Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 55

Agreeably to the method or order which I announced in my last Lecture, I shall offer a few remarks applicable to titles in general, before I especially discuss them as engendering or extinguishing the rights to which I have now adverted.

Considered with reference to the modes wherein they respectively begin, or wherein the entitled persons are respectively invested with them, Rights, it appears to me, may be divided into two kinds.

1°. Some are conferred by the law, upon the persons invested with them, through intervening facts to which it annexes them as consequences.

2°. Others are conferred by the law upon the persons invested with them, immediately or directly; that is to say, not through the medium of any fact distinguishable from the law or command which confers or imparts the right.

Taking the term ‘title’ in a large and loose signification (and also as meaning a fact investing a person with a right), a right of either kind may be said to begin in a title. For, taking the term ‘title’ with that large and loose signification, it is applicable to any fact by which a person is invested with a right: it is applicable to a law or command which confers a right immediately, as well as to an intervening fact through which a law or command confers a right mediately.

For, though, to some purposes, we oppose law and fact, a law or other command is of itself a fact: And where a law confers a right immediately, the law is the only fact whereon the right arises, and is therefore the title (in the large and loose 875signification of that expression) by which the person is invested with the right. For example: By a special act of parliament, a monopoly, or a right of vending exclusively commodities of a given class, might be granted to a given person, for his own life, or for a term of years. Now, in this case, the privilege conferred by the special act of parliament might be strictly personal: that is to say, limited exclusively to the specifically determined grantee, and not transmissible to the heirs or assigns of the grantee, or to any persons of a given generic description.

And if it were strictly personal, it might be conferred by the act immediately or directly; that is to say, it might not be annexed by the act to any fact distinguishable from the act itself. And in this case, the act would be styled the title (in the loose signification of the term) from which the grantee derived the privilege.

But, taking the term ‘title’ with a narrower and stricter signification, it is not applicable to laws which confer rights immediately, but is applicable only to the mediate or intervening facts through which rights are conferred by laws. In respect of this narrower and stricter signification, the rights of the two kinds which I am now considering may be distinguished by the following expressions: A right which is annexed by a law to a mediate or intervening fact, may be said to originate in a title: A right which is conferred by a law without the intervention of a fact distinct from the law that confers it, may be said to arise from the law directly or immediately; to arise ipso jure; to arise by operation of law, or by mere operation of law.

‘Rights ex lege immediatè,’ ‘rights arising ipso jure,’ or ‘rights arising by operation of law,’ are terms (as I shall shew hereafter) which are often misapplied. They are often applied to rights (as I shall shew hereafter) which are annexed by the law to mediate or intervening facts. And the terms as thus applied, or as thus misapplied, denote, not that the rights in question arise from the law immediately, but that the facts to which they are annexed are not facts of certain classes, or that they are annexed to certain facts unaccompanied by certain others.

For example: where a title has not acquired a brief generic name, the right is said to arise ex lege immediatè; that is to say, not from any of certain titles which have acquired such names, but from a title which is opposed to the others by that misexpressive phrase.

And when heirs of certain classes are said in the language 876of the Roman law to acquire the heritage ipso jure, it is not intended that they acquire the heritage without the intervention of a title, but that the title through which they acquire does not comprise a certain fact which, in the case of heirs of other classes, is parcel of the mode of acquisition: namely, aditio hereditatis, or acceptance of the heritage.

But when I speak of a right arising from the law immediately, arising ipso jure, or arising by operation of law, or mere operation of law, I use the phrase with its obvious and proper signification. I mean a right conferred by a law without the intervention of a fact distinguishable from the law that confers it. And I oppose it to a right conferred by a law through a title, or through the intervention of a fact which is distinguishable from the law, and to which the law annexes the right as a consequence or effect.

Having tried to suggest the distinction between rights arising from titles, and rights arising from laws immediately or directly, I will advert briefly to the following topics.

I will first advert to the nature of the few, and comparatively unimportant rights, which arise from the law immediately (in the proper signification of the phrase): that is to say, not through a fact distinguishable from the law by which the right is conferred.

I will then advert to the functions of titles: or, in other words, to the reasons for which rights are commonly conferred by laws through titles; and for which facts of certain descriptions are selected to serve as titles, in preference to facts of other descriptions.

The only rights which arise from laws immediately are, I think, of the class of rights which are strictly personal privileges.

