"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.

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"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 "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

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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

"fore replied, that in the violent crisis of Europe, it was her duty to take measures for her security and that of her "allies. This was settled (according to Kaunitz's own "account to Fleming, the Saxon Minister,) with a view to "force the King of Prussia to become the aggressor, which "account was also communicated to Berlin. The King yet "made another effort, and offered to disarm, if the Empress "would engage not to attack him for two years. To this was required a categorical answer; but proceeding upon "the same principle, the Empress only returned, that the "countries being at peace, no such caution was requisite. Upon this evasion, coupled with a knowledge of the "motives upon which it was concerted, the King signified "to the Court of Vienna that he should consider the answer "as a declaration of War (b); and his armies, without fur"ther form, or waiting for the departure of his Ambassador, "instantly commenced hostilities" (c).

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LX. To the conduct of France in forming an alliance (in 1778) with the revolted North American colonists of Great Britain, attention has been already drawn in an early part of this work (d), and it has been said, perhaps without sufficient precision of language, and in too popular a manner, that this conduct "was immediately followed by a "declaration of War on the part of Great Britain against "France."

It would have been more correct to say that it was followed by the withdrawal of the English Ambassador, and the communication of a message from the Crown to Parliament, as follows:-" His Majesty, having been informed, "by order of the French King, that a Treaty of Amity and "Commerce has been signed between the Court of France

(b) Euvres du R. de P. Guertede, Sept. Ans. i. 46. See also, for all the documents, Mém. Raisonnée, &c., avec les Pièces Justificatives (published by the Court of Berlin).

(c) Ward, pp. 40-1.

(d) Vide ante, vol. ii. p. 22.

"and certain persons employed by His Majesty's revolted "subjects in North America, has judged it necessary to "direct that a copy of the declaration delivered by the "French Ambassador to Lord Viscount Weymouth, be laid "before the House of Commons; and, at the same time, to acquaint them, that His Majesty has thought proper, in "consequence of this offensive communication on the part "of the Court of France, to send orders to his Ambassador "to withdraw from that Court.

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"His Majesty is persuaded, that the justice and good "faith of his conduct towards foreign Powers, and the sin"cerity of his wishes to preserve the tranquillity of Europe, "will be acknowledged by all the world; and his Majesty "trusts, that he shall not stand responsible for the disturbance of that tranquillity, if he should find himself called upon to resent so unprovoked and so unjust an aggression on the honour of his Crown, and the essential interests of "his kingdoms, contrary to the most solemn assurances, "subversive of the Law of Nations, and injurious to the 'rights of every Sovereign Power in Europe" (e).

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A doubtful state of things ensued, fluctuating between Peace and War; for in spite of the remonstrance of some of the wisest statesmen of Great Britain (ƒ),—a remonstrance which subsequent events well justified, the French Mediterranean fleet was allowed to proceed to America, where it arrived in July, 1778; there engagements took place between the English and French ships, though no declaration of War was then known to have been issued. In the meanwhile the Channel fleet of England, under Admiral Keppel, came into collision with the naval forces of France.

The English Admiral's situation (observes the writer (g) of the History of England in the Annual Register of 1779) (h) was nice and difficult. War had not been de

(e) Ann. Reg. 1778, p. 290.

(f) Almon's Debates in Parliament, vol. viii. pp. 292, 304. ; vol. x. p. 100.

(g) Probably Mr. Burke.

(h) P. 58.