CHAPTER XIII. PRIVATE LAW: REMEDIAL RIGHTS. may remedies. A RIGHT which could be violated with impunity, without Primitive giving rise to any new legal relation between the person of inherence and the person of incidence, would not be a legal right at all. In an anarchical state of society an injured person takes such compensation as he can obtain from a wrong-doer, or, if strong enough, gets such satisfaction as be derived from an act of revenge. A political society, in the first place, puts this rude self-help under stringent regulation, and secondly, provides a substitute for it in the shape of judicial process. Self-help is indeed but an unsatisfactory means of redress. Its possibility depends upon the injured party being stronger than the wrong-doer, a state of things which is by no means a matter of course; and the injured party is made judge in his own cause, often at a time when he is least likely to form an impartial opinion upon its merits. To suppress private revenge, to erect Courts of Justice, and to compel every one who is wronged to look to them for compensation, is however a task far beyond the strength of a State which is still in process of formation. CHAP. XIII. So the heroic age of Greece was characterised, according to Grote, by 'the omnipotence of private force, tempered and guided by family sympathies, and the practical nullity of that collective sovereign afterwards called the City, who in historical Greece becomes the central and paramount source of obligation, but who appears yet only in the background 1.' Regulated self-help. It is therefore not surprising that, as Sir Henry Maine has put it, the Commonwealth at first interfered through its various organs rather to keep order and see fair play in quarrels, than took them, as it now does always and everywhere, into its own hands 2.' The stages of social improvement seem to be the following. First, the unmeasured, hot-blooded, and violent retaliation of the injured party is superseded by a mode of taking compensation the nature and formalities of which are to some extent prescribed by custom. 'The primitive proceeding,' says the author last quoted, 'was undoubtedly the unceremonious, unannounced, attack of the tribe or the man stung by injury on the tribe or the man who had inflicted it. Any expedient by which sudden plunder or slaughter was adjourned or prevented was an advantage even to barbarous society. Thus it was a gain to mankind as a whole when its priests and leaders began to encourage the seizure of property or family, not for the purpose of permanent appropriation, but with a view to what we should now not hesitate to call extortion 3.' This is the stage at which the seizure of pledges is so prominent, and to it belongs also the singular custom of sitting dharna,' according to which an Indian debtor fasts at the door of his creditor till his debt is paid. Next comes the stage when self-help, although permitted, is supervised and restrained by the political authority. Distress may still be resorted to, but only for certain purposes, and with many safeguards 1 History, ii. p. 126. 2 Early History of Institutions, Lect. ix. 3 Ib., Lect. x. against abuse. Life and property may be protected by force, CHAP. XIII. but the force used must not be in excess of the need. remedies. Nuisances may be 'abated,' but so as to interfere with no man's rights. Last of all comes the reign of the law-courts. Judicial Legally regulated self-help is not wholly superseded, but, as a rule, redress of wrongs must be sought only from the tribunals of the sovereign 1. tion of law The object of a developed system of law is the conserva- The operation, whether by means of the tribunals or of permitted self- as conserv help, of the rights which it recognises as existing 2. So long ing rights; as all goes well, the action of the law is dormant. When the balance of justice is disturbed by wrong-doing, or even by a threat of it, the law intervenes to restore, as far as possible, the status quo ante. The judge,' says Aristotle, ' equalises 3.' He elsewhere adopts the saying of Lycophron that the function of law is to guarantee that all shall enjoy their rights. 'Hoc natura aequum est,' says Pomponius, neminem cum alterius detrimento fieri locupletiorem 5.' tion, Sometimes the law interferes for prevention, as by the by preven'injunctions' which have long been issued by the Court of Chancery to forbid a threatened mischief, and by the orders made by the Roman praetors in cases of 'novi operis denuntiatio,' or damnum infectum ".' The remedial interference of the law is however far more by redress. frequent and important. When a right is violated, the law endeavours to prevent the person of inherence from losing, or 1 Cf. the edict of Marcus Aurelius: 'Optimum est ut si quas putes te habere petitiones, actionibus experiaris: ..... 