zaterdag, juni 16, 2018

ARTICLE: ‘Arrestez et pillez contre toute sorte de droit’: Trade and the War of the Quadruple Alliance (1718–1720). Legatio: the Journal for Renaissance and Early Modern Diplomacy Studies I (2017), 97-130

(image source: Wikimedia Commons)

The first issue of Legatio: the Journal for Renaissance and Early Modern Diplomacy Studies was published in open access yesterday.

I contributed an article on "Trade and the War of the Quadruple Alliance".

The War of the Quadruple Alliance (1718-1720) was a conflict between Spain and the other major European powers over the balance of power in Italy. France and Britain jointly intervened on the side of the attacked party, Emperor Charles VI. In February 1720, the conflict was resolved when Philip V of Spain finally adhered to the Treaty of London (2 August 1718). The decision to go to war was contentious at the French court. For the benefit of public opinion, Philip, duke of Orléans and Regent of France, had to wage war against the Spanish Prime Minister, Cardinal Giulio Alberoni, rather than against the Sun King's grandson, Philip V. Moreover, whereas French and British diplomats found consensus as regards maintaining the principles of the Peace of Utrecht (11 April 1713), they remained commercial rivals. This article lifts a tip of the veil covering the complex trade relations during the conflict. Spain tried to placate and reassure French merchants, and conversely to punish their British counterparts. The British fleet patrolled the Mediterranean, searching French vessels as well as those of neutral states. The Emperor, though allied to France and Britain, could not prevent Neapolitan corsairs from preying on their trade. Moreover, French ships illegally furnished the Spanish army. Finally, France and Britain hoped to quell the abuse of neutral powers in the conflict (Tuscany, Genoa, Venice) by imposing upon them a duty to chase Spanish privateers from their harbours.
 Discover the rest of the journal (open access) here.

woensdag, mei 30, 2018

CHAPTER: "Inaugurating a Dutch Napoleon? Conservative Criticism of the 1815 Constitution of the United Kingdom of the Netherlands" in Ulrike MÜSSIG (ed.), Reconsidering Constitutional Formation II: Decisive Constitutional Normativity. From Old Liberties to New Precedence [Studies in the History of Law and Justice, ed. Georges MARTYN and Mortimer SELERS; 12] (Heidelberg/New York: Springer, 2018), XII+ 417 p. ISBN 978-3-319-73037-0 (Open Access)

(image source: Springer)

Springer published the collective volume Reconsidering Constitutional Formation II: Decisive Constitutional Normativity. From Old Liberties to New Precedence (ed. Prof. U. Müssig (Passau)). This book contains (inter alia) papers presented at the ReConFort II-meeting held at the Academy Palace in Brussels in March 2016, at the invitation of the Committee for Legal History.

Book abstract:
This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power). In the late 18th and early 19th centuries, constitutional normativity began to complete the legal fixation of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this ‘new order of the ages’ suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically ‘higher’ form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments – from the French Revolution to Napoleon’s downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory. Also included in this volume are the French originals and English translations of two vital documents. The first – Emmanuel Joseph Sieyès’ Du Jury Constitutionnaire (1795) – highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second – the 1812 draft of the Constitution of the Kingdom of Poland – presents the ‘constitutional propaganda’ of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe’s constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. ( 
Paper abstract:
The 1815 constitution of the United Kingdom of the Netherlands established a deferential control on the sovereign power to declare war and conclude treaties. Following articles 57 and 58, international
agreements could be concluded and ratified by the monarch, save for peacetime cessions of territory. The constitutional committee’s debates treat the matter rather hastily. William I (1772–1843)’s role at the establishment of the Kingdom of the United Netherlands had been so decisive, that the advent of a less qualified successor seemed inconceivable. The monarch personified the common interest. Foreign policy, the privileged terrain of princes and diplomats, was judged unsuitable for domestic political bickering.
Finally, the Estates Generals’ budgetary powers were seen as an indirect brake on potential royal martial ardours. The incidental objections formulated by Jan Jozef Raepsaet, a Southern conservative publicist, show the more structural deficiencies of the constitution as a pact between the monarch and the nation. Leaning both on feudal law and law of nations doctrine, Raepsaet demonstrated how William I had been dressed in Napoleon’s clothes. The King had a nearly unchecked competence in foreign affairs, beyond the usual Old Regime safeguards, contrary to Enlightenment criticism of autocratic rule. John Gilissen aptly labeled William I as a “monocrat”. Vattel or Pufendorf’s opinion on the ruler as a mere usufructuary seemed to have evaporated. Raepsaet’s arguments on the inconsistent nature of Art. 57 and 58 are echoed in the 1831 Belgian constitution’s Art. 67—subjecting most treaties to parliamentary consent—as well in Thorbecke’s criticism of the document.
The book can be downloaded for free (open access) on the Springer website.

woensdag, maart 21, 2018

TV: TerZake (garde à vue Sarkozy)

Gisteren gaf ik op TerZake (VRT NWS) kort toelichting bij de algemene context van de garde à vue (voorleiding bij de onderzoeksrechter) van oud-president Sarkozy.

