"vessels, that shall have been taken since the expiration of "the terms agreed upon for the cessation of hostilities at “sea, shall be, in like manner, faithfully restored, with all "their equipages and cargoes; and sureties shall be given " on all sides for payment of the debts which the prisoners or "hostages may have contracted in the States where they "have been detained, until their full discharge (q).

The mistake of Vattel is far too important to be passed by without notice and correction, in a treatise on International Law; for it is justly observed by Mr. Ward, that, before the formal declaration was made of that War, which was terminated by the peace of Aix-la-Chapelle, eight months of bloody hostility had subsisted, the battle of Dettingen had been fought between France and England as auxiliaries, and the fight of Toulon had taken place as principals; and it is therefore manifest that if the prizes taken before the declaration had been placed upon a different footing from those which were made afterwards, there would be room for the inference, not only that Vattel thought a declaration exclusively necessary, but that France, England, and Spain agreed with him in the opinion. It should be observed, also, that there is nothing in the preliminary Treaty, 19th April, 1748, which could have misled (r) Vattel in this matter.

LVIII. The Seven Years' War furnishes us with two more precedents upon this subject:

(q) Chalmers' Collect. of Treaties, vol. i. pp. 428-9.

(r) Mr. Ward observes, that what perhaps led Vattel into the mistake" was the frequent recurrence in the Treaty of the phrase, 'everything shall be re-established on the footing they were on before the War;' and, in particular, the second article, by which all ' effects, dignities, ecclesiastical benefices, honours, and revenues, enjoyed at the commencement of the War, shall be restored, notwithstanding all dispossessions, seizures, or confiscations occasioned by the said War.' Vattel uses the word prizes, which generally means ships. But no ships were to be restored by name; nor could any that had been confiscated by the Admiralty have been restored at all, the right having passed out of the Crown and vested in the captors."-Ward, ib. p. 68, note.

1. The War between France and England, which was kindled by the disputes about the limits of their possessions in Canada, and which may be said to have begun in 1754, was not preceded by any declaration of War. On the 15th of March, 1755, the King announced to Parliament that he had sent a fleet to protect our American possessions against the French, and the English Admiral had instructions to fight the French fleet whenever he should meet them; and these instructions were communicated to the French Ambassador resident at our Court, who replied, that his master would consider the first gun that was fired as a declaration of War. The English Admiral, shortly afterwards, took two ships of the French, off the coast of Newfoundland.

In the meanwhile open War had been carried on in America; a large number of French merchantmen, and one 74-gun ship, fell into the hands of the English; yet we find that on the 21st of December, 1755, the French Minister sent a Memorial to the English Secretary of Foreign Affairs complaining of the attack of the English Admiral and the cruisers in Europe, and offering to negotiate with respect to America, but demanding, as a preliminary, the restoration of all prizes, which he said had been piratically taken. The Spanish Minister also protested, with respect to these prizes, upon the same ground.

Mr. Fox, the English Minister, replied, that nothing had been done until after the aggressions of the French upon the English in Canada; and he justly repudiated, as altogether untenable, the position which France endeavoured for the first time to establish, that a War in America was to be distinguished from a War in Europe, and, therefore, that the captures in Europe made before declaration were illegal. Mr. Fox also justly rested the attack by the English Admiral on the law of self-defence, and pointed out the situation where the captures were made, as evidence that they were taken in an hostile enterprise; and Mr. Ward correctly observes," he "would have done well to have added, what alone must have

"closed the subject, that a declaration had, in effect, been "made to the Ambassador of France, who had accepted the "challenge, and knew all its consequences "(s).

A regular declaration of War does not appear to have been made by France before the 15th of May, 1756; then ensued five years of one of the most memorable wars which England has ever carried on.

In 1761, a negotiation called, from the names of those who conducted it, the Negotiation of Stanley and Bussy, was set on foot (t).

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By Article XI. of the first Memorial, presented by "France, it was demanded, that captures before the declara"tion, except King's ships, should be restored, or a recom"pence made, because taken contrary to the Law of "Nations" (u).

And here it may be remarked, that the exception proposed in favour of merchantmen, as contrasted with King's ships, is wholly at variance with one of the most fundamental rules of International Law, namely, that the will of the subject is bound up in the will of his Government (x).

