THE SHIELD OF ACHILLES (95 page)

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.

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 abo
lition) 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 constitu
tional 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.

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'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.