Meer hier.

zaterdag, maart 10, 2018

PORTAIT: Charles Baron Whitworth (1675-1725)

(Image source: Wikimedia Commons)

Charles Whitworth (1675-1725) served three British sovereigns: William III, Anne and George I. He fulfilled diplomatic missions of first importance, e.g. in Berlin during the close of the Great Northern War (1719-1722), or as minister plenipotentiary at the Congress of Cambrai (1722-1725). Whitworth was involved in both diplomatic issues of the Northern and Southern European theatres, including the rise of Russia, the intricacies of religious politics in the Holy Roman Empire and the complex legal aftermath of the succession of Charles II of Spain (1661-1700). He was a key figure in the complex British foreign policy of the Hanoverian succession.

Born in 1675, Charles Whitworth was educated at Westminster and Trinity College Cambridge (of which he became a fellow in 1700) and was buried in the south aisle of Westminster Abbey on 6 November 1725. He started as  secretary to George Stepney (1663-1707), William III’s envoy in Berlin, then acted as aide to Cardinal Lamberg, commissioner of Holy Roman Emperor Leopold I, at the Regensburg Diet at the beginning of the War of the Spanish Succession, and then replaced Stepney in Vienna (Santifaller 1950).

Whitworth’s stay in St Petersburg, in extremely difficult days, from 1704 to 1713, produced a remarkable Account of Russia in the Year 1710 (Whitworth 1758; Hartley 2002). This country had been “so little frequented by Foreigners, and their Share in the Affairs of Europe so inconsiderable”. Whitworth became involved in the famous case of the Russian ambassador Mathweof, held in London for private debts in 1708 (Martens 1827). Mathweof had been arrested after his final audience with Queen Anne, at the end of his diplomatic mission, but quickly released on bail. The Privy Council ordered the arrest of several British subjects. The jury in the Queen’s Bench declared them guilty, but failed to impose a retroactive penalty. Whitworth obtained the highest diplomatic rank, that of ambassador extraordinary, to apologize with the Czar.

Whitworth described Russia with distant irony: “The peasants, who are perfect Slaves, subject to the arbitrary Power of their Lords […] can call nothing their own, which makes them very lazy”. (Whitworth 1758: 185). This primitive mass of peasants seemed “admirably fit for the Fatigues of War”, ready to “go as unconcerned to Death or Torments, and have as much passive Valour, as any Nation in the World” (Whitworth 1758 186). The Czar ruled “absolute to the last degree, not bound up by any Law or Custom, but depending on the Breath of the Prince” (Whitworth 1758: 189). The Orthodox Church was seen as “corrupted by Ignorance and Superstition” (Whitworth 1758 186). During the last months of Queen Anne’s reign, Whitworth was sent to Augsburg, to observe the conference in Baden between France and the Emperor. Berlin and again The Hague followed. He was also in post at Berlin, Vienna and the Palatinate amidst the complications of the Great Northern War.

Western and Southern European politics after the Peace of Utrecht (1713) were extremely complicated. The Cambrai Conference (1722-1725) served to complete the Treaty of the Quadruple Alliance, mainly its fifth article, specifying the right of succession to the duchies of Parma and Piacenza and the Grand-Duchy of Tuscany, destined to be inherited by the offspring of Philip V of Spain and his second wife Elisabeth Farnese. This would take another seven years. Whitworth had been made an Irish peer in January 1721 (“Baron Whitworth of Galway”) and entered the House of Commons as an MP for Newport (Isle of Wight) in 1722. He joined Polwarth (Alexander Campbell Hume, the later second Earl of Marchmont (1675-1740)) at Cambrai in the Autumn of 1722. The Italian duchies implied the application of feudal law. Would Philip V’s son become a “loyal” vassal of the Emperor, or even a “subject” or a “liege vassal”?  A final peace treaty between Charles VI and Philip V was still due. Which titles could Philip V and Charles VI assume, irrespective of the territory they effectively controlled? Who inherited the grand mastery of the Golden Fleece?.

