Page:The New International Encyclopædia 1st ed. v. 17.djvu/172

* RIGHTS. 152 RIGHTS OF MAN. gatiou3 which are riglits in personam (q.T. ), culling for acts of forbearance from par- ticular persons, imply no duties resting upon other persons. Interference between obligors and obligees is. however, possible; and in some cases the law affords remedies. The question is of ])ractical importance, because the theory that the rights of a creditor (e.g. those of an employer) have no protection against the acts of third per- sons tends to impede the development by the courts of adequate remedies for interference with such rights. If all rights run against all members of the community, it is unnecessary and confusing to assert this especially of rights in rem (q.v. ). Properly speaking, the substantive right '»i rem has no personal incidence until it is infringed. The infringement begets a remedial right which has personal incidence. The right in its personal incidence was termed by the Romans actio, and is termed in English law 'right of action.' The German law uses the word 'claim' (Ani})riich). By substantive rights we mean those rights which constitute part of the normal legal order. Purely personal rights (life, liberty, physical in- tegrity, reputation, etc.). family rights, rights in rem, and rights in iK'rsonam which impose upon the person of incidence no duty except of forbearance — all these rights contemplate the maintenance of a certain state of affairs. As long as the contemplated state of af- fairs is maintained, these rights are satis- fied. When it is disturbed, remedial rights come into existence. The prime remedial right, which every legal system recognizes, is that of defense against wrongful aggression. Early law gives further rights of self-help, but in every highly developed system these are greatly re- stricted. The private person whose right has been violated is regularly referred for redress to the courts; his remedial rights are rights of action in the narrower sense. If the invasion of the right is also a crime, the modern State exacts penalty of its own motion. When substantive rights in personam impose upon the person of incidence a positive duty, e.g. to pay money or to do something, the right is unsatisfied until the duty is performed. In such a case a remedial right (right of action) exists side by side with the substantive right from the outset. This distinction is of importance in the law of prescription or limitation of actions (doc- trine of actio nata). Some writers assert that in these cases there is no substantive right that is distinguishable or separable from the remedial right, but this is not the view held by the Eng- lish courts. Logically remedial rights are a consequence of substantive rights: 'where there is a right there is a remedy.' Historically substantive rights have been defined gradually by the development of remedies to meet particular wrongs. The essential elements of rights related as means and ends are power and interest. These elements are separable. Power mav be held by one person in the interest of another or of others. This is the aspect which family rights — rights of husbands, fathers, and guardians — assume in highly developed law. This is the position as- signed in English law to executors and adminis- trators. This is also at every legal svstem the position of the corporation. The legal power is held by the ideal or juristic person, the corpora- tion. The interest may be that of the members, as in the ordinary private corporation; or it may be that of the public, or of a section of the public, as in the charitable corporation, in the State, and in all the subdivisions of the State. In all these cases of separation of power and. interest, the ■legal right' is in the natural or ideal person who holds the power, and the 'equitable right' in the persons whose interests are represented — the beneficiaries. Corporations, unless prohibited by statute, may hold legal rights when the corresponding interest is that of another corporation. This is the origin of the popular term 'trust,' now loosely applied to all extensive industrial and financial combina- tions. A State may hold power in the interest of other than its members. During the period intervening between the Spanish-American treaty of peace and the establishment of the Cuban Re- public, the United States, as the Supreme Court affirmed, held the sovereigntj- of Cuba in trust. When a private person, natural or juristic, holds a legal right which subserves not only the interest of the holder, but a jmblic interest also ( mixed interest ), such private person or corpora- tion is in reality a quasi trustee. The right held is said to be 'affected with a public use,' and its exercise is subjected to public control. The distinction between private and public rights is based on the character of the interest subserved rather than on the legal position of the person who exercises the power. When a citizen is exercising his right of voting we do not term him a public officer, but he is exercising a public right. When the State or any public cor- poration liolds property as a financial investment or enters into a contract, the rights accruing to the State should be treated as private rights. This is the theory of the civil law ( State as fiscus), but not of the English law as regards the sovereign nor of the American law as regards the nation or the several States. In Anglo- American law, however, the correct theory is applied in the case of other public corporations; and in our law we are working toward the correct practice through the establishment of courts of claims. For literature, consult the works re- ferred to under Jurisprudence; see also Jus- tice ; Law ; Natural Law. RIGHTS, Natukal. See Natubal Law. RIGHTS OF MAN. The term applied to a group of fundamental rights embodied in a famous declaration adopted by the French National Assembly on August 26, 1789. It was drawn up principally by Dumont in response to the suggestion contained in several of the cahiers that in order to preent the recurrence of abuses a clear statement of the rights of the individual should be prepared and given the sanction of the estates. It declares that all men are born and remain equal in rights; that social distinctions can be founded only on the general good : that law is the expression of the general will and every citizen has a right to participate in its enactment either personally or through his repre- sentative : that public burdens should be borne by all members of the State in proportion to their ability; that the elective franchise should be extended to all : that no one should be accu.sed, arrested, or imprisoned except according to due process of law ; that no one should be disturbed on .account of his religous opinions; that the free