heidelberg became a useful partner for Vienna.

***

Most of the territorial displacements established by the Peace of Westphalia did not fall into the categories of "amnesty" and "restitution", but into those of "satisfaction" and "recompense". These catchwords, in common use at that time, need to be explained today. This applies especially to the concept of satisfactio. It means literally "satisfaction" or "apology". In Roman law, which was in force at that time, it referred to three things: firstly, the satisfaction of a creditor; secondly, the compensation of a creditor; and thirdly, the fine for a petty crime. None of these technical juridical meanings corresponds to the meaning of satisfactio in the political terminology of 1648. There it described what was termed "war compensation" in the international law of the 19th century - that is, the loser's repayment of the (alleged) costs of war incurred by the winner. The legitimation of such a payment is not a legal reason but the fact of military defeat, and accordingly the "legal" reason of the two monarchs' demands for satisfaction [61] was their massive military superiority. The victors' use in 1648 of a term that actually referred to something that was owed in legal terms was a matter of political semantics. It concealed the fact that these were demands for annexations, which could be justified only in political terms. The negotiations over satisfaction were an example of barely disguised power polics.

In this process, Sweden and France were in different situations. The Nordic military state had publicly voiced a claim to Pomerania as early as 1634, although in doing so it declared its opposition to the Electorate of Brandenburg. The latter had a valid testamentary contract with the duchies of Pomerania, which had been most recently confirmed in 1529. But when the last Duke of Pomerania died childless in 1637 the Swedes were already occupying the territory, and the Hohenzollerns' legal claim based on this testamentary contract was of little help. On the contrary, the more Sweden consolidated its military power in central and northern Germany after the late 1630s, the more did Pomerania, for geopolitical reasons, once again become the focus of Stockholm's war strategy as an object of "satisfaction". For strategic reasons, Sweden believed that it was vital to have control over the southern coast of the Baltic Sea, and it knew that having the right of disposal over the Pomeranian harbours along the Baltic also meant continuous income from the customs duties. For a poor country like Sweden this income made a great difference.

Nonetheless, there was still no concrete mention of Pomerania in the proposition of 11 June 1645, nor was there anything at all about territorial satisfaction for Sweden. These topics did not appear until the reply of 7 January 1646, which offered in plain terms an extensive catalogue of annexations. It even named Silesia, but it was aimed at the whole of Pomerania, [62] the Baltic harbour of Wismar in Mecklenburg with its surrounding countryside, and the recently conquered bishoprics of Bremen-Hamburg [63] and Verden [64] in northwestern Germany. This was established in an instruction of 20 November 1645. Trauttmansdorff would have been entirely willing to accept quickly these conditions set by Sweden. [65] In January/February 1646 he tried to do so but failed to reach agreement, because Sweden insisted on a formal relinquishment by Friedrich Wilhelm of Brandenburg (1620-1688, Elector in 1640); because the latter vehehemtly rejected this suggestion; and because, independently of these factors, it also proved impossible to reach an early agreement with the Protestant imperial estates. For these reasons, in subsequent months the focus of the negotiations with the Emperor shifted to Münster.

Not until after the Emperor's agreement with France of 13 September 1646 concerning satisfaction (see below) did substantial negotiations with Sweden resume in Osnabrück. On 29 September 1646 Sweden had permitted its negotiators to back down from the maximum demand for all of Pomerania and concede to the Hohenzollern ruler a somewhat diminished Eastern Pomerania [66]; as a "recompense", he was to be offered secularized property of the imperial church in the imperial district of Lower Saxony. The main political reason for this concession on Sweden's part was its sober insight into the limited resources of the Scandinavian monarchy. These limitations prevented it from risking a break with its ally France and possibly having to carry on the war alone. The Emperor's negotiators, also supported by France to a limited extent, therefore reached an agreement with Sweden in the winter of 1646/47. The precondition for this was a concession by the Electorate of Brandenburg, which, under pressure from all sides, on 13 January 1647 expressed its consent to the cession of Western Pomerania, enlarged by state law, to Sweden. Thus the path had been cleared for the signing of a preliminary treaty between the Emperor and Sweden. It is dated 18 February 1647 and forms a package with a recess of the Emperor and the Electorate of Brandenburg of 19 February 1647 concerning the aequipollens, or "equivalent" compensation of the Elector. Both of these agreements were included in the Peace of Osnabrück in 1648 as Articles X and XI.