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 debitoris non ab ipso sibi traditam sine ullo iudice temere possidere, eumque sibi ius in eam rem dixisse, ius crediti non habebit.' Dig. xlviii. 7. 7. 2 Supra, p. 67. Eth. Nic. v. 7. 3 and 8. * Εγγυητὴς ἀλλήλοις τῶν δικαίων. Pol. iii. 9. 8. Dig. xii. 6. 14; cf. supra, p. 75 6 Dig. xxxix. 1 and 2. CHAP. XIII. the person of incidence from gaining. A new right is therefore immediately given to the former, by way of compensation for his loss, and a new corresponding duty is laid upon the latter, by way of make-weight against any advantage which he may have derived from his aggression. In the language of the French Code: Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer 1.' Self-help. In examining early systems of law we seem to come upon traces of a time when the State had to take special pains in order to insure that the new right should be as acceptable to its subjects as the indulgence of private revenge. Such is the interpretation placed upon a provision of the Twelve Tables, that a thief, if caught in the act, was to be scourged and delivered as a slave to the owner of the goods, whereas if not caught under circumstances offering to the owner a similar temptation to violence, he was to be liable only for twice the value of the goods. So the object of the early Teutonic legislation is well described as having been, to preserve the society from standing feuds, but at the same time to accord such full satisfaction as would induce the injured person to waive his acknowledged right of personal revenge. The German Codes begin by trying to bring about the acceptance of a fixed pecuniary composition as a constant voluntary custom, and proceed ultimately to enforce it as a peremptory necessity: the idea of society is at first altogether subordinate, and its influence passes only by slow degrees from amicable arbitration into imperative control 2.' The new right may thus be realisable by the regulated self-help of the injured person of inherence himself, as when he is allowed to push a trespasser out of his field, or to pull down a wall which has been built across his path. 1 Art. 1382. "Grote, History, ii. p. 128. A cursory inspection of the Leges Barbarorum' will show how large a space in them is occupied by the topic of 'Compositio.' tion, More commonly it is realisable only with the aid of the law CHAP. XIII. Right of courts, in which case it is known as a 'right of action,' 'ius action persequendi iudicio quod sibi debetur 1.' The right, however realisable, we call 'remedial,' as opposed to the right from a violation of which it arises, and which we call antecedent 2." Its object may be either restitution or compensation 3. In for restituthe former case, the aim of the law is to cancel, so far as possible, the wrongful act. It allows the injured party to remove a building which obstructs his window-light, it decrees the 'restitutio in integrum' of a minor who has entered into a disadvantageous engagement, it calls for and destroys a contract which is tainted with fraud, or it orders the return of an object of which the person of inherence has wrongly been deprived, or the specific performance' of a contract which the person of incidence is endeavouring to repudiate, a remedy which seems to be peculiar to English Equity *. In the latter, which is also the more usual, case, it gives to for compensation. the sufferer a 'right to be compensated in damages for a wrong which cannot be undone. We have seen that while some antecedent' rights are The right available in rem,' others are available only in personam.' sonam." 1 So Theophilus speaks of Obligations as the mothers of Actions; MηTépes τῶν ἀγωγῶν αἱ ἐνοχαί. Inst. iii. 13. 2 Supra, pp. 123, 140. Is qui actionem habet ad rem persequendam ipsam rem habere videtur,' says Paulus, Dig. 1. 15. Pomponius, more truly, ' minus est actionem habere quam rem.' Dig. 1. 204. 3 Les actions sont des droits particuliers qui naissent de la violation des autres droits, et qui tendent, soit à faire cesser cette violation, soit à en faire réparer les effets.' Dalloz, s. v., No. 69. On the term 'cause of action,' see Cooke v. Gill, L. R. 8 C. P. 107, and Vaughan v. Weldon, L. R. 10 C. P. 47. It has been held by the Court of Appeal that 'two actions may be brought in respect of the same facts, when those facts give rise to two distinct causes of action,' per Brett, M. R., and Bowen, L. J., diss. Coleridge, L. C. J. Brunsden v. Humphrey, 14 Q. B. D. 141. The defaulter is directed to do the very thing which he contracted to do, and, if disobedient, is committed to prison for contempt of Court. According to the continental view, on the other hand, 'Nemo potest praecise cogi ad factum.' See Lord Justice Fry's Treatise on Specific Performance, 2nd edit., p. 3, and the opinion of M. Renault, ib. p. 669. Also Pothier, Oblig. §§ 151, 157; Code Civil, art. 1142; Holmes, Common Law, p. 300. is 'in per |