Zeitschrift Debatten Conference

Raphaël Cahen*

The Consultative Litigation Committee of the French Ministry of Foreign Affairs: A Study in Constitutional and International Legal Entanglements

“Vous m’avez fait l’honneur de me demander… si je croyais utile au service public d’attacher à votre ministère une ou plusieurs personnes qui, à l’instar des avocats de la Couronne en Angleterre, puissent donner au gouvernement sur les questions de droit public des avis qui serviraient à l’éclairer, et dont au besoin il peut se prévaloir… aussi l’idée d’avoir dans les questions de Droit Public un Conseil spécial, et distinct des bureaux, a-t-elle prévalu pendant et depuis la Restauration – avant 1830 M. de Haller… avait la charge de Publiciste des affaires étrangères… En 1835… M. le duc de Broglie en rétablissant cette place… et la confiant à M. Desmousseaux de Givré, avait en même temps organisé un Comité Consultatif du Contentieux au Département des affaires étrangères. Les avis de ce Comité dont j’ai constamment été le rapporteur, ont paru utiles au Gouvernement car il les a tous adoptés...”

Gabriac to Guizot, Paris, March 25th 1845, AMAE 393QO/1718

1. Introduction

1Some of the most discussed aspects on the history of international law are its “birth” and interconnected themes such as institutionalization and professionalization. The “birth of the discipline” is traditionally said to have occurred around 1870 with the foundation of the Institut de Droit International (1873). Additionally, the founding of the International Law Association (Association pour la réforme et la codification du droit des gens) and the Revue de droit international et de legislation comparé are also credited with the rise of international law as scientific field.1 It is striking that the Revue de droit international, the first scientific journal devoted to international law was comparative, demonstrating an intertwining of constitutional and international law. In fact, as I will argue herein, the institutionalization of international law after the Congress of Vienna (1814-1815) was intrinsically linked with the foundation of comparative legal studies. Furthermore, analogies between international and national orders formed the core of theories of international law, increasing the extent to which international law intertwined with other normative legal orders with such entanglements, thus serving as the bread and butter of international lawyers’ practices.2

2In this paper, I will study the foundation of one institution: the Consultative Litigation Committee (CLC) of the French Ministry of Foreign Affairs, which stood at the forefront of the professionalization of international law.3 Although I will concentrate on the French case, I will also draw comparisons with similar contemporary legal departments in other Ministries of Foreign Affairs. As we will see, the Office of Litigation (Bureau du contentieux) of the French Ministry of Foreign Affairs was established by the French revolutionaries and the CLC came into force in April 1835 and lasted until 1929. The founding of the Office of Litigation and the CLC are linked with the Office (charge) of Legal Adviser (in France, Legal Advisers employed by the Foreign Office were called either “jurisconsulte” or “publiciste du ministère des Affaires étrangères”).4 The latter existed already in the Ancien régime and was suspended and re-established several times during the long nineteenth century.5 Thus, contrary to well-established common knowledge which says that from the French revolution until the end of the nineteenth century legal advisers were no longer employed by the French Ministry of Foreign Affairs, the function of jurisconsulte in France did in fact not disappear, until Louis Renault (1843-1918) took on the role again during his tenure, around the end of the century.6

3Moreover, this study explores the process of the pre-professionalization of the discipline of international law from the Congress of Vienna to the end of the Franco-Prussian War (1870-1871). It is a period often neglected in international legal history and the history of international law studies. Yet, there is academic value in a deep look into that period, as many professional developments of the discipline occurred during that time. Indeed, scientific journals, not exclusively focused on international law, but frequently dealing with it gradually appeared in the 1820s through the 1850s, for example, Thémis and Revue historique de droit français et étranger.7 Academic books on both private international law (Foelix and Rocco) and public international law (Wheaton, Bello, Heffter) were also largely printed from the 1830s to 1860s.8 Courses at various universities and colleges were taught already in the 1820s in France, in the 1840s/1850s in Spain, Latin America, Italy, in the German speaking universities, in the Russian Empire and the Ottoman Empire.9 Here it is important to mention that courses on international law were taught from the 1820s to the 1860s at the French Ministry of Foreign Affairs.10 Essay-competition on the Law of Nations from various academies have been organized as well, for example at least twice in this period in the French Académie des sciences morales et politiques: first in 1835-1840 and second in 1854-1861.11

