4. New Cambridge Modern History, vol. 4, 352.
5. Which was reflected in the name chosen in Philadelphia for the new American consti-tutional entity, the “United States,” just as the new name that emerged from the Bolshevik Revolution—the Union of Soviet Socialist Republics—reflected a new constitutional order.
6. Sweden had refused a Danish offer to mediate. Swedish suspicion was not without foundation: see the instructions of the Danish government to its delegates in Andreas Osiander, The States System of Europe 1640 – 1990: Peacemaking and the Conditions of International Stability (Oxford University Press, 1994), 18.
7. Ibid., 21.
8. Ibid., 19. In 1649 Christina commissioned a dramatic play entitled La naissance de la paix, with a book by Descartes, who had come to Stockholm and wished to honor his patroness.
9. Ibid., 26.
10. Report to Oxenstierna, quoted by Osiander, 29.
11. The French delegates reported to Mazarin that the “disposition of the princes of Germany… is very different from that of the princes of Italy, the latter, being very intelligent and well-advised, approving of, and wishing for, everything that may contribute to make them independent while [the German princes] are much more affected by the love of their fatherland [beaucoup plus touchés de l' amour de leur patrie] and cannot approve of foreigners dismembering the Empire, no matter what hope of a gain we hold out to them.” D’Avaux and Servien to Mazarin, January 14, 1645, quoted by Osiander, 38.
12. Bearing in mind, as the reader must, that the emperor wore two constitutional hats, as it were: his kingship, which was derived by heredity over certain Habsburg lands, and his emperorship, which was his by the vote of the Imperial electors.
13. Randle, The Origins of Peace, 332.
14. Ibid., 54.
15. Osiander uncharacteristically overstates this revision, however, by saying that “the six-teenth century maxim of cuius regio, eius religio… was abandoned” and sharply reproves Holsti, McKay, and others for “serious factual errors” in maintaining otherwise. It is true that it is a common error to treat Westphalia as the agreement that introduced the “cuius” provision, but this principle was embraced, not abandoned, in the Westphalian settlement.
16. Karsten Ruppert, Die Kaiserliche Politik auf dem Westflischen Friedenskongreβ (1643 – 1648)(Aschendorff: 1979), 229, cited by Osiander, 48.
17. As Leo Gross wrote in the most authoritative legal commentary on the treaty, West-phalia was “a public act of disregard for… the papacy” that “liquidat[ed], with a degree of apparent finality the idea of the Middle Ages as an objective order of things personified by the Emperor in the Secular realm.” Gross, 37.
18. Osiander, 51.
19. Ibid., 68.
20. Randle, Issues in the History of International Relations, 53.
21. Cicely V. Wedgwood, The Thirty Years War (Cape, 1938), 526.
22. Proceedings of the American Society of International Law 87 (March/April 1993): 325 and citations, n. 10.
23. C. G. Roelofsen, “17th Century International Politics,” in Bull, Kingsbury, and Roberts, 124.
24. Ibid.
25. Quoting John Morley, who ranked it with Adam Smith's The Wealth of Nations, Bull, 71.
26. R. A. Falk, “On the Recent Further Decline of International Law,” in Legal Change: Essays in Honor of Julius Stone, ed. A. R. Blackshield (Butterworths, 1983), 272; compare Bruce Ackerman's “Constitutional Moment,” in Bruce A. Ackerman, We the People: Foundations, vol. 1, and Transformations, vol. 2 (Belknap Press of Harvard University Press, 1991, 1998).
27. The Latinized version of the Dutch name de Groot.
28. A notable figure described in Book I.
29. Georg Schwarzenberger, “The Grotius Factor in International Law and Relations: A Functional Approach,” in Bull, Kingsbury, and Roberts.
30. Martin Wight, Systems of States, ed. Hedley Bull (Leicester University Press for the London School of Economics and Political Science, 1977), 127.