Article X IPO comprises four sections. Firstly, the cession of the duchy of Western Pomerania and the principality of Rügen to the Queen and monarchy of Sweden is decreed, whereas Eastern Pomerania remains in the possession of the Elector of Brandenburg. The transfer to Sweden does not, however, mean that it leaves the imperial association; rather, Sweden becomes a new imperial estate, to which the Emperor will grant royal privileges according to the prescribed forms of feudal law. Western Pomerania also retains its claim to a part of the prebends of the former bishopric of Kammin in Eastern Pomerania, which for the time being is to retain the legal status of a church property (without a bishop) despite having become Protestant and secularized. Secondly, Sweden receives, also as a direct imperial feoff, the city and harbour of Wismar with two authorities. Thirdly, the archbishopric of Bremen-Hamburg, which was conquered in 1645, and the bishopric of Verden are converted into a secular duchy and transferred to Sweden. A fourth section determines the seats and votes of these territories in the imperial assemblies, grants the privilegium de non appellando, [67] transfers the right to establish a new university, and guarantees the continued existence of the city of Stralsund.

The counterpart of these cession decisions is Article XI IPO. It transfers pro aequivalente recompensatione (i.e. as an equivalent substitute for the relinquishment of Western Pomerania and Rügen in the interest of peace) the former bishoprics of Halberstadt and Minden as secular principalities to the Electorate of Brandenburg, with seats and voices for these territories at the Imperial Diets and district diets. It also refers to the resolution concerning the former bishopric of Kammin and, besides, grants the Electorate of Brandenburg a binding claim to the archbishopric of Magdeburg, which is to be converted into a secular duchy. This claim is to come into force after the death of the current administrator. [68]

Similarly, Article XIII IPO, which was agreed upon later, compensates the house of Mecklenburg-Schwerin for its cession of Wismar by granting it the former bishoprics of Schwerin and Ratzeburg, which now had to be formally secularized. This article also settles some details regarding other church property in Mecklenburg, also in favour of the line of Mecklenburg-Güstrow, as well as customs duties on the Elbe and imperial taxes.

Finally, in this context, Article XIII IPO, which was negotiated until the summer of 1648, includes another dozen points in favour of the house of Brunswick-Lüneburg, although these points cannot be justified simply as "recompense". The Guelphs could not assert their claim to compensation in so far as the satisfaction granted to Sweden did not cause them any direct loss of property. Nonetheless, they pointed out to the congress that they were losing future opportunities; for their secure claims to church prebends in Magdeburg, Bremen-Hamburg, Halberstadt, and Ratzeburg would be abolished by the secularization of these properties of the imperial church. By agreeing to vote for this secularization, the Guelphs were making a "sacrifice" for the sake of future peace which had to be rewarded. The main recompense consisted in the establishment of an "alternation" in the high diocese of Osnabrück, which was conceived in 1647. After the signing of the peace treaty this "alternation" was first to revert to the Catholic prince-bishop Franz Wilhelm von Wartenberg (1593-1661), [69] but after his death it was to go to a Lutheran prince-bishop, the Guelph prince Ernst August (1629-1698); he was to be succeeded by a Catholic bishop, who would in turn be succeeded by a Guelph prince, etc. Incidentally, in the bishopric of Osnabrück 1 January 1624 was to be strictly applied as the qualifying date of the normal year. [70]

