The strict theory of Roman law which remained throughout its history was that the ius civile was only for citizens, and, as there was originally no other law than the ius civile, the foreigner was both rightless and dutiless. It was open to any Roman to seize him and his property as things without an owner, and, on the other hand, there was no court in which he could be sued. Whether there was ever a time at which practice was entirely in consonance with this theory may be doubted, but at any rate as soon as intercourse with other states became at all common and civilisation advanced, such a barbarous system could no longer be maintained.
We have seen that an exception was made in the case of members of the Latin league, whose admission to commercium means that their rights were protected at Rome, and very early history already provides an example of a treaty with a foreign state which guarantees mutual protection of legal rights, at least so far as they arise out of commerce. This is the treaty said to have been concluded in the first year of the republic (509 B.C.) between Rome and Carthage. Unfortunately we have no record of the nature of the protection granted in this treaty, but other treaties appear to have made provision for reciperatio, i.e. the appointment of a court of several jurymen (recuperatores), perhaps taken from nationals of both the states concerned. Finally, quite apart from special treaties, the foreigner was no longer in fact treated as rightless; to treat him so would have been to put a stop to the possibility of commerce, and the commercial interests of Rome were growing. We have seen that about 242 B.C. a special praetor was appointed to deal with disputes in which foreigners were concerned, and from our accounts there can be no doubt that the single praetor had been dealing with such cases, as well as those in which citizens alone were involved, for some time previously. About the same time, it must be remembered, Rome also acquired her first provinces, which meant that her governors would have to concern themselves with jurisdiction abroad in which foreigners would necessarily be involved.
