CHAPTER TWENTY-ONE
AT THE OUTBREAK of the French Revolution in 1789, the French army had profited from a series of reforms, discussed in Chapter 8. Nevertheless it was still the army of a territorial state: the officer corps numbered fewer than 10,000, of whom more than 85 percent were drawn from the nobility. Thus the Revolution initially faced a potential challenge from an army that might become the basis for counterrevolution. If the aristocratic officer corps of the army were suppressed, however, then France faced the prospect of an army without trained leaders. By the end of 1794, partly in reaction to a new military oath introduced in September 1791, replacing the old oath to the king, more than half the officers had fled. By 1799 less than 3 percent of the officer corps came from aristocratic backgrounds. In 1790 conscription had begun, and in August 1793 the National Convention introduced the levée en masse by a decree conscripting all French males into the nation's armies until the foreign enemies of the revolution had been defeated.
“All Frenchmen… are called by their country to defend liberty… From this moment until that when the enemy is driven from the territory of the republic, every Frenchman is commandeered for the needs of the armies.” Thus the “nation in arms” was born. By the spring of 1794, France had more than 700,000 men in military service. While the armies of the territorial state were in place everywhere in Europe when the French Revolution broke out, soon, in Clausewitz's words, “such a force as no one had had any conception of made its appearance. War had suddenly become an affair of the people, and that of a people numbering thirty millions, every one of who regarded himself as a citizen of the state.”1
The conventional account of the wars of the last decade of the eighteenth century and the first decade and a half of the nineteenth stresses the ideological bases for the conflict: the war was fought by France to spread revolution to the rest of Europe, it is said, and this struggle to bring about a new order for each state was abruptly altered, in Napoleon's hands, to become a war to impose French norms generally—of culture, administration, rational statism—and to enhance the wealth and prestige of France itself. Opposed to France were reactionary governments of various kinds—parliamentary monarchies, petty princelings, ancient dynastic houses—who wished to restore the old order in the domestic arenas of politics and to restore the balance of power internationally.
In Book I, however, a somewhat different description has been given, one that suggests greater continuity between the revolutionary governments of France and the Napoleonic era, and a greater convergence between France and her adversaries. All the wars of France during this period were fought in order to obligate the mass of persons to the French state. Among this vast people various groups from the bourgeoisie were employed in the service of the state; for their members there were lower taxes and greater public expenditure owing in part to the enormous subsidies extracted by France from her conquered neighbors; working men found in the state an employer of last resort—the army (whose mass employment would not have been possible under the strategic and tactical constraints of the armies of the territorial state); and for every class a new meritocracy arose that measured status according to services rendered to the State.
The wars of 1792 – 1815 between France and various coalitions of other European powers were united, strategically and constitutionally, by the political program of the French Revolution. This program sought an end to the territorial-state autocracies and the replacement of these regimes by government in the name of the people, based on the people's political liberty and legal equality. If the people were the source of political legitimacy, then the people had a responsibility to defend their rights and powers against attack. The right of suffrage entailed the duty of military service. Conscripted armies replaced the small professional armies of the territorial state. Although France was ultimately defeated, the constitutional result of the epochal war waged from 1792 to 1815 was not to restore the ancien regimes of the territorial states.
The French innovations were soon carefully copied and more rigorously implemented in Prussia. The aristocratic, cruelly disciplined army of professional soldiers that Frederick the Great had developed was replaced by a “universality of responsibility for service in war, binding upon every class of civil society. Through this it will be possible to inculcate a proud warlike national character, to wage wearying wars of distant conquest and to withstand an overwhelming enemy attack with a national war.”2
The Prussian military reforms from 1807 on were designed to effect this change. Here it is enough to say that the Prussian force that fought from 1813 onward waged war with the same patriotic motivation as that which inspired the French. As Clausewitz wrote, it was “a war of the people.”
As with the wars of Queen Anne and the peace brokered by Bolingbroke, a new constitutional form of the State had arisen. When Louis XVIII was set upon the throne of France by the victors in 1814 he was required to take an oath to the written constitution. Throughout Europe the regimes of the territorial states underwent seismic constitutional change, transforming themselves into state-nations, copying the constitutional form of their chief predator, France, and their chief defender, Britain. When the Congress of Vienna met to decide upon a new constitution for the society of states, it mandated that this new constitutional form be the essential element in determining a state's legitimacy.
The constitution of the state-nation system was embodied in a set of treaties that may for the sake of convenience be collectively referred to as the product of this Congress. These treaties restored (twice) the Bourbon dynasty to the throne of France, conditioned upon the acceptance by the king of a constitutional arrangement based on popular sovereignty; took the 300-odd pre-Napoleonic states, combined them into some thirty states and bound them into the German Confederation; recognized the state of Switzerland as a single, permanently neutral, federal state-nation whose constituent parts were organized along national lines; combined Belgium with the Netherlands and recognized a new state, the United Netherlands; re-created the state of Poland out of the Grand Duchy of Warsaw and effectively made it a colony of Russia; gave Britain Dutch colonial holdings in South Africa and Malta; made Finland a colony of Russia, and Norway a colony of Sweden; set up the congress system by which the member states of the international society of states would periodically meet to review implementation of, and decide cases arising from, the international constitution that had been agreed to at Vienna; elaborated an important constitutional human right* through the abolition of the slave trade; allocated to a directorate of the great powers the authority to maintain the new constitution; set up various procedural rules, including those governing diplomatic practice; prescribed the lawful use of international rivers by states; and, with respect to Austria and Prussia, extended the range of their state governance to adjacent, or previously held, territories as a means of strengthening those states. In other words, Vienna performed the constitutional functions for the nineteenth century society of states that Augsburg, Westphalia, and Utrecht had performed in earlier centuries. None of the key ideas associated with the Congress of Vienna—the maintenance of the balance of power, the insistent attention to legitimacy, the sensitivity to or dismissal of various national aspirations, and the institutionalization of the great power alliance—can be fully understood absent this constitutional perspective. Familiar terms of the past, such as the balance of power and legitimacy, take on a new meaning in the new constitutional context that is embodied in the acts of the Congress of Vienna; newer ideas, like nationalism and collective security, that are familiar to us today were differently understood then in the historical context created by the new international constitution.
The Grand Coalition that defeated Napoleon, like the coalition that opposed Louis XIV, was not really fighting for the legitimist claims of a dead constitutional order, whatever these coalitions claimed. As Macaulay observed,
the war of 1815 belongs to the same class of war with the war which the ministers of Anne carried on against the house of Bourbon [i.e., the wars of Louis XIV]. The claims of Louis XVIII were to the coalition of 1815 what the claims of the archduke were to the coalition of 1701—a means—and not an end.3
When those coalitions were victorious, they sought at Utrecht and, later, at Vienna the ratification of a new constitutional form. The mentality of the generation that met at Utrecht was in contrast to that which convened in Vienna, however. At Vienna, it was understood by all parties that international relations were developmental, organic, subject to change and human direction even at a fundamental, constitutional level. The American Revolution no less than the French Revolution (but no more than the Napoleonic legal reforms that spread to the territories conquered by the French) had shattered the idea so dear to the territorial state that custom and natural law were the sole sources of binding legal rules.
Metternich spoke for the rationalist, territorial state when he complained that civil and political “rights” existed, if they existed at all, in the nature of things; they could not be guaranteed by the adoption of rules. “Things which ought to be taken for granted lose their force when they emerge in the form of arbitrary pronouncements…”4
The new mentality was otherwise: human rights could be brought into being by political will—too many persons had seen it done to believe otherwise. Freedom could be expanded, or contracted, depending on the form of the regime. A novel political society that freed the classes had conquered Europe, and a secularized, comparatively meritocratic state that energized commerce and trade had just won the war. Representative institutions could claim a basis of legitimacy on account of their relation to the popular will. Law was the chosen instrument of fundamental change.
In this respect France was for other states a model of the new constitutional order, the state-nation. France was not the only model, however: both the United States (which had inspired France) and Great Britain, France's dogged opponent, presented to the world examples of this new and dynamic constitutional form. These states also sought ways in which to bind the mass of people to the interests of the State, and ways to represent the State as the creation and object of veneration of the nation. The importance of the state-nation, however, also lies in the kind of society of states it called forth. As one historian has observed, as “a result of revolutionary change in society, one can detect during the era of the Napoleonic wars the emergence of a public opinion to gauge actions of warring governments by the principles recognized in the teachings of international law.”5
These principles awaited a constitutional convention to give them legal status. Thus, once again, war and constitutional change were followed by a peace settlement that took the form of a constitutional convention for the society of states, including even states that were not parties to the conflict. The new mentality—the mentality of the Congress of Vienna—brought issues to the fore that were quite distinct from those raised at Utrecht.