And here I must remark, that every privilege properly so called is a strictly personal privilege: that is to say, an anomalous right (or an anomalous immunity from duty) which is conferred by a law (also called a privilege) on a specifically determined person (individual or complex), as being that very person. For example: A monopoly granted to Styles, as being the individual Styles, is a strictly personal privilege: It is given to the very individual, as being the very individual, and therefore is not assignable or transmissible to his representatives. A monopoly granted to a corporate body, as being that very body, is also a personal privilege. For it is not exercisable by any but the complex person to whom it is granted specifically.

877But though every privilege, properly so called, is, as it seems to me, a strictly personal privilege, the term is extended to certain anomalous rights (or to certain anomalous immunities from duty or obligation) which are not conferred on specifically determined persons as being those very persons.

For example: Certain so-called privileges are privilegia rei, or privileges conferred on prædia: meaning by a privilegium rei, or a privilegium conferred on a prædium, a privilege conferred on its successive owners or occupants as being such owners or occupants.

And of personal privileges (or of privileges conferred upon persons as not being owners or occupants of specifically determined prædia) some are transmissible and assignable to the heirs and alienees of the grantees, and are not exclusively exercisable by the very grantees themselves.

But, strictly speaking, a privilegium rei (or a privilege granted to the occupants of a given prædium) is not a privilege. It is not granted to the parties as being those very parties, but as being persons of a given class, or as being persons who answer to a given generic description;—as being owners or occupants of the prædium or parcel of land, whereon, by an ellipsis, the privilege is said to be conferred.

Though the class of persons entitled in succession is comparatively narrow, the right may be likened to those anomalous rights which are occasionally granted to extensive classes of persons: as, for example, to soldiers, to infants, or to married women. And in these cases although the right, as being anomalous, is styled singular, and the law conferring the right is also styled singular, neither the anomalous right, nor the anomalous law conferring it, is deemed or styled a privilege.

For though the law and the right are ‘exorbitant’ or ‘eccentric,’ although the law and the right are ‘singular’ or ‘inelegant,’ or although they are not in keeping or harmony with the general tenor or spirit of the legal system, the right is conferred on the parties as answering to a generic description; or the right is conferred on the parties as belonging to a class of persons, and is not conferred on specifically determined persons as bearing their individual or specific characters.

A so-called personal privilege transmissible to heirs or assigns, is, in so far as it is so transmissible, in the same predicament with a privilegium rei. In respect of the person to whom it is first granted, it may be deemed a privilege. For, in respect of that person, it is granted to a party specifically determined as 878bearing his individual or specific character. But, in respect of the heirs of that person, or in respect of the persons to whom he may assign it, it is not a privilege properly so called. The law confers it upon them, not as being specifically determined persons, but as being persons of generic descriptions or classes: that is to say, as being the persons who answer to the description of his heirs, or as being persons within the description of his alienees. And, accordingly, although the first grantee may acquire by the law directly, it is utterly impossible (as I shall shew immediately) that his heirs or alienees should take from the law without the intervention of a title.

Every privilege properly so called is, therefore, as it seems to me, a strictly personal privilege: an anomalous or eccentric right (or an anomalous or eccentric immunity from duty or obligation) which is conferred on a person specifically determined as being that very person. Whether the person be physical or individual, or fictitious and complex (or composed of many individuals), is irrelative to the matter in hand. The essence of a privilege properly so called, is, it appears to me, this: that the eccentric or anomalous right is conferred on a specific person, not as belonging to a class of persons, but as bearing the specific character peculiar to him or it.

Now a privilege properly so called, or a strictly personal privilege, may be conferred by the privilege (as meaning the law which confers it) immediately or directly: that is to say, without the intervention of a fact distinguishable from the law itself. All that is necessary to the creation of the right, is the designation of the specific person by his specific character or marks, and a declaration or intimation that the right shall reside in that specified party.

I say that the privilege may be conferred by the law immediately or directly. For even in the case of a strictly personal privilege, the law may confer the right through a title. For example: It may grant a privilege to a person now an infant in case he shall come of age. On which supposition, the privilege will not rest unless the infant come of age; and the fact of his coming of age, is therefore a title, or investitive fact, necessary to the consummation of the right.

But though a strictly personal privilege may be conferred by the law through a title, a title, or investitive fact, is not absolutely necessary to the being of the eccentric right. All that is absolutely necessary to the existence of a right of the class, is a mere designation in the law of the person on whom it is conferred, 879coupled with some declaration or intimation that that person shall take it.

But where a right is not properly a privilege (or is not conferred on a specific person as being that specific person), the right arises of necessity through a title: through a fact distinguishable from the law conferring the right, and to which the law annexes the right as a consequence or effect.

For example: If you acquire by occupancy, or by alienation, or by præscription, you do not acquire as being the individual you, but because you have occupied the subject, or have received it from the alienor, or have enjoyed it adversely for a given time, agreeably to the provision of the rule of law which annexes the right to a fact of that description.

