omans and non-Romans had long ago
developed in Rome an international private law (-ius gentium-;(106)),
that is to say, a body of maxims especially relating to commercial
matters, according to which Roman judges pronounced judgment,
when a cause could not be decided either according to their own
or any other national code and they were compelled--setting aside
the peculiarities of Roman, Hellenic, Phoenician and other law--
to revert to the common views of right underlying all dealings.
The formation of the newer law attached itself to this basis.
In the first place as a standard for the legal dealings
of Roman burgesses with each other, it de facto substituted
for the old urban law, which had become practically useless,
a new code based in substance on a compromise between the national law
of the Twelve Tables and the international law or so-called
law of nations. The former was essentially adhered to,
though of course with modifications suited to the times,
in the law of marriage, family, and inheritance; whereas
in all regulations which concerned dealings with property,
and consequently in reference to ownership and contracts,
the international law was the standard; in these matters indeed
various important arrangements were borrowed even from local
provincial law, such as the legislation as to usury,(107)
and the institution of -hypotheca-. Through whom, when,
and how this comprehensive innovation came into existence,
whether at once or gradually, whether through one or several authors,
are questions to which we cannot furnish a satisfactory answer.
We know only that this reform, as was natural, proceeded
in the first instance from the urban court; that it first took
formal shape in the instructions annually issued by the -praetor
urbanus-, when entering on office, for the guidance of the parties
in reference to the most important maxims of law to be observed
in the judicial year then beginning (-edictum annuum- or -perpetuum
praetoris urbani de iuris dictione-); and that, although various
preparatory steps towards it may have been taken in earlier times,
it certainly only attained its completion in this epoch. The new code
was theoretic and abstract, inasmuch as the Roman view of law
had therein divested itself of such of its national peculiarities
as it had become aware of; but it was at the same time practical
and positive, inasmuch as it by no means faded away into the dim
twilight of general equity or even