The state-nations that met at Vienna sought a special international arrangement that was not sought by the other states (of various constitutional forms) that came to the Congress, nor by the various constitutional entities that appeared at the Congress that were not themselves states.6 The European state-nation powers, Britain and France, sought an international system that would strengthen them at home not by re-enforcing domestic coercion, but by providing an external consensus that would give international politics the stability and prestige of law and would ameliorate the international conflicts that had so recently threatened to polarize their domestic polities. The other great powers were not so well placed to become state-nations. After its adoption of French military reforms, Prussia was able to forge a state-nation, but it remained frustrated by the fragmentation of the German nation; Habsburg Austria seems never to have made the transition successfully. Unlike Prussia, whose embrace of the German nation was cramped by an older, narrower state form, Austria's embrace was too broad, encompassing so many nations that it could not persuade them that their magnification lay in the service they might render the state. Russia, like her quixotic nineteenth century rulers, oscillated between a passionate intoxication with the state-nation ideal, for which its popular institutions were hopelessly ill-suited, and a reactionary rejection of the threatening modernity the new forms embodied.
THE CONSTITUTIONAL CONVENTION: THE CONGRESS OF VIENNA
The constitution of the new international system was the Final Act of the Congress of Vienna, supplemented in time by various “amendments” ratified at subsequent congresses. The Congress was therefore the constitutional convention of Europe, and it was seen as such by the state-nations that brought it into being. This constitution represents a response to three points of acute sensitivity to the state-nation: the self-consciousness of the new constitutional form, which could not depend merely upon custom for its legitimacy and must therefore earn its right to govern through the studied design and implementation of its institutions; the role of public opinion, which had become so influential in this new order that it demanded recognition by politicians; and the requirement that government policy be justifiable on the basis of articulated principles that themselves were taken as legitimate (thus requiring that the judgment of legitimacy go well beyond merely assessing the head of state). With regard to international affairs, these three points of importance played out in the following way, respectively: there was a demand for a particular legal instrument, consciously designed to prevent future wars in Europe; when public opinion became engaged by matters abroad, there had to be a way for politicians to replace diplomats as the effective actors; and inherited principles regarding the “general interest” of all states, and of the “balance of power”—set forth in earlier international constitutions and enjoying the prestige and legitimacy of tradition—had to achieve a new consensus among the powers in order for the behavior of these states to seem principled yet these principles had to be updated and modified in order for them to be practical.
THE NEED FOR A NEW INSTRUMENT
The demand for an institution that was purposefully designed to deal with future conflicts arose in several ways. First, it was apparent that the Utrechtian system, which had succeeded in limiting war for a certain period, had been utterly unable to prevent a new sort of war, one that was so destructive that it had to be deterred in order to ensure the survival of states.7 There was a fatal vulnerability in the elaborate conventions of the territorial states that became manifest once the energies of a state-nation were deployed against those conventions. Territorial states could not quite ever combine in a sustained coalition because they could so easily be bought off with territorial concessions at each other's expense. Enduring coalitions had not been necessary to fight the brief, limited wars of the terr-ritorial state system—indeed, there was a distinct value to that system in maintaining highly fluid relationships but they were indispensable in the new era of conflict. Furthermore, the elites required to manage the elegant diplomacy of the ancien régimes had been replaced in some states by parties hostile to them. The Utrechtian system, however, as much as the territorial states that it comprised, depended upon an international elite. In any case, the prosecution of unlimited war took on a momentum owing to the national fervor that fueled it, regardless of who was in charge. Carefully calibrated restraint was scarcely possible in the face of popular passions.
Second, the mentality that arose with the state-nation could not passively accept an international system that seemed to depend upon etiquette for its operation. The state-nation was founded upon the claim (made notably by Hegel) that the State furnished the ideal vehicle for the realization of the nation; the nation could only be fulfilled through the self-conscious creation and enhancement of the State. During this period modern political parties came into being, as each offered to the nation a competing version of how best to fulfill the nation through the State. At Vienna, as at Augsburg, Osnabrück and Münster, and Utrecht, a program of international security was elaborated, but at Vienna, it had to be a program that was perceived to respond to the collective failure of the conventional, customary tradition that had hitherto provided an unquestioned context for events.
Third, state-nations claimed to rule on the basis of the consent of the governed. If an instrument were to be designed to govern the security affairs of Europe, it would have to be defended on the grounds that it too reflected the will of the peoples of Europe. The tsar is reported to have remarked that Napoleon was overthrown not by cabinets but by peoples, and that an outlet must be found for a new spirit in Europe that was at once constitutional, warlike, and national—a pretty good summation of the state-nation mentality.8
The multistate institution created by this legal instrument would have to be responsive to international opinion (in the way that the political institutions of the state-nation were responsive to domestic public opinion) in order to justify its decisions as ultimately based on consent; it would have to deter war rather than merely contain it; and finally it must be perceived by national publics as actually doing both these things. The solution arrived at was an ongoing international executive, composed of the five great powers, that would coordinate international security and summon periodic congresses, as necessary, to ratify the decisions taken by this directorate. This simply replicated in peacetime the pattern set up before Vienna: the Coalition allies had first agreed on a course of action, which was then presented for ratification to a congress of all states. In this way the Congress's apparent contradiction of the principle of consent—decisions by a few having been taken on behalf of the many—was resolved. The powers could rely on the common consensus for peace while asserting that only reliance on the few could keep the peace and thereby protect the many.
We can see this tactic at work in the opening weeks of the Congress of Vienna, when the allied powers were unable to reach a final decision before the date set for the Congress to open. Castlereagh drafted a declaration explaining the delay; in it he is at pains to show that the great powers are taking international opinion into account precisely with respect to a decision that the powers alone are in fact making. As he wrote in the draft declaration:
The courts parties to the Treaty of Paris by which the present Congress has been set up, hold themselves to be obliged to submit for its consideration and approval the project of settlement which they judge to be most in accordance with the principles recognized as the necessary basis for the general system of Europe.9
The prototype for this arrangement is found in the First Treaty of Paris, Article I, which provides that “the high contracting parties shall make every effort to preserve, not only among themselves, but also as far as depends on them, among all the states of Europe, the good harmony and understanding that is so necessary for its repose,” and in Article XVI, 10 which provides for the ratification of the provisions of the treaty by the upcoming congress.
By this means the directorate could claim broad-based consent for its decisions, relying on international opinion as well as deploying this opinion in dealings among themselves. This executive managed the Concert of Europe. Initially its members were confined to the parties to the Treaty of Chaumont; by 1818 France had been included in this executive and, as Kissinger has put it, “was admitted to the Congress system at periodic European congresses, which for half a century came close to constituting the government of Europe.” Indeed, of the 170 million inhabitants of Europe (excluding those under Turkish rule), more than two-thirds were residents of states that were parties to the Treaty of Paris. As Book I elaborated, in an earlier era it had been possible for relatively small states like the Venetian Republic or later the Dutch Republic to be powerful geopolitical actors because they could fund formidable professional armies. The mass conscription of the era of the state-nation ended that possibility, ushering in a new sort of warfare, marginalizing many states, and making some large state-nations indispensable to any peace settlement. Not every leader understood this. In a letter to Castlereagh, Lord Liverpool phlegmatically wrote that “[a] war sometime hence, though an evil, need not be different in its character and its effects from any of those wars which occurred in the seventeenth and eighteenth centuries, before the commencement of the French Revolution.”11
Castlereagh (and Wellington) knew better. The era of cabinet wars fought for limited objectives was over. In its place was a new age of national wars fought for national ideals—that is, massive armies deployed to pursue virtually continental, even global, goals. By comprising those states that were capable of fielding large armies, the system of collective security that the executive directorate administered made a virtue of what Kissinger identifies as the chief defect of such systems. Kissinger writes that “[t]he weakness of collective security is that interests are rarely uniform and that security is rarely seamless. Members of a general system of collective security are therefore more likely to agree on inaction than on joint action.”12
In the case of the European executive, as with the domestic constitutional design of many of its members, inaction was exactly what was called for. All attempts by Metternich to convert the executive directorate into a roving commission to suppress democratic movements were frustrated, and no attempts were made by the great powers to assault one another until the Crimean War. It is not necessary that the interests of states be uniform for a system of collective security to function, only that these interests counsel the same course of action (or inaction). In the case of the directorate of the Concert of Europe, each member feared a new revolutionary upheaval and sought in foreign policy the prestige, legitimacy, and gravity that participation in the executive body conferred. When, in time, such upheavals came, they came not from a defecting state-nation member of the Concert but from states that had been excluded, Italy and Germany. The historian Bruun wrote that “[t]here is an element of historical irony in the fact that [Napoleon's] attempt to make France secure by extending French influence over Germany and Italy contributed to an opposite result.”13 How much more ironic that the attempt at Vienna to make the European society of states secure should ultimately founder on its failure to accord statehood to a great nation. It was a phenomenon, however, that state-nations encountered all over the globe, and it was perhaps inherent in this constitutional form. The very nationalism that energizes the armies and officials of the state-nation awakens the latent nationalism of their conquests and colonies. Though it is sometimes said that the Congress of Vienna ignored the matter of nationalism in its territorial settlements, this is only partly true: the Congress was extremely vigilant with regard to the national populations of the great powers. France was not dismembered, despite widespread sentiment to do so; German land earmarked for the English prince regent to be added to Hanover was instead given to Prussia, despite the fact that England was the chief architect of victory. Rather it was the national identities of those peoples without states that was sacrificed, and this says most about the state-nation itself and how it differs from the nation-state that is the source of our understanding of nationalism in state affairs today. The state-nation exalts the State and puts the nation at its service. The society of such states is therefore not concerned with promoting national identity per se, but rather with safeguarding the national identity of states. For this society, the Concert was an ideal institution.
