Ius Publicum Europaeum and International Society, 1713-1739. a Status Quaestionis

Ius publicum europaeum and international society, 1713-1739. A status quaestionis Frederik Dhondt1 Ph.D.-Fellow of the Research Foundation Flanders (FWO) Legal History Institute, Ghent University (Belgium) [Slide 1] First of all, I would like to thank prof. Michael Stolleis for offering me the unique opportunity to stay at the Max Planck Institute for European Legal History in an early stage of my PhD-research. The collection of 18th Century internationalist and publicist doctrine kept at the institute is a necessary complement to the archival records I consulted in London from October to December. Moreover, I am convinced that the material resources offered in Frankfurt and the stimulating personal encounters and discussions will considerably enhance the quality of my later writings. It is a commonplace in historiography to talk about the “second hundred years war” between Britain and France. Between 1688 and 1815, from William III and Louis XIV to Pitt the Younger and Napoleon, the irreconcilable enemies of the late Middle Ages face each other in a struggle for dominance of the European continent and the High Seas. However, this is a gross negation of historical fact. Between 1713 and 1739, France and Britain co-orchestrated a stable and tranquil state system. In an equilibrium between Big Powers, diplomatic issues were solved through mediation, leading to international agreement and finally to territorial exchange. The backbone of this system was quite the opposite of an imperial ideal or “Monarchia Universalis” (as Franz Bosbach calls it). Avoiding hegemony, means avoiding war. Two methodological safeguards have to be counted with. 1) As international relations are concerned, it is of vital interest not to neglect contextual parameters. a. Firstly, the legal context. As this eminent scholar audience knows, it is a commonplace to state about the Ancien Régime that la règle, c’est l’exception. Even for international relations, legal pluralism and general normative confusion are the standard of the ad hoc hodgepodge of the ius publicum europaeum. Treaties coexist with material state constitutions, feudal law and private norms. b. Secondly, in absence of international institutions, relations between crowned heads or republics, as sole actors of international life, produce the normative acts which we study.vThe framework of the Société des Princes (Lucien Bély) leads to a personalization of international relations and to the taking into account of the monarch’s personal and familial antecedents. 2) Moreover, International law is not the same as we know it today. a. Two sources have been studied to a certain extent: international doctrine, as well by historians, jurists as by philosophers, and international treaties (I refer to Randal Lesaffer’s Peace Treaties and International Law, Cambridge UP, 2004). Much work still needs to be done. 1 This text, dd. 22 February 2010, cannot be quoted or cited in any way. It constitutes a mere indication of the presentation I held at the Max Planck Institute on the jour fixe of 22 February 2010. b. However, this only tells us a part of the story. The doctrine is strongly normative. It tells us how international society ought to be, not how it actually works. Treaties, on the other hand, are but formal crystallization moments of larger processes. Often, they have been bygone by political events. These political events might seem absolutely rebarbative in themselves. Most authors feel content when they enumerate the chronological succession of treaties and changing alliances. Of course, this rather brutal treatment does not entice a reader to broaden his insight in the matters. Thirty years of peace are either seen as the aftermath of the War of the Spanish Succession, or as the prelude to the War of the Austrian Succession. It is not very clear how this can coexist with the widespread judgment of military confrontation over Sicily in 1718 or Poland in 1734 as “phoney”, or with the general internal political stability. [Slide 2: law and the facts] 1713-1739 is a privileged period. Much more than the decades following 1648, we can judge the virtues of the European system. It is true that beginning in 1667, with Paul François de Lisola’s treatise Bouclier d’Estat et de Justice contre le dessein manifestement découvert de la monarchie universelle, the idea of contra-hegemony was put forward by all actors in the European theatre. However, it was only with the end of the Wars of Louis XIV that the values of international society were in conformity with the behavior of Europe’s “fellow monarchs”. How should we interpret this ? These values had their place within a society, and not a community. There was no will to establish a political unity between the diverse sovereigns, but a will of coexistence, on the basis of shared values. And precisely these values are an indispensable requirement to the upholding of any international balance, as Henry Kissinger rightfully