§ 12.: The debts which this development of law owed to the Italian and provincial world.

If we ask what was the great motive power which lay behind this development of law through interpretation by the magistrate, we shall find it to consist, partly in contact with foreign peoples; partly (although probably in a less degree) in the new educational influences which were moulding the lives of the Roman nobles. The tendency to experiment and adaptation, to a disbelief in anything fixed and rigid, is thoroughly Roman; but external circumstances were very largely responsible for the particular lines on which this tendency was to move. The legal consequence of contact with foreign races is summed up in the phrase Jus Gentium. The word ‘Gentes’ in this collocation means ‘the world’; and it is possible that, when the expression Jus Gentium was first formed, Edition: current; Page: [xxxv] Rome regarded herself as rather outside this world whose customs she was contemplating, although even her earliest practice showed an inner conviction that she was a very integral part of it indeed. The moment that she began to trade with the foreigner, whether in Italy, Sicily, or Africa, she must have seen that her own Jus Civile was an impossible basis for trading relations. If the Roman had no liking to submit to the intricacies of the law of some other state, the foreign trader had equally little inclination to conform to the tedious formalities of Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on the claims of Private International Law. This common ground was found in the Jus Gentium; the common court was that of the Recuperatores of early times. The history of the Praetorship leads us to think that the Jus Gentium must have begun to exercise a modifying influence on Roman law long before the middle of the third century b. c.; for we have seen that for more than 120 years a single Praetor administered justice both to Cives and Peregrini. A single magistrate therefore published and dealt with two distinct systems of law. But it would seem to be impossible that he could have kept the two absolutely distinct, especially when the simplicity and universality of the Jus Gentium stood in marked contrast to the complexity and singularity of the Jus Civile. The rigidity of the forms of Roman law may have been shaken even at this early period. But when a second Praetor was appointed to frame a special edict for Peregrini, the Jus Gentium must have found a still more complete and systematic expression. The procedure by which the legal claims of aliens were asserted must have been more fully elaborated. This was the procedure by Formula, which was to furnish the prototype for the method adopted by the Praetor Urbanus, and to replace the older procedure by Legis Actio in most of the Roman courts of law. Nor can we ignore the influence of the Edictum Provinciale, although this came later and at a time when the typical elements in Roman procedure had been fixed. Rome gained some ideas from the Hellenised East, as in early days she had gained some from Magna Graecia. It was probably from contact with the East that she gained the knowledge of such simple forms of written agreement as Syngrapha and Chirographa, and that she acquired her theory of Mortgage (Hypotheca).