The common denominator of half of the satisfaction granted to Sweden and almost all of the compensation arrangements was the peace treaty's recourse (problematic in terms of church law) to imperial church properties in northwest Germany, which had still been Catholic in 1555 but had in the meantime become entirely Lutheran. For the sake of giving Sweden satisfaction, the Emperor and the Catholic proprietors had in 1647 relinquished not regions inhabited by Catholics, but rather their Catholic rights to these territories, which in the meantime had become Lutheran. In doing so, were they giving up a great deal? Church law was one aspect of the compensations; the other aspect was their political, cultural, and economic value. It is difficult to come to a generally valid conclusion about them. The Electorate of Brandenburg seems to have fared well, for the new territories of Halberstadt and Minden, and later Magdeburg as well, probably well offset its surrender of its legal claim to Western Pomerania. Whereas Mecklenburg had probably made a bad exchange, Brunswick-Lüneburg was able to gain a great deal, thanks to its excellent negotiators as well as other factors.

In contrast, in the Peace of Westphalia Hessen-Kassel demanded not recompense but satisfaction, for it was on the winning side. For this reason, its wishes for amendments of the imperial constitution were listened to sympathetically by its allies; and for this reason, its claims to territorial satisfaction were also approved by both monarchs in the propositions of 11 June 1645 and the replies of 7 January 1646. However, this did not mean that they gave their unqualified support to their ally's extensive demands; on the contrary. Initially Hessen-Kassel thought only of gaining land through the cession of the imperial church's properties, as is stated in a legal document of 25 April 1646 that was presented by the Swedish representatives to those of the Emperor and was the concrete starting-point of these negotiations on satisfaction. In this document, Hessen-Kassel demanded a large area of the Electorates of Mainz and Cologne, of the bishopric of Münster, of the prince-abbeys of Corvey and Fulda, and the entire bishopric of Paderborn; moreover, it mentioned in passing, in parentheses so to speak, the former imperial abbey of Hersfeld. [71] Not even Sweden unconditionally supported this immoderate programme of annexations, let alone France. Thus in the two following years Hessen-Kassel had to accept gradually increasing reductions of its peace objectives, until on 8 April 1648 the Electorate of Mainz and Saxony-Altenburg signed the articles on satisfaction for Hessen-Kassel which became part of the peace treaty. [72] According to these articles,

1. Hessen-Kassel receives as an imperial feoff the former imperial abbey of Hersfeld and four offices of Schaumburg that have been vacant since 1640; [73]

2. Hessen-Kassel receives a monetary compensation of 600,000 imperial thalers from the archbishoprics of Mainz and Cologne, the bishoprics of Paderborn and Münster, and the imperial abbey of Fulda. Precise arrangements are laid down for the payment of this sum. Subsequently the occupying troops of Hessen-Kassel are to be withdrawn step by step.

A short time later, on 24 April, a treaty with Hessen-Darmstadt was signed in Kassel concerning the distribution of what was called the Marburg inheritance of 1604, which had been granted to the cousins of Darmstadt by a judgment of the imperial court council in 1623. This judgment was now annulled in favour of Kassel, and the peace treaty simply confirmed this. [74]

***

The Peace of Osnabrück justifies the Empire's cessions to Sweden as compensation for the return of the areas the latter had occupied and as an expression of its will to restore peace; the Peace of Münster introduces its analogous, but longer, section on satisfaction [75] with its wish to strengthen peace and friendship between the Emperor and the King of France and to make provisions for public security. The greater length of this text is due to the way it came into being. The Empire - more precisely, in this case the house of Austria - did not wish to be the only party that gave ground, especially in the two initial rounds of negotiations; on the contrary, it wanted the King of France also to give a certain "satisfaction" in return. He was to do so by purchasing the cessions in Alsace for a considerable sum of money (3 million livres = 1.2 million imperial thalers), [76] relieving the region's former rulers of most of the state debts of Alsace [77], and withdrawing from four cities on the Upper Rhine that were occupied by the French. [78] A certain justification in conceptual terms was required for this asymmetrical "exchange" as well.