pointed out in his work on the Congress of Vienna. In a vertical relation, one can identify the movement towards power centralization in national constitutions as a common European element. Horizontally, the rules of conduct are homogeneously elaborated through diplomatic interaction. In my current investigations, I put forward a binary hypothesis. One of a divide between “new” and “old” legal discourse: France and Great Britain, architects of the European Balance system, on the one hand (I), and Spain and Austria, producing nostalgic claims, on the other (II). I. The Utrecht Balance [slide 3] I will not bore you with the complex interactions between the European sovereigns over thirty years, but will limit myself in this introduction to an overview of the political schemes developed to safeguard, amend and enlarge the scope of the Utrecht and Baden peace treaties. A. Bilateral Compromise Without going into details, we can state that he agreement reached in Utrecht was of a bilateral design, arranged between Paris and London. Jean-Baptiste Colbert de Torcy, Louis XIV’ minister for Foreign Affairs, settled most of the essential points with the British ambassador in Paris, Matthew Prior. (Both men are represented on the slide.) The Utrecht and Baden settlement –and here we tread on legal terrain- was signed between all protagonists, except Spain and Austria. Two essential characteristics: Buffer states prevent the big powers from direct contact on the continent: Piemonte/Savoy (France/Austria), Southern Netherlands (France/Republic), Bavaria (Empire/France) Next to this, it is important to understand that contemporary powers saw commerce as the ultimate source of a nation’s wealth and thus military capability. Trade, however, was a zero sum-game and thus a precious matter, to be unilaterally claimed as much as possible. The British eliminated the Dutch as the main commercial power and installed a network of dominance in two vital areas. o the Mediterranean (Minorca) + Savoy/Sicily o the New World (through prioritary access to Brazil + through trading privileges with the Spanish colonies and the monopoly on the slave trade, the Asiento de Negros) B. Amendment and Conservation [Slide 4] 1. From The Hague (1717) to Sevilla (1729) 1. On the 1st of September 1715, Louis XIV blew out his last breath. The end of an era, since the king had only his five-year old greatgrandson Louis XV as a successor. Philip V, king of Spain and grandson of Louis XIV, constituted a threat to the position of the Regent, in case Louis XV was to die. Another pan-European war would erupt. It was thus very unlikely that Philip of Orléans, Regent until the young king was of age, would try to break the settlement. Simultaneously, the Hannover dynasty (I refer to Ragnhild Hatton’s brilliant biography of George I) installed itself on the British throne. The first concern of the new monarch, only installed by the will of his Parliament through the Act of Settlement (1701), was to consolidate his position against the Catholic Pretender James III, living in the Duchies of Lorraine and Bar, close to the French border. The deal seemed simple: if France and Britain were to unite, they could impose anything on the rest of Europe, consisting of the ever-bankrupt and inefficient Habsburgs, the psychologically unstable Spanish King (who at times pretended to be a frog), the exhausted Dutch Republic and the minor princes of Germany and Italy. In 1716, James Stanhope signed a revolutionary agreement with Cardinal Du Bois, de facto prime minister of the Regent. Britain switched its allegiance definitively from The Hague and Vienna to Paris. Because George I had an interest in it. Cardinal Alberoni, Spanish prime minister, fomented an alliance with the Jacobites, the pro-Philip V party at the French court and the Swedish king Charles XII, to depose him and celebrate James III as new king. On the other hand, Charles VI and Philip V did not sign a peace between them at Utrecht. For Italy, a mere neutralization convention had been signed in 1713. Consequently, Charles and Philip still claim each others territories. Is this an element of weakness of the 1713 Treaty ? No, since the settlement de facto constrains both rulers to go to war, the British navy being able to stop any invasion plans. But legally, too. Charles VI renounced to Spain in the Baden Treaty, just as Philip V did with the French throne and the former Spanish Italy in the Utrecht treaty. Henceforth, the Franco-British alliance solidifies the new international stage, where unilateral claims are deemed to fail. No state could muster the military capabilities to overthrow it without the help of one of the two big players. Given an alliance between Paris and London, Vienna could not defeat Madrid. And vice versa. In 1718, France, Britain, The Republic and Charles VI joined in the Treaty of the Quadruple Alliance, designed to evacuate the Spanish menace from the Italian theatre [Projection French executing order, 1722].

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