31. Bull, 70.
32. Bull, 75, 77.
33. William Stanley Macbean Knight, The Life and Works of Hugo Grotius (Oceana, 1962), 289.
34. See Bull, 79 – 91.
35. Cf. Quentin Skinner, The Foundations of Modern Political Thought: The Age of Reformation, vol. 2 (Cambridge University Press, 1978), 152 – 154; and see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge University Press, 1969), 67.
36. G. Mattingly, “International Diplomacy and International Law,” in New Cambridge Modern History, vol. 3, ed. R. B. Wernham, 169 – 170.
37. Jean-Jacques Rousseau, The Social Contract, Book I, trans. Maurice Cranston (Penguin, 1968), 51.
38. Mattingly, 169.
39. Schwarzenberger, “The Grotius Factor,” 306.
40. Bull, “The Importance of Grotius,” 74.
41. Hugo Grotius, De Jure Belli ac Pacis (apud Ioannem Blaev, 1667), II.xx.40.
42. Osiander, 41.
43. Hugo Grotius, De Jure Belli ac Pacis, ed. and trans. W. Whewell (J. W. Parker, 1853), I.ix.
44. All of these arguments—the one at the footnote call is nowadays termed “rule utilitarian”—will be found in contemporary debates in political philosophy.
45. Murphy, 15.
46. Gottfried Wilhelm Leibniz, “Opinion on the Principles of Pufendorf,” The Political Writings of Leibniz, ed. and trans. Patrick Riley (Cambridge University Press, 1972), 64.
CHAPTER TWENTY: THE TREATY OF UTRECHT
1. On April 11, 1713, treaties were signed between France and Britain, Portugal, Prussia, and Savoy; on November 4, between France and the United Provinces; on July 13, between Spain and Britain and Savoy and with the Dutch on June 26. The emperor Charles concluded terms on March 6, 1714, at Rastatt, which was confirmed in a separate treaty at Baden on Nov 7, 1714; Portugal finally agreed to peace with Spain at Utrecht on February 6, 1715.
2. Bolingbroke, Henry St. John Viscount, and Gilbert Parke, Letters and Correspondence, Public and Private, of Viscount Bolingbroke (G.G. & J. Robinson, 1798), ii, 443, 614.
3. Bolingbroke, Henry St. John Viscount, The Works of Lord Bolingbroke (Frank Cass, 1967) (reprint of the 1844 edition), ii, 276 ff., 313, 302.
4. See Osiander, 111 – 113.
5. Bolingbroke, Henry St. John Viscount, and Gilbert Parke, Letters and Correspondence, Public and Private, of Viscount Bolingbroke (G.G. & J Robinson, 1798), i, 595, letter dated July 21, 1712.
6. Osiander, 119.
7. Bolingbroke, Henry St. John Viscount, The Works of Lord Bolingbroke (Frank Cass, 1967) (reprint of the 1844 edition), ii, 287.
8. At Utrecht, Osiander perceptively writes that “the word ‘state' was used ordinarily to designate an administrative unit with the potential to be an autonomous international actor, even though it might not, and in fact often did not, possess that quality at the moment. For instance, the French instruction for the congress refers to the Spanish dominion as ‘a monarchy so vast and consisting of so many states’” (Osiander, 103).
9. Bolingbroke, Henry St. John Viscount, The Works of Lord Bolingbroke (Frank Cass, 1967) (reprint of the 1844 edition), ii, 288.
10. Osiander, 123.
11. Quoted in Osiander, 132; see also the renunciations of the Duke of Orleans, and that of Philip V.
12. Quoted in Osiander, 127.
13. Quoted in Osiander, 128.
14. Quoted in Osiander, 131.
15. In the Austrian Netherlands, the Dutch acquired the right to garrison Namur, Tournai, Menin, Ypres, and other places. In Italy, the duke of Savoy gained Exilles, Fenestrelle, and other forts; Allesadrai, part of Montferrat, Valenza, Vigevano, and other critical places that would bar a French invasion of Italy. Various districts on the Rhine were obtained by German states, and France removed to the west bank. Brandenburg got part of Gelders, Bavaria recovered the Palatinate, and the elector at Cologne was restored: all these arrangements were thought to deter any renewed French aggression, yet
not to provide a base for independent forays.
