BOOK I. Chapter II. CHAPTER II. EXERCISE AND PROTECTION OF RIGHTS. $23. NATURE AND SPECIES OF PROTECTION OF RIGHTS. A RIGHT without de facto validity, i.e., a right which could not be available, would be unreal. The exercise of a right must not be dependent upon the free consent of those in relation with the person entitled: it must admit of operation even against their will. Inasmuch as restriction upon the exercise, or actual non-recognition, of a right shows itself to be the violation of such right, it belongs to the nature of a right that its recognition should be enforceable. Nevertheless, in a politically organized community the individual may not enforce his right independently, at his own discretion, upon his own responsibility, by his own power to make such right available. SELF-HELP, as an expression of individual caprice which in its effect is unreliable and indefinite, and based upon a merely subjeca For 'Redress tive idea of Law, is contrary to the nature of legal order." Paul. Non est singulis concedendum, quod per magistrum publice possit fieri, ne occasio sit maioris tumultus faciendi.-D. 50, 17, 176 pr.' by act of par ties,' allowed by Engl. Law, see Steph. iii. pp. 240, 899. ; cf. Maine, Early Hist. of Institt., ch. ix., Holl. pp. 239, sqq. Callistrat.: Exstat decretum D. Marci in haec verba: Optimum est, ut si quas putas te habere petitioncs, actionibus experiaris; [interim ille in possessione debet morari, tu petitor es].' Cum Marcianus diceret: vim nullam feci,' Caesar dixit: Tu vim putas esse solum, si homines vulnerentur ?' Vis est et tunc, quotiens quis id quod deberi sibi putat, non per iudicem reposcit. Quisquis igitur probatus mihi fuerit, rem ullam 1 That which can come about publicly through the magistrate must not be committed to individuals, that opportunity may not be afforded of making greater disturbance. debitoris vel pecuniam debitam, non ab ipso sibi sponte datam, sine ullo iudice temere possidere vel accepisse isque sibi ius in eam rem dixisse, ius crediti non habebit.-D. 4, 2, 13 & 48, 7, 7. Self-help is only legally admissible as self-defence in extreme necessity, i.e., the immediate repulse of an attack upon our person or our property, which is already in form illegal and prejudicial to one's very personality. Paul. :—vim vi defendere omnes leges omniaque iura permittunt.-D. 9, 2, 45, 4.2 Ulp.: Vim vi repellere licere Cassius scribit, idque ius natura comparatur.-D. 43, 16, 1, 27.3 Moreover, since every attack upon the sphere of the private law of the individual clashes at the same time. with the positive law that recognises this, it is the function of the State, as the power which puts Law in force, and by instruments appointed for the purpose, to protect the right of the individual upon his appeal to it, and to compel the actual recognition of that right: the place of Self-help is taken by Procedure, to make good before a court the right which has been violated, by investigation and establishment of what is in dispute, and by judicial relief. 1 There is a decree of the late Emperor Marcus which runs thus:-'It is best for you if you seek to give effect by action to those claims which you conceive you have; [in the meanwhile that man must remain in possession and you are but plaintiff].' When Marcianus declared, 'I have employed no force,' the Emperor said, 'Do you consider that force is merely when men are wounded?' There is force also whenever any one does not through the iudex demand what he deems due to him. Every one, accordingly, respecting whom proof shall be given me that anything belonging to his debtor or a sum owing to him, without his having received it from the debtor through free will, shall be possessed by him groundlessly without judicial assistance, or if he have received it and thereupon shall have himself laid down the law concerning it, he shall forfeit his right to demand it. 2 All statutes and all laws allow of our meeting force with force. 3 Cass. writes that to repel force by force is allowable, and Nature provides that right. BOOK I. Chapter II. BOOK I. Chapter 11. $$ 24-29. integrum' ($ 30). Regular and ordinary protection of a right consists in judicial recognition of an actually existing right, which is vindicated against some violation that has already occurred.a But there are also cases in which from the point of view of aequitas' an actual right is restitutio in extinguished, or one already extinguished is revived." There are further means of protecting rights designed to secure them against future or threatening violations,. © cautiones, mis- or against legal claims which are still in abeyance. siones (§ 31). The description of the legal precepts that apply to the protection of rights and the whole judicial procedure, or steps taken by the parties by way of judicial action, falls under the special doctrine of Civil Procedure.d In what