The answer to this demand was perfectly sound in point of reason and justice, and was no doubt framed with the advice of the eminent civilians who were at that time the advisers of the Crown.

"The demand of restitution of captures before the War "cannot be admitted, for it is not founded upon any par"ticular convention, nor yet resulting from the Law of "Nations; for the right of hostilities does not result from a formal declaration of War, but from the hostilities which "the aggressor first offered" (y).

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The soundness of the law and the justness of the reason

(s) Ward, ib. p. 37.

(t) Mahon, vol. iii. pp. 346-7.

(u) Ann. Reg. 1761, p. 260.

(x) Vide ante, p. 18.

(y) Ann. Reg. 1761, art. x. Of Answer, p. 263.

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ing appear to have been eventually admitted by the enemy himself; for though this answer was dictated while the genius and energy of Chatham presided over the British Councils, yet even at the Peace of Paris in 1763, when they had been exchanged for the narrow-minded pedantry of Lord Bute, the restoration of these prizes was not mentioned with respect to the claims of France, but with respect to Spain, who had subsequently become a party to the War (2). The XVI. Article contained the following provisions:

"The decision of the prizes made, in time of peace, by "the subjects of Great Britain, on the Spaniards, shall be "referred to the Courts of Justice of the Admiralty of "Great Britain, conformably to the rules established among "all nations, so that the validity of the said prizės, between "the British and Spanish nations, shall be decided and "judged according to the Law of Nations, and according to "Treaties, in the Courts of Justice of the nation who shall "have made the capture" (a).

LIX. (2.) The second precedent which is furnished by the Seven Years' War, grows out of the conduct of the King of Prussia in his invasion of the territories of Austria and Saxony, without any previous declaration of War. His conduct with respect to the King of Saxony is so mixed up with flagrant and indefensible perfidy, that it affords little instruction upon the legal question as to the practice of nations in beginning a War without any previous declaration. But with respect to Austria the case is different. A very clear account of this transaction is thus given by Mr. Ward:

"On an inspection of the different diplomatic pieces, pub"lished by each party, the King of Prussia's cause for War

(2) Lord Chatham, as is well known, resigned in 1761, because the Cabinet would not declare War against Spain, of whose hostile intentions they then had abundant evidence.

(a) Art. xvi., Chalmers' Collect. of Treaties, vol. i. p. 477.

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seems to have been this. After the Peace of Dresden, in "1745, the Cabinet of Vienna taking a hostile disposition "on his part, as a sort of basis, revived and new-modelled a "partition Treaty with Saxony, by which, in case of War, "and on the supposition of conquests, their different shares "of the King's dominions were settled in due precision. A secret Convention was afterwards made with Russia, by "which any quarrel between her and the Court of Berlin 66 was to be considered as the common cause of all the Three "Courts. To this Convention the partition Treaty with Saxony was held to be applicable; and though it was not "executed by the King of Poland, it was only in the fear "that Prussia might discover it, and instantly make it a "cause for War. It was, however, agreed, that he should "be considered as a party, as much as if he had actually "signed. In pursuance of this alliance, attempts were made "by Austria to bring on a War between the Czarina and “Prussia, in order that she might interfere without seeming "to be the aggressor. This had nearly succeeded in 1755, "and was only delayed from the want of magazines in "Livonia, where an army of 70,000 men was ordered to be prepared, for the purpose of making actual War in the succeeding year.

"Such seems to have been the plan resolved upon by the "three Courts, whose designs, with copies of all the Treaties " and instructions, were regularly communicated by a Saxon secretary to the King. It may be supposed that so vigilant 66 'a character was not indifferent to his situation. He kept "an eye on Livonia, where finding the Russians had begun "to assemble, he marched an army into Pomerania. The "Austrians also beginning to march troops into Bohemia, "he was resolved at once to bring the point to a decision. "But though fully prepared, he wished to avoid a War if possible, and therefore demanded of the Court of Vienna "a frank explanation of its views. The Empress, by the "previous advice of Kaunitz, resolved to elude the demand "by an answer neither sinister nor favourable. She there

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