rights are antecedent to wrong, and may be divided into status, primordial rights, property, and obligation; the title or investitive fact which creates them being a condition defining a status or capacity of primordial rights, or one of the modes of acquiring property or of forming a contract. Secondary or sanctioning rights imply an antecedent wrong, and their title is a breach of contract or the violation of some real right, statistic, primordial, or proprietary.

Both these classes of rights and the corresponding duties are creations of the law: for every law is both imperative and coercitory; that is, both by its command confers a primary right and imposes a corresponding primary duty, and sanctions its command by conferring a secondary right and imposing a secondary duty, that is, by conferring a remedy and employing coercion in the event of disobedience.

The sanctions of the civil law are either reparative and remedial or punitory and preventive; in one case the object of the law is the RESTORATION of the plaintiff by restitution or compensation, and then his primary right is the measure of his redress or sanctioning right; in the other case it is the repression of similar wrongs by inflicting a PUNISHMENT on the defendant which may operate as a terror to himself in future (reformatory) and to other wrongdoers (exemplary); and then the sanctioning right may far exceed his primary right. Even RESTORATION embraces the mediate as well as the immediate value of the primary right, 3 § 212, comm.

The language of Roman jurisprudence makes no distinction between a primary right and a sanctioning right when the sanction is purely RESTORATIVE, even though it include the accessory or consequential value, calling both by the name of the Object (Res). The redress directly given by the Roman law under the formulary procedure was always pecuniary compensation, and we might have expected Roman jurists above all others to distinguish between the objects of the plaintiff's primary and secondary right; but the indirect result of a real action might be the recovery of specific restitution, and it was in view of this type of redress that the Roman lawyers were led to speak of the objects of primary and reparative secondary rights as identical.

If we next proceed to inquire what classes of actions are brought for reparation or to recover the object of a primary right (rei persecutio), and what for the recovery of a penalty (poenae persecutio), §§ 6-9, we shall have no difficulty in perceiving that real actions and

actions on contract belong to the former class (rei persecutio); and that of actions on delict, a subdivision, which may be called Vindictive (quae ad ultionem pertinent, quae vindictam continent), such as the actio injuriarum, belong to the latter (poenae persecutio). The effect of the former is restoration: they leave the plaintiff no richer and the defendant no poorer in respect of property than he was at first; whereas the vindictive actions leave the plaintiff, in respect of property, richer, and the defendant poorer. But the remaining division of actions on delict, those brought to recover indemnification for damage to property, are more ambiguous in character. If we merely regard their effect on the plaintiff they seem to be purely reparative, for they leave the plaintiff no richer; but if we regard their effect on the defendant they seem to be penal, for if the wrong done by the defendant was a destruction of property, compensation to the plaintiff will leave the defendant poorer.

We have seen, 3 § 212, that, even under a contract, indemnification included indirect losses or the mediate value of the primary right, and might amount to twice the immediate value of the primary right and that, founded on delict, indemnification was not restricted to any maximum.

Accordingly, with respect to these semi-penal [unilaterally penal] actions, the language of the Roman jurists varies, they are sometimes regarded as rei persecutio, and sometimes as poenae persecutio; but the latter view predominated, and they have the principal incidents of penal actions: they are only maintainable within a year, and are not passively transmissible, i. e. maintainable against the successor of the defendant except so far as restorative, i. e. so far as the successor was enriched, unless the suit was commenced (lis contestata) against the original wrong-doer, in which case the penal obligation is novated, 3 § 180, and becomes passively transmissible; moreover they are maintainable against each one of several delinquents for the entire damages; and they can be brought in the form of noxal actions against the paterfamilias or dominus. See Grueber, Lex Aquilia, p. 275.

In these cases, accordingly, the plaintiff had not always an adequate remedy under the Roman law. English law originally followed the rule of Roman law, and no action of Tort, even for damage to property, would lie against the executor or administrator of the wrong-doer. [The maxim: actio personalis moritur cum persona, often used by expositors of English law, must have origi

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nated in a misprint of personalis for poenalis.] But now, by 3 and 4 Will. IV, c. 42, an action for injury to property, as opposed to actions for slander and the like (vindictive actions, which die with the person), is maintainable against the executors and administrators of the wrong-doer, provided the wrong was committed within six months before his death and the action is brought within a year after his death, if it was an injury to real property, or within six months after his executors or administrators have taken on themselves administration, if it was an injury to personal property. Thus within the limits of this statute the English plaintiff has an ampler remedy than the Roman. See Pollock's Law of Torts, 1 Ch. III. § 2.