The extent to which imperial and feudal law had been altered by the Quadruple Alliance provided ample opportunities for delays and obstruction. Memoranda in Latin from the Imperial Court Chancery were rigorously scrutinized by university educated British diplomats, juggling with legal terms, draft treaties and synoptic tables. Their judgment of Spanish arguments was devastating, even in cases where the Spanish view ought to have prevailed. The discussions on Sienna at the decease of Grand Duke Cosimo III of Tuscany showed Whitworth and Polwarth’s irritations with Spain’s excessive claim on sovereignty. Yet, the Austrian answers were so weak, that “the Reasons of the Imperialists may be very justly disputed, thô the thing in itself could not, had it been rightly understood.”

By late August 1724, Whitworth and Polwarth outstepped the boundaries of their role, challenging George I’s foreign policy. Franco-British rivalry seemed permanent, the embellishment in mutual relations temporary. Whitworth looked at the French court with irritation. Louis XV was spoiled by his entourage: “the only attention of the D[uke] of O[rléans] and the others about him is to please him in every thing, and teach him nothing.”

The British plenipotentiaries felt they had conceded the leadership to the French delegation. After Cardinal Dubois’s and the Regent’s decease, the bishop of Fréjus had become the new strong man at Court in Versailles, “a trifling genius, and a little mysteriousness in his temper, with a love of chicane, which makes it difficult to act with him in confidence”. Polwarth and Whitworth feared a turnaround in French policy, especially against the background of incidents with Protestants in the Empire (Whaley 2011: 156). The French, they feared, were “Jacobites in their hearts”. A “Catholic League” could well emerge under Fleury, who seemed to keep a private correspondence with the Austrian plenipotentiary Penterriedter.

The only solution, Whitworth and Polwarth argued, was for George I to take up the role of “umpire in a manner of the affairs of Europe”, and mediate –alone- between a Catholic Franco-Spanish-Italian bloc, on the one hand, and a Prussian-Dutch-Imperial camp, on the other. George should have used his experience at the age of 64 to dominate the young monarchs of France (14) and Spain (17). An independent British course would oblige the other sovereigns to go for “Pace con l’Ingleterra e Guerra con tutta la terra”.

Newcastle severely reprimanded them. Foreign policy was not a matter of affect, but of interest: “unless Your Ex[cellen]cys are of opinion that England should never have to do with any Countrey, that has in any particular different views from us, or whose Interests are not inseparable from our own.”

Dhondt, F. (2015) Balance of Power and Norm Hierarchy. Franco-British Diplomacy after the Peace of Utrecht. Leiden/Boston: Martinus Nijhoff/Brill.
de Martens, F. (1827) Causes célèbres du droit des gens. Leipzig : Brockhaus.
Whaley, J. (2011) Germany and the Holy Roman Empire. Volume II: The Peace of Westphalia to the Dissolution of the Reich, 1648-1806. Oxford: OUP.
Whitworth, C. (1758) An Account of Russia as it was in the Year 1710. Strawberry-Hill.

Suggested reading
Thompson, A. (2006), Britain, Hanover and the Protestant Interest, 1688-1756. Woodbridge, Boydell Press.
Aldridge, D.D.  (2004). “Whitworth, Charles, Baron Whitworth (bap. 1675, d. 1725)”, Oxford Dictionary of National Biography. Oxford University Press, 2004; online edn, Jan 2008 [, accessed 22 April 2016].
Dureng, J. (1911). Le duc de Bourbon et l’Angleterre (1723-1726). Toulouse : « du Rapide ».
Hartley, J.M.  (2002). Charles Whitworth: Diplomat in the Age of Peter the Great. Aldershot: Ashgate.
Santifaller, L. Gross, L. &. Haussmann F. (ed.) (1950), Repertorium der diplomatischen Vertreter aller Länder seit dem Westfälischen Frieden, Band. 2: 1716-1763. Zurich: Fretz & Wasmuth.

donderdag, maart 01, 2018

CORE WORKING PAPER 2018-1:Complete the Chain of Universal Law and Order’: The first continental peace conferences and the interdisciplinary dream of peace

The first continental congresses of the "Friends of Peace" were held in 1848 (Brussels) and 1849 (Paris). A heterogeneous bourgeois audience convened to discuss the abolition of war and standing armies, unearthing a long pedigree of perpetual peace plans, linking them up with the changing nature of national sovereignty and general concerns for societal reform. The professionalisation of international law, or its establishment as a discipline taught by experts, was preceded by scathing criticism from civil society against the traditional diplomatic and military elites, who monopolised the exercise of force. In spite of the Peace Conferences' failure to alter international order through transnational public opinion, discussions stretching from the 1840s to the late 1860s provide insight into the role of legal arguments in political activism. This paper gives an overview of the personal networks and intellectual inspirations converging at these meetings, situated in the immediate "pre-history" of the Gentle Civilizer of Nations (Koskenniemi, 2001).

More information here.

donderdag, januari 18, 2018