16. Randle, 261.
17. F. W. Walbank, A Historical Commentary on Polybius (Clarendon Press) (vol. I, 1957) (vol. II, 1967) (vol. III, 1974).
18. Murphy, 34.
19. Nussbaum, 156.
20. Robert von Mohl referred to it as “a kind of oracle with diplomats and especially with consuls,” see Nussbaum, ibid.
21. Ibid., 161.
22. See e.g., Armitz Brown v. United States, 8 Cranch (12 U.S.), 110.
23. Vattel, Le droit des gens (Editions A. Pedone, 1998), II.i. 16.
24. Reminiscent in our day of George Gilder and his descriptions of a market-state backlit by universal prosperity.
25. “Now although nature has so constituted men that they absolutely require the assistance of their fellow men if they are to live as it befits men to live, and has thus established a general society among them, yet nature cannot be said to have imposed upon men the precise obligation of uniting together in civil society; and if all men followed [the laws of nature] subjection to civil society would be needless.” Vattel, Le droit des gens, preface.
26. Murphy, 51; see Vattel, II.i. 16.
27. Osiander, 48.
CHAPTER TWENTY-ONE: THE CONGRESS OF VIENNA
1. Carl von Clausewitz, On War, trans. Howard and Paret.
2. Gneisenau observed: “The Revolution has set in motion the national energy of the entire French people…. If the other states wish to restore the balance of power they must open and use the same resources.” Also, consider the Prussian constitutional reform of 1807, discussed in New Cambridge Modern History, vol. 9, 367 – 394.
3. Thomas B. Macaulay, Napoleon and the Restoration of the Bourbons, ed. Joseph Hamburger (Columbia University Press, 1977), 98.
4. Kissinger, Diplomacy, 84.
5. Nussbaum, 178.
6. New Cambridge Modern History, vol. 9, 646 – 647: “To Vienna as guests of Francis I of Austria came King Frederick I of Württemberg, Elector William of Hesse, the Hereditary Grand Duke George of Hesse-Darmstadt, King Maximilian I, Joseph of Bavaria, King Frederick VI of Denmark and Karl August, Duke of Weimar and friend of Goethe. The King of Prussia, present himself, was accompanied by his white-haired chancellor, Prince Hardenberg, assisted by the scholarly Humboldt, and a group of experts, among them the prominent statistician, Hoffmann. Alexander I of Russia… was supported by the most international group of advisers at the Congress—the Russian Razumovski; Nesselrode, his foreign minister of German extraction; Stein, distinguished reformer and exile of the Prussian service; Tsartoryski of Poland; and Pozzo di Borgo, Corsican enemy of Bonaparte…. Talleyrand headed the French delegation…. Castlereagh took with him his three principal European ambassadors… [and] hired his own embassy staff as insurance against the Austrian spy system, at that time the most efficient in Europe. Metternich… was assisted by… a regular group of assistants and specialists, and particularly by Friedrich von Gentz, a most interesting intellectual and publicist…. Prominent among the lesser statesmen were Wrede, chief diplomatist for Bavaria; Cardinal Consalvi, secretary of state for the Pope; and Münster, able and experienced representative of Hanover…. The Congress… attracted to Vienna a medley of princes, aristocrats, tourists, beggars, spies and pickpockets.”
7. This is discussed in Chaters 7 and 8.
8. New Cambridge Modern History, vol. 9, 22, citing K. Waliszewski, Le regne d‘Alexandre I, vol. 2 (1924), 378.
9. It is interesting that Britain only signed a peace with Napoleon when the British state took a retrogressive constitutional move away from state-nationhood. It was the resignation of the Pitt cabinet over the king's refusal to assent to a law removing the disabilities of Catholics that cleared the way for a treaty with the French.