4One can argue that the gradual disentanglement of international law from the comparative and constitutional matrix was a very long process. Most of the Founding Fathers of the Institut de Droit International were not exclusively international lawyers.12 Even someone like Charles Henry Alexandrowicz (1902-1975) first specialized in Polish marital law and canon law before devoting his studies mostly to international law.13 International lawyers (in my opinion, the term is not anachronistic for the years preceding the generation of the Institut de Droit International) were not necessarily specialists in international law. Although, already in the 1820s evidence from archives shows that lawyers were first and foremost specialists in different branches of international law such as international maritime law.14 Moreover, legal entanglement cases coming before the litigation sections of the various Ministries of Foreign Affairs by international lawyers were clearly growing in numbers in the years 1830-1860. In fact, for the French Ministry of Foreign Affairs, its cases concerned a plurality of subjects from public international law (mostly maritime law) to constitutional and administrative law and after 1850’s mostly with private international law such as the Mahmoud Ben Ayad or the Samama cases.15

5To begin with, most recent historiography tends now to agree that a new European international order emerged in 1814-1818. A new governance architecture was established, which is recognised after a vivid historiographical debate, as a semi-successful experience of an international peace and security system.16 This new European international order was systematically challenged by internal revolutions as well as constitutional controversies. This was most vivid during the 1820s with Spanish, Italian, Greek as well as Latin American revolutions. Then, in the 1830s, challenges became increasingly complex as a result of the Belgian and Polish revolutions; and, during the 1840s with the printemps des peuples.17 By the mid-nineteenth century, the German and Italian unifications, along with the Crimean and various Balkan wars, hastened the spread of international law in different foreign ministries across Europe.18 In that period, international lawyers acted as “legal mediators” between constitutional and international entanglements and challenges.19

6Recently, scholars have shown that internationalism and cosmopolitanism and the esprit d’internationalité were not due exclusively to liberal internationalism.20 On the contrary, conservative inclined lawyers and political thinkers have also played a role in the development of the discipline of international law as we will see in this paper. It is also important to stress that in the years 1815-1870 conservative and liberal positions were often not so different from each other for example regarding the Freedom of the Press.21

7In France, legal questions and doctrinal debates, like the relationship between international and national legal order, have been discussed by international lawyers involved within the Ministry of Foreign Affairs. From 1835 onwards, this was done especially in the CLC. The members of the committee were also involved in transnational networks, scientific academies, teaching, and thus shaped the socio-cultural frameworks of international law.22 The aim of this paper is to analyse how the committee perceived and legally argued on legal conflicts and constitutional changes. We will first present the CLC and its members and then some cases of entanglements.

2. The French Consultative Litigation Committee: A laboratory of international law in practice

8Most legal departments of European Ministries of Foreign Affairs were created after World War I. Such was the case, at least, for Germany, Austria, France and Belgium. Yet, legal cases had already been intensively discussed within Ministries of Foreign Affairs during the nineteenth century. In the case of Belgium, the predecessor of the legal department is to be found in the Department of Accountancy formed in 1831 and after 1896 also in the Litigation Section.23 The King of Belgium dealt with many arbitration cases between 1857 and 1914.24 However, no specific committee or department devoted to legal questions existed in Belgium before World War I. The main legal adviser to the King was the Secretary-General of the Foreign Ministry.25 The same can be said about Austria and Germany. In the case of Prussia and then Germany, the Rechtsabteilung would, in fact, have already been created as far back as 1885 and would be steadily growing until the reform of 1919/1920.26 In Austria, the Legal Section was placed within the Department of Internal Affairs in 1848 and would be moved across several departments in 1872 and 1882.27 In 1913, an Austrian Department of Legal Affairs was created and confirmed by the reform of 1918-1920.28 As for Great Britain, the Foreign Office Legal Adviser was already established in 1876. Before that, all legal matters were referred to the Queen’s Lawyers.29

