Private Property in the Dutch-Spanish Peace Treaty of Münster (30 January 1648)

Abstract

The rise of the dynastic State with its growing control over warfare led to a changing conception of war. Under the just war tradition of the Late Middle Ages, war was conceived of in terms of the vindication of justice and was, at least conceptually, limited in scope. It was perceived as a set of separate acts of war, not disrupting all relations between the belligerents and their subjects. While the just war tradition proved resilient during the Early-Modern Age, a second concept, that of legal war, emerged. A legal war disrupted normal peaceful relations almost wholly; it was thought of as a state of war. The laws of peace ruled the state of peace; the laws - and practices - of war and neutrality ruled the state of war. As war became a more encompassing state of affairs, peace treaties became more elaborate. Apart from setting the conditions for ending hostilities, they also had to regulate the return from the state of war to the state of peace. By the 17th century, it had become customary for belligerents to seize and confiscate enemy property that came within their power. By consequence, many peace treaties included extensive stipulations on seized goods. The Dutch-Spanish Peace of Munster (1648), which ended the Eighty Years War (1567-1648), is an extremely interesting example thereof. As most early-modern peace treaties, the Munster Peace provided for the general restitution of all seized property, with the exception for movables and lapsed incomes from reinstated property. The analysis of the relevant clauses in the Peace Treaty and their confrontation with contemporary doctrine indicates that the practice of seizure and restitution shared in the same ambiguity which scholars such as Grotius had caught in distinguishing just and legal war. Seizures were part and parcel of the discourse of just war. Seized goods served as a security for the indemnification the other side, the supposedly unjust belligerent, would have to pay. The restitution clauses, however, were dictated by the logic of legal war. They partook in the desire of the signatories to forget the past and not to attribute or concede any guilt for the war. This was given substance in the amnesty clauses that became standard in peace treaties.