10. Treaty of Union, Concert and Subsidy between Austria, Great Britain, Prussia and Russia, March 1, 1814, art. XVI, 673 Consol. T.S. 84,91; W. Alison Phillips, The Confederation of Europe: A Study of the European Alliance, 1813 – 1823 (H. Fertig, 1966), 74 – 75 (discussing the importance of article XVI for Europe and also noting that the treaty was actually signed on March 10 but antedated).
11. Quoted in Osiander, 243.
12. Kissinger, Diplomacy, 82.
13. Quoted in Osiander, 243.
14. Quoted in Osiander, 194.
15. Osiander, 190.
16. Quoted in Osiander, 191.
17. Ibid.
18. Osiander thinks Webster owes his view to an anachronism also, but not the same one I have in mind. For Osiander, Webster is confounding twentieth century nationalism with early nineteenth century national ideas; this may be true, but it does not go to the public opinion/expediency point; whatever sort of state nationalists wanted, Webster's point is that their feelings were simply ignored rather than that they were not accommodated.
19. In contrast, for example, to the territorial state, for which such allocations were everything.
20. Osiander, 196 – 197.
21. Calabresi and Bobbitt, Tragic Choices.
22. Ibid., 41 – 42.
23. Talleyrand, Memoirs, vol. 2 (Putnam, 1891), 120.
24. Talleyrand thus spoke to the tsar: “Neither you, sire, nor the allied powers, nor I, whom you believe to possess some influence, not one of us, could give a king to France. France is conquered—and by your arms, and yet even today, you have not that power… In order to establish a durable state of things, and one which could be accepted without protest, one must act upon a principle. With a principle we are strong. We shall experience no resistance; opposition will, at any rate, vanish soon, and there is only one principle. Louis XVIII is a principle; he is the legitimate king of France.” Talleyrand, vol. 2, 124, quoted in Osiander, 214; see also the discussion of legitimacy by Macaulay, 70 – 72.
25. For example, the Habsburg realms, though vast, were materially augmented by the addition of the Spanish Netherlands as compensation for the loss of the Spanish throne.
26. This was the Russian delegation; see Osiander, 229.
27. Osiander, 226.
28. Osiander, 227.
29. Osiander, 224.
30. Quoted in Osiander, 226.
31. November 4, 1814; Wellesley ix, 415.
32. October 12, 1814; Wellesley ix, 329, 331.
33. Quoted in Osiander, 187.
34. Final Report to Louis XVIII, Talleyrand, ii, 238, 244f. As Osiander concludes, “[I]t was the turn of the republicanism to return through the back door. Mandated parliamentary assemblies sprang up everywhere, more ambitious and more effective than their precursors in pre-revolutionary Europe,” 220.
35. See Osiander, 220, n. 134.
36. Quoted in Osiander, 202.
37. Ibid.
38. Alan Palmer, Metternich (Harper & Row, 1972), 113.
39. Harold Nicolson, The Congress of Vienna: A Study in Allied Unity: 1812 – 1822 (Viking Press, 1946), 143.
40. Palmer, 139.
41. Quoted in Osiander, 205.
42. Quoted in Osiander, 206.
43. J. G. Lockhart, The Peacemakers 1814 – 1815 (Duckworth, 1932), 46.
44. This account was given by the Prussian diplomat Stein.
45. Lockhart, 49.
46. Article XIII of the Federal Act provided: “In alien deutschen Staaten wird eine land-standische Verfassung stattfinden.” The term “Verfassung” was variously interpreted as either requiring a “parliamentary constitution” (by liberals) or a system of Estates (by conservatives).
47. Talleyrand, quoted in Holsti, 114.
48. It was largely taken from the code prepared by Francis Lieber for the Union Army in 1863 during the American Civil War.
49. Quoted in Nussbaum, 233.
50. Ibid.
51. Murphy, 117.
52. Quoted in Francis H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States (Cambridge University Press, 1963), 224 – 225.
53. Robert B. Mowat, The Concert of Europe (Macmil
lan, 1930), vi-vii.
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