Impartiality as a property of government is central to many of the major constitutional concerns of liberal democracy. This essay tersely considers the nature and implications of impartiality in three main areas: the rule of law; the distinction between the right and the good; and freedom of speech. Because of constraints of space, each of the discussions in this paper is no more than a sketch of the complex matters that are at issue in debates over impartiality.

The sources mention many Athenians who settled abroad during the troubles to quietly go about their business, or remained in the city, secluded in their oikos, without joining either camp. To take an interest in these ‘nonaligned’ individuals is to give their place in history back to the many protagonists who resisted the all-encompassing logic of the stasis and the contradictory injunctions that it gave rise to: Choose your side, comrade! But not everything is political in the same way and with the same intensity, either today or in the past: Even in the midst of turmoil, politics does not invest all spheres of existence and all the different layers of society in equal measure. Indeed, orators readily stigmatized the Athenians expelled by the Thirty who, instead of rallying to the democrats in Piraeus, had preferred the comfort of exile; symmetrically, many Athenians who remained in the city tried to demonstrate that they had not participated in any way in the exactions of the oligarchy. Socrates represents in this respect a case that is both common and exceptional: common, in that he was far from being the only one not to take sides during the civil war; exceptional, in that he declared this neutrality loud and clear, even if it meant arousing suspicion on both sides. A final question remains: Did all these ‘neutral individuals’ form a chorus in their own right? What links can be established between people who have remained outside the field of political confrontation – strangers to the ‘bond of division,’ to paraphrase Nicole Loraux? To put it another way: Is it possible to ‘make community’ out of abstention, even if it is an active choice?

European diplomacy changed significantly during the Ancien Régime. Sovereign powers made increasing use of different categories of ambassadors while grappling with religious division, international conflict, and emerging globalization. Papal diplomacy was itself hardly new, although it too evolved in these challenging circumstances. In various respects, the structures of papal diplomacy mirrored those of Europe’s dynastic states. Popes were nevertheless supposed to abide by certain ideological values as paternal figureheads, maintaining peace amongst warring Catholic powers while extending authority beyond Europe. This was problematic, as the papacy sought to square its own political interests with its moral duties. Given early modern Europe’s changing political landscape it is also unsurprising that the papacy’s supranational power was under increasing pressure. That was evident by the mid-eighteenth century, and the upheavals of the Revolutionary and Napoleonic period, although today it retains its traditional identity as a neutral diplomatic actor.

The Markets in Crypto-Assets (MiCA) Regulation has become a pressing matter amid various financial scandals related to cryptoassets. With several EU Member States in the process of adopting their own cryptoasset legislation, MiCA provides a harmonised approach for the European Single Market. Following a principle of “technology neutrality”, MiCA applies only to cryptoassets that are not covered by other EU financial law, except for e-money tokens (EMTs) to which both MiCA and the E-money Directive (EMD) apply. Hence, MiCA is a piece of “gap-filling” legislation that relies heavily on concepts from conventional EU financial law: cryptoassets similar to MiFID financial instruments and other “investment assets” are subjected to rules similar to those of MiFID and the Prospectus Regulation (PR), while cryptoassets similar to “banking assets” are subjected to rules similar to the Capital Requirements Directive (CRD) and EMD. In sum, this creates a legal framework where the risks inherent in the different types of cryptoassets are accounted for and mitigated, but where the difficult question of classifying cryptoassets into legal categories becomes all-important.

This chapter elaborates on the relationship between space and coexistence, and ways in which hegemony is reproduced in public space. Constitutionalism plays an ambivalent role in the reproduction of this hegemony, not least through the reproduction of a thick sense of publicness. This thick sense of publicness can be asserted against a range of “others”, such as religious, ethnic, and sexual minorities, whose identities may be subject to privatisation and retreat from public spaces. At the same time, constitutionalism offered a tangible alternative for the old order of toleration, recognising that religious divisions would be permanent, and that legal and social frameworks of accountability might support peace and order. Given that religious intolerance and the foundation of political order were entwined in early modernity, the establishment of the freedom of religion and the more general protection of religious minorities were vital to the project of the modern state.

