the authorities we have quoted, and must be regarded as an inexactitude of Ulpian. Misled by Ulpian, Sir William Jones in his treatise on Bailments lays down the principle that, when a contract is reciprocally beneficial, only ordinary diligence is required, whereas we have shown that if the interests of the parties. are not identical, the Roman law, at least, requires extraordinary diligence. He also, in measuring diligence and negligence, introduces the conception of a mean and two extremes, making three gradations of diligence (and correspondingly of negligence), ordinary diligence, less than ordinary diligence, more than ordinary diligence: but this tripartite division produces an intricacy and complication that is not to be found in the Roman jurists. Under the head of Obligatio ex delicto should be placed, according to Savigny, the doctrine of POSSESSION (Interdict-possession), or, rather, of Dispossession, with its remedies, the Interdicts Utrubi, Uti possidetis, and Unde vi. This would agree with the Roman arrangement: at least the Roman jurists, instead of recognizing in Possession a primary right, imposing a negative obligation on all the world (jus in rem), were content with regarding Dispossession as a wrong imposing a secondary positive obligation on the individual dispossessor, and treated all the possessory Interdicts as actions ex delicto, 4 § 140, commentary. But the true place of Possession seems indicated by Vangerow who distinguishes between the Interdicta Retinendae and Recuperandae possessionis. The Interdictum Recuperandae possessionis, i.e. the Interdict Unde vi, is really based on obligatio ex maleficio, and belongs to Penal jurisprudence: whereas Possession as contemplated by the Interdicta Retinendae possessionis, i. e. the Interdicts Uti possidetis and Utrubi, is a primary right demanding universal recognition (jus in rem) that has its place in the code regulating Dominion: and the interdicts allotted for its protection, though nominally based on obligatio ex delicto are really coordinate not with Penal actions, but with Real actions or Vindicatio. Gaius only deals with Possession and possessory Interdicts as belonging to the code of Procedure, without indicating their position in the code of Substantive law. BOOK IV. DE ACTIONIBUS. § 1. Si quaeritur, quot genera actionum sint, verius videtur duo esse in rem et in personam. nam qui ш esse dixerunt ex sponsionum generibus, non animadverterunt quasdam species actionum inter genera se rettulisse. § 2. In personam actio est qua agimus quotiens cum aliquo qui nobis vel ex contractu vel ex delicto obligatus est contendimus, id est cum intendimus dare, facere, praestare oportere. § 3. In rem actio est, cum aut corporalem rem intendimus nostram esse, aut ius aliquod nobis competere, velut utendi, aut utendi fruendi, eundi, agendi aquamve ducendi, vel altius tollendi vel prospiciendi. item actio ex diverso adversario est negativa. § 4. Sic itaque discretis actionibus, certum est non posse nos rem § 1. We have now to treat of Actions, which fall into two classes, being either Real or Personal: for those who count four classes, including the forms of sponsio, commit the error of co-ordinating subclasses and classes. § 2. A Personal action seeks to enforce an obligation imposed on the defendant by his contract or delict, that is to say, is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss. § 3. A Real action is my claim of some dominion or some fraction of dominion, as a right of use or usufruct of a thing belonging to my neighbour, a right of horseway or carriage-way through his land, of fetching water from a source in his land, of raising my house above a certain height, or of having the prospect from my windows unobstructed; or the opposite contention of my neighbour, his denial that I have any such fraction of dominion. § 4. Real and Personal actions being thus distinguished, it is clear nostram ab alio ita petere, SI PARET EUM DARE OPORTERE: nec enim quod nostrum est, nobis dari potest, cum solum id dari nobis intellegatur quod ita datur, ut nostrum fiat; nec res quae est nostra, nostra amplius fieri potest. plane odio furum, quo magis pluribus actionibus teneantur, effectum est, ut extra poenam dupli aut quadrupli rei recipiendae nomine fures ex hac actione etiam teneantur, SI PARET EOS DARE OPORTERE, quamvis sit etiam adversus eos haec actio qua rem nostram esse petimus. § 5. Appellantur autem in rem quidem actiones vindicationes; in personam vero actiones quibus dare fierive oportere intendimus, condictiones. § 6. Agimus autem interdum, ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam. § 7. Rem tantum persequimur velut actionibus quibus ex contractu agimus. $8. Poenam tantum consequimur velut actione furti et iniuriarum, et secundum quorundam opinionem actione vi bonorum raptorum; nam ipsius rei et vindicatio et condictio nobis competit. § 9. Rem vero et poenam persequimur velut ex his causis ex quibus adversus infitiantem in duplum agimus: quod accidit per actionem iudicati, depensi, damni iniuriae that I cannot demand my property from another in the following form: If it be proved that the defendant is bound to convey such property to me.' What is my own cannot be conveyed to me, for conveyance to me makes a thing mine, and what is already mine cannot be made more mine than it is. Yet, for the prevention of theft and multiplication of remedies against the thief, besides the penalty of twice the value of the thing stolen awarded against the thief not caught in the act, and the penalty of four times the value against the thief caught in the act, the thing itself may be recovered by a personal action in which the contention is thus worded: 'If it be proved that the defendant ought to convey the thing in question,' as well as by the real action thus formulated: 'If it be proved that the