9Beyond Europe, connections between the Ministry of Foreign Affairs and the academic study of international law can be illustrated with Japan and the Ottoman Empire, since legal advisers (foreign or local) were employed both in the Japanese Ministry of Foreign Affairs as well as in the Ottoman Ministry of Foreign Affairs from 1870 onwards.30 In Latin-American republics much earlier, Andres Bello (1781-1865) had been duly consulted in the case of the Jeune Nelly with France already in the 1830s.31 In the US, the Legal Adviser of the State Department was formally created nearly 100 years later, in 1931. Previously, several clerks had been appointed since 1848 and after 1870 Examiner of Claims from the Department of Justice (like Francis Wharton) to deal with legal issues of US foreign Affairs. In 1891 the Office of Solicitor General was established.32 In colonial and imperial contexts, many legal advisers were also employed such as Rolin-Jaequemyns for the Kingdom of Siam.33

2.1 Formation of the French Consultative Litigation Committee

10This comparative overview indicates that the French CLC was rather avant-gardiste in the juridification of Ministries of Foreign Affairs. The Committee was a result of the French Revolution and the transformation of international relations, as well as the internal organisation of the French Ministry of Foreign Affairs.34 In April 1793, the Convention Nationale established an Office of Litigation which oversaw all issues related to “the delimitation of borders between countries, public law in general and the validity of maritime captures”35 and “all issues related to the law of nations either public or private”, as we learn from a report dated the 14th November 1794.36 This Office of Litigation would be abolished in 1798. In one of the reports about the Office of Litigation, it was noted that “the office of litigation was fulfilling the function of national legal adviser entrenched under the Ancien Régime… [and in charge of] all cases for which the judgement needed a deep knowledge of the public Law of nations and of the Germanic body which had complicated laws and customs”.37 Indeed, the function of the Legal Adviser (Jurisconsulte) had been embodied by Christian-Frédéric Pfeffel (1726-1807) at the end of the Ancien Régime and his successor Henri Charles Rosenstiel (1751-1826) was the head of the first Office of Litigation.38 At the beginning of the Consulat in 1799, there was no longer an Office of Litigation but Rosenstiel was still officially “legal adviser”. Yet, he was called “publiciste” and not “jurisconsulte”.39

11Between 1800 and 1835, many proposals were made in order to create a special committee dealing with all issues related to international law. In fact, the founding of a “Board of Foreign Affairs” (Conseil des relations extérieures) in charge of the “Application of the principles, the laws and the maxims of the public Law of Europe” had been approved by Napoleon I at the beginning of the year 1812.40 But, it is likely that the wars of the Sixth Coalition had prevented the Board to meet.41 In 1825 a new proposition was made again by Hauterive (1754-1830) to establish a “consultative litigation office”. This new Office would have had as its members the legal advisers from the Ministry of Foreign Affairs. These include Charles Louis de Haller (1768-1854), Ferdinand Eckstein (1790-1861) and François Marie Guerard (1774-1859). Other potential members of the Office were famous jurists such as Jean-Marie Pardessus (1772-1853) and diplomats like Alexandre Dezos de la Roquette (1784-1868) or Antoine Laforêt (1756-1846), and Hauterive since he acted as a legal adviser on a number of occasions.42 However, the idea of the Board was rejected by the Minister of Foreign Affairs Baron de Damas (1785-1862) and thus did not come into force. 43 In fact, at the end of the year 1810, a Subsection of Litigation in the Archival Department (lead by Hauterive) of the Ministry of Foreign Affairs was created by Napoleon I. In the end, it was the Archival Department that was tasked with solving legal questions.44 Later on, with the change of the regime in 1830, the departure of Haller and Eckstein, and the death of Hauterive, the Ministry was left only with Guerard as legal adviser.45 He retired in 1831, and soon thereafter the Ministry was reorganised.46 So, in 1834, Desmousseaux de Givré (1794-1854) was appointed Legal Adviser and, in 1835, an Office of Litigation as well as the CLC were both finally formally established.47