THE NEED FOR A NEW POLITICS
The historian Webster in his study of the Congress of Vienna concluded that
[it] cannot be said that [public opinion] affected the decisions of the statesmen to any material degree. The Polish-Saxon question [the most divisive issue among the coalition partners] was settled purely on grounds of expediency; and the populations of Germany were transferred from one monarch to another with scarcely the slightest reference to their wishes.14
This conclusion is overstated as it stands, and in any case it mistakes the role of public opinion in the state-nation for that within the society of state-nations. For the former, it is not the opinion of distant publics but the opinion of the nation which the state-nation represents that is crucial; for the latter, it is the way in which international opinion can be deployed by powers within the executive directorate that proves decisive, and this was even true, as we shall see, with the Polish-Saxon question. Osiander renders a better judgment when he observes instead that “what made [the Congress of Vienna] different… from earlier ones was the self-conscious way that public opinion was monitored by the peacemakers. The serene self-awareness of the Utrecht system was replaced at Vienna by anxious self-consciousness.”15 Obviously modern state-nations, whose governments hold power by virtue of some version of popular consent, are acutely attuned to public opinion. What is interesting, as Osiander notes, is that the society of such states should give a crucial role to public opinion in nondomestic affairs, not confining itself to the opinion of persons “back home” but carefully monitoring (and manipulating) the opinion in the various states with whom that society had to deal (as, for example, the opinion of French society regarding the provisions of the Treaty of Paris) and deploying arguments within the executive directorate based on international public opinion. Metternich, who carefully guided the public accounts of the Congress through Gentz, his protégé, wrote that “public opinion is the most powerful of all means; like religion, it penetrates the most hidden recesses, where administrative measures have no influence,” and Gentz himself wrote that
in the whole course of the latest events, the sovereigns of the coalition to destroy the ascendancy of Napoleon have regarded public opinion as one of their main supports, and… far from neglecting this opinion, they have rather laid themselves open to the accusation… to have listened to it too much… The Tsar… attaches the utmost importance to it; whatever his political or personal ambitions, I am sure that he would rather sacrifice them than to be seen in the eyes of the public as unjust, ungrateful, or a disturber of the general peace… 16
Talleyrand argued that this sensitivity was part of the new Age. In a letter to the French king, he wrote:
Formerly, the secular power could derive support from the authority of religion; it can no longer do this, because religious indifference has penetrated all classes and become universal. The sovereign power, therefore, can only rely upon public opinion for support, and to obtain that it must seek to be at one with that opinion.17
Talleyrand was speaking of domestic opinion; Castlereagh extended this reliance to international public opinion. He wrote the tsar, regarding the Polish issue, that “if Your Imperial Majesty should leave public opinion behind you… I should despair of witnessing any just and stable order of things in Europe.”
All these leaders had witnessed the destruction of the public stature of the French autocracy by journalists; each one knew that Napoleon's power, depending as it did on enormous public faith, derived at bottom from his place in the French imagination, a place he carefully nurtured in the bulletins he wrote. If religious tradition had underwritten the ancien régime, linking it with the dynastic past and imbuing it with the prestige of the mystical, then public opinion must underwrite the kind of state that depended on mass endorsement for its power and legitimacy. Perhaps Webster has in mind the form of the nation-state when, finding little sensitivity among the great powers to the national feelings of the publics whose states were being redrawn, he sees instead only expediency in the acts of state-nations.18 The role of public opinion in the nation-state is to assess whether the welfare of the people is being attended to by the State, and it is true that there was little of this at Vienna. But the role of public opinion in the state-nation was to assess the character, fitness, and morality of the State as the apotheosis of, not the servant of, the nation. Thus, for example, one historian of the Congress has concluded that even the allocations of territories were not as important19
in themselves as is often supposed. For Metternich, more than anything, the outcome of the redistribution talks mattered as an indicator of how successful Austria was at asserting herself. Austria was anxious to confirm its role as a principal international player…. [To] lose face in the German Confederation [would have been fatal to Austria's leadership of the new league]. This is not simply a matter of expediency, and it was important, vitally important, to Austria what German and European opinion thought of it.20
Much the same case can be made even with respect to the autocratic tsar. The relation between a parliamentary leader like Castlereagh and the public opinion of his domestic constituency in a state-nation provides elements out of which the relation of a state-nation's leader to other peer leaders is created, and ultimately the relation of that state to other states. That relation too is compounded of prestige, reputation, and the stature that is conferred by being at one with public opinion, and therefore domestic and international public opinion are linked. The tsar wished to gain the respect of the European public in order to play a decisive role in the directorate, a body made up of leaders who themselves, in their domestic constituencies, had to be attentive to public opinion. The Vienna system could only successfully function if it were made sensitive to public opinion: the congresses and the directorate ensured this.
THE NEED FOR NEW PRINCIPLES
The most significant challenge facing the peacemakers, however, was neither instrumental nor political. This was the challenge posed by the loss of customary legitimacy by the ancien régime. In a previous work21 Calabresi and I have suggested that one way to look at the different cultural institutions that societies use to address social issues is in terms of four paradigmatic allocation methods: economic, political, customary, and blind. These four methods function in part to resolve and in part to hide the conflicts in values that arise from contested allocations of resources and from the difficult choices among values that are thus forced on societies. Lottery (or “blind”) systems share with customary systems the virtue of avoiding any overt consideration of the competing merits of different choices.22 Dynastic legitimacy united these two paradigmatic methods, custom and chance, so that, unless the dynastic succession were unclear, societies did not have to expose the values they would have had to compromise in an open competition of preferences to choose a ruler. The civil wars that so often accompanied succession struggles are a testament to the divisions that are exposed when such a clash of values is brought into the open. Talley rand believed that “the usual and almost inevitable consequence of an uncertain right of succession is to cause domestic or foreign wars and often both simultaneously.”23
Succession by dynastic descent is a blind allocation system, a choice by the society not to actually choose. Like men drawing straws to see who will go on a perilous mission, it leaves the selection to fate. There is much to be said for such systems: juries; the Dalai Lama, whose time of death determines the time of the birth of his successor; and the holders of entailed wealth are all chosen in this blind way. If this method, however, is stripped of its reliance on divine intervention—the claim that lot systems, by their very randomness, allow God's will to be done without adulteration—then the blind system can appear irrational and the very mindlessness that originally commended the system discredits it.
What perpetuated the system of dynastic succession beyond the era of the kingly states and into the period of territorial states, which was dominated by rationalism, was the union of blind allocation with another archetypal allocative system, custom. Whether or not monarchies—leadership by a lottery among royals—would be perpetuated into the period of state-nations depended upon whether they could call on resources of legitimacy that were sanctified by custom. Talleyrand here too saw absolutely clearly what was at stake:
I speak of the legitimacy of governments in general, whatsoever be their form, and not only of those of kings, because it applies to all governments. A lawful government, be it monarchical or republican, hereditary or elective, aristocratic or democratic, is always one whose existence, form, and mode of action, have been consolidated and consecrated by a long succession of years, and I should say almost, by a secular prescription. The legitimacy of the sovereign power results from the ancient status of possession, just as, for private individuals, does the right of property.24
Denied the union of custom and chance that aided the territorial states, the Congress of Vienna invoked three crucial interlocking norms in order to confer legitimacy upon its undertakings. These norms were the balance of power, the general interest of the society of European states, and the special interests of the prevailing constitutional archetype.