This was also required for a further reason: because France's demand for territorial satisfaction stood in avowed contradiction to its former official pronouncements. Previously it had justified its participation in the Thirty Years' War as selfless assistance to German liberty, which was allegedly threatened by the Habsburgs, and it had emphasized that its assistance was not linked to any demands for itself. Now however, in the proposition of 11 June 1645, it spoke officially of "due" satisfaction because of its "efforts, losses, and expenses" in the war, and it itemized this in its reply of 7 January 1646 with the demand for the entire property of the house of Austria in Upper and Lower Alsace, Sundgau, and Breisgau, including Breisach and the forest cantons. Moreover, it demanded the right to remain permanently in the Philippsburg fortress of the prince-bishops of Speyer. [79] An imperial feoff for France was to be formed out of this entire complex, with a seat and a voice in the imperial assemblies, with France taking upon itself the obligation to pay imperial taxes. [80] This model of cession corresponds to the later agreements with Sweden: cession of territory within the national federation, within the formal structures and with the consequences of imperial feudal law.

France's package of demands for satisfaction of January 1646 may have taken many an imperial estate's breath away, especially since the complementary terms "Upper" and "Lower Alsace" were dangerously inexact, in that these terms were clear only in a geographic sense but by no means in terms of state law. But other imperial estates were of the opinion that the military situation made it urgently necessary to accommodate France so that they could sway it to their own side by, and after, fulfilling its demands. This was the particular strategy of the Elector of Bavaria, who was the Emperor's most important imperial ally, and who never forgot his own need for support on the issue of the Palatinate.

The Bavarians' pressure was so strong that the Emperor instructed his chief negotiator Trauttmansdorff on 2 March 1646 to begin negotiations about Alsace. He gave him broad leeway for negotiating on this issue. Thus on 28 March the Emperor's representatives began concrete negotiations with France regarding satisfaction; the first round dealt mainly with the complex of problems related to Alsace (and to Philippsburg besides). The Emperor's representatives made their decisive offer on 16 April. Then the negotiations entered an intensive phase. In a legal document of 29 May (Postrema Declaratio = Final Declaration) the Emperor's side summarized the result of the previous two months' negotiations; the French negotiators replied in writing on 2 June, and the Emperor's side dealt with this reply in detail in a Further Declaration [81] on 5 June. After that, the negotiations stagnated until the end of August. In the meantime, the summer military campaign was in full swing, and the united Swedish and French troops advanced towards southern Germany and Bavaria.

After the Elector of Trier had signed an agreement on 19 July granting the French the right to station their troops in Philippsburg even in peacetime, and the Council of Electors had approved this agreement on 23 August, the Emperor's representatives opened the second round of negotiations on 31 August with a Final General Declaration. [82] This round ended, after unusually intense and difficult negotiations, on 13 September 1646; an agreement limited to 17 days, called the Satisfaction Articles or September Articles, was reached.

The objectives and results of these two rounds of negotiations have to date been controversial for historians, because important concepts of state law that were used by both sides were ambiguous. In view of the impending publication of the relevant records of the French and the Emperor's sides, [83] the following conclusions can be reached:

1. In a veiled clause on 16 April the Emperor's side offered to cede the territory on the left bank of the Rhine. This offer was not limited to the properties in Near Austria (Vorderösterreich), which was all that France had demanded on 7 January. The French side was unable to see through this offer immediately. But it was in the process of gaining a clear overview with the help of experts, and in the course of May 1646 it gained a thorough knowledge of the chaotic jumble, in terms of personal law and territorial law, that was the Upper Rhine region of Near Austria. From this point on, the French side could adequately assess the implications of the set phrases and clauses that appeared in the documents.

The Emperor's representatives had been able to do so from the very beginning, because the second plenipotentiary of Münster, Isaak Volmar (1582-1662) had been in the administration of Near Austria. He was one of the best contemporary experts on Alsace and a jurist of high distinction, and was very skilled when it came to verbal sparring.