And the same may be said of the privileges improperly so called, which are either privilegia rei (or privileges annexed to prædia), or are so-styled personal privileges passing to heirs or alienees. It is as being the occupant of the thing, and not as being the very person who then happens to occupy it, that the occupant of the thing acquires the so-called privilege. And it is as being the heir or the alienee of the first grantee, and not as being the very person who is heir or alienee, that the heir or alienee of the first grantee takes the privilege mis-styled personal.

In short, wherever the law confers a right, not on a specific person as being such, the law of necessity confers the right through the intervention of a title. For, by the supposition, the person entitled is not determined by the law through any mark specifically peculiar to himself. And if the right were not annexed to a title, it follows that the person designed to take it could not be determined by the law at all.

Instead, therefore, of determining directly, that the right shall vest or reside in a specifically determined person, as being such, the law determines that the right shall reside in any person whatever who shall stand in some given relation to a fact of some given class.

It is manifest that duties, as well as rights, may arise from the law immediatè, or may arise from the law through the intervention of facts to which the law annexes them.

Where the duty is relative, it arises from the very fact which engenders the corresponding right. Consequently, if the right be a privilege properly so called, the relative duty, as well as the right, may arise from the law immediately. If the right arise 880from a title, the relative duty as well as the right must arise from a title also.

In the case of absolute duties, the duty may either be imposed on a specified person as such, or may be imposed on a person through an intervening fact. In the first of those cases, the duty may be imposed by the law immediately or directly. In the latter of those cases, the fact through which the law imposes the duty, may also be styled a title. For, for the reasons which I shall assign hereafter, I apply the term title to every fact whatever, through which the law confers or extinguishes a right, or imposes or exonerates from a duty.

And what I have said of rights and duties in respect of their commencement, will apply to rights and duties in respect of their termination. For a right or a duty may terminate by a specific provision of the law exclusively applicable to the specific instance: On which supposition, it may terminate by the law without the intervention of a fact distinct from the law which extinguishes it; and it therefore may be said to terminate by the mere operation of law. Or the right or the duty may terminate through, or in consequence of, a fact to which the law has imparted that extinctive effect. On which supposition, the right or duty may be said to terminate through, or in consequence of, a title.

I will now briefiy advert to the functions of Titles: or, in other words, to the reasons for which rights and duties are commonly conferred and imposed through titles, and for which facts of some kinds are selected to serve as titles, in preference to facts of other kinds.

It is I believe impossible, that every right and duty should be conferred and imposed by the law immediately. For, on that supposition, all the rights and duties of every member of the community, would be conferred and imposed on every member of the community by a system or body of law specially constructed for his peculiar guidance: since every right or duty conferred or imposed by the law immediately, is conferred or imposed on a person determined by the law specifically.

It is only in comparatively few, and comparatively unimportant cases that rights or duties can be created or extinguished by the mere operation of the law. Generally speaking, rights must be conferred and extinguished, and duties imposed or withdrawn, through titles.

Independently, therefore, of every other consideration, titles are necessary as marks or signs to determine the commencement 881of rights or duties, and to determine their end. In other words, titles determine the several rights, and the several duties, which respectively reside in, or are respectively incumbent upon, the several members of the community.

Titles are necessary, because the law, in conferring and imposing rights and duties, and in divesting them, necessarily proceeds on general principles or maxims. It confers and imposes on, or divests from, persons, not as being specifically determined, but as belonging to certain classes. And the title determines the person to the class.

But though the facts which serve as titles mark the beginnings and endings of rights and duties, it is not (generally speaking) for that reason only that the law imparts to those facts their creative and extinctive effects.

Independently of a given title serving as such a mark, there is generally another reason why it is selected as a title: A reason founded on utility, partial or general, well or ill understood. It is deemed expedient that the given fact should perform the functions of a title, in preference to other facts, which, as mere marks, might perhaps perform the functions equally well. For example: Considering a title as a mere mark determining the commencement of a right, it would be utterly indifferent whether a man’s lands and goods passed on his decease to his children or to his remoter relations.

But for certain reasons, founded on obvious utility, his lands and goods generally pass to his children in preference to his remoter relations.

This reminds me of Sir William Blackstone’s reason for the exclusion of the half-blood. He says it is a matter of indifference, because every right is the creature of law, which is as much as to say that, because all legal rights are created by the law, it matters not one rush what rights the law creates.