12The Office of Litigation (bureau du contentieux) was founded by Decree on the 21st of April 1835.48 It was composed of a chief (un chef), a redactor (un rédacteur), a clerk (un commis) and two expeditioners (deux expéditionnaires).49 The role of the Office was to receive any complaints before cases were sent to the CLC. The Committee was composed of five members as well as the Section Head of the Office, acting as Secretary to the Committee.50 The first members of the Committee were the former members of the Commission in charge of the execution of the Convention of 25th April 1818 (which solved the issue of the indemnities that France had to pay to the allies after the war of 1815).51 Although the Committee had gathered in 1835, it appeared for the first time in the Almanach Royal in 1844.52 The Committee had to face the increasing amount of treaties and conventions between states as well as the shift in international relations and law caused by the independence of South American countries.53 During the Second Empire, the activities of the Committee were growing even more. It enlarged from seven members in 1857 to eight by 1858 and then ten from 1864 to 1870.54

13At the beginning of the Third Republic, the Committee ceased to exist, but was re-established seven years later in 1877.55 Several reforms were made in 1880 and finally in 1890 the payroll had grown to seventeen members in total, excluding two secretaries.56 However, several Ministers of Foreign Affairs of the Third Republic did not trust this Committee given that it was created under the July Monarchy. So, the Committee only convened infrequently until 1909, when a Permanent Commission of Litigation and Chancellery with nine members was set up in addition to the Committee.57 After World War I, the Committee would continue its work until 1929, when it was permanently abolished. During the Third Republic, Louis Renault would act as the legal mind of the French Ministry of Foreign Affairs supported by André Weiss (1858-1928) who joined it in 1902.58 Besides them, the lawyer and politician, Léon Renault (1839-1933) had been the longest member of the Committee from April 1880 until 1929.

14The members of the Committee were not paid. The Committee generally met infrequently, except when there was an important case. For example, during the Ben Ayad Case (a dispute between the Bey of Tunis and Mahmoud Ben Ayad, a Tunisian civil servant who made a fortune with the national treasury before escaping to France and becoming a French Citizens in 1852, that was arbitrated by Napoleon III), the Committee met on a weekly basis between 1854 and 1856.59

2.2 The main actors of the committee (1835-1870)

15As previously mentioned, the first members of the Committee were chosen for their earlier work relating to the payment of the debt of the Napoleonic Wars, which was decided at the second peace of Paris in 1815.60 This was one of the most important legal cases after the treaty of 1815 and the occupation of France by foreign forces.61 The five members of the new CLC were in fact the last members of the Commission for the execution of the Convention of 25th of April 1818 concluding the payment of the indemnities by France. The President of the Committee was Edouard Mounier (1784-1843) and the other members were Julien Bessières (1777-1840), Joseph Balthazar Siméon (1781-1846), Ernest Gabriac (1792-1865) who stayed on as a member until his death and finally Louis-Cézar Dubouzet (1768-1860).62

16It is important to stress here that a very large number of the members of the Committee in the years 1835-1870 had also been members of the Conseil d’État, in part due to the fact that two decrees in 1806 and 1810 stated that all newly appointed diplomats would become members of the Conseil d’État and vice versa.63 The fact that many members of the Committee had worked previously in different commissions in the Conseil d’État can also be seen as a sign of a professionalization as Marc Bouvet showed in his study of the Conseil d’État during the July Monarchy.64 From its creation until its first removal in 1870, the Committee had thirty-three members: eleven during the July Monarchy, nineduring the Second Republic and eighteen during the Second Empire. Yet, one member (Gabriac) was in the Committee in the three regimes and four (Gabriac, Brénier, Duvergier, Marchand) had been members both in the Second Republic and in the Second Empire. In average the members stayed ten years, giving stability to the Committee from 1835 until 1870.