THE BALANCE OF POWER
Because the Peace of Utrecht had enshrined the idea of a European equilibrium as the sine qua non of stability for the society of states, statesmen had for a century before Vienna repeatedly invoked this idea. It is open to doubt whether the Great Article of Utrecht in fact envisaged the same sort of distribution of power as was meant by the phrase “balance of power” in Europe a century later: for one thing, the indicia of power themselves had changed, with the sheer size of populations being of much greater importance than heretofore. There are other reasons for doubt: at Utrecht, the equilibrist idea seems to have meant achieving a mathematical, Newtonian “steady state” subject to minor fluctuations, an idea that was usefully augmented by the “barrier” concept used to define French borders.25
At Vienna two new ideas were present that modified the concept: first, that the balance of power was a dynamic, developmental situation that must be maintained and adjusted by the Concert of Europe (whereas at Utrecht such minor adjustments in territory as reflected the waxing and waning of state power were left to limited wars, waged in an appropriately confined manner); and second, that the maintenance of a balance of power was a matter of collective legitimacy as much as collective security. Maintaining the balance of power would become the chief business of the great power directorate. One member's delegation to Vienna confirmed its government's intention of maintaining “that system of equilibrium which [is] placed henceforth under the protection of the powers of the first order and shielded from all preponderance.”26
The centrality of the balance was evident in the statement of all the chief actors at Vienna. Castlereagh wrote to his prime minister that he regarded his duty “to make the establishment of a just equilibrium in Europe the first object of my attention and to consider the assertion of minor points of interest as subordinate to this great end.”27 Talleyrand, in his final report from the Congress, repeated that its purpose, as recorded in the precursor Treaty of Paris, was “such as to establish in Europe a real and permanent balance of power.”28 The Declaration of Frankfurt, drawn up by Metternich as a statement of allied policy distribution, stated that the “allied powers… want a state of peace that, through a wise distribution of forces, through a just equilibrium, will henceforth preserve their peoples from the numberless calamities that, for twenty years, have burdened Europe.”29 The Congress convened a statistical committee to establish credible estimates of the number of persons in the various territories to be distributed, in order to facilitate a carefully balanced population because such a distribution was thought crucial to the Congress's work. Yet these statesmen were not so naïve as to believe that Europe could be carefully parceled into so many compensating weights. As Talleyrand wrote,
[a]djacent to large territories belonging to a single power, there are territories of similar or of smaller size, divided up among a greater or lesser number of states… Such a situation only admits of a very artificial and precarious equilibrium which can only last for as long as some large states continue to be animated by a spirit of moderation and justice that will preserve it.30
What was required was not simply a careful division of resources, but also the will to maintain their division. That will could be animated by the state-nation's drive for legitimacy in the absence of those customs that had fortified the territorial state. Thus Talleyrand's insight links these two principles and lays the foundation for the ultimate resolution of the new difficulties posed by the post-Vienna world. By allocating the duty to maintain the equilibrium to the directorate of great powers, the new constitution for the society of European states would both legitimate their role and protect the peace from their disturbance of it.
THE GENERAL INTEREST
On the other hand, how was it to be determined precisely what distribution was a “just balance”? Only a just balance (as opposed to the infinitely many possible divisions of territory that might result in a theoretical “balance”) could deliver legitimacy to the settlement. The application of the principle of the balance of power could, in the context of legitimate dynastic states, direct the territorial augmentation (or diminution) of these states strictly on equilibrist lines. This was the Utrechtian answer. But in the absence of dynastic legitimacy, the principle could not determine what states were legally entitled to receive territory. Even if every slice of pie were made equal, how would one know how many slices there were to be? To say of the great powers that they must be of equal weight does not determine how heavy they are to be, or on what they are permitted to gorge themselves.
As we shall see, four large questions preoccupied the peacemakers at Vienna—the German and Italian Questions (which were the result of Napoleon's erasure and redrawing of the German and Italian national maps) and the Polish and Saxon Questions (which became interlocked with each other). Of these four, the latter two became the most divisive and, at one juncture, even threatened to lead to fresh hostilities among the allies.
By the end of the war, Russian forces had occupied Poland and Saxony. The Grand Duchy of Warsaw, carved out by Napoleon from Polish lands partitioned to other powers in the eighteenth century, had no legitimate status, and the Saxon king had forfeited his status by abandoning his imperial role and siding with Napoleon slightly but fatally longer than other powers had felt it necessary to do. The Russian tsar therefore proposed creating a new state of Poland, along state-nation colonial lines, with himself as hereditary monarch. In exchange for Prussian support for this project, and in compensation for Polish land hitherto granted to Prussia in the partitions and that would now be taken back, the tsar would see that Saxony was granted to Prussia.
Such proposals were potentially highly damaging to the legitimacy of the new international constitutional system. If Saxony, an ancient state with a legitimate heir, could simply be absorbed by Prussia, then the right of conquest had entered the world of the state-nation with all that state's potential for ferocity and subjugation, a capacity unknown to the modest cessions of the territorial state. If Poland could be re-created only to become a colony of Russia, then the legitimate bases of state creation were made a farce. The principle of the balance of power was of little help here. If anything, it could be argued that a larger Prussia would be a useful counterweight to France and that a Polish enlargement of Russia would pull Russia into European affairs, with salutary effects on Russian temperance and on the availability of Russian assistance in maintaining the balance of power in Europe generally. For Russia the point was moot: she had defeated an enemy at great cost and now deserved a reward. She asked for no more than that which she already, by force of arms, possessed.
Castlereagh wrote to the tsar of a “duty” owed by the great powers. The principle “of territorial compensation for expenses incurred in war, unless qualified in the strictest sense by its bearing upon the general system of Europe, cannot be too strongly condemned…. The peace of the world cannot coexist with such doctrines.”31 “Just” principles regarded the society of Europe as a whole. The great powers were given great responsibility, but it was not granted to them in order for them to embark on a “lawless scramble for power.”32
The solution was to introduce a countervailing principle—the general welfare of the society of states, taken as a whole—and to comprehend within this principle the maintenance of the legitimacy of the new constitution. On the basis of this principle, Russia was persuaded to accept a further partition of Poland. Indeed, when the tsar ultimately agreed to this proposal, he told the Poles that he was unable to fulfill altogether their national hopes because the interest of Europe as a whole had to take precedence over their own.33 More importantly, the Prussian attempt to annex Saxony was rebuffed. Each of the allies had been brought around to a position originally held only by Talleyrand, on the grounds that to decide otherwise would damage the legitimacy of the new system and thus imperil the legitimacy of all its territorial and financial allocations. The basis for this change in view was the consciousness of a “general system of Europe,” and the “common interest of Europe as a whole” (l'intérêt général).
THE STATE-NATION
As we have seen, the Congress of Vienna was not the first such convention to define the legitimate constitutional form of government for member states, but it was by far the most intrusive. The state-nation—a constitutional entity based on the consent of the governed—was replacing the territorial states of the previous century, even though a coalition including territorial states had decisively defeated the most dynamic example of the new form. The third interlocking key to legitimacy lay in recognizing this development by specifying constitutional norms for individual states.
This had begun with the Bourbon restoration. The allies were careful to provide that the recall of the Bourbon dynasty was not an acknowledgment of pre-existing rights (as Pitt's original program might have been taken to mean). Rather Louis XVIII was required to grant a representative constitution (the Charte) and was placed on the throne only after an offer was forthcoming from the French Senate, an institution created by Napoleon. The states that defeated Napoleon essentially shared, or came to share, the state-nation constitutional form of which he was the main European architect. Though he despised Napoleon, Talleyrand appreciated this point. He wrote that
however legitimate a power may be, its exercise nevertheless must vary according to the objects to which it is applied, and according to time and place. Now, the spirit of the present Age in great civilized states demands that supreme authority shall not be exercised except with the concurrence of representatives chosen by the people subject to it…. These opinions are no longer peculiar to any one country; they are shared by almost all. Accordingly, we see that the cry for constitutions is universal; everywhere the establishment of a constitution adapted to the more or less advanced state of society has become a necessity, and everywhere preparations for this purpose are in progress.34
The tsar had announced that he wished representative constitutions in all states, 35 and, as we shall see, the constitution for the German states, the Act of Confederation, included an obligation for all member states to enact constitutions providing for representative institutions. Some states resisted, of course, and some were unable to comply: Austria had no single nation from which it could forge a state-nation; indeed the nationality principle was lethal to its cohesion as a state. The most Austria could manage was to adopt the title favored by state-nations for the head of state; Francis had become “Emperor of Austria,” as Napoleon had been “Emperor of the French,” and as eventually Victoria of England was to become “Empress.” Although Prussian representatives at Vienna had been among those who insisted on the provision for German representative institutions, Prussia too was hesitant. It was but a fragment of the German nation. Prussia could not support the creation of a German state-nation from which she was absent, but Austria and Russia could scarcely support a new German state of which Prussia was a part.