I conceive that all which can be said about titles in general is pretty nearly comprised in what I have now said. They are necessary as marks or signs of the beginning and ending of rights or duties. Why, in this or that case, this or that fact is annexed to a particular right or duty in the capacity of a title (which is as much as to say, why the right is given to this or that person rather than to another person, or a duty imposed upon one person rather than another), must depend on considerations of utility belonging to the particular case, or must be determined in the particular case by the particular views of utility taken by the legislator. I cannot see that anything can be said in general 882on the matter, but only that the reason for selecting facts to serve as titles ought to be founded on utility. There are, I apprehend, no common reasons applying to all titles alike. The reasons why property is conferred by occupancy are not the same as the reasons why it is conferred by alienation, by succession ab intestato, by heirs of certain classes, and so on. The reasons of utility are always peculiar to the given case.

I shall now add one or two remarks on the term title as used by English lawyers.

Bentham, in the Traités de Législation, objects to the word title, that though it denotes the facts to which the law annexes rights, it does not commonly denote the facts through which the law determines or puts an end to rights. Where the fact which terminates one right does not give commencement to another, the term title does not apply to it Where the same fact does extinguish an old and give birth to a new right, as is the case, for instance, with alienation, and all the titles styled derivative, the term is of course as applicable to the fact determining the one right as to that commencing the other. But where the fact determining the right establishes no new right, as where the right is determined by the destruction of the subject, the term title is not applicable to it, and it has no generic name whatever.

Another objection to the word title is, that it is not applicable to facts considered as engendering or extinguishing duties, relative or absolute. Where the duty is relative, perhaps a term is scarcely necessary, as the relative duty arises necessarily from the fact which engenders the corresponding right. But where the duty is absolute there is need of some generic expression for facts which engender or extinguish duties. The word title does not serve the purpose: we hardly speak of a title to a burthen or duty.

The same objections apply to the term modus acquirendi or mode of acquisition which is employed by the modem civilians, and by all the legal systems, which are mainly derivatives of the Roman law. We cannot talk of acquiring a duty.

Bentham, to obviate the inconvenience of this defective nomenclature, suggests the following terms. He proposes to call every fact whatever, by which a right or a duty is engendered or extinguished, a dispositive fact. These dispositive facts he divides into investitive and divestitive, meaning by investitive, facts which give commencement to rights and duties; by divestitive, facts which put an end to rights or duties. Investitive facts, again, he divides into collative and impositive, collative being such investitive facts as confer or give beginning to or 883impose duties. Divestitive facts he distinguishes into destructive or privative, and exonerative, meaning by the former, facts which put an end to rights; by the latter, those which extinguish or relieve from duties.

I confess, however, that I doubt whether this multitude of expressions is of much use, and there are some objections even to these terms. An investitive fact is hardly a general expression for any fact which confers rights or which imposes duties. The word to invest, in common usage, is confined to a right: a person is not said to be invested with a duty. The same objection applies to the word divestiture: a person can hardly be said to be divested of a duty. The words destructive and privative, as applied to rights, imply that all rights are beneficial, and that there are no rights which are purely onerous. Now the rights of trustees of all classes are as purely onerous as any duties whatever. These words, however, clearly denote that the party who loses the right, is deprived of an advantage.

It appears to me most commodious to use the common term title in the large sense which I have annexed to it, as meaning any fact, by the intervention of which the law invests or divests a right, or imposes or withdraws a duty.

It is remarkable that the Roman lawyers have scarcely any settled generic name for investitive or divestitive facts. They generally employ some kind of circumlocution. Even the phrase modus acquirendi was not theirs, but devised by the modern civilians. The Roman lawyers themselves talk of the acquisition of rights; the way in which rights are taken away, or in which parties are exonerated from obligations; the solution or the redemption of obligations, and they have a vast variety of other terms to express these various ideas, but no systematic language by which they attempt to divide titles into classes. The inconvenience would, I think, be substantially removed, by using title in the wide sense which I have proposed to annex to it.

Sir William Blackstone himself often seems to use title to designate a fact which ends a right as well as one which begins it, so that the large import which I think it commodious to give to the term would not to a great extent shock established usage.

As I remarked in my tables, the word titulus in Roman law, is not at all equivalent to title in the English. It is not a mode of acquisition, but a part only of a complex mode of acquisition; and even in that narrower sense it is only applied in a few cases, namely certain cases in which rights are acquired by tradition and by præscription.

884A title may often be separated into two distinct facts or sets of facts—an antecedent and a consequent; and then titulus is the name given to the antecedent part, modus acquirendi to the residue or consequent part of the mode of acquisition. The word titre in the French law is always understood in the same sense. It never means, as with us, mode of acquisition.