2. As has been mentioned, the offer of 16 April assumed that the dominions and territories on the left bank of the Rhine that were to be ceded would remain in the national federation, and it categorically refused to cede territory on the right bank of the Rhine, especially Breisach. But the other side insisted relentlessly on precisely that, so that on 29 May Trauttmansdorff finally included Breisach too in the Emperor's offer. But in the meantime the nature of France's satisfaction had changed considerably; for since 17 May the Emperor's side was offering the French not an enfeoffment with territories and dominiions in the Empire but a cession to "sovereign" possession by the French royal family of Bourbon - that is, an expulsion of the ceded territories from the national federation. [84] France accepted this, although internally it reconsidered for a long time, as late as 1647, the question of whether the French king's integration into the national federation would not offer greater advantages, and although Servien once again raised the topic of the cession of the enfeoffment in 1648. But in the end the cession remained in force.

3. Imperial law did not recognize the legal structure of sovereignty which was familiar to French state law. Thus the Emperor and the Empire could not simply cede "sovereignty", since one cannot cede something one does not possess. Besides, they had to regulate their future relations with the many non-Habsburgs in the Upper Alsace and especially in the Lower Alsace who were directly responsible to the Empire. Most of them had not become war-time enemies of France and some of them had long been French protectorates, but they did not want to be subject to the sovereignty of a French king after peace had been concluded. Thus it had to be specified that the general declaration of cession did not apply to them. So the Postrema Declaratio of 29 May contained a protective clause that applied to all church and secular territories of Alsace that were directly responsible to the Empire.

4. In the second round of negotiations, France had achieved two objectives: firstly, that the cession clause was formulated not only in the professional juridical terms of "territorial sovereignty" [85] that were in common use in the Empire, but in addition cited a ius supremi dominii [86], which was intended to denote "sovereignty". Secondly, the protective clause for the territories directly responsible to the Empire was made specific by citing names, but on the other hand its significance was greatly reduced in that a final sentence was attached to it, to the effect that these guarantees of continuance were in no way to diminish the transferred ius supremi dominii. Thus the guarantee was in force only so long as the possessor of sovereignty did not believe his rights to be limited by it. The legal status of the territories directly responsible to the Empire in the (geographic) territory of both Alsaces was thus subject in the future to the French government's discretion.

5. The terms for Alsace that have been explained above also applied after 29 May to the cities of Lorraine and the bishoprics of Metz, Toul, and Verdun. In 1552 they had been put under the protectorate of the French king by the rebellious imperial princes, and since then they had become a permanent part of the kingdom. Now, through the peace treaty, this situation was to be recognized in terms of international and imperial law. Here the question arose of whether the bishopric (as a "state" territory) or the considerably larger territory of the church diocese should be regarded as ceded. Despite all of their efforts, the Emperor's representatives could not clearly limit the cession to the bishopric. A dilatory formal compromise was reached which spoke of the "bishopric district", [87] which could mean either the bishopric or the church diocese. The second issue was the status of the territories directly responsible to the Empire within the "bishopric district". For these, the same conditions now applied as to the Alsatian territories directly responsible to the Empire. They received a guarantee that their rights would continue, which was dependent on the good will of the French government.

The third phase of the negotiations began in theory on 1 October 1646 with the expiration of the agreement, whose text was never published. It became officially public on 11/12 June 1647 in so far as the Emperor's representatives delivered a complete draft for the Münster peace treaty with France, [88] which included a section on satisfaction. However, on this point the 1647 text referred to a situation existing prior to the September Articles. Indeed, none of the cession offers were revoked, but the Trauttmansdorffianum contained more extensive and more precise guarantee clauses for the territories directly responsible to the Empire in Alsace and Lorraine that were affected. But here too there was no precise delineation of the Habsburgs' rights which would be ceded in Alsace; and that alone would have truly clarified the matter. Instead, the Trauttmansdorffianum intended to cede only the "bishoprics" (= high dioceses) in Lorraine, but not the "bishopric districts" (either bishoprics or church dioceses); and it was unequivocally specified that the feudal properties of the territories directly responsible to the Empire in the Lorraine bishoprics would not be affected by the cession.

A French legal document of 10 July, [89] which was included in the complete and published alternative draft of the peace treaty of 19 July, objected to these formulations. It permitted the protective clauses related to the territories directly responsible to the Empire to retain the wording of the September Articles, but on other points it made new or more clearly formulated demands and, above all, more extensive ones. [90] The Emperor's representatives rejected these demands in a note dated 15 July, but after Trauttmansdorff's departure (on 16 July) the bilateral negotiations on satisfaction for France stagnated until November.