This concern for the domestic composition of constitutional regimes was tied to the issue of legitimacy and thence to stability. Wellington conceded that after the treaty France remained strong enough to overturn the rest of Europe—that, in other words, a balance had not been achieved—but rejected proposals to weaken her territorially through adverse cessions. Such cessions would delegitimate the French government. As Castlereagh put it, punitive reductions would leave “the [French] King no resource in the eyes of his own people but to disavow us; and once committed against us in sentiment, he will be obliged soon either to lead the nation into war himself, or possibly be set aside to make way for some more bold and enterprising competitor.”36 Wellington concurred:
We must… if we [were to] take this large cession [crippling France's war-making power], consider the operations of the war as deferred till France shall find a suitable opportunity… to regain what she has lost… [W]e shall find [then] how little useful the cessions we have acquired will be against a national effort to regain them. Revolutionary France is more likely to distress the world than France, however strong her frontier, under a regular government; and that is the situation in which we ought to endeavor to place her.37
Thus we see intertwined the three issues of the balance of power, the general welfare of Europe, and the constitutional makeup of individual states, all bearing on the crucial matter of legitimacy. Only a Europe composed of stable states, managed by a directorate of the most powerful of these states, with a mandate to act in the interest of the society of states as a whole, would prevent a new outbreak of such cataclysmic war as Europe had experienced for twenty years. Otherwise, the collapse of legitimacy in one great power would provoke a new war, as had happened in France. The stability of the system thus depended upon the internal stability of its major states, and this domestic security could be ensured by attention to the security of the society of states generally. The one reinforced the other. Metternich and his allies in Berlin and St. Petersburg later attempted to deploy this insight in order to use the Vienna directorate as an engine for domestic repression. Be that as it may, the focus on the domestic constitutional structure of the member states represents a crucial step in the development of a constitution for the society of states.
THE CONSTITUTION: THE FINAL ACT AT VIENNA
Before Napoleon's fall, Metternich had persuaded the British ambassador to Vienna, Aberdeen, to join him in a peace overture that proposed terms that confined France to the Pyrenees, the Rhine, and the Alps. When learning of this, Castlereagh was horrified: the proposal violated the long-standing English principle of denying to any great power the Low Countries' approach to the English Channel. Thus appalled, he drew up his famous Instructions in his own hand and had them approved by the British cabinet. These he determined to take to the continent personally in an effort to hold the Coalition together for a peace of constitutional dimensions.
The Instructions envisioned the re-establishment of Holland (to include the former Habsburg Netherlands), Spain, Portugal, and Italy (“in security and independence”), Prussia brought west to the Rhine, the Bourbons restored in France to prewar borders—provided this dynasty could be shown to be acceptable to the French people—and above all, a consolidating and persisting international alliance. This alliance was “not to terminate with the war” but to remain as a deterrent to “an attack by France on the European dominions of any one of the contracting parties.” Castlereagh then traveled to allied military headquarters in eastern France along with the advance. From there a “congress” convened at the village of Chatillon-sur-Seine in early February 1814. In an atmosphere of great tension owing to recent French victories in the field, acrimonious personal relations between Castlereagh and Metternich (and between Metternich and the tsar), Castlereagh persuaded the other powers to accept his plan for an alliance that would serve as the basis for a constitutional arrangement among the states of Europe to be worked out at a subsequent congress. This plan was adopted as the Treaty of Chaumont, signed March 9, 1814, and represents an historic moment in diplomacy. The treaty set precise conditions for the conduct of the coalition, provided for 150,000 troops to be contributed by each of the four powers, and required Britain to provide a subsidy of five million pounds to pursue the war. In Articles 5 – 16, the powers committed themselves to defend each other against any future French attack by contributing 60,000 men each to an international force to be commanded by the party requesting aid.
The Congress of Chatillon disbanded on March 19, and the allies took the bold decision to leave Napoleon in their rear and march directly on Paris. Paris fell on March 30, 1814. Talleyrand assumed leadership of the provisional government, convening the Senate on April 1 to approve guarantees of civil and political rights. These guarantees also gave assurances to officers, bondholders, and property owners who had profited during the Revolution and its aftermath. The government removed the requirement of loyalty to Napoleon and replaced it with a draft constitution which limited royal power and ratified both the revolution's seizure of émigré properties and the restraints it had placed on the Church. On April 6 the Senate summoned the Bourbon heir. Napoleon abdicated one week later and was conveyed to Elba, where he was given a minuscule island kingdom and an annuity of two million francs.
Thus the way was cleared for a treaty with a new regime in France. The result was the First Peace of Paris (so named because Napoleon's breakout in 1815 led to a second agreement between the powers and France), which has been rightly taken as a model for treaties of peace. It returned France, generally speaking, to the frontiers of 1792, when the epochal war had begun. It provided for no further occupation, no indemnifications, no confessions of wrongdoing—nothing that would humiliate the new king, Louis, in the eyes of his people, or give to future French leaders a means to incite popular indignation against foreign states. The treaty even permitted France to retain the looted works of art stolen from a number of continental capitals. Significantly, the treaty justified this extraordinary leniency by distinguishing the revolutionary regime of France from its people, thus emphasizing that the war that had just been waged was a war against Napoleon's government, not against the French people.
The Treaty settled matters between France and her adversaries, but it did nothing to sort out affairs for the rest of Europe. Vast territories were without government and the borders of many states were unsettled. Napoleon had swept away the old map and his defeat had now erased the new one as well. Armies of occupation roamed across vanished frontiers; rulers set on their thrones by Napoleon had fled (with the exception of Murat, who still reigned in Naples), but representatives of the old regimes Napoleon had replaced could not exercise authority without the mandate of the victorious coalition that had defeated him. Article 32 of the Peace provided for a new congress to be assembled in Vienna, to which invitations would be issued to all the powers engaged on either side of the conflict. Now Europe waited: its state system had been shattered—even the location and boundaries of most of its states lay undetermined—its commercial system had collapsed, the Holy Roman Empire had disappeared, and a new constitutional system for Germany had not been put in its place. All parties with interests in these events came to Vienna in September 1814. More than two hundred representatives of various entities arrived to press their claims for recognition and to advance their ideas for the new European order.
In a secret, unpublished article of the Treaty, the four victorious powers resolved to decide among themselves the ultimate direction of the Congress. By September 23, this general program had been refined. Proposals on all territorial matters would be decided upon first by the members of the Quadruple Alliance (the Grand Coalition of four great powers), then submitted to the French and Spanish for approval, and then forwarded to the Congress for ratification. The five chief German powers would draft their own plan for a German constitution. Britain, Russia, Prussia, and Austria, plus Spain and France, would determine procedural matters.
On that same day, Friday, September 23, 1814, His Serene Highness Charles-Maurice de Talleyrand-Périgord, Prince of Bénévent, formerly the bishop of the Revolution and Napoleon's foreign minister, arrived in Vienna. Within a week he had thrown the plans of the Coalition into complete disarray. Talleyrand—that “pattern of subtlety and finesse,” “a creature of grandeur and guile,” as the biographer Philip Ziegler refers to him—was not going to be content with the subordinate role the Four had assigned to France. He immediately objected to the exclusion of France from the directing role of the great powers. He took up the cause of all the excluded powers, arguing that the Four had no mandate to decide matters in advance of the convocation of the Congress, and in this he was supported by the Spanish representative, Don Pedro Labrador. After a meeting on September 30, a shaken Gentz, the secretary of the Congress, wrote in his diary: “The intervention of Talleyrand and Labrador has hopelessly ruined all our plans. They protested against the procedure we have adopted; they gave us a dressing-down which lasted for two hours; it is a scene I shall never forget.”38 Repeatedly Talleyrand threatened to take his case to the Congress as a whole.