The distinction of Res and Poena is important in questions respecting the extinction of a suit (1) by death: Vindictive suits being incapable of either active or passive transmission (transmission to the heir of the plaintiff or defendant), Penal suits being incapable of passive transmission, Civil suits being capable of both active and passive transmission: § 111, comm. (2) by prescription: Penal suits prescribing in a year, Civil suits in thirty years: 110-113, comm. (3) by concurrence, i.e. the merger, absorption, or alternation of several co-existing suits. The importance of the distinction of Res and Poena has diminished in consequence of the desuetude of penal actions.

Damages in English law means any uncertain amount of money: i.e. a claim for damages includes rei persecutio, where the res is incerta, as well as poenae persecutio. An obligation to pay a certain sum is called a Debt.

§ 7. One action upon contract, namely, the action against a depositary, was brought for double the value of the deposit, i.e. was partly penal, if the deposit was necessitated by fire, shipwreck, tumult, or similar distress.

§ 8. In Justinian's time the penalty of Rapine was only thrice the value of the thing taken with violence, that is, the quadruple damages were partly penal, for the actions vi bonorum raptorum and the real or personal action to recover the thing taken were not concurrent or cumulative, Inst. 4, 6, 19. For a case of quadruple damages, of which was restorative and penal, under 9 Anne, c. 14, against Gaming, see Stephen's Blackstone, Introduction, p. 3.

§ 9. The actio judicati was brought against a defendant who

denied that a judgment had been given against him or that it was still unsatisfied. He was liable to be condemned to pay twice the amount of the judgment debt, and was required to give security judicatum solvi. This security was the modern representative of the interposition of a Vindex in the old proceeding of manus injectio. In manus injectio pro judicato it seems the Vindex who lost the suit was condemned, as a penalty for his tortious interference, to pay a sum equal to the original judgment debt; in other words, to discharge the debtor he had to pay twice the amount of the debt. In manus injectio pura the defendant was his own Vindex, and, if he lost, was condemned in double the debt. See §§ 21-25.

The actio depensi [see above, 3 § 127] was introduced by a lex Publilia of uncertain date, and as it was only given to the sponsor, would become obsolete when the sponsor was superseded by the fidejussor.

Justinian confined the action of the legatee against the heres for twice the value of the legacy to the case of bequests to churches and religious institutions. Inst. 3, 27, 7.

LEGIS ACTIONES.

§ 10. Quaedam praeterea sunt actiones quae ad legis actionem exprimuntur, quaedam sua ui ac potestate constant. quod ut manifestum fiat, opus est ut prius de legis actionibus loquamur.

§ 11. Actiones quas in usu ueteres habuerunt, legis actiones appellabantur uel ideo quod legibus proditae erant (quippe tunc edicta praetoris, quibus conplures actiones introductae sunt, nondum in usu habebantur), uel ideo quia ipsarum legum uerbis accommodatae erant et ideo inmutabiles proinde atque leges obseruabantur. unde eum qui de uitibus succisis ita egisset, ut in actione uites nominaret, responsum est rem perdidisse, cum debuisset arbores nominare eo quod lex XII tabularum, ex qua de uitibus succisis actio conpeteret, generaliter de arboribus succisis loqueretur.

§ 11. These proceedings are called statute-process, either because they were appointed by statute before the edict of the praetor, the source of many new actions, began to be published, or because they followed the letter of a statute and in form were as immutable as law. Thus, a man who sued another for cutting his vines, and in his action called them vines, irreparably lost his right because he ought to have called them trees, as the Twelve Tables, which confer the action, speak generally of trees and not particularly of vines.

§ 12. There were five forms of

§12. Lege autem agebatur modis quinque sacramento, per iudi- statute-process, Sacramentum, Ju

cis postulationem, per condictionem, dicis postulatio, Condictio, Manus per manus iniectionem, per pignoris injectio, and Pignoris captio. capionem.

SACRAMENTUM.