The imperial estates made use of this interval and attempted to bring their influence to bear on the Emperor's and the French representatives' draft of the Peace of Münster. In a declaration of 25 September they clearly described the juridically questionable aspects of the wording of the French cession proposals, emphasized the weaknesses of the Emperor's set phrases of compromise in regard to the guarantees of continuance, and denounced France's blatant contravention of its public statements of its war objectives since 1634. This had little political effect. That autumn, what counted was not legal astuteness but the most recent victories of Spain's military leaders in Catalonia, the impending conclusion of the Netherlands' Peace of Münster, and Bavaria's retreat to the side of the Emperor. [91] Moreover, the beginnings of an interdenominational "pro-peace party" of the imperial estates, which strongly pressed for an end to the negotiations, were becoming apparent.

Under these circumstances the mediators once again started up the negotiations between the Emperor and France over satisfaction in early November. The Satisfaction Articles of 1646 were once again reviewed and revised. As early as 14 November the legation secretaries initialed a satisfaction treaty dated 11 November 1647 between the Emperor and France at the Nuncio's office.

The relationship between the text of 1647 and that of 1646 can be summed up in three points:

1. The earlier text has been substantially revised, but without making any changes in the content of the cession regulations. Most important was the new wording of the clauses expressing the two sides' reservations concerning Spain and Lorraine and concerning the Emperor's prohibition of assistance to Spain. [92]

2. The preliminary treaty of 1647 was not temporally limited and was to be included in the final peace treaty. This did in fact occur. [93]

3. For this reason the preliminary treaty received a ne varietur clause, that is to say, it was to be in force until peace was concluded, irrespective of future war developments. Under the circumstances of November 1647, this agreement did not necessarily mean that the French were making a concession to the militarily weaker party to the treaty.

Because France also had to finance the war through loans and was completely overstretched financially, the state went bankrupt in July 1648 and at the end of August there was street fighting in Paris. But even then Servien refused to make any concessions to the imperial estates in regard to textual changes involving the guarantee of continuity for the imperial cities of Alsace, especially the Dekapolis. [94] The agreements of the preliminary treaty remained in force. Thus the peace treaty signed on 24 October 1648 included the following provisions regarding satisfaction to France:

1. The supremum dominium and the iura superioritatis of the cities of Lorraine and the dioceses of Metz, Toul, and Verdun, and particularly the fortress of Moyenvic, belong to the French crown in perpetuity.

2. The Emperor and the Empire cede to the Most Christian King and his successors to the monarchy the ius directi dominii [95] and the ius superioritatis over the Piedmont border fortress of Pinerolo.

3. The Emperor, the Empire, and the house of Austria cede to the Most Christian King and the French crown the iurisdictio, the superioritas, and the supremum dominium over the city of Breisach, the landgrave territory of Upper and Lower Alsace, Sundgau, and the imperial province of Hagenau beyond the Dekapolis [96] in perpetuity.

4. The Emperor and the Empire grant the Most Christian King and his successors to the monarchy a perpetual right to protect, and station a garrison in, Philippsburg, as well as the right of free access to Philippsburg by water and by land. Furthermore, no new fortifications may be erected on the right bank of the Rhine between Basel and Philippsburg, nor may the course of the Rhine be altered: Philippsburg and Breisach, as France's bridgeheads toward Germany, may not be undermined.