Talleyrand even objected to the use of the word allies. He argued that the Quadruple Alliance had ended with the signing of the Treaty of Paris. The legal status of the Alliance existed only so long as hostilities remained unresolved; the four member states were legally bound as individual states simply to carry out the provisions of the Treaty, one of which was to convene the Congress—in its entirety—on October 1. The directing body of the Congress, insofar as it took its authority from the Treaty, must therefore consist of all eight powers who were parties to the Treaty, iftheir authority was confirmed by the whole Congress in plenary session.
Talleyrand's intervention was a tour de force. The defeated state had turned the ideology of the state-nation—its vulnerability to charges of illegitimacy, its ideology of consent, its sensitivity to public opinion, in short its entire superstructure of the man-made and thus the accountable—against the victors. On October 8 another meeting was held: Sweden, Portugal, Spain, and France would be added to the Four Powers, to make a “Preliminary Committee of the Eight.” Four days later the Eight published their first declaration: the opening of the Congress would be postponed until November 1. This declaration expressed, perhaps a little defensively, the intention that all procedural issues would be resolved “in harmony with public law, the provisions of the [Treaty of Paris] and the expectations of the Age.”39
The Committee of Eight handled most vital questions, often following meetings of the Four and, after January 9, the Five, France having finally been included in the smaller directing group. Ten special committees were set up to which various problems were allocated. The Congress, as such, only really came together in order to adopt the Final Act on June 9, 1815, when the assembled representatives with some exceptions (notably Spain) adhered to the findings of the committees, including those of the directorate of Eight.
Five particular questions bedeviled the peacemakers: the German Question (Napoleon had destroyed most of the three hundred kingdoms and principalities that composed the Holy Roman Empire, which in any case had been declared defunct in 1806); the Italian Question (Napoleon had driven Austria, the principal prewar power in Italy, from that entire country, stripped the Vatican of its temporalities, and imposed a usurper who still reigned in Naples); recognition and territorial problems associated with the new states of Switzerland, the United Netherlands, and with the Kingdom of Sweden, whose monarch was a former French marshal; and most intractably, the crucial issues of Poland and Saxony, described above, which pitted the policies of the prewar territorial states with respect to annexation, against those of the new state-nations and their quest for collective legitimacy.
It was widely assumed that because Prussia, a victor, could scarcely be expected to lose territories it held in 1805, the tsar and the King of Prussia must have concluded a secret compact by which Prussia would receive Saxony (still occupied by Russian troops) in order for Russia to create a new Polish kingdom that would incorporate Prussia's former Polish provinces. Initially both Britain and Austria supported Prussia in its bid for Saxony—Britain on grounds of improving the balance of power by bringing Prussia westward, Austria as part of a bribe to induce King Frederick William of Prussia to renege on his promises of support to Russia over Poland. By mid-October the British thought they had the makings of a compromise and proposed that Metternich present to the tsar a joint position on behalf of the other three powers: Poland could be wholly repartitioned, or given a genuinely independent status, or returned to its partial configuration as in 1791. On October 24, Metternich met with the tsar. The meeting was a disaster. Afterwards the tsar, joined by Frederick William, demanded that Emperor Francis replace Metternich. It was evident that an agreement among the coalition partners could not be achieved by the time of the proposed opening of the Congress.
Now the four powers faced a new dilemma: should they jeopardize the Congress itself by another postponement or should they risk throwing the settlement into the hands of an open constitutional convention? It was proposed that a three-man commission begin examining the credentials of the accredited representatives; that would buy time. The Committee of Eight would be convened when the credentialing process was complete, in order to discuss the organization of the Congress itself. Talleyrand began to speak sarcastically of “the Congress that [is] not a Congress.”40
As public opinion began to turn against the annexation of Saxony (and as the tsar seemed intransigent regarding Poland), both Britain and Austria backed away from their support for Prussian ambitions. Castlereagh changed his position and advised the Prussians not to press the claim to all Saxony “against the general sentiment of Europe.”41 In reaction, the Prussians on November 7 informed the Austrians that they were breaking off all talks with Castlereagh over Saxony and Poland. That evening it was learned in Vienna that Russia had turned over the administration of Saxony to the Prussian army.
Now Austria played its German card: if Prussia wished to participate in the new German Confederation, it could not afford to alienate the other German states by consuming Saxony. Metternich sent Prussia a proposal to divide Saxony, giving some territory to Prussia but retaining Dresden and Leipzig in an independent kingdom ruled by the hereditary heir. For the first time, these proposals were sent to Talleyrand.
In a state paper of December 19, Talleyrand argued that the important issue raised by Saxony was one of legitimacy, not merely one of territorial compensation or the balance of power. An established heir could not be deposed simply because other sovereigns coveted his lands, as Frederick the Great had coveted Silesia. In the new world of the state-nation, the right of marginal conquest so dear to the territorial state had to give way to the claims of legitimacy. It was “contrary to justice and reason,” Talleyrand wrote, for Prussia to demand territory; it was a matter for the lawful monarch, the king of Saxony, to decide what he was prepared to yield to the Prussians, and in any case, he could not yield the state itself because it was impossible on legitimate grounds for him to do so. Saxony belonged to its people, not to its king.
In October Castlereagh had had a similar exchange with the tsar. The Russian emperor had angrily pointed out that he had 200,000 troops in Poland, and occupied every city and village. Castlereagh had replied:
It is very true, His Imperial Majesty [is] in possession and he must know that no one [is] less disposed than myself hostilely to dispute that possession, but I [am] sure His Imperial Majesty would not feel satisfied to rest his pretensions on a title of conquest in opposition to the general sentiment of Europe.42
Now, in the last two weeks of December, Metternich and Castlereagh brought Talleyrand increasingly into their confidence. In January a secret defensive alliance was concluded among France, Britain, and Austria in case negotiations broke down completely. Historians disagree whether this move had any impact on the other members of the coalition, but in any case within two days Castlereagh was writing to London that “the alarm is over.” Poland was once more partitioned; Austria retained Galicia and Tarnopol; Prussia got back Poznania; and the rest of Napoleon's Grand Duchy of Warsaw became a Kingdom of Poland ruled by the tsar. Cracow became a Free City. Three-fifths of Saxony was restored to the king, the remainder going to Prussia.
Other matters were more easily settled. Prussia was given territories in the Rhineland that, with her Saxon acquisition, doubled her population; Austria ceded Belgium to the Netherlands. Austria received Dalmatia and territories in northern Italy from which she had been driven by Napoleon, including Lombardy and Milan, and various possessions of Venice. Events now took an unexpected turn that not only resolved the remnants of the Italian Question but also solidified the former coalition that had begun to show strains at the peace conference.
On the evening of Monday, March 8, Talleyrand, Wellington (who had replaced Castlereagh in February), the Prussian chancellor Hardenberg and the tsar's chief foreign minister, Nesselrode, met with Metternich at his official residence to discuss their trip the next day to inform the king of Saxony of the outcome of the debates over his future. At 3 a.m., the meeting finally broke up and Metternich went to bed, to be awakened at 6 a.m. by an urgent dispatch from the Austrian consul at Genoa. Metternich ignored this, but at 7:30 a.m., nagged by the presence of the message, he opened the envelope and learned that Napoleon had disappeared from Elba.
Within half an hour he was at the side of the emperor Francis; at 8:15 he saw the tsar; at 8:30 the king of Prussia. By 10:00 a.m. the ministers of the great powers were gathered in Metternich's study, and couriers were dispatched to the armies of each of the allies. Austrian forces were concentrated in northern Italy, the Prussians in Saxony, the Russians in Poland, and the British in Belgium. For some days these forces were kept on the alert as all Europe waited to see what Napoleon would do. Would he make for the Italian coast, as Wellington and Talleyrand thought, or go directly to France? Not until March 11 was it known that Napoleon had landed near Cannes on March 1. His first words on landing on French soil were reported to have been, “Le Congrès est dissous.”*
Napoleon had headed directly for Lyons, where he arrived on March 10. By the 17th he was in Auxerre.