17 After Mounier, Joseph-Balthazard Siméon (1781-1846) became the President of the Committee in 1837 and he would remain in this position until his death in 1846. Both Siméon and Mounier were not only members of the Conseil d’État but they had also been diplomats trained by Hauterive at his schools founded in 1800.65 Gabriac took over from Siméon as President of the Committee in 1846 and remained president until July 1848. At the same time, the Committee would acquire a law professor for a member, Pellegrino Rossi (1787-1848).66 Rossi is an interesting addition, as he was Professor of Constitutional Law and Political Economy in Paris and he might have taught International Law in Geneva. He was also involved in most of the scientific Revues (journals) of the early 1820s and 1830s.67 All of these developments constitute clear signs that the discipline of international law was gradually beginning to professionalize in the decades leading up to the 1870s.68

18By the time of the 1848 revolution and the election of Louis-Napoleon Bonaparte as President of the Second Republic the Committee was fully reconstituted. Edouard Drouyn de Lhuys had been President very briefly after Gabriac, but left the Committee since he took the Office of Minister of Foreign Affairs.69 Finally, around March 1849 a renewed Committee was established with Louis-Antoine Macarel (1790-1851) as President. Macarel was a law professor and one of the founders of the discipline of Administrative Law (and also member of the Conseil d’État).70 The new members were Anatole Brénier (1807-1885), Jacques François Dupont de Bessac (1803-1873), Jean-Baptiste Duvergier (1792-1877) and Pierre Cintrat (1793-1880).71 Brénier and Cintrat were both important figures in the Ministry of Foreign Affairs. Brénier had also been a member of Hauterive’s School of Diplomats from 1826 and a Consul. After his membership in the CLC, he became Minister of Foreign Affairs for three months.72 Cintrat had succeeded in climbing all the way up the hierarchy of the ministry between July 1840 and March 1849, when he was promoted to Director of Archives as well as member of the CLC.73 Duvergier was a lawyer and the author of the famous Collection of Laws, Charters and Treaties.74 Dupont de Bussac, the only leftist member of the Committee, was also a lawyer and a predominant figure of the 1848 revolution as well as a deputy.75

19The new political regime of Napoleon III did not shake up the Committee. Gabriac had regained his membership already in January 1850 when Dupont de Bussac left and acted one more time as President when Macarel died in March 1851.76 Finally, Eugène Felix Marchand (1813-1868) became a member in July 1851 and stayed on after the regime changed. Marchand was also a lawyer, Doctor of law and a member of the Committee of Litigation of the Conseil d’État. In May 1853, Cintrat was replaced by Armand Lefebvre (1800-1864) a diplomat and historian of the Napoleonic Period. Lefebvre was also a former member of the Hauterive’s School of Diplomats and the winner of the Concours in 1825-1826.77 Cintrat complained that “in my four years as a member of the committee, I have not yet had the chance to acknowledge the contribution of my presence”.78 A slight change was also made with the return of a Secretary of the Committee, Emile Gaudin (1825-1884). He had been the Head of the Office of Litigation of the Ministry of Foreign Affairs.79 A report was also written in December 1855 at the time of the presidency of Portalis.80 Portalis was not only the president of the Cour de Cassation but also a trained diplomat with Hauterive, exactly like Siméon, his cousin, and Mounier, his close friend.81 The author of the report mentioned that the members of the Committee were “ambassadors, conseillers d’Etat, lawyers and judges”.82 With Portalis the Committee was composed of Gabriac (officially Vice-president in 1855), Lefebvre, Marchand, Duvergier, Brénier and Gaudin as secretary. Overall, the committee remained relatively stable from 1849 to 1856. From June 1857 onwards the activities of the Committee were growing, and meetings became more frequent. Eventually, the Committee had eight members including a President (Portalis), a Vice-President (Gabriac), a Secretary (Gaudin) and a Vice-Secretary (Jules de Saux).83 From 1861 onwards, the Committee was composed of ten members. Its last two Presidents were Raymond Theodore Troplong (1795-1869), once again a Judge from the Cour de Cassation, and Adolphe Vuitry (1813-1885), lawyer and Doctor of law, Governor of the National Bank of France.84 Vuitry had joined the Committee already in January 1856 replacing Brénier.