V. The Military Satisfaction of Sweden and the Nuremberg Congress of Execution of 1649/50

If the only issues had been the general rights of the imperial estates, the satisfaction granted to France and Sweden, and the solution of the problem of the Palatinate, the peace treaty could have been signed in the autumn of 1647. However, as has already been described, the agreements on religious law and the satisfaction granted to Hessen-Kassel were not arrived at until the spring of 1648. And even then matters had not been straightened out entirely. A very delicate point was the "military satisfaction" to be granted to Sweden. [97]

The term "military satisfaction" was a disguised call to arms in the political semantics of 1648. At issue was the question of who was to pay the expenses of demobilizing the roughly 60,000 Swedish soldiers [98] who were still on imperial territory. For the poor country of Sweden had for decades been supporting a military apparatus far beyond its means. With this military apparatus it could continue waging war by directly siphoning off the national product of the countries it occupied (these were called "contributions"), and as long as the flow of subsidies from France continued; in the final years of the Thirty Years' War it had been especially successful in this enterprise. But switching off Sweden's military machine single-handedly because one now wanted to live in peace and was supposed to live in peace, and consequently no longer needed any soldiers or needed only a few - such a task was wholly beyond the capacity of the Nordic monarchy, because it would have overstretched its finances. About two-thirds of Sweden's army consisted of foreign mercenaries who had become soldiers on the basis of contracts signed not with the military commander but with their respective war entrepreneurs. Thus each soldier had a contractual right to have any back pay that was in arrears paid out to him at the end of his contract (this was a large amount as a rule); in many cases he also had the right to a considerable amount of demobilization pay (possibly in the amount of several months' pay). If any of this failed to materialize, terrible things were in store. When all the sums large and small were added together they produced an astronomical total that exceeded Sweden's financial capacities many times over. In realistic terms, it would have been impossible to conclude peace without having third parties finance the demobilization of Sweden's forces.

Therefore, as early as 1635 one had hit upon the solution of saddling Sweden's future partner in the peace treaty with the expenses of demobilization (for the withdrawal and the demobilization pay of the troops). This maxim had since remained unshakeable. Thus Sweden demanded an additional payment for the withdrawal of its troops from the Empire - similar to Germany's contractual agreement on 9 October 1990 to remunerate the Soviet Union's withdrawal of its troops by 1994 with a large monetary payment. [99] Sweden declared its basic demands in the proposition of 11 June 1645, and in the autumn of 1647 it spoke of them again, but in vain. The solution of the problem was once again postponed.

But if the congress was to end soon, as the pro-peace party of the imperial estates very clearly wanted in the spring of 1648, this issue too finally had to be dealt with. Because imperial tax money could not be raised without the imperial estates' consent, and because the Emperor refused to send a proposition to this effect to the imperial estates, the Electorate of Mainz formally took the initiative (which it was not entitled to do under constitutional law) and brought the issue of "military satisfaction" before the imperial collegia in Osnabrück. From 9 May to 1 August 1648 the collegia negotiated with Sweden concerning the military satisfaction, whose regulations were included in the final clauses of the Peace of Osnabrück. [100] The imperial estates that had remained in Münster were never included in the passing of these resolutions, and the Emperor's representatives did not join in until the end. The agreement concerning the military satisfaction of Sweden was a genuine political achievement on the part of the imperial estates.

Immediately after the conclusion of this agreement the imperial estates, by applying political pressure, persuaded the representatives of the Emperor and Sweden to read out the finished Osnabrück peace instrument before the congress on 6 August 1648 and shake hands on it. After the end of September the text of this treaty was offered for sale everywhere. Peace with Sweden had been safely brought to port - even though the signing and sealing of it had been postponed out of consideration for the ally France [101] and did not take place until 24 October in Münster.

The military satisfaction established by the imperial estates on 12 June 1648 amounted to 5 million imperial thalers. [102] This amount was to be paid before the ratification of the treaties by seven imperial districts [103] in three installments, 1.8 million thalers of it in cash and 1.2 million in promissory notes. This burdened each affected imperial estate with the equivalent of 133.5 "Roman months" [104] - a large sum, to be sure, but by no means exorbitant in comparison to the taxes that had been levied in the previous decade to finance the war. Incidentally, it turned out that the amount of 5 million imperial thalers was entirely sufficient to cover the required expenses. But it was the details that were devilishly difficult. For the peace treaty included "gaps and inconsistencies" [105] that could not be removed until its ratification (on 18 February 1649). They finally necessitated a new meeting, similar to the Imperial Diet, of the army commanders with the imperial estates' deputies, which was called the "Nuremberg Congress of Execution". The invitations were sent out first by the Swedish generalissimo and then by the Emperor (10 and 31 March 1649).