It was not a campaign, but a procession. Troops were sent against him—and joined him. Ney, who was to bring him to Paris in an iron cage, fell on his neck. The peasants whose lands were threatened, the ex-soldiers who had lost their livelihood, the serving soldiers who had been given strange and dandified officers, the ordinary Frenchmen, who disliked the émigrés, remembered the victories and forgot the wounds—all rallied to his support.43
On the 13th, the Committee of Eight met and issued a declaration indicting Bonaparte as an outlaw and the “disturber of world repose.” He had placed himself, they declared, “outside the pale of civil and social relations.” Reports were received that French regiments, sent by the king to arrest Napoleon, were defecting to their former commander as he proceeded toward Paris. Rumors began to circulate that he had already taken Paris and although these were premature, Napoleon did in fact triumphantly invest the capital on March 20. Louis, who on the 16th had put on the rosette of the Legion of Honor and promised the Chambers that he would die in their defense, fled in a closed carriage on March 19. “Mon chèr,” Napoleon is reported to have said to Mollien, as he passed through the colonnades of blazing torches and the exhilarated crowds, and into the throne room at the Tuileries, “the people have let me come, as they have let the others go.”
At Vienna, work began on creating a new coalition; a treaty of grand alliance was presented on March 25. The four allies would contribute 150,000 men each to defend the frontiers they had drawn. They promised not to lay down their arms until Napoleon had been defeated. Louis and the other powers were invited to associate themselves with the campaign. For the congress, or rather for its directorate, the negotiations over a constitution for Europe continued; indeed, great progress was made during the Hundred Days of Napoleon's brief resurgence, doubtless because this new threat united all parties and imbued the Congress with a sense of urgency.
At the end of March a message was received by the tsar from Napoleon. It contained conciliatory words and a copy of the secret alliance against Russia agreed to by Metternich, Talleyrand, and Castlereagh in January during the Polish dispute. It had apparently been left behind in Paris when Louis fled. There are differing accounts* of Alexander's reaction—some have him flinging the document into the fire in Metternich's presence; one eyewitness reported that the tsar merely presented Metternich with the treaty and said, “Let us never mention this incident again and let us attend to more serious matters.”44
The Committee of Eight now finally set the boundaries of the new Kingdom of the Netherlands and accepted the constitution of the new confederation of Swiss cantons. Formal treaties ratifying the Polish settlement, including a constitution for the Republic of Cracow, were presented. The Committee set to work with twenty-five secretaries to draft a Final Act, which would be presented to the entire Congress. Agreement was reached over the abolition of the slave trade (the movement for which gained momentum when Napoleon announced his own declaration of abolition) and over the human rights of Jews in Germany. By early May, committee reports were finalized on the navigation of international rivers and on the protocols for diplomatic rank. Only the question of the German constitution and the residue of the Italian Question remained.
On April 7 the entire mosaic of northern Italy fell into place with the creation of the Lombardo-Venetian kingdom. The Habsburgs were returned to the principalities of Parma, Modena, and Tuscany. The Papal States were restored to the Vatican. But there remained the question of Naples.
Austria had concluded a secret treaty before the Treaty of Paris, supporting the former Napoleonic marshal, Murat, in his claim to Naples in return for which the latter had agreed to restore the Bourbon heir to the Kingdom of Sicily. This treaty violated all the principles of legitimacy the Congress was asserting, and though the allies had tacitly accepted this settlement, the Italian Question could not be resolved until a consensus was achieved regarding Naples. It was widely thought that Murat would be difficult to dislodge, as he had an 80,000-man force at his disposal (although the previous monarch had said of this army, “You may dress it in blue, or in green or in red [that is, in the colors of France, Austria or Britain] but, whichever you do, it will run”45).
By an ill-fated coincidence, Murat chose this moment to attempt a general Italian uprising. Ten days after Napoleon entered Fontainebleau, Murat issued an appeal from Rimini calling on the Italian people to rise against Austria. Fighting broke out between Austrian units in central Italy and Murat's Neapolitan army. The allies now denounced the treaty with Murat, and on April 18 war was declared by Austria. The campaign was over in a month. This cleared the way for the restoration of the Bourbon king, Ferdinand, to the throne of the Two Sicilies, and now there remained only the German Question.
The committee appointed to draft proposals on this issue faced opposition from three quarters: liberal nationalists, who wanted a state-nation for all Germany; dispossessed princes and kings who wanted the return of the territorial states they had held before being turned out by Napoleon; and those lingering dynasties—like Saxony—that feared the action of the Congress would terminate their sovereignty, or at least greatly compromise it. Finally, in the third week in May, the Committee adopted a plan jointly submitted by Austria and Prussia, the ninth constitutional draft to be discussed in five months. This provided for a federal parliament at Frankfurt, under an Austrian presidency. The sovereign rights of the members of the federation were limited in two respects only: by restraints on foreign alliances and by a requirement that each member state grant a constitution to its citizens based on popular representation.46 Thus a common constitutional system was provided for the German states derived from state-nation principles, even if a German state-nation was not achieved.
On June 9 the Final Act of the Congress, embodying its schemes for the reconstruction of the frontiers of Europe, for the provision of constitutions for numerous states, and above all, for a constitution for Europe itself, was presented. The document contained 121 articles. Of the eight powers, all signed except Spain (though Sweden consented subject to reservations). On June 18 Napoleon was defeated at Waterloo. On June 19, the entire Congress was convened again for signing by the smaller powers.
CONSTITUTIONAL INTERPRETATION: THE LAW PROFESSORS
We [hoped]… that the Congress would crown its labors, by substituting for [the territorial state's] fleeting alliances (the result of necessities and momentary calculations) a permanent system of universal guarantees and general equilibrium… [T]he order established in Europe would be placed under the perpetual protection of all the parties interested, who by wisely concerted plans, or by sincerely united efforts, would crush at the outset, any attempt to compromise it.47
The constitutional order created by the five powers and ratified by the Congress embraced several treaties: the Treaty of Chaumont—which, by binding the parties to pursue victory despite tempting French offers of advantageous individual peace settlements, was the key to all that followed—the first Treaty of Paris, the second Treaty of Paris (which followed Napoleon's defeat at Waterloo), and the Final Act at Vienna. Pursuant to that system, further treaties were made—notably the Holy Alliance and the Quadruple Alliance—and further congresses were held, at Aix-la-Chapelle (1818), Troppau (1820), Laibach (1820), and Verona (1822), which attempted to apply the arrangements earlier agreed upon. This system of congresses soon proved logistically cumbersome, however, and for most of the life of the Constitution of Vienna, informal meetings of the directorate replaced grand convocations. This directorate, acting on behalf of the Concert of Europe, set frontiers, recognized states, resolved crises, and declared new rules of international law. If the role of the ratifying congresses was erased, however, what gave the great powers the right to promulgate new law?
Two answers were given by remarkable nineteenth century figures whose contributions to jurisprudence have left an important legacy, even if the international form with which they were concerned—the society of state-nations—has disappeared. Both men were law professors, but otherwise the careers of John Austin and Johann Bluntschli could not have been more different.
AUSTIN
Austin's life (1790 – 1859) was one of repeated disappointments. He began the study of law in 1812 after five years in the army. For a dozen years he then practiced, unsuccessfully, at the chancery bar. In 1826 he was appointed the first professor of jurisprudence at University College, the University of London. This career, too, ended in fiasco: he resigned his chair in 1832, having failed to attract students to his lectures. For a while he served on the Criminal Law Commission and then, in 1836, on the Malta Commission. He moved to Paris and lived there until the upheavals of 1848. He then went to Surrey, where he died ten years later. He had published his fundamental views in 1832, the year he was forced to abandon his professorship, but these were given little attention during his lifetime. His lectures on jurisprudence were only published posthumously.
Austin's answer to the problem of consent posed by the great-power directorate was to deny that the relations among nations were governed by law at all. Austin did not deny that there were international rules of behavior; indeed the source of these posed the problem to be addressed. Nor did he deny their efficacy and power. Rather he attributed these rules, which were an important factor in international relations, to custom. International law “consists of the opinions and sentiments current among nations generally,” he wrote. It is “a law in name only,” because there is no sovereign governing the states who are supposed to obey these rules.
“In order to [provide] an explanation of the marks which distinguish positive law, I shall analyze the expression ‘sovereignty,’” he began. Austin then proceeded to define law as the commands of a sovereign addressed to political inferiors, backed by threats of harm in the event of disobedience. “The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body,” i.e., must itself be sovereign. Thus obedience is not a rational matter, as for Hobbes, nor a consensual one, as for Rousseau, but merely a fact. Whether it is justified is not a matter for the lawyer, who confines himself simply to analyzing what is. This distinction between legitimacy (a matter of habit) and justification (a matter of morality) tracks a similar distinction made by the architects of the Vienna settlement.
