543

of de

purpose The Recuperatores (p) were judges chosen for the ciding questions at issue between the native and the alien ally. Such a treaty, indeed, implied that the parties to it were free and For as soon as the one became actually independent States. 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 (9).

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.

"Hispaniæ deinde utriusque legati aliquot populorum in senatum "introducti. Ii, de magistratuum Romanorum avaritia superbiaque conquesti, nisi genibus ab senatu petierunt, ne se socios "fœdiùs 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 Vocatis in curiam legatis vellent, sumendi potestatem faceret. "recitatum est senatûs 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"sulibus, in citeriore Hispania fuerat, recuperatores sumserunt. Ad recuperatores "Bis ampliatus, tertio absolutus est reus.

แ

แ

"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, "prætor fuerat. Gravissimis criminibus accusati ambo ampliati

(p) "O rem præclaram vobisque ab hoc retinendam recuperatores," &c.-Cic. Orat. pro Cæcina, ss. 22, 24-25.

(9) Sell, pp. 339-40.

que: quum dicenda de integro caussa esset, excusati exsilii caussa "solum vertisse " (r).

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. 1. 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 (8).

APPENDIX III. PAGE 45.

(Extract from the Speech of Lord Grenville upon the Motion for as Address to the Crown, approving of the Convention with Russia in 1801, as to the effect of embodying a Principle of General Lax 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 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 reci"procal conduct 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

(r) Liv. xliii. 2. Sell, pp. 365-6.

(8) "Das 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 einen dritten untergeben waren, lässt sich durch keine Zeugnisse der alten belegen; wohl aber sind dergleichen aufzufinden, aus deren das Gegen theil hervorgeht."-Sell, p. 57. See, too, p. 84.

"recognition of a universal and pre-existing right, which, as such, "cannot justly be refused to any other independent State.

66

"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.'

66 6

"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.

66

66

"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 incon"sistent 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? How should "it possibly have any such effect? 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 or Danish ships? But the case would "indeed be widely different under the more enlarged construction

66

"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 recognizing 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.

"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 แ 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"cognizes 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 civilized nation, and so "intimately connected with the exercise of our naval rights as that "of contraband of war."

APPENDIX IV. PAGE 385.

33 Vict. c. 14.-An Act to amend the Law relating to the legal condition of Aliens and British Subjects. [12th May, 1870.]

"WHEREAS it is expedient to amend the law relating to the legal "condition of aliens and British subjects:

"Be it enacted by the Queen's most Excellent Majesty, by and "with the advice and consent of the Lords Spiritual and Temporal,

"and Commons, in this present Parliament assembled, and by the

"1. This Act may be cited for all purposes as 'The Naturalization Short title. "Act, 1870.'

"Status of Aliens in the United Kingdom.

"2. Real and personal property of every description may be Capacity "taken, acquired, held, and disposed of by an alien in the same of an alien manner in all respects as by a natural-born British subject; and as to pro"a title to real and personal property of every description may be perty. "derived through, from, or in succession to an alien, in the same "manner in all respects as through, from, or in succession to a natural"born British subject: Provided,—

แ "(1.) That this section shall not confer any right on an alien to "hold real property situate out of the United Kingdom, "and shall not qualify an alien for any office or for any municipal, parliamentary, or other franchise:

"(2.) That this section shall not entitle an alien to any right or "privilege as a British subject, except such rights and

privileges in respect of property as are hereby expressly แ given to him:

'(3.) That this section shall not affect any estate or interest in "real or personal property to which any person has or may "become entitled, either mediately or immediately, in "possession or expectancy, in pursuance of any disposi"tion made before the passing of this Act, or in pursuance "of any devolution by law on the death of any person dying before the passing of this Act.

ized aliens

to divest themselves

of their

"3. Where Her Majesty has entered into a convention with any Power of "foreign State to the effect that the subjects or citizens of that natural"State who have been naturalized as British subjects may divest "themselves of their status as such subjects, it shall be lawful for "Her Majesty, by Order in Council, to declare that such convention "has been entered into by Her Majesty; and from and after the status in "date of such Order in Council, any person being originally a sub- certain "ject or citizen of the State referred to in such Order, who has been cases. "naturalized as a British subject, may, within such limit of time as 66 may be provided in the convention, make a declaration of alienage, "and from and after the date of his so making such declaration "such person shall be regarded as an alien, and as a subject of the "State to which he originally belonged as aforesaid.

"A declaration of alienage may be made as follows; that is to say,-If the declarant be in the United Kingdom in the presence "of any justice of the peace; if elsewhere in Her Majesty's dominions "in the presence of any judge of any court of civil or criminal juris"diction, of any justice of the peace, or of any other officer for the "time being authorized by law in the place in which the declarant