a magistrate and not taken from the legis actiones of the civil law—are best explained as survivals of a time when it was a mixed court of international jurisdiction.[1] The two or four jurors probably represented the contracting states in equal proportions, the third or fifth may have been an arbitrator chosen from another community; the magistrate who gave the formula would have been an official of the town in which the mixed court sat.
But the formula implied a system of legal principles, and these could not easily be furnished by the civil law (jus civile) of each contracting state. It was not Roman pride that prevented the foreigner from participating in her native law; it was the unwillingness of the foreigner to be made subject to a code characterised by excessive cumbrousness, by danger and by delay, and the counter-objection of the Roman to be the victim of similar disadvantages in the contracting state. No merchant, to whom time meant money, would adopt the cumbrous form of conveyance known as the mancipatio, when ownership could be acquired by the simple transfer (traditio) known of all nations; none would care to repeat a formula (to be learnt only of the Roman pontiff), the least error in the utterance of which was sufficient to extinguish his claim; and the symbolic acts performed before the praetor, though possibly dear to the Roman mind, could not have been attractive to the foreigner. Convenience dictated a compromise, and this was found in the gradual collection of a body of rights (jus) from the customs of "the world" (gentes) as known to the Romans. This jus gentium, or body of rights possessed by man as a citizen of the world, was a code of private international law, and it cannot be regarded as being even purely Italian. A nation that borrowed its alphabet from a Chalcidian city, that imitated the military organisation of the Hellenes, that traded in the sixth century with Sicily, Sardinia, Libya and Carthage, must have been deeply imbued with the customs of the Greek and Phoenician world. Nor was this code a growth of Rome's supremacy, for her commercial preceded her political greatness. Its origin dates back to a time probably anterior to the Republic, certainly far earlier than the institution of the praetorship. We have already
- ↑ Festus p. 274 "Reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores reddantur res reciperenturque resque privatas inter se persequantur." See Keller Civilprocess p. 36; Rudorff Rechtsgeschichte ii. p. 34.
