1911 Encyclopædia Britannica/Privilege

PRIVILEGE, in law, an immunity or exemption conferred by special grant in derogation of common right. The term is derived from privilegium, a law specially passed in favour of or against a particular person. In Roman law the latter sense was the more common; in modern law the word bears only the former sense. Privilege in English law is either personal or real—that is to say, it is granted to a person, as a peer, or to a place, as a university. The most important instances at present existing in England are the privilege of parliament (see Parliament), which proteqs certain communications from being regarded as libellous (see Libel and Slander), and certain privileges enjoyed by the clergy and others, by which they are to some extent exempt from public duties, such as serving on juries. Privileged copy holds are those held by the custom of the manor and not by the will of the lord. There are certain debts in England, Scotland and the United States which are said to be privileged—that is, such debts as the executor must first apply the personal estate of the deceased, in payment, for example, of funeral expenses or servants' wages. In English law the term “ preferred ” rather than “ privileged ” is generally applied to such debts. There are certain deeds and summonses which are privileged in Scots law, the former because they require less solemnity than ordinary deeds, the latter because the ordinary induciae are shortened in their case (see Watson, Law Dict., s.v. “ Privilege ”).

In the United States the term privilege is of considerable political importance. By art. iv. § 2 of the constitution, “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” By art. xiv. § 1 of the amendments to the constitution (enacted July 28, 1868), “ no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It will be noticed that the former applies to citizens of the states, the latter to citizens of the United States. “The intention of this clause (art. iv.) was to confer on the citizens of each state, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would have been entitled to under the like circumstances ” (Story, Constitution of the United States, § 1806). The clauses have several times been the subject of judicial decision in the Supreme Court. With regard to art. iv., it was held that a state licence tax discriminating against commodities the production of other states was void as abridging the privileges and immunities of the citizens of such other states (Ward v. State of Maryland, 12 Wallace's Reports, 418). With regard to art. xiv. 1, it was held that its main purpose was to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, looking more especially to the then recent admission of negroes to political rights. Accordingly it was held that a grant of exclusive right or privilege of maintaining slaughter-houses for twenty-one years, imposing at the same time the duty of providing ample conveniences, was not unconstitutional, as it was only a police regulation for the health of the people (The Slaughter-House Cases, 16 Wallace, 36). The same has been held of a refusal by a state to grant to a woman a licence to practise law (Bradwell v. The State, 16 Wallace, 130), of a state law confining the rights of suffrage to males (Minor v. Happbrsett, 21 Wallace, 162), and of a state law regulating the sale of intoxicating liquors (Bartemeyer v. Iowa, 18 Wallace, 129). Suits to redress the deprivation of privilege secured by the constitution of the United States must be brought in a United States court. It is a crime to conspire to prevent the free exercise and enjoyment of any privilege, or to conspire to deprive any person of equal privileges and immunities, or under colour of law to subject any inhabitant of a state or territory to the deprivation of any privileges or immunities (Revised Statutes of United States, §§ 5507, 5510, 5519).