20A notable member of the Committee was Gustave Louis Chaix d’Est Ange (1800-1876), a lawyer and prominent figure of the Second Empire.85 Other key members were also Louis de Saint-Aulaire, ambassador in Rome, Vienna and London under Louis Philippe, and the diplomat Alexandre de Clercq (1813-1885), compiler of a treaty collection, as well as a Guide des consulats.86A very important figure of the Committee during the Second Empire was Alfred Villefort (1820-1887). Member since January 1864, Villefort helped to recreate the Committee in 1877 and was also member of the New Committee at the beginning of the Third Republic.87 He was also officially jurisconsulte of the ministry since August 1857, exactly like Pfeffel before him and Louis Renault after him.88 In sum, it has become clear that the members had almost invariably been lawyers trained in the Conseil d’État, where they had often also been presidents or members of the Litigation Committee of the Conseil d’État (Macarel, Marchand, Vuitry). Sometimes they had also been members of the Foreign Affairs Committee of the Conseil d’État (Portalis). A few others had a background at the Cour de Cassation (Portalis, Troplong). Many of them were also members of the Académie des Sciences Morales et Politiques (Rossi, Portalis, Troplong, Vuitry, Drouyn de Lhuis) or the Académie française (Sainte-Aulaire).89 Some of them were also professors of law (Rossi, Macarel) as well as authors of articles or books on the Law of Nations and other legal matters (Portalis, Troplong, Macarel, Duvergier, Mounier, Siméon). It is interesting to note that inside the Litigation Committee of the Third Republic we find similar traits among members (except an increasing presence of law professors).90 To conclude this part, we can say that the members of the Committee were shaping the legal culture of international law already before it emerged as an autonomous scientific field around 1869-1873.

3. Entangled cases of the Consultative Litigation Committee

21The CLC had to deal with a great variety of legal cases related to international law. One of the main recurring legal issues in these cases- which should not really come as a surprise- concerned maritime law and related topics, such as neutrality, freedom of navigation, and prize law.91 The Prize Court did not exist anymore from 1815 to the Crimean War but Prize law cases were sent to the Conseil d’État or the Litigation Committee of the Ministry of Foreign Affairs.92

22Otherwise the cases were mostly connected to private international law, especially nationality, extraterritoriality and asylum.93 Much of this naturally necessitated a comparative perspective, which began to be widely adopted in these cases.94 For example, one dossier on various nationality laws can be found in the archives, especially those related to citizenship of territories that had seen their legal status change such as in Belgium after 1831.95 On these questions of nationality, the Committee used the writing of Paul Albert Royer-Collard (1797-1865), tenured professor of the droit des gens at the Paris Law Faculty, who gave an unpublished speech much earlier than the historian and philosopher Ernest Renan (1823-1892) on “What is a nation ?” and had published an edition of Vattel’s Droit des gens.96 But the Committee also had to deal with the legislative ratification of treaties or reparation questions or French merchants that were expelled from Sevastopol after the Crimean War.97 Among this great variety of cases, two of them perfectly encapsulate the constitutional and international entanglements in the nineteenth century: the French claims regarding the debt of 1815 and legislation on the Freedom of the Press in Europe after 1815.

3.1 French claims or the question of the reparation

23The French reparations claims case is a very interesting one, as the CLC was the successor of the Debt and Reparation Committee from 1815 and 1818 as we have already seen. And in fact, the issue of the debt remained with the Committee from 1835 to the first world war.98 In 1857 just after the Congress of Paris the “French claims” of the Baron de Bode were sent to the last Grand chambellan de France, the Second duke of Bassano, Napoleon Joseph Hugues Maret (1803-1898).99 At the same time, Louis Belmontet (1798-1879), a poet, sent several books and essays to the French Ministry of Foreign Affairs seeking compensation from Great Britain.100 The case of the reparation was raised various times during the nineteenth century, for example in June 1866 with the Corps législatif of the Second Empire or through a petition in 1873 in the beginning of the Third Republic.101

24This case had many components and is rather complex. One of the main issues was the indemnities the French had paid to Britain. The issue was brought before the House of Commons by Baron Bode who had lost property in Alsace in 1792 but did not get any compensation in 1815. The reason was that he had been too late in claiming any indemnities before the British authorities.102 Afterwards he became one of the most prominent advocates of the fact that Great Britain had not properly used (as written in the 1815 and 1818 agreements) the money that the French authority had sent to the British in 1815-1818.103 Another solicitor named “Le Baron” was pleading a similar case.104 The case was brought up in many debates before the House of Commons (1821, 1824, 1828, 1832, 1834, 1852) as well as of course in the French House of Commons during the July Monarchy and later on in the Corps législatif of the Second Empire.105

