its stages, is little more
than a narrative of conflicts between a stubborn nationality and an
alien population. Nothing like this has been seen in modern times; on
the one hand, because modern European communities have seldom or never
received any accession of foreign immigrants which was large enough to
make itself felt by the bulk of the native citizens, and on the other,
because modern states, being held together by allegiance to a king or
political superior, absorb considerable bodies of immigrant settlers
with a quickness unknown to the ancient world, where the original
citizens of a commonwealth always believed themselves to be united by
kinship in blood, and resented a claim to equality of privilege as a
usurpation of their birthright. In the early Roman republic the
principle of the absolute exclusion of foreigners pervaded the Civil
Law no less than the Constitution. The alien or denizen could have no
share in any institution supposed to be coeval with the State. He
could not have the benefit of Quiritarian law. He could not be a party
to the _nexum_ which was at once the conveyance and the contract of
the primitive Romans. He could not sue by the Sacramental Action, a
mode of litigation of which the origin mounts up to the very infancy
of civilisation. Still, neither the interest nor the security of Rome
permitted him to be quite outlawed. All ancient communities ran the
risk of being overthrown by a very slight disturbance of equilibrium,
and the mere instinct of self-preservation would force the Romans to
devise some method of adjusting the rights and duties of foreigners,
who might otherwise--and this was a danger of real importance in the
ancient world--have decided their controversies by armed strife.
Moreover, at no period of Roman history was foreign trade entirely
neglected. It was therefore probably half as a measure of police and
half in furtherance of commerce that jurisdiction was first assumed in
disputes to which the parties were either foreigners or a native and a
foreigner. The assumption of such a jurisdiction brought with it the
immediate necessity of discovering some principles on which the
questions to be adjudicated upon could be settled, and the principles
applied to this object by the Roman lawyers were eminently
characteristic of the time. They refused, as I have said before, to
decide the new cases by pure Roman Civil Law. They refused, no doubt
because it seemed to involve some kind o