Chapter 1 introduces the figure of the foreign fighter in the interwar period by focusing on the Spanish Civil War. It shows how the image of the nineteenth-century adventurer haunts the imaginary of the actors preoccupied with finding a legal status for the volunteers in Spain. This image is nonetheless constantly split in two: idealists and freebooters; heroes and opportunists; barbaric troops and brave highlanders. The chapter moves from the League to the Anglo-American doctrine, to domestic discussions and ends at The Hague in 1907. It is there that rules on foreign volunteers are codified in an international convention for the first time. The chapter further links the Brussels Conference of 1874 to those of Geneva in 1949 and offers a lens through which to understand how the shifting image of the adventurer reaches the decolonization period.

This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.

The Introduction lays out the contextual background to the themes and elements that are brought together to shape the monograph’s arguments. It positions the monograph within the existing literature on the Seven Years’ War and the history of neutrality in order to establish how it builds upon these bodies of work to incorporate law as a necessary element of strategic analysis. The core hypotheses and arguments of the book are also established. First, that neutrality was a dynamic role for maritime nations such as Spain and the Dutch Republic which had as much of an influencing effect on British strategic thinking as did affairs with belligerent nations. Second, that the Court of Prize Appeal played a critical role within the three-pronged maritime strategy of maintaining foreign confidence in British maritime law and its court system; balancing the interests of British privateers and neutral carriers of commerce in the prize court system; and destroying French seaborne trade through commerce predation. Third, that British maritime strategic concerns shaped and created new legal rules, norms, and precedents within the prize court system that would then serve to clarify and cement British, Spanish, and Dutch understandings of neutral rights and international maritime law.

The first part of this chapter focuses on the shift in Anglo-Spanish relations brought on by the death of the British ambassador in Madrid. It delves into the critical role that individuals can play during diplomatic negotiations and the subsequent effects they can have on issues relating to neutrality and sea power. Keene’s relationship with William Pitt and with Ricardo Wall largely kept Anglo-Spanish relations afloat and working toward an eventuality where Spain would remain neutral and willing to compromise on neutral rights. Keene actively worked to persuade Wall to accept the Court of Prize Appeal as the best mechanism to safeguard Spanish neutrality but failed to achieve his goal before he died. Keene’s successor, Lord Bristol, proved much less effective and relations between the two governments deteriorated further. It was under these trying political circumstances that the San Juan Baptista came before the Court of Prize Appeal. Lord Hardwicke’s intent appeared to be to ensure that the first Spanish appellate case be decided in favour of the Spanish in order to win Spanish government support for the Court of Prize Appeal as a fair and viable mechanism to safeguard neutral rights.

This chapter begins Part III of the book which focuses on Anglo-Spanish relations during the Seven Years’ War and focuses particularly on the first two Spanish cases to come before the Court of Prize Appeal. This serves as a contextual chapter for Anglo- Spanish affairs and introduces the specific people and dynamics within the Spanish Court that were critical to negotiations over neutrality. It also introduces the cases of the San Juan Baptista and the Jesús, Maria, y José. The chapter highlights that the political and diplomatic contexts of Anglo-Spanish relations were markedly different from those of Anglo-Dutch relations and that preserving Spanish neutrality was, in many ways, much more fraught and complicated. This was due largely to internal Spanish political events (such as the death of King Ferdinand VI and the death of the British ambassador to Spain) and Anglo-Spanish maritime grievances that went beyond questions of prize-taking but spoke to the core of Spanish fears that British maritime hegemony would drastically alter the power of balance in the Americas and adversely affect neutral nations.

The latter years of Spain’s neutrality during the war (1759–62) saw an even greater deterioration in Anglo-Spanish relations. Ministers from both Courts attempted to preserve and salvage Spanish neutrality, but unresolved diplomatic grievances, as well as the deaths of both the Spanish king, Ferdinand VI, and the British monarch, George II, foiled their efforts and any gains made by the case of the San Juan Baptista. The increasing decay and eventual breakdown of Anglo-Spanish relations during the war demonstrate that the tactics used to ensure Dutch neutrality could not so easily be transferred to maintain Spanish neutrality. This chapter begins with the appellate case of the Jesús, Maria, y José and a close look at the legal arguments presented for both the Spanish shipowners and the British privateers who took the ship as prize. The proceedings of the court are analysed alongside the political developments between the Spanish and British ministries, and illustrate how they influenced one another. The case demonstrates Hardwicke’s continued attempts to make legal arguments that would set the Rule of the War of 1756 as the standard rule for how Britain’s prize court system would judge the legality of enemy goods carried in neutral ships.