25During the Third Republic, a socialist and antisemitic writer and politician named Auguste Chirac (1838-1910) sent several letters to the Ministry of Foreign Affairs also asking to reopen the case, claiming that Great Britain owed France one billion Francs (equivalent to five billion Euros in 2022 terms).106 In 1887, the MP Eugène Blandin (1830-1898) proposed a bill at the National Assembly to officially demand the billion francs from Great Britain.107 The Times newspaper published around this time a long article on the alleged French claims. In the same year, the Undersecretary of State made a speech in the House of Commons after being asked by a Member of Parliament if Britain indeed owed one billion francs (approximately forty million pounds around 1890).108 Sir James Ferguson (1832-0907) replied:

26It is not true that the sum mentioned in the hon. Member's Question, or any other sum, is due to France by the British Government under the Convention of November 20,1815. A statement of the matter was made to the House of Commons by the Secretary to the Treasury on the 8th of June 1869; and a Return of the disposition of the funds received from the French Government is shown in a Paper (No. 239) presented to Parliament in 1872. There is no new feature to be considered. A report of a proposal made in the French Chamber of Deputies has been made in the French newspapers similar to that mentioned by the hon. Member; but Her Majesty's Government are not aware that a Committee has been appointed by the Chamber to inquire into the subject. The statement in question is, no doubt, connected with the legend of the Baron de Bode, which haunted this House for a long period; but which, after being investigated by a Select Committee, was laid to rest.109

27Finally, in 1908 the international lawyers André Weiss and Henri Michelin (1847-1912) returned with a claim that Great Britain owed France four billion Francs.110 Yet Great Britain never paid back any indemnities from the 1815-1818 agreements.

3.2 Freedom of the press and new constitutional order

28Another excellent example of entanglements between international and national legal orders can be found in press regulations. This was one of the key aspects of the new liberal constitutions during the nineteenth century.111 The international order from 1815 as well as many national orders (especially Prussia, Austria, Russia) have long been seen as an ultra-conservative order, a dark moment of repressive laws against the freedom of the press.112 This Manichean statement is only partially accurate and recent historiography tend to be more “positive” about the new “international” European order that took place in 1814-1818 without forgetting the security aspects and the many crises that occurred.113 The conservative powers demanded that Switzerland restrain its freedom of the press domestically, especially concerning the political press by foreigners, though this met with mixed success.114

29The elevated status of public opinion and freedom of the press had a major impact on international law and diplomacy during the nineteenth century.115 Taking on that great transformation, the French Ministry of Foreign Affairs ordered in 1859 a survey of European press legislation.116 Napoleon III’s diplomats replied very quickly. And reports came back to Paris from the Netherlands, Belgium, Austria, Sardinia, Bavaria, Bade, Wurttemberg, Denmark, Sweden, Spain, USA, Great-Britain, Hannover, Norway, Romania, Saxony, and Turkey.117 Most of the French plenipotentiaries sent an historical-juridical note about the legislation in all these countries.118

