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Notes Introduction: Power, Law and the Declaration of Paris 1. Throughout this book, ‘international law’ refers to ‘public international law’ and follows 19th-century practice in seeing private international law as a separate field. 2. This argument is often known as the ‘Austinian challenge’ to international law, but John Austin’s extreme scepticism about international law went far beyond that of his mentor Jeremy Bentham, and his argument that international law is simply ‘set by general opinion’ and only enforced by ‘moral sanctions’ was as wrong in 1832 as it is today. 3. See M. W. Janis, ‘Jeremy Bentham and the Fashioning of “International Law” ’, American Journal of International Law, Vol. 78, No. 2 (April 1984), pp. 405–418. 4. The best-known example is Martti Koskeniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge 2004. 5. See Stephen Neff, War and the Law of Nations: A General History, Cambridge 2005, or Alexander Gillespie, A History of the Laws of War (3 volumes), Oxford 2011. 6. A modern example of this phenomenon is Mary Ellen O’Connell’s, The Power and Purpose of International Law, Oxford 2008, which was criticised by Carlo Focarelli, for ‘nowhere provid[ing] a definition of the “purpose” of international law’, see European Journal of International Law, Vol. 20 (2009), pp. 957–961, p. 957. Her main argument is that international law is law because there are a variety of sanc- tions available to enforce it, but she does not discuss the politicised nature of that enforcement. 7. Martens Nouveau Recueil Generale des Traites, Vol. 15, p. 791. 8. See Brett Bowden, ‘The Colonial Origins of International Law. European Expan- sion and the Classical Standard of Civilization’, The Journal of the History of International Law, Vol. 7, No. 1 (2005), pp. 1–24. 9. For a different view, see Arnulf Becker-Lorca, ‘Universal International Law: Nine- teenth Century Histories of Imposition and Appropriation’, Harvard International Law Journal, Vol. 50, No. 2 (Summer 2010), pp. 475–552. 10. Karl Marx/Friedrich Engels, Werke, Vol. 15/4, Berlin 1961, p. 427. 11. British and Foreign State Papers (BFSP), Vol. 46, p. 36. 12. Damian O’Connor, ‘Privateers, Cruisers and Colliers: The Limits of International Maritime Law in the Nineteenth Century’, RUSI Journal, Vol. 150, No. 1 (February 2005), pp. 70–75, p. 71. 13. See Francis Piggott, The Declaration of Paris 1856. A Study, Documented, London 1919, p. 128; and Charles H. Stockton, ‘The Declaration of Paris’, American Journal of International Law, Vol. 14 (1920), pp. 356–368, 358, 361. The first monograph, Francis Stark’s The Abolition of Privateering and the Declaration of Paris, New York 1897, did not make use of archival sources. 14. Bernard Semmel, Liberalism and Naval Strategy – Ideology, Interest and Seapower during the Pax Britannica, London 1986, pp. 56–57. 15. William Malkin, ‘The Inner History of the Declaration of Paris’, British Yearbook of International Law, Vol. 8 (1927), pp. 1–44, p. 37. 197 198 Notes 16. Olive Anderson, ‘Some Further Light on the Inner History of the Declaration of Paris’, Law Quarterly Review, Vol. 76 (1960), pp. 379–385, pp. 382, 385. 17. Olive Anderson, A Liberal State at War: English Politics and Economics During the Crimean War, London 1967, p. 272. 18. Ibid., p. 252. 19. Paul Kennedy, The Rise and Fall of British Naval Mastery, London 1976, p. 175. 20. Clarendon was fully aware of this. See Clarendon to Westmorland, 19 June 1855, Akten zur Geschichte des Krimkriegs (AGKK) III/3, No. 500, p. 762. Cf. Andrew Lambert, ‘The Crimean War Blockade, 1854–1856’, in Bruce Elleman and S. C. M. Paine (eds.), Naval Blockades and Seapower – Strategies and Counter- Strategies, 1805–2005, Abingdon 2005, pp. 46–61. 21. Andrew Lambert, ‘Great Britain and Maritime Law from the Declaration of Paris to the Era of Total War’, in Rolf Hobson and Tom Kristiansen (eds.), Navies in Northern Waters: 1721–2000, London 2004, pp. 11–40, p. 15. 22. Avner Offer, The First World War: An Agrarian Interpretation, Oxford 1989, pp. 271, 282. 23. In his most recent article, Lambert changes his stance slightly, arguing that ‘while many British commentators have criticized the Declaration as an unwise conces- sion [ ...] the reality was far less clear-cut’, Crimean War Blockade, pp. 60–61. Also note Nicholas Tracy (ed.), Sea Power and the Control of Trade: Belligerent Rights from the Russian War to the Beira Patrol, 1854–1970, Aldershot 2005, which is a highly valuable source collection but not a research monograph that could replace earlier accounts. 24. Andrew Lambert, Crimean War – British Grand Strategy, 1853–1856, Manchester 1990, pp. 333–334. 