"justum conciperetur bellum, et inde desitum ut fœdere fides pacis "constitueretur. Ex his mittebantur antequam conciperetur, qui res repeterent, et per hos etiam nunc fit fœdus, quod fidus Ennius "scribit dictum" (i). The Roman institution of the Feciales was perhaps derived originally from the Egyptians, though directly from the Greeks through the medium of their colonies settled in Italy; but it is a memorable characteristic of the Romans, that the founding of an institution having for its object the establishment and maintenance of fixed relations both in war and peace with neighbouring States, should have been almost coeval with the origin of their empire. The Feciales, occupying a middle station between priests and ministers of state, regulated, with as much precision as the heralds of the middle ages, and according to a certain ritual, the forms and usages relating to the treatment of ambassadors. the concluding of treaties, the promulgation and conduct of war (j). In these, as in all important concerns, the sanctions of religion were invoked to strengthen the obligations of morality. Cicero says: "Belli quidem æquitas sanctissime feciali populi jure præscripta est" (k); and the facts recorded in history appear to warrant this description. If a dispute arose between Rome and another independent State, Feciales were sent to demand reparation. If the attempt failed, war was declared according to minute and particular formalities. It is not within the scope of this work to show how the decay and decline of this remarkable institution accompanied the corruption and overthrow of the Republic (1). 2. We know from other sources, besides the certain testimony of etymology, that in the very earliest ages both of Greece and Rome the stranger and the enemy were synonymous terms (Expóc, hostis) (m). To the necessity which dawning civilization soon produced, of maintaining a friendly intercourse with the inhabitants of neighbouring States, as well as to some peculiarities in the condition of the founders of Rome, we owe the institution of the Recuperatores, and the doctrine of the Recuperatio (n). For in order to satisfy this necessity, treaties were entered upon, in which the administration of justice to the individual subjects of the contracting parties within the dominions of either was mutually guaranteed. Therefore Grotius correctly observes: "Tenetur (i. e. rex aut populus) etiam dare operam ut damna "resarciantur: quod officium Romæ erat recuperatorum. Gallus "Elius apud Festum, Reciperatio cum inter est populum et reges (i) Varro, De Lingua Latina, 1. v. s. 86, p. 34 (Leipsic, 1833). Grotius, de J. B. et P. 1. ii. c. i. s. 22, p. 168. (k) Cic. de Off. 1. i. (1) Ompteda, Völkerrechts, s. 34, p. 146. (n) Ib. 339. 66 nationesque ac civitates peregrinas lex convenit quomodo per "reciperatorem reddantur res reciperenturque resque privatas inter 06 se prosequantur." Sell, to whose very learned work I have already referred, cites the passage from Festus, but makes no mention of Grotius-at least, I can find none. The Recuperatores (o) were judges chosen for the purpose of deciding questions at issue between the native and the alien ally. Such a treaty, indeed, implied that the parties to it were free and independent States. For as soon as the one became actually subject to the other, the existence of such a treaty was useless, as the conquered might, and generally was compelled to, adopt the laws of the conqueror. Equally useless would such a treaty be in the case of two nations subsisting in so intimate an union as to be, as it were, citizens of one State. And if we bear in mind that in either of these contingencies a Recuperatio could have no place, and remember how rapidly the march of the Roman empire reduced foreign countries within one or other of them, we shall not be surprised that the traces of the proper and primary application of this peculiar branch of jurisprudence become fainter as we advance in the history of Rome, and at last disappear altogether from her records (p). But when the Recuperatio was no longer strictly applicable, according to the letter of its original institution, because the subject, namely, two independent States, was wanting, the principle of this jurisprudence was transferred, by the practical wisdom of Rome, to the arbitration of disputes arising between Romans and the inhabitants of their colonies, and also of the provinces which it pleased them to leave with the appearances of independent States. Livy records a very striking instance of its application, at the request of the legate from Spain to the Senate of Rome. 66 Hispaniæ deinde utriusque legati aliquot populorum in senatum "introducti. Ii, de magistratuum Romanorum avaritia superbiaque conquesti, nisi genibus ab senatu petierunt, ne se socios "fœdius spoliari vexarique, quam hostes, patiantur. Quum et alia "indigna quererentur, manifestum autem esset pecunias captas, "L. Canuleio prætori, qui Hispaniam sortitus erat, negotium "datum est, ut in singulos a quibus Hispani pecunias peterent, quinos recuperatores ex ordine senatorio daret, patronosque quos vellent, sumendi potestatem faceret. Vocatis in curiam legatis "recitatum est senatus consultum, jussique nominare patronos: quatuor nominaverunt, M. Porcium Catonem, P. Cornelium Cn. "F. Scipionem, L. Æmilium L. F. Paullum, C. Sulpicium Gallum. "Cum M. Titinio primum, qui prætor A. Manlio, M. Junio con (0) ❝O rem præclaram vobisque ab hoc retinendam recuperatores," &c.-Cic. Orat. pro Cacina, ss. 22, 24-25. (p) Sell, pp. 339-40. sulibus, in citeriore Hispania fuerat, recuperatores sumserunt. "Bis ampliatus, tertio absolutus est reus. Ad recuperatores "adducti a citerioribus populis P. Furius Philus, ab ulterioribus "M. Matienus. Ille, Sp. Postumio, Q. Mucio consulibus, triennio "ante, hic biennio prius, L. Postumio, M. Popillio consulibus, 66 prætor fuerat. Gravissimis criminibus accusati ambo ampliatique quum dicenda de integro caussa esset, excusati exsilii caussa "solum vertisse" (a). : While the Recuperatio existed in its primitive state, it presented a perfect picture of international arbitration upon the claims of individuals the subjects of different States, that is, upon questions of Private International Law. The better opinion seems to be, that it took no cognizance directly of questions of Public International Law, which belonged to the province of the Feciales. The reader is referred to the following works for fuller information on this subject: 1. Alexandri ab Alexandro Geniales Dies, vol. ii. l. v. c. 3, Quonam modo per Feciales inirentur fœdera, aut bella indicerentur, "et quid ab exteris servatum est," ed. Lugd. Bat. 1673. 