Privilege never denotes, as it did in the Roman Law, a law: It sometimes seems to denote a right enjoyed by a peculiar class: In this sense it belongs to the Law of Persons: Sometimes it seems to denote rights enjoyed by the subject against the Sovereign. Origin of this meaning.

[See ante, ‘Liberty;’ ‘Limitation of sovereign power.’ Monopolies.^* Ante, ‘Jus in re et ad rem.’]

^* Bentham, Princ. pp. 229-292.

Though it denotes the facts to which the law annexes rights, it does not denote completely the facts through which it determines rights.

Where the fact which determines a right does not at the same time give commencement to another, the term ‘title’ does not apply to it. Further, it is not applicable to facts as engendering or extinguishing duties, be they relative or be they absolute.

[For another use of the word ‘title,’ by English Lawyers, see Table II. post.]

The same objections apply to ‘mode of acquisition.’ We cannot talk of acquiring a duty. Nor will acquisition apply to the termination of a right or duty. [Bentham’s suggestions, Traités, vol. i. p. 280.^†]

^† ‘Bentham’s suggestions’ are in favour of ‘une série de mots qui se correspondent; ou un nom pour le genre et des termes spécifiques subordonnés. Prenez le mot titre, la ramification logique s’arrête au premier pas. Point d’espèces de titres,’ etc. The terms suggested by Bentham are arranged in the following tabular form, in the margin of the book.

Dispositive.

Investitive

Divestitive

Collative.

Impositive.

Destitutive. Privative.

Exonerative.

Mr. Austin’s objection to these terms will be found further on.—S. A.

885I shall use title in the large sense which I have already annexed to the term: i.e. as denoting any fact through which the law invests or divests a right, or imposes or withdraws a duty.

3. Commencement, whether of right or enjoyment (and then determination of preceding rights).

5. Extent of right in respect of power of using, deriving services from, or dealing with the subject.

Quære. Whether power of aliening (which as against successors is a sort of annihilation) belong to this, or to duration?

Things, or subjects of rights also considered under this last head.—Marginal Note in Blackstone, vol. ii. chap. 23, p. 381.

I shall use indifferently, ‘mode of acquisition, title, cause, investitive event,’ etc.: unless I attach specially a more special meaning.⁹⁵

⁹⁵ Mackeldey, vol. ii. p. 40.

Various circumlocutions, after the manner of the Roman Lawyers, may also be used. They have no settled generic terms.

⁹⁶ Hugo, Gesch. pp. 249, 576.

By Roman Lawyers, and in the language of the derivative systems, titulus never means a title in the sense of mode of acquisition.

The names of Tituli ought to be the names of the incidents which give rise to rights and obligations, and not of the rights and obligations themselves, or of their subjects.

‘Titulus’ is applicable to the incidents which give rise to Jura ad Rem, as well as to those which beget Jura in Re; But is not applicable to incidents as begetting obligations, whether they be absolute or relative, or whether they correspond with Jus in Re or Jus ad Rem. Nor is it applicable to incidents which put an end to, or to incidents as putting an end to, either rights or obligations. ‘Modes in which obligations are extinguished or removed,’ seems to be the only expression in the Roman law for this purpose; and that only applies to obligations, stricto sensu.⁹⁷

⁹⁷ Ibid. p. 263. Blondeau, vi.

1. That though it denotes the incident which gives beginning to 886a right, it does not denote the incident which puts an end to it, or only by implication; (connotes but not denotes:)

2. That it only connotes the incident as giving origin to the corresponding obligation, and as putting an end to it.

There is the same objection to ‘Acquisition,’ or Modus acquirendi. In the sense in which the term ‘Titulus’ is used by the Roman Lawyers, it denotes, not a mode of acquisition, but a condition necessary to the efficacy of a mode of acquisition: viz. tradition (or rather the incident of which tradition is the evidence). ‘Causa remotior: Consideration.’ (See Table II. post.)

Another objection to ‘title’ (and perhaps to ‘mode of acquisition’) is,—that it is partial, even with regard to the incidents which give beginning to rights. It is not applicable to the incidents which give beginning to Jura ad Rem. (Sed Quære.)

The Roman Lawyers seem to extend ‘acquisition’ to rights ex contractu and quasi ex contractu, and even to rights ex delicto.

Objection to ‘investitive and divestitive incidents;’ that in common language ‘vest,’ ‘invest,’ etc. only apply to vested rights.

‘Modes (or Incidents) in which Rights and Obligations begin and end,’ avoid all these inconveniences; extending even to the obligations which begin in crimes.

Mode, like title or incident, denotes, properly, the fact stripped of its evidentiary and other conditional matter.