Discussions concerning neutrality during the 18th century were a two-sided affair on yet another level. One side considered the issue of neutrality as a concrete and practical ques-tion concerning traders, ship-owners, diplomats, navy officers and lawyers. Quesques-tions con-cerning neutrality, in this context, related to the limit between legal and illegal actions and behaviour during war: if a captured ship could or could not be declared as good prize; on the definition and categorisation of contraband goods, on commerce blockades and the right of belligerents to visit ships sailing under neutral flag. All these were practical issues demanding practical answers and were the main concerns in diplomatic correspondence during war in the 18th century. The other side of the discussion considered neutrality as an important principle of natural law. Discussed by theorists and scholars it was pondered as an improved means of organising international relations rather than the realpolitik that had dominated Europe since the Peace of Westphalia. Europe was in this period dominated by conflicts and deep antagonism.175 War was the default status of the continent and states’
ability to partake in and finance wars was essential to their survival. The concept of neu-trality alliances such as the one that came to life in 1780 could therefore be perceived as a step towards a new more harmonious and peaceful cohabitation.
The Danish government was not alone in seeking Hübner’s expertise and advice. The French Foreign minister Etienne François duc de Choiseul176 placed considerable energy into the attempt of uniting the neutral countries in the middle of the 18th century. The idea was that the British war effort during the Seven Years’ war should be impeded by the ad-herence of several states to the premises of an armed league of neutral states. Although the
neutral position at the time was far from united, there was more than enough criticism di-rected at the methods of the British navy and Admiralty courts among the neutral powers.
The proposition of a maritime league of neutral nations was therefore far from a preposter-ous one. There had been precedents to such a league in the intended region. As early as 1690, Denmark and Sweden had attempted to enforce their concept of neutrality in the Bal-tic. Choiseul concentrated therefore his efforts on this area. It was believed that the geo-graphic position enabled the greatest chance of strategic success. The reasoning being that it could easily be closed to the ships of nations refusing to respect the rights of the neutral nations. Such an impediment would be to great disadvantage to British commerce and economy as they relied heavily on Baltic and Norwegian naval stores, particularly timber.
The British prime minister at the time, William Pitt the Elder, was somewhat pressured into ceding some ground to the protest of the neutral powers for fear of them committing them-selves to the French proposition of an armed league of neutrals, or worse still, joining France in her war effort against Great Britain.
Choiseul asked Hübner to meet him at Versailles in October of 1759. The request was mo-tivated by the on-going war with the British and the wish to question the Danish theorist on matters of international maritime law. By the time of the meeting at Versailles, the French suffered heavy setbacks and were seeking means by which to conclude hostilities without ceding too much to the British. After the battle of Minden 1. October 1759, Hübner had revealed to some Frenchmen close to Choiseul some ideas for a peace agreement. The latter was therefore keen to hear the ideas first-hand. The French foreign minister agreed with nearly all the ideas presented by the Danish theorist. He was however anxious not to con-cede too much to the British although peace was an extremely desirable outcome for the French at that moment. Hübner managed to convince him that brokering a peace agreement with Great Britain would also bring him great honour amongst his countrymen by the resto-ration of peace and end of misery of war. Some small sacrifices to the benefit of the enemy would then be a small price to pay. Choiseul asked Hübner to be his representative on a secret mission to London to ascertain whether the British would agree to a peace agreement similar to Hübner’s proposal. Hübner however countered that he needed the permission of
the Danish government, particularly that of his benefactor, the Danish foreign minister Count Bernstorff the Elder. By the end of the conversations between the two men, Hübner had received orders from Copenhagen and was to return to Denmark with the view to go on to London to plead the Danish case to the British government.177 Although the conversation and correspondence between the two men didn’t lead to an immediate peaceful result, it nevertheless consolidates Hübner’s standing as a respected scholar on matters of the law of nations and neutrality.
On 21 April 1762, Hübner sent Bernstorff a proposition for a treaty between Denmark and England with his arguments.178 Hübner’s ideas were not always the most practical, howev-er his convictions and ideals shine through the two main axioms of his drafts “articles fon-damentaux” where he presented two main guidelines for neutral and belligerent inter-state relations pertaining to neutral commercial navigation. That contraband should be positively defined and enumerated between two parties so that no provision, merchandise or cargo is reputed or declared as such either by induction or otherwise, if it is not specifically men-tioned on the mutually and communally dressed list. And the parties should agree that no ship is to be stopped, condemned or molested in any way unless carrying contraband. The exception was circumstances where a ship is destined to a port formally under siege or ef-fective blockade, since all communication with such places was prohibited to all. The draft was for the most part rejected by the elder Bernstorff, which illustrates the rather difficult political climate he worked under. However, they are believed to be the blueprint for A.P.
Bernstorffs’ treaty proposal for the armed league of 1780.179
Hübner’s greatest direct and immediate influence is considered to have been exerted on The Armed Neutrality of 1780 (1780-1783), which was built on the cooperation between so-called neutral states of the time: Sweden, Russia and Denmark. The agreement was
for-malised by a neutrality alliance that Prussia, Portugal and the Kingdom of the two Sicilies joined later.180 This neutrality alliance was officially directed at all belligerents of the American War of Independence (1775-1783). However, in reality it was an opposition and counter-weight to the maritime practices of Great Britain.
The league of 1780 differed from those of 1691, 1693 and 1756 in that it formally present-ed a comprehensive set of rules baspresent-ed on specific principles to be made effective through-out the world. These principles were expected to be universally respected regardless of opposition from other nations. The league had effectively drawn up a blueprint and armed themselves to compel the rest of the world to follow what the members regarded as the correct application and understanding of maritime custom, treaties and prize court rulings.
The doctrine was based upon the conception of the law of nature and the law of reason of the political and legal philosophers of the period. As Kulsrud puts it: “The Danish professor of jurisprudence, Martin Hübner, was its prophet; the Danish secretary of foreign affairs, A.
P. Bernstorff, its propounder.”181