The cases of the Maria Theresa and the America were designed, by Hardwicke, Holderness, and Newcastle, to instil confidence in the Dutch government that the Court of Prize Appeal would safeguard the Dutch neutral rights that had been agreed throughout the first part of the war. They were also designed to instil confidence in British privateers and naval captains and ensure that French colonial trade carried in neutral ships could still largely be stopped and condemned as legal prize. This chapter focuses on the two appellate cases and the legal arguments presented. These are then tied to the legal and strategic maritime thinking of Lord Hardwicke and his creation of the Rule of the War of 1756. This rule became the bedrock for how Britain would understand and negotiate neutral rights over the course of the next major European maritime wars. The basic premise of the rule was that trade that was prohibited to a neutral during times of peace would be considered by the British prize court system to be prohibited in times of war. The chapter, through an analysis of Dutch cases in the Court of Prize Appeal, examines how and why Hardwicke developed this rule.

The Conclusion delves into the strategic and legal legacies of the Seven Years’ War. It ties the Seven Years’ War and the unresolved tensions around maritime neutrality to the outbreak of Anglo-Dutch and Anglo-Spanish hostilities during the American War of Independence. It does so by examining the peace treaty of 1763 wherein no new significant arrangements were made about neutral rights between the Spanish and the British. The argument is made that the ambiguity of existing treaties left both governments room to continue negotiations whilst the Rule of the War of 1756 would provide an understanding of how British prize courts would treat neutral ships in future conflicts. The chapter examines the legacy of the Court of Prize Appeal and the thinking behind the rule. It discusses how the court and the rule were used in subsequent conflicts through the Napoleonic Wars and the role that individual judges took in making the rule a critical or underplayed element of British maritime strategic thinking. The rule loomed large in British maritime law for many wars after Hardwicke created it and it is, perhaps, one of the best illustrations of the link between law, sea power, and strategic thinking.

This chapter focuses on the court cases of the Dutch ships the Maria Theresa and the America. It analyses the legal arguments behind the condemnation of each ship as legal prize and how these arguments are connected to, and differ from, Anglo-Dutch negotiations over neutral rights and the Anglo-Dutch treaty of 1674. The chapter demonstrates that the Anglo-Dutch negotiations at the governmental level were led by four key British figures: William Pitt, Lord Holdernesse, the Duke of Newcastle, and Lord Hardwicke. Their connections with their Dutch counterparts were largely managed through Joseph Yorke who was the British representative to the Dutch Republic. These negotiations were driven by maritime strategic considerations. In contrast, early decisions taken in the High Court of Admiralty created friction between the Dutch and British governments. The Dutch believed that the condemnation of their ships was arbitrary and an abuse of Dutch neutral rights. The chapter reveals that in order to resolve this tension, the British government determined to encourage the Dutch to appeal the decisions from the High Court of Admiralty and promised that the cases would be fairly determined in the Court of Prize Appeal where decisions could be influenced and shaped by Lord Hardwicke.

As the cases of the Jesús, Maria, y José and the San Juan Baptista made their way through the High Court of Admiralty, the arguments that would eventually be laid before the Court of Prize Appeal took shape. This chapter examines the arguments made in each case and how they affected Anglo-Spanish negotiations over neutrality. The chapter also focuses on the debates between British and Spanish ministers about the meaning and interpretation of the Anglo-Spanish Treaty of 1667 which governed Spanish neutral rights. It introduces two key people in Anglo-Spanish negotiations, Felix D’Abreu (Spanish representative in London) and Sir Benjamin Keene (British ambassador to Spain). Both men would be instrumental in shaping the debates on Spanish neutral rights and whether those rights could be protected through decisions handed down by the Court of Prize Appeal.