thing in question is the property of the plaintiff.' § 5. A Real action is called vindicatio; a Personal action, whereby we contend that some property should be conveyed to us or some service performed for us, is called condictio. § 6. We sue sometimes only for property [to which we have a title, real or personal], sometimes only for a penalty, sometimes both for our property and for a penalty. § 7. We sue only for our property in (real actions and in) personal actions founded on contract. § 8. We sue only for a penalty in actions of Theft and Outrage, and, according to some, of Rapine; for our property itself may be recovered either by Real or by Conservative (non-penal) personal action. § 9. We sue both for our property and for a penalty in those actions where the defendant who denies his obligation is condemned to pay double, as in the action to recover a legis Aquiliae, et rerum legatarum nomine quae per damnationem cer tae relictae sunt. judgment debt, to recover money paid by a sponsor for his principal, to recover damages for injury to property under the lex Aquilia, and to recover legacies of a definite amount bequeathed by condemnation of the successor. § 1. From Substantive law Gaius now passes to the law of Procedure, confining himself for the most part to its Material as opposed to its Formal aspect: dealing with procedure, that is to say, not so far as it is merely the method of realizing pre-existing rights, but rather so far as its stages are titles which, like Dispositions and Torts, themselves originate new rights and new obligations. If we inquire which code is the earlier in its development, the Substantive code or the code of Procedure, the answer is that they are essentially contemporaneous: a Substantive code can have no actual existence unless there is some method of giving it force, and again a code of procedure can have no meaning unless there is a substantive law to be administered. But after recognizing that the two codes are correlative and necessarily coexistent, we find that historically the code of Procedure is prior in the chronological order it attains to a high grade of development, while the Substantive code which started into birth at the same time remains in a rudimentary undeveloped condition. The tribunals once established by the legislator soon evolve strict rules to govern their proceedings, while the legislator is too much occupied with wars domestic and foreign to furnish the substantive law which the tribunals ought to administer. The following contrast of ancient and modern jurisprudence here deserves a notice. No primary rights can be conceived without sanctioning rights, or rights which arise when the primary rights are violated and again no sanctioning rights can be conceived without Actions or modes of evoking the interposition of the sovereign power. And, as Rights imply Actions, so reciprocally Actions imply Rights. But though, as corresponding or correlated terms, Right and Action have a necessary connexion, and the existence of one may be inferred from the existence of the other; two systems of jurisprudence may differ as to which of these terms, the Right or the Action, they deem the more evident; which they regard as the datum and which the matter to be proved; which the logical premiss and which the conclusion. In Rome the Remedy was regarded as the certainty; the Right, primary or sanctioning, as the matter of deduction. The forms of Action, emphatically so in Statute-process and to a great degree in the Formulary system, as crystallized in the law or in the edict, were capable of enumeration and incapable of multiplication; and from these forms the citizen might deduce the list of his rights and obligations. The logic of the ancient jurist may be expressed in the maxim: Where there is a Remedy there is a Right: There is no Right unless there is a Remedy. The modern jurist assumes the other, the more ideal of the two correlated terms, to be the more evident, and acts upon the converse maxim: Where there is a Right there is a Remedy; or, Given the Right, the Remedy follows. The action now is the dependent term: its forms are unimportant and indefinitely variable; they are no longer crystallizations. If a Right is established and no appropriate form of action seems to exist, a new one is forthwith invented, and its fitness to enforce the established right is sufficient to procure its recognition by the judicature. Such at least, if not opposite goals at which ancient and modern jurisprudence have arrived, appear to be opposite directions in which they diverge. Ihering, § 50. Sponsio or wager was an indirect mode of submitting questions to judicial decision, which seems to have been very commonly employed before the introduction of the formulary system. We are left to conjecture how its classification enabled any jurist to count four classes of action. Its principal division seems to be into the sponsio where the pecuniary risk was serious and the penal sum important (sponsio poenalis), and the sponsio where the penal sum was nominal and not actually exacted (sponsio praejudicialis). Adding these two divisions to real and personal actions, we should have four classes. But as every sponsio, asserting an obligation arising from stipulation, was a species of personal action, this classification would involve a co-ordination of sub-genera and genera, or subdivisions and divisions. A Real action is one which asserts a jus in rem, a Personal action one which asserts a jus in personam. A jus in rem, we may remember, is a right to certain forbearances, or freedom from molestation, corresponding to a duty imposed on all the world; a jus in personam is a right to certain performances corresponding to a duty imposed on a determinate person. Jura in rem are Status, or Property, or Servitude, that is, some fraction of property. Jura |