The actio in rem implies a complainant, who claims a certain right against every person who may dispute it, and the object and end of the action are to compel an acknowledgment of the right by the particular person who disputes it. Now the general division of rights in the Roman law is into rights of dominion or ownership, which are rights against the whole world, and into rights arising from contract, and quasi contract, and delict. The main division of actions must therefore have a reference or analogy to the main division of rights for in every system of law the form of the action must be the expression of the legal right. But this division, though complicated, may be somewhat simplified, or at least rendered more intelligible, if we consider that an action is a claim or demand made by one person against another, and that in order to be a valid legal claim it must be founded on a legal right. The division of actiones in the Roman law is somewhat complicated, and some of the divisions must be considered rather as emanating from the schools of the rhetoricians than from any other source. Upon the old legal actions being abolished, it became the practice to prosecute suits according to certain prescribed forms or formulae, as they were called, which will be explained after we have noticed various divisions of actions, as they are made by the Roman writers. Appius Claudius Caecus, perhaps one of the earliest writers on law, drew up the various forms of actions, probably for his own use and that of his friends: the manuscript was stolen or copied by his scribe Cn. Flavius, who made it public and thus, according to the story, the plebeians became acquainted with those legal forms which hitherto had been the exclusive property of the patricians (Cic.
In the old Roman constitution, the knowledge of the law was closely connected with the institutes and ceremonial of religion, and was accordingly in the hands of the patricians alone, whose aid their clients were obliged to ask in all their legal disputes. The Lex Aebutia and two Leges Juliae abolished the old legitimae actiones, except in the case of damnum infectum, and in matters which fell under the cognizance of the Centumviri.
( IV.11), in the case of a plaintiff who complained of his vines ( vites) being cut down, and was told that his action was bad, inasmuch as he ought to have used the term trees ( arbores) and not vines because the law of the Twelve Tables, which gave him the action for damage to his vines, contained only the general expression "trees" ( arbores). The five modes of proceeding by legal action as named and described by Gaiusīut these forms of action gradually fell into disuse, in consequence of the excessive nicety required, and the failure consequent on the slightest error in the pleadings of which there is a notable example given by Gaius himself In like manner, the old writs in England contained the matter or claim of the plaintiff expressed according to the legal rule.
The old actions of the Roman law were called legis actiones, or legitimae, either because they were expressly provided for by laws ( leges), or because they were strictly adapted to the words of the laws, and therefore could not be varied. The in rem actio was called vindicatio the in personam actio was called in the later law condictio, because originally the plaintiff gave the defendant notice to appear on a given day for the purpose of choosing a judex The in personam actio was against a person who was bound to the plaintiff by contract or delict, that is, when the claim against such person was ' dare, facere, praestare oportere ' the in rem actio applied to those cases where a man claimed a corporal thing ( corporalis res) as his property, or claimed a right, as for instance the use and enjoyment of a thing, or the right to a road over a piece of ground ( actus). With respect to its subject-matter, the actio was divided into its two great divisions, the in personam actio, and the in rem actio. To be the right of pursuing by judicial means ( judicio) what is a man's due. Article by George Long, M.A., Fellow of Trinity CollegeĪ Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
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