Notice that positivism, as Austin's doctrines are known, does away with two of the core ideas that had shaped international law from its inception at the time of the birth of the modern state: natural law and the theory of the just war. Natural law, whatever its content—and the positivists took some pleasure in pointing out that, unlike other observable phenomena in nature, no one could agree on the content of allegedly “natural” law— became an irrelevancy. If a provision was enacted into law by the sovereign, then that act made that provision law, whatever its origin; and if the sovereign denied authority to a “natural” law, it ceased to have any legal effect. As to the just war, its “justice” was a matter of morality, not of law. Whether a war was lawful was a matter of the sovereign's rules. For example, if the constitutional law of the United States were scrupulously followed, the fact that the United States manufactured an incident that provoked an attack (as, it is claimed, was the case in the Mexican-American War) while relevant to the moral judgment of the acts of the United States, was scarcely material regarding the legality of those acts. A war might be lawful but unjust, or just but unlawful; there was no necessary correlation. To the problem of whether more than one belligerent might prosecute a just war, the positivist would reply, “That's not my department; consult the clergy or perhaps (today) the psychoanalyst,” for positivists tended to treat moral judgments as projections of the emotions of the persons declaring moral rules. These concepts form the core of the jurisprudential doctrine of positivism, which, crucially, distinguishes law from morality. Although law might well be derived from moral precepts, such precepts become law only when commanded by a sovereign.
This approach to law perfectly suited the Vienna system. That system was of course a product (and key determinant) of its Age. A self-consciously designed constitutional system, it reflected the idealism of the late eighteenth century, just as the system of Utrecht had reflected (and contributed to) the rationalism of the Enlightenment. Like the Vienna system itself, positivism reflects the self-consciousness, attention to public behavior, and sensitivity to the bases for legitimacy that characterized the state-nation. It raised, however, a fundamental question for this form of the State: is sovereignty defined in terms of domestic law or international law? It must be one or the other, because only de jure sovereignty, as opposed to de facto sovereignty, could serve as the fount of law. But if, as Austin claimed, international law was non-law—that is, it was only the positive (as opposed to natural) morality imposed by the opinion of the society of states—then international law could not confer a de jure status on the states it recognized as sovereign. On the other hand, if de jure sovereignty were a matter of domestic law only, then—at least outside the club of like-minded European state-nations with consistent customs—there was no consistent basis on which it might be identified. Sovereignty then became merely a matter of de facto control, and this the sovereigns of the directorate were at pains to deny, believing as they did that domestic revolu-tion—which seizes sovereignty—was a real source of potential destruction for their international constitutional system.
BLUNTSCHLI
This paradox was taken up by Johann Bluntschli (1808 – 1881), a Swiss jurist whose life was as studded with success as Austin's was with disappointment and failure. Bluntschli presents the remarkable case of a law professor who achieved enviable mastery in two societies: after a successful scholarly and political career in Switzerland, he emigrated first to Munich in 1848, and then to Heidelberg, where he remained for the last twenty years of his life as the most prominent international lawyer in Bismarck's Germany. In 1873, he founded the Institute of International Law, which continues to flourish, and his name was well enough known to have been appropriated by George Bernard Shaw for the main character in his play Arms and the Man.
In 1866, Bluntschli published Das moderne Kriegsrecht, which became the basis for the codification of the laws of war enacted by the Hague Conferences of 1899 and 1907.48 In 1868, there followed Das moderne Völkerrecht, which presented an apparently comprehensive system of international law in the form of a tersely worded codification with explanatory notes. It was immediately translated into several languages and quickly became the standard reference work for diplomats. In 1885, the author Pradier-Fodere wrote with some asperity that Bluntschi's book “is almost the only one which is today consulted by diplomats and all those obligated by their profession to possess some notion of international law.”49
Das moderne Völkerrecht appeared when Bluntschli was sixty. He was already known as a figure of unusual stature—a statesman and religious leader of liberal and cosmopolitan views, a “good European.” The book was received as his masterpiece, the mature expression of a humane and cultivated mind. Nonetheless, the book was sharply criticized for one notable departure from the style of previous treatises.
While there had been earlier private attempts at codification of international law, that of Bluntschli was marked by a rather puzzling peculiarity: in view of the imperfection of the law of nations, he deliberately filled the gap by what he considered the commendable view, without drawing the necessary line of demarcation between law and proposal.50
When we understand Bluntschli's project, however, this aspect of the book will appear more dazzling than puzzling.
Indeed, to Americans familiar with the Restatements of the American Law Institute (ALI), Bluntschli's Handbook will seem comfortingly fami-iar. Like the ALI, Bluntschli dealt with a mass of instances, “cases” decided by governments, though not, as with the Restatements, cases decided by courts, for “[t]he preservation of the peace of nations did not depend upon the resolution of lawsuits.”51 Bluntschli dealt with examples of state behavior as these established “customary” international law. Not all this behavior could be rationalized as following the same rule, and thus, in discordant cases, Bluntschli stated (or “restated”) the “better rule” as the rule of law.
For our purposes, the importance of this approach is the basis in law it gave to the acts of the Concert of Europe. Because the directorate was composed of the great powers, and because customary international law is principally determined by the acts of the most influential states, the acts of the directorate—so long as they rationally followed a consistent and principled course—created law, an international common law, as it were. The conundrum of the positivist was thus solved: sovereignty is bestowed by the international community, but that community's rules are the consequence of combining many cases of individual behavior by those states already acknowledged as sovereign. The acts of states, therefore, not those of the international community (which has no sovereign), can be amalgamated to give de jure status to the acts of any one state.
Like the debates and actions of the ALI, such an approach works best within a community of very similar actors. This makes such an institution vulnerable to “an attack upon its myths,” those fundamental assaults that proceed by disagreeing with the basic premises of the system on perspec-tival grounds, allegedly demonstrating the arbitrariness and self-serving nature of fundamental assumptions. Moreover, there is no mechanism to resolve disputes among the sovereigns themselves because for the Concert there was no ratifying congress. When these two vulnerabilities were seized upon by imperial Germany, a state that rejected the constitutional premises of the state-nation and embarked upon the brinkmanship by which Alsace-Lorraine was annexed and Europe was intimidated, the constitutional system established by Vienna collapsed.
The Vienna constitution had sought to reconcile the general interests of Europe as a whole with the individual interests of the European states. In a protocol to the Belgian Conference of 1831, this passage occurs: “Chaque nation à ses droits particuliers; mais l'Europe aussi à son droit. C'est l'ordre social qui le lui a donne.”52*
Bluntschli had hoped that a European confederation would develop in order to provide just the check he foresaw was needed in case of a breakout by one great power. In his last major work, Lehre vom modernen Staat, written four years after Bismarck had refused great-power mediation in the Franco-Prussian conflict, Bluntschli argued that as states experienced greater security, they were able gradually to turn away from preparations for war and be more inclined to pursue peaceful cooperation. He doesn't seem to have appreciated that, for the new nation-state, the enhancement of the security of the state would be transformed into the enhancement of the security of the people, and that this goal created new ambition, new hungers. After the Franco-Prussian War, which may in some senses have enhanced the security of both states, Germany nevertheless was fearful of French revenge, and France was eager to recoup her lost provinces; their arms competition became all Europe's.
… Europe was in peace, the Armed Peace, which like the German Empire is a thing unique in history. Never before had the state of the world been fully armed or on a war-footing without war breaking out. This was the condition of Europe from 1871 to 1914. It was organized for war. Every continental Great Power was a state or nation in arms, ordered, equipped, instructed, and ready for instantaneous war. The peoples lived under perpetual danger of destruction, but they discounted the fear, as is the way of mankind when the danger is permanent, just as they discount the fear of death from traveling by train. Nevertheless the danger was always present… after 1871, with universal conscription, the standing armies were always on a war-footing… the front-line fighting army was always mobilized, always in being, in time of peace as much as in time of war.53
Like the American Law Institute, the Concert of Europe “presupposed a certain harmony.”54 Following the creation of the German nation-state, Bismarck labored, as we have seen, to restore the credibility of the institution he had done so much to destroy. The Congress of Berlin and the Berlin Conference of 1884 were convened as a result of his advocacy. In 1878, Bismarck's mediation prevented a war between Great Britain and Russia.
The Concert, however, had ceased to function as an institution of European politics. It had become, instead, an instrument of German foreign policy. For Bismarck, “Europe was nothing more than a geographic reality.”55 After all, what “nation” did Europe answer to? The state-nation asks only that the state represent the nation; the nation-state is a more demanding mistress.