30A specific case was also brought to the Committee which was related to the press in French Language in the Ottoman Empire and more specifically to a French journalist named Baligot de Beyne (1821-1884).119 Baligot was a diplomat and journalist living in Pera (Constantinople) before becoming the Secretary of the Hospodar of Moldavia. After visiting Crimea during the war, Baligot founded, in January 1855, a newspaper called la Presse d’Orient which was widely read in the Ottoman Empire and beyond.120 It was one of the many French newspapers published in Constantinople, the first being Le Spectateur oriental from 1824 renamed Journal de Smyrne.121 In the years 1855-1857, Baligot was heavily critical towards the Ottoman Empire and would be frequently attacked by another French Journalist, François Noguès, owner of the Journal de Constantinople.Écho de l’Orient.122 Baligot sought reprieve at the Tribunal consulaire arguing that one article from 29th December 1856 published in the Journal de Constantinople. Écho de l’Orient was defamatory.123 Yet, the tribunal declared itself incompetent and the case came afterwards to the Cour d’Appel d’Aix-en-Provence (22 July 1857) and even to the Cour de Cassation (28 November 1857).124 Both courts stated that the tribunal was indeed competent to judge the case.125 Furthermore, the Ottomans were not happy with the interference in their internal affairs by French economic interests and send a protestation to the French Ambassador, Édouard Thouvenel (1818-1866).126 The case came to the Committee with a note (December 1857) from the French Minister of Foreign Affairs, Alexandre Walelwski (1812-1868). The Committee quickly submitted its opinion reaffirming the legality of the decisions of both French Courts.127 The year after, the Ottomans banned Baligot’s publication due to its continuous critical attitude towards the Ottoman Empire. Baligot appealed to the French Ministry of Foreign Affairs for an indemnity, but he never got one in the end.128 The war of words by the two newspaper men escalated and finally settled in a duel. Baligot escaped with an injury.129 Both the issues of the French claims after 1815 and of press regulations have illustrated the entanglements of constitutional and international law within the context of the Consultative Litigation Committee of the French Ministry of Foreign Affairs.

4. Conclusion

31In this paper, I have shown the research potential pertaining to the study of the Consultative Litigation Committee of the French Ministry of Foreign Affairs within the context of the professionalization of the discipline of international law as well as the juridification of foreign affairs. Although recent research has been made on the concept of professionalization of diplomacy and on “international lawyers”, this paper fulfilled a research gap for the first half of the nineteenth century.130 Indeed, this period is rather often seen as a moment of legal avoidance or even as the era of the disappearance of the law of nations before modern international law was constructed around 1869-1873.131 A topical case, being the widely accepted falsehood of the suppression of the Office of “jurisconsulte du ministère des Affaires étrangères” in France at the end of the eighteenth century before its supposed rebirth at the end of the nineteenthcentury. On the contrary, as shown through archival evidence, many legal advisers were employed in the French Ministry of Foreign Affairs during the nineteenth century. Furthermore the Consultative Litigation Committee served as a laboratory of the making of international law. All Committee members were active in a variety of academies, universities, courts, scientific journals and they shaped both the doctrinal and practical construction of international law before its gradual disentanglement from the earlier comparative and constitutional matrix. Lines of continuity can be identified between the international lawyers and members of the Committee for the years 1830-1870 and their successors in the years 1880-1914.

32 Nevertheless, since the process of disentanglement and autonomy of international law has been rather gradual and long, the members of the Consultative Committee dealt with several entanglement cases. This paper highlighted two specific cases since they illustrate, both in the area of press legislation and of reparations, the intertwining of international law, constitutional law, political economy and private law. This coincides with the findings of recent research into the relationship between international law and economical concerns. An example of the latter would be Thomas Piketty’s recent study into the debt Haiti paid to France, or studies into the history of slavery and the slave trade.132 Another example would be the restitution of artwork and archives stolen around 1800.133

33To conclude, I would like to give some guidelines for a research agenda. First, it will be more than interesting to investigate more closely the networks of the members of the French Consultative Litigation Committee as well as the networks of the legal advisers of other foreign ministries in Europe and beyond. It would also be appealing to search for possible connections, if any, with the growing contemporary ‘NGO’-movement, such as the different associations of the so-called ‘friends of peace’.134 Another aspect will be to look at popular knowledge of international law in the nineteenth century.135 Where and how was international law spread outside the classical canals of diffusion (universities, diplomatic correspondences, textbooks)? No doubt that this could also enrich the current dynamic research on the history of international law and give new insight on the professionalization of international lawyers and of the interconnection between international law and constitutional law.

Beitrag vom 12. Dezember 2022
© 2022 fhi
ISSN: 1860-5605
12. Dezember 2022

DOI: https://doi.org/10.26032/fhi-2022-016

  • Zitiervorschlag Raphaël Cahen, The Consultative Litigation Committee of the French Ministry of Foreign Affairs: A Study in Constitutional and International Legal Entanglements (12. Dezember 2022), in forum historiae iuris, https://forhistiur.net2022-12-cahen