2. Sell, Die Recuperatio der Römer, ed. Braunschweig, 1837 (r). APPENDIX III. PAGE 45. (Extract from the Speech of Lord Grenville upon the Motion for an Address to the Crown approving of the Convention with Russia in 1801, as to the effect of embodying a Principle of General Law in a Treaty.) BUT, among the numerous instances in which such a revisal of the "present Treaty appears to be essential to the public interests, there is none of such extensive importance as that to which I must next "entreat the particular attention of the House. "On comparing together the different sections of the third article "of this convention, one great distinction between them cannot fail to "be remarked, even by the most superficial observer. The two first "sections and the fifth, those which relate to the coasting and colonial "trade, and to the proceedings of our maritime tribunals, are in (q) Liv. xliii. 2. Sell, pp. 365-6. (2) "Dass die in Privatsachen richtenden Recuperatores jemals in irgend einer rein öffentlichen Sache entschieden hätten, gleichviel ob die be-. treffenden Staaten unabhängig, einem Bunde angehörig, oder einem dritten untergeben waren, lässt sich durch keine Zeugnisse der alten belegen; wohl aber sind dergleichen aufzufinden, aus deren das Gegentheil hervorgeht."-Sell, p. 57. See, too, p. 84. "their frame and operation manifestly prospective. They provide "only for the future arrangement of the objects which they embrace; "and they profess to extend no further than to the reciprocal con"duct of Great Britain and Russia towards each other. "The third and fourth sections, on the contrary, those which "treat of contraband of war and of blockaded ports, do each of them "expressly contain, not the concession of any special privilege "henceforth to be enjoyed by the contracting parties only, but the recognition of a universal and pre-existing right, which, as such, "cannot justly be refused to any other independent State. "This third section, which relates to contraband of war, is in all "its parts strictly declaratory. It is introduced by a separate "preamble, announcing that its object is to prevent all ambiguity or misunderstanding as to what ought to be considered as contra"band of war.' แ "Conformably with this intention, the contracting parties declare "in the body of the clause what are the only commodities which "they acknowledge as such.' And this declaration is followed by "a special reserve, that it shall not prejudice their particular "Treaties with other Powers.' "If the parties had intended to treat of this question only as it "related to their own conduct towards each other, and to leave it "in that respect on the same footing on which it stood before the "formation of the hostile league of 1800, all mention of contraband "in this part of the present convention would evidently have been "superfluous; nothing more could in that case be necessary than "simply to renew the former treaties, which had specified what "articles of commerce the subjects of the respective Powers might 66 carry to the enemies of each other; and, as we find that renewal expressly stipulated in another article of this same convention, we "must, in common justice to its authors, consider this third section as introduced for some distinct and separate purpose. It must, "therefore, unquestionably be understood in that larger sense which "is announced in its preamble, and which is expressed in the words "of the declaration which it contains. It must be taken as laying "down a general rule for all our future discussions with any Power "whatever, on the subject of military or naval stores, and as establishing a principle of law which is to decide universally on the just interpretation of this technical term of contraband of war. แ "Nor, indeed, does it less plainly appear from the conclusion, "than it does from the preamble, and from the body of this section, "that it is meant to bear the general and comprehensive sense "which I have here stated. The reservation which is there made "of our special treaties with other Powers is manifestly inconsistent "with any other more limited construction. "For if the article had really no other object in its view, than "to renew or to prolong our former engagements with the Northern "Crowns, what imaginable purpose can be answered by this con cluding sentence? Was it necessary to declare that a stipulation "extending only to Russia, to Denmark, and to Sweden, should "not prejudice our treaties with other Powers? "possibly have any such effect? 46 How should it How can our treaties with Portugal or with America be affected by the renewal of those engagements which had long ago declared what articles might "be carried in Russian and Danish ships? But the case would "indeed be widely different under the more enlarged construction "which evidently belongs to this stipulation. The reserve was not only prudent, but necessary, when we undertook to lay down a "universal principle, applying alike to our transactions with every "independent State. In recognising a claim of pre-existing right, "and in establishing a new interpretation of the law of nations, it was unquestionably of extreme importance expressly to reserve "the more favourable practice which our subsisting treaties had "established with some other Powers. "And that which was before incongruous and useless would "therefore, under such circumstances, become, as far as it extends, an act of wise and commendable forethought. 66 "On the whole, therefore, I have no doubt that neutral nations "will be well warranted in construing this section as declaratory "of a universal principle, and applicable to every case where con"traband of war is not defined by special treaty. Nor could we "in my opinion, as this treaty now stands, contend in future wars "with any shadow of reason, much less with any hope of success, (" against this interpretation, however destructive it must be of all our dearest interests. Least of all can we resist it, when we are "reminded, that in a succeeding article of this very convention we "have bound ourselves, by the most distinct engagement, to regard "all its principles and stipulations as permanent, and to observe "them as our constant rule in matters of commerce and navigation; "expressions exactly corresponding with those by which the parties "to the two neutral leagues asserted both the permanence and the universality of the principles which were first asserted by those "confederacies, and which the present convention so frequently re"cognises and adopts. "It is, therefore, highly necessary that your Lordships should "carefully examine what is this general interpretation which the "contracting parties have thus solemnly declared; what sense it is "that they have thus permanently affixed to a term so frequently "recurring in the practice and law of every civilised nation, and so "intimately connected with the exercise of our naval rights as that "of contraband of war." |