follows, only the general principles relating to the several means of protecting a right, and to the modifications which every right undergoes by its being judicially vindicated, have to be discussed. d See Bk. iv. e Cf. § 201. § 24. ORDINARY MEANS OF PROTECTING A RIGHT. NATURE AND VARIETIES OF ACTIONES 'Actio' in the formal sense (the act of proceeding) is the judicial prosecution of a right; whilst actio' in the material sense (right of proceeding, right of action) is the power inherent in every perfect right to operate, that is, the privilege by bringing an action of imposing upon the opponent legal contention as to the right in question and submission to a judicial sentence upon its This may per- existence and recognition. Actio' is also synonymous with an actionable legal claim, or with obligatio.' Cels. Nihil aliud est actio quam ius quod sibi debeatur iudicio persequendi.-1. 51, D. h. t. (=de O. et A. 44, 7).91 haps be called a right to the institution of a iudicium. 9 Cf. Inst. iv. 6 pr. : 1 ་ In the widest sense, 'actio' designates every means of legal redress. Ulp. Actionis verbo continetur in rem in personam, directa utilis, praeiudicium, . . . stipu 1 Actio is nothing else than the right to sue in court for that which is due to one. lationes etiam, quae praetoriae sunt, . . . Id. Agere etiam is videtur, qui exceptione In the narrower and strict sense, it means only that which initiates a suit whereby a right is prosecuted contentiously against some one, regularly so as to obtain judgment against him. Paul. Actionis verbo non continetur exceptio. In the narrowest sense, it means the action to which an obligation gives rise. Ulp. Actionis verbum et speciale est et generale: nam omnis actio dicitur, sive in personam sive in rem sit petitio. Sed plerumque actiones personales solemus dicere; petitionis autem verbo in rem actiones significari videntur; persecutionis verbo extraordinarias persecutiones puto contineri, ut puta fideicommissorum, et si quae aliae sunt, quae non habent iuris ordinarii exsecutionem.-1. 178, § 2 eod.* The plaintiff is called 'actor,' 'petitor;' the defendant is spoken of as 'reus,' 'is cum quo agitur.' 1 Under an actio is understood one real or personal, immediate or resting upon analogy, or relating to status even praetorian stipulations . . . interdicts also are comprised under actio. 2 He also is regarded as maintaining an action who makes use of an exceptio, for the defendant is in the exceptio plaintiff. 3 An exceptio does not fall under the designation actio. The word actio is something both particular and general; for every action is so-called, be the claim in personam or in rem. But generally by actiones we are accustomed to speak of those that are personal; by the word petitio, however, real actions seem to be meant. I am of opinion that under persecutio are comprehended extraordinary proceedings, e.g., fidei-commissa and other such as are not accomplished by ordinary legal process. BOOK I. Chapter II. According to their subject-matter, or the GROUND of action, actiones are divided into 'Act. in rem 'a s. ' vindicationes' (real actions) and ' in personam s. ' condictiones' in the widest sense (personal actions). Those in personam' are the actions arising out of obligations, actions directed. originally only against a certain, the obliged, person; those in rem' are such as arise out of all other legal relations, by which a right of the person entitled is vindicated against every third person, and in which the person of the defendant is first determined through the violation of the right." Omnium actionum . . . summa divisio in duo genera deducitur: aut enim in rem sunt, aut in personam. § 1, I. h. t. (=de act. 4, 6).1 Gai. iv. 2, 3: In personam actio est, qua agimus cum aliquo, qui nobis vel ex contractu vel ex delicto obligatus est i.e. cum intendimus: DARE, FACERE, PRAESTARE OPORTERE. § In rem actio est, cum aut corporalem REM intendimus NOSTRAM ESSE, aut ius aliquod nobis competere velut utendi fruendi.2 Ulp.: In rem actio . . . semper adversus eum est, qui rem possidet; in personam actio semper adversus eundem locum habet.1. 25 pr. D. h. t.3 Quaedam actiones mixtam causam obtinere videntur, tam in rem quam in personam; qualis est familiae erciscundae actio communi 1 The principal division of all actions is into two kinds : they are either in rem or in personam. 2 An action in personam is that by which we proceed against some one who has become liable to us either by contract or by tort, that is, when we allege in our claim that he ought to give, to do, to perform something. The action is in rem when we allege in the claim either that a corporeal thing is ours, or that some right belongs to us; for instance, of usus, of usufruct. 3 An action in rem is always directed against the possessor of the thing; an action in personam always obtains against the same person. |