Thus far it has been assumed that the term "privilege" is the most appropriate and satisfactory to designate the mere negation of duty. Is there good warrant for this?
In Mackeldey's Roman Law[1] it is said:
Positive laws either contain general principles embodied in the rules of law * * * or for especial reasons they establish something that differs from those general principles. In the first case they contain a common law (jus commune), in the second a special law (jus singulare s. exorbitans). The latter is either favorable or unfavorable * * * according as it enlarges or restricts, in opposition to the common rule, the rights of those for whom it is established. The favorable special law (jus singulare) as also the right created by it * * * in the Roman law is termed benefit of the law (beneficium juris) or privilege (privilegium) * * *[2]
First a special law, and then by association of ideas, a special advantage conferred by such a law. With such antecedents, it is not surprising that the English word "privilege" is not infrequently used, even at the present time, in the sense of a special or peculiar legal advantage (whether right, privilege, power or immunity) belonging either to some individual or to some particular class of persons.[3] There are, indeed, a number of judicial opinions
- ↑ (Dropsie Tr.) secs. 196–197.
- ↑ The same matter is put somewhat less clearly in Sohm's Institutes (Ledlies Tr., 3rd ed.), 28.See also Rector, etc. of Christ Church v. Philadelphia (1860), 24 How., 300, 301, 302.
- ↑ According to an older usage, the term "privilege" was frequently employed to indicate a "franchise," the latter being really a miscellaneous complex of special rights, privileges, powers, or immunities, etc. Thus, in an early book, Termes de la Ley, there is the following definition: "'Privi-
under the circumstances stated requires no cause or excuse. He may act from mere caprice, but his right on his own land is absolute, so long as he does not interfere with the rights of others;" Lord Ashbourne, p. 112: "The plaintiff had, in my opinion, a clear right to pursue their lawful calling. * * * It would be, I think, an unsatisfactory state of the law that allowed the wilful invader of such a right without lawful leave or justification to escape from the consequences of his action."); Quinn v. Leathem (1901), A. C., 495, 533; Lindsley v. Natural Carbonic Gas Co (1910), 220 U. S., 61, 74; Robertson v. Rochester Folding Box Co. (1902), 171 N. Y., 538 (Parker, C. J., p. 544: "The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published."); Wabash, St. L. & P. R. Co. v. Shacklet (1883), 105 Ill., 364, 389.
In Purdy v. State (1901), 43 Fla., 538, 540, the anomalous expression "right of privilege" is employed.