Page:EB1911 - Volume 22.djvu/385

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371
PRIVILEGE—PRIVY COUNCIL

of temperate and tropical Asia; only the common privet is a native of Europe. They are shrubs or low trees with evergreen or nearly evergreen opposite entire leaves, and dense clusters of small, white, tubular four-parted flowers, enclosing two stamens and succeeded by small, globular, usually black berries, each with a single pendulous seed. The best-known species is the common European privet, L. vulgare, which makes good hedges; L. ovalifolium (a native of Japan) thrives by the seaside and even in towns; there is a yellow-leaved variety (var. variegatum), the leaves becoming white as they get older. L. lucidum (China) is taller and handsomer. There are numerous varieties of L. vulgare in cultivation; var. buxifolium has broader and more persistent leaves; var. fructu-luteum has bright yellow fruit; var. pendulum has long weeping branches; and var. variegatum has the leaves variegated with bright yellow. L. japonicum, L. Massalongianum (Khassia Hills) and other species are also cultivated. Mock-privet is Phillyrea, a member of the same order and a small genus of ornamental hardy evergreen shrubs, natives of the Mediterranean region and Asia Minor.


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, I3O), of a state law confining the rights of suffrage to males (M inof v. H appersett, 2I Wallace, 162), and of a state law regulating the sale of intoxicating liquors (Bartemeyer v. Iowa, 18 Wallace, IZQ). 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)-


PRIVY COUNCIL. The origin of the privy council dates back substantially to the Norman period of English history. The commune concilium, the assembly, in theory, of all the tenants-in-chief of the Crown, had attached to and included in it a group of officers of state and of the royal household, who with a staff of clerks and secretaries carried on the executive, judicial and financial business of government. This group, of necessity permanent, it is suggested, formed the curia regis; and appears to have consisted of the chancellor, the chief justiciary (so long as the office lasted), the treasurer, the steward, the chamberlain, the marshal and the constable, together with the two archbishops and any other persons the king might choose to appoint. Their duties were to advise the king in matters of legislation and administration, to see justice done and generally to execute the royal will. Such a blend of advisory, executive and judicial power could exist only in a simple condition of affairs, and therefore it was to be expected that as government became more settled, and so more complicated, a separation of powers would inevitably follow. The change came quickly. Quite early finance was dealt with by a small section of the court convened at the exchequer chamber; this soon developed into a separate department controlled by the treasurer, managing the revenue and deciding all suits connected with its administration. A little later the court of king’s bench and the court of common pleas grew into being, and by the end of the reign of John these two courts were finally separated from one another and from the curia. The establishment of separate courts of justice, although relieving the curia of much of its work, did not deprive it of all judicial power. The king was the fountain of justice, and where redress could not be obtained in the ordinary way, either from the greatness of the disputants, through private oppression, or because no other means existed, resort still remained to the Crown, either in the first instance or when all other courses had failed the petitioner. Relieved of financial detail and the bulk of its judicial work, the curia continued to develop on the lines of an advisory and administrative council. Becoming prominent as a council of regency during the minority of Henry III., it quickly assumed definite form as the concilium regis. Under Edward I. “its members take an oath; they are sworn of the council swearing to give good advice, to protect the king’s interests, to do justice honestly, to take no gifts” (Maitland, Const. Hist. p. 91). At this period in addition to the great officers of state the judges and a number of bishops appear among the members. One of the most important duties of the council was to advise the Crown in matters of legislation. During the fourteenth and fifteenth centuries, ordinances in subordinate matters appear to have been made regularly by the king in council and accepted as legal by parliament and by the judges. In early parliamentary days it was also part of the council’s duty to put into legislative form the petitions sent up by the Commons. Frequently the statute in its final form did not correspond with the petition, and the Commons were continually complaining of the council’s unwarrantable interference. Eventually by the reign of Henry VII. the council had ceased to interfere, the petitions being drawn in the form of a bill, and enacted without alteration.