***

The Nuremberg Congress of Execution lasted from May 1649 to July 1650. By means of the implementation treaties of 26 June 1650 (Sweden) and 2 July 1650 (France) it settled the withdrawal of foreign troops from their quarters throughout the Empire in three stages during the second half of the year. It was this withdrawal of the troops that meant the true end of the Thirty Years' War for most Germans. At the end of 1650 this had been accomplished. With few exceptions, the foreign troops had been withdrawn. Now peace could begin in concrete terms for the civilian population.

Facilitating an orderly demobilization after a long war is still a difficult matter today, and in that era it was a logistical problem of the first order. Managing it was a great organizational feat. This is just as much a matter of pride as the services of the negotiators of Münster and Osnabrück, although until recently German historians rarely spoke of the Nuremberg negotiations on implementation - except for the cultural reverberations that they caused. Indeed, the Nuremberg negotiations dealt with very dry matters such as modes of payment, maintenance costs, deliveries of produce, support of transport, the scheduling of withdrawals and demobilization, distribution procedures, legal liability, and a thousand other everyday matters. These were a whole series of administrative challenges and practical tasks that had to be solved by first agreeing on, and then implementing, clear and realistic rules in cooperation with the occupying troops and the municipal and state institutions. By and large, this went off with astonishing smoothness. Indeed, the "Main Recess on Peace Implementation" with Sweden bears a complicated title, [106] but it contains carefully thought-out rules and practical instructions. These regulated the demobilization of the roughly 60,000 Swedish soldiers who on 24 October 1648, toward the end of the fighting, were stationed as occupying forces in more than 80 permanent camps throughout the entire Empire - from Lake Constance to Prague and between the Ems and the Oder - and lived to the greatest possible extent on the contributions of the surrounding countryside. But the non-Swedish troops also had to be taken care of; these were stationed in more than 130 other quarters and permanent camps, on the one side those of France and Hessen-Kassel, and on the other those of the Emperor, the Electorate of Bavaria, Spain, and Lorraine. Altogether there were between 125,000 and 150,000 soldiers in the Empire in 1648/50 - in a population of between 10 and 12 million people who had survived the Thirty Years' War.

The negotiations in Nuremberg from the spring of 1649 to the summer of 1650 certainly did not proceed in a straight line, nor were they guided solely by the objective that was finally attained. Many times it looked as though they would fail, because very contradictory interests clashed and could not be easily reconciled. We cannot go into the details here, but they can be looked up in a recent work. [107] But it can be concluded that the judicious consistency of the Swedish and the Emperor's generals finally made it possible to master all of the difficulties. For this reason we should keep in memory, besides the familiar negotiators of the peace congress of Westphalia, the two names that were signed under the Main Recess on Peace Implementation: the Emperor's commander-in-chief, General Ottavio Piccolomini (1599-1656), who had already played a central role in Wallenstein's defeat and who because of his properties in southern Italy is referred to as "Duca d'Amalfi" in the Nuremberg records; but above all the young Swedish generalissimo Karl Gustav, Count Palatinate of the Palatinate-Zweibrücken-Kleeburg (1622-1660), who had become successor to the Swedish throne in 1649 and succeeded his cousin Christina as King Karl X Gustav in 1654. He was certainly not an easy negotiating partner. But he had good judgment and (finally) success, and he withdrew the Swedish troops from the foreign territories. In 1650 peace came to Germany after thirty years of unprecedented war and chaos and was cause for great celebration.

Bibliography:

Citing all the sources of this paper individually would require an overlong catalogue of footnotes. An extensive bibliography for the period until 1995 can be found in Duchhardt 1996. Later sources are cited in Duchhardt 1998 and in Repgen 1998. The standard works are still Poelhekke 1948; Dickmann 1998; Oschmann 1991. But cf. also Odhner 1877, Ruppert 1979.

FOOTNOTES