25. Gary Anderson and Adam Gifford, Jr., ‘Privateering and the Private Production of Naval Power’, Cato Journal, Vol. 11 (Spring/Summer 1991), pp. 99–122, p. 112. Pat O’Malley, ‘The Discipline of Violence: State, Capital and the Regulation of Naval Warfare’, Sociology, Vol. 22, No. 2 (May 1988), pp. 253–270, p. 265. 26. Alexander Tabarrok, ‘The Rise, Fall, and Rise Again of Privateers’, The Indepen- dent Review, Vol. 11, No. 4 (Spring 2007), pp. 565–577, p. 575; Antony Bruce and William Cogar, An Encyclopedia of Naval Warfare, Chicago and London 1998, p. 293; Ulrich Scheuner, ‘Privateering’, in Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, Vol. 3, Amsterdam and New York 1997, pp. 1120–1122. This argument is also made in the otherwise very well-informed study by John W. Coogan, The End of Neutrality: The United States, Britain and Maritime Rights 1899–1915, Ithaca 1981, p. 23. 27. Nicholas Parillo, ‘The De-privatization of American Warfare: How the U. S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century’, Yale Journal of Law & The Humanities, Vol. 19, No. 1 (Winter 2007), pp. 1–95, p. 10. 1 ‘More Serious than the Eastern Question Itself’ – The Crimean War Compromise 1. Lobstein to Drouyn de Lhuys, 22 November 1853, AMAE, Correspondence Politique Suède, No. 325, f183. 2. Schroeder to Marcy, 30 November 1853, private, NARA, M45, Vol. 8, Roll 9; Schroeder to Marcy, 3 December 1853, No. 106; Schroeder to Marcy, 19 December 1853, No. 108, ibid. Notes 199 3. Rehausen to Clarendon, 2 January 1854, and Reventlow Criminil to Clarendon, 2 January 1854, BFSP, Vol. 44, p. 94. See also Parliamentary Papers, Correspondence Relative to Neutrality of Denmark, Sweden and Norway, 1854 (1711) LXXII.601. 4. Belmont to Marcy, 20 January 1854, No. 13, NARA, M42, Roll T-19; Werther to Manteuffel, 2 December 1853, AGKK II/1, No. 86, p. 255. The Netherlands’ decision was dependent on Prussia: Koenigsmarck to Manteuffel, 7 January 1854, ibid., No. 112, p. 306. 5. Schroeder to Marcy, 18 January 1854, No. 111, ibid.; Schroeder to Marcy, 30 January 1854, No. 112, ibid. For the Russian demand to close the ports and the Swedish response to Clarendon’s despatch, see Lobstein to Drouyn de Lhuys, 30 January 1854 and 6 February 1854, AMAE, CP Suède, No. 325, f223+f230. 6. John Russell was at this time the Leader of the House of Commons, and Minister without Portfolio in the Aberdeen government since handing over the post of Foreign Secretary to Lord Clarendon in February 1853. He continued to speak frequently in the name of the government on foreign policy matters. 7. Walewski to Drouyn de Lhuys, 6 January 1854, AGKK IV/1, No. 344, pp. 749–752. 8. Memorandum of 11 January 1854, printed in Malkin, Inner History, pp. 8–9. 9. Anderson, Liberal State at War, pp. 248–253; Spencer, Mason Memorandum, pp. 50–51. 10. Drouyn de Lhuys to Walewski, 12 January 1854, quoted in Spencer, Mason Mem- orandum, p. 49, and Drouyn de Lhuys, ‘Les Neutres Pendant la Guerre d’Orient’, Revue Maritime et Coloniale, Vol. 23 (1868), pp. 658–681, 663f. 11. Hamilton, Anglo-French Seapower, p. 169. 12. Drouyn de Lhuys to Ducos, 16 February 1854, Vincennes, CC41251. 13. Walewski to Drouyn de Lhuys, 16 February 1854, AMAE, Correspondence Politique, Angleterre, No. 694, f4–5. 14. Thomas Milner Gibson had asked whether a decision to grant ‘free ships, free goods’ had been reached. See House of Commons, 27 February 1854, Vol. 130, Col.1353. 15. Drouyn de Lhuys to Walewski, 1 March 1854, AGKK IV/I, No. 413, pp. 898–899; Walewski to Drouyn de Lhuys, 2 March 1854, ibid., No. 414, pp. 899–901. 16. House of Commons, 13 March 1854, Vol. 131, Col. 698–699. 17. House of Lords, 17 March 1854, Vol. 131, Col. 888–891. This advice in favour of buying Russian produce in neutral ports in order to import it to Britain was the official recommendation given to merchants. See Parliamentary Papers, Cor- respondence between Board of Trade and House of Messrs. Martin, Levin & Adler, on Rights of Neutrals, 1854 (146) LXI.645. 18. The Times, 10 March 1854, p. 8. 19. House of Commons, 17 March 1854, Vol. 131, Col. 966–969. 20. Ibid., Col. 969–973. 21. Buchanan to Marcy, 17 March 1854, No. 25, NARA, M30, Vol. 65, Roll 61; BFSP, Vol. 46, p. 828. 22. Drouyn de Lhuys to Ducos, 20 March 1854, Vincennes, CC41251. 23. See Spencer, Mason Memorandum, p. 55; De Lhuys, Les Neutres, pp. 667–668. 24. Cowley to Clarendon, 19 March 1854, quoted in Spencer, Mason Memoran- dum, p. 55. 25. The law was passed on 23 March 1854. See Hamilton, Anglo-French Seapower, p. 173. 26. Spencer, Mason Memorandum, pp. 51, 56. 200 Notes 27. Cowley to Clarendon, 22 March 1854, quoted ibid., p. 56. 28. Buchanan had reported home that Clarendon was ‘evidently apprehensive’ about privateers and had used this as an argument to promote generous neutral rights.
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