HISTORY OF LAW 249 



of the principle of personality rather than that of territoriality of 

 law led to the discovery or investigation of the theory of natural 

 law. 



By reason of the conception of law as personal and not territorial, 

 it was necessary for the praetor peregrinus to seek some other 

 system of law than that applicable to Roman citizens on person- 

 which to base his decisions in controversies between for- ality. 

 eigners, that is, persons who were not Roman citizens. For it was 

 only a citizen who could enjoy the property rights, sustain the family 

 relations, enter into the contractual obligations, or avail himself 

 of the judicial procedure recognized by the law of Rome. This 

 theory of the personality of the law cut a large figure during the 

 medieval age, and served as a marked distinction between the 

 Roman system and the feudal system. The distinction may be of 

 no great significance, for the rule of territoriality is now fully recog- 

 nized in all civilized countries, not only as to the relations of individ- 

 uals to each other and to the state under any particular system of 

 law, but also as to the relations to each other of foreign nations 

 and their subjects, but it will furnish an explanation for many 

 difficulties and peculiarities developed in the study of the early 

 Teutonic systems. 



The notion that the praetor peregrinus must administer some 

 other system of law than the civil law of Rome led to the assumption 

 of the existence of a body of rules and principles which j us Q en _ 

 could be derived from the laws of other peoples, that is, the tium. 

 jus gentium. The first conception was the purely practical one that 

 the controversies between subjects of other governments tempo- 

 rarily residing or transacting business in Rome ought to be decided 

 according to the laws of the governments to which they were sub- 

 ject. Such laws would be their laws wherever they might be, 

 just as the Roman laws were the laws of the Roman citizen. But 

 it would be impossible in many cases between foreigners to find 

 any law applicable to both, and the praetor was driven to administer 

 in such cases a kind of general law, in fact, a system of equity; and 

 he did it on the fictitious assumption, especially with reference to 

 commercial transactions, that there was an established system of laws 

 or principles common to all nations. Nowhere is the capacity of the 

 Roman jurist to generalize without regard to facts and to build 

 up a system on mere philosophical theory more aptly illustrated 

 than in the assumption of a jus gentium. No praetor or jurisconsult 

 or philosophical writer seems to have pretended to discover as a matter 

 of fact the existence of any such system of principles, nor indeed 

 to have made any investigation for the purpose of determining 

 whether such a system existed among or could be derived from 

 the laws of different nations. That the praetor peregrinus, in fact, 



