recognizing this as one of the meanings of the term in question.[1] That the word has a wider signification even in ordinary nontechnical usage is sufficiently indicated, however, by the fact that the term "special privileges" is so often used to indicate a contrast to ordinary or general privileges. More than this, the dominant specific connotation of the term as used in popular speech seems to be more negation of duty. This is manifest in the terse and oft-repeated expression, "That is your privilege,"—meaning, of course, "You are under no duty to do otherwise."
Such being the case, it is not surprising to find, from a wide survey of judicial precedents, that the dominant technical meaning of the term is, similarly, negation of legal duty.[2] There are two very common examples of this, relating respectively to "privileged communications" in the law of libel and to "privileges against self-crimination" in the law of evidence. As regards the first case, it is elementary that if a certain group of operative facts are present, a privilege exists, which, without such facts, would not be recognized.[3] It is, of course, equally clear that even
- ↑ See Humphrey v. Pegues (1872), 16 Wall., 244, 247, per Hunt, J.: "All the 'privileges' as well as powers and rights of the prior company, were granted to the latter. A more imporant or more comprehensive privilege than a perpetual immunity from taxation can scarcely be imagined. It contains the essential idea of a peculiar benefit or advantage, of a special exemption from a burden falling upon others."See also Smith v. Floyd (1893), 140 N. Y., 337, 342; Lonas v. State (1871), 3 Heisk., 287, 306, 307; Territory v Stokes (1881), 2 N. M., 161, 169, 170; Ripley v. Knight (1878), 123 Mass., 515, 519; Dike v. State (1888), 38 Minn., 366; Re Miller (1893), 1 Q. B., 327.Compare Wisener v. Burrell (1911), 28 Okla., 546.
- ↑ Compare Louisville & N. R Co. v. Gaines (1880), 3 Fed. Rep., 266, 278, per Baxter, Asso. J.: "Paschal says (the term privilege) is a special right belonging to an individual or class; properly, an exemption from some duty."
- ↑ For apt use of the terms, "privilege" and "privileged" in relation to libel, see Hawkins, J., in Allen v. Flood (1898), A. C. 1, 20–21.
leges' are liberties and franchises granted to an office, place, towne, or manor by the King's great charter, letters patent, or Act of Parliament, as toll, sake, socke, infangstheefe, outfangstheefe, turne, or delfe, and divers such like."
Compare Blades v Higgs (1865), 11 H. L. Cas., 621, 631, per Lord Westbury: "Property ratione privilegii is the right which by a peculiar franchise anciently granted by the Crown, by virtue of prerogative, one may have of taking animals ferae naturae on the land of another; and in like manner the game when taken by virtue of the privilege becomes the absolute property of the owner of the franchise."