council privy judicial court jurisdiction appeal united citizens
PRIVILEGE, in law, is 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. Privi-lege 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), the privilege which protects certain com-munications from being regarded as libellous (see LIBEL), 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 copyholds 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 may pay before all others - for example, funeral expenses or servants' wages. , In English law the term "preferred " rather than "privi-. leged" is generally- applied to such debts. There are certain deeds and summonses which are privileged in Scotch law, the former because they require less solemnity than ordinary deeds, the latter because the ordinary inducix are shortened in their case (see Watson, Law Diet., s.v. "Privilege ").
In the United States the term privilege is of considerable politi-cal importance. 13y 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 amend-ments to the constitution (enacted July 28, 1868), " DO 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 Art. I V. applies to citizens of the States, Art. XIV. 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 conumudeate all the privileges and immunities which the citizens of the same State would have been entitled to -Finder the like circumstances" (Story, Constitu-tion of the United States, § 1806). The clauses have several times been the subject of judicial decision in the supreme court. Their practical effect may be thus illustrated. 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 AA'allace's Peports, 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 especi-ally 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 Sallie 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 (13radwell v. The State, 16 Wallace, 130), of a State law confining the right of suffrage to males (Minor v. Ilappersett, 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 consti-tution 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).
ritivv COUNCIL. In England the king almost of necessity has been at all times guided by a council. The council, as it existed in the Norman period under the name of curio regis (a branch of the larger commune con-e/limn reyazi), exercised judicial, legislative, and administra-tive functions. It contained the germs of the courts of law and equity, the Houses of Parliament, and the privy council. The Courts of King's Bench and Common Pleas were gradually separated from it and became only- courts of first instance, subject to appeal to the king's council. From the time of Edward I. the ow/cilium ordinarium, the ordinary or standing council of the king, superseded the curio regis. It exercised high judicial functions as the ultimate court of appeal, as the adviser of suitors on petition what court to choose for redress, and as the resort of those who failed to obtain justice in the ordinary course. It was also the supreme administrative body, and as such issued ordinances on matters of a. local or temporary nature, with not infrequent usurpations at a later period of juris-diction belonging more properly to the common law courts or to parliament. The council " consisted of the chief ministers, the chancellor, treasurer, lord steward, lord admiral, lord marshal', the keeper of the privy seal, the chamberlain, treasurer, and comptroller of the household, the chancellor of the exchequer, the master of the ward-robe 3 and of the judges, king's serjeant, and attorney-general, the master of the rolls, and justices in eyre, who at that time were not the same as the judges at West-minster" (Hallam, Jfiddle Ay- es, vol. iii. p. 205). The growing power of the ordinary- council (it does not seem to have been called the privj,- council until after the reign of Henry VI.) led to many complaints on the part of the Commons, some of which found their expression in statutes. The most worthy of notice is 23 Edw. III. st. 5, c. 4, characterized by Hallam as probably the most extensively beneficial enactment in the whole body of our laws. Among other provisions it prohibited arbitrary imprison-ment and the determination of pleas of freehold before the council. The power of the council expanded or con-tracted according to the vigour of the king. Its authority was finally reduced by the Long Parliament in 1640 by means of 16 Car. I. c. 10. Assumption of jurisdiction over freeholds was still a grievance, for the Act specially declared that the king's council has no jurisdiction over any. man's land, goods, or chattels. From the beginning of Edward M.'s reign the council and the House of Lords vvere often blended into one assembly, called the magnum concilium or great council. As it met only when summoned by writ and not daily, like the ordinary council, it could scarcely- have exerted as much authority as the latter. It is therefore not surprising to find it soon split permanently into its two component parts, each retaining both judicial and legislative authority-. The privy council still exercises authority- of both kinds, though not as completely as the House of Lords. The political importance of the privy council has almost entirely disappeared since the duties of government have been assumed by the cabinet. Its modern legislative jurisdiction is of a subordinate char-acter. Its position as a court of appeal from the foreign possessions of the crown is a strictly logical one. It was ahvays the court for redress where no other redress could be obtained. For the sake of convenience this jurisdiction in cases of what is now called equity was exercised by the chancellor, originally- the president of the ordinary council when it sat as a court of justice. But in cases for which equity made no provision, as being out of the bounds of the realm, the privy council still exercises to the full one of the most ancient parts of its jurisdiction. Appeals lay from foreign possessions by virtue of the prerogative, but are now generally regulated by statute. The jurisdiction of the High Court of Delegates over ecclesiastical and admiralty cases was transferred to the privy council in 1832. The council lost its probate appeal jurisdiction in 1857, its admiralty jurisdiction in appeals from England in 1875, from Ireland in 1877.
At the present day members of the privy council become so at the will of' the crown, but it is understood that persons in certain positions have an ex officio claim to be nominated. The council consists of princes of the royal family or of some of the great officers of state, such as the principal members of the Government, the archbishops and the bishop of London, the judges of the House of Lords, the judicial committee, and the court of appeal, diplo-matists of high rank, &e. Members of the privy council have the title of "right honourable" and social precedence next after knights of the Garter. Ireland has its OM privy council. Scotland lias had none of its own since 6 Anne e. 40, which provided for one privy council for Great Britain. The modern jurisdiction of the privy council 'nay be divided into two branches, administrative and - tip to 1833 the judicial authority of the privy council was exercised by judicial committees appointed from time to time for the hearing of appeals refened to them Ly the crown in council. In 1833 the judicial committee of the privy council was established as a permanent court by 3 & 4 Will. 1V..c. 41. Under this and later Acts the judicial committee now consists of the lord president, the lord chancellor, and other persons yelio fill or have filled high judicial offices (all unpaid), of two retired Indian or colonial judges who receive an allowance for attending the sittings of the committee, and of paid members, now two in number, appointed under 34 & 35 Viet. c. 91. The Appellate Jurisdiction Act, 1576, provides for what is in effect the union .of the House of Lords and of the privy council in their judicial capacities by the lords of appeal in ordinary gradually becoming judges of both courts. After the death or resignation of the present paid members these two high judicial bodies will bc practically combined, and a near approach will be made to the inedneval magnum concitiwn in an ultiinate court of appeal from the whole of the British dominions.
In proceedings under the Church Discipline Act archbishops and bishops who are metnbers of the privy council are members of the judicial committee, 3 & 4 Viet. c. 86. in proceedings under the Public Worship Act, 1874, archbishops and bishops attend as asiessors according to rules made by order in council, 39 & 40 Viet. c. 59, § 14. The jurisdiction of the judicial committee is either original or appellate. The original jurisdiction is the less important, and consists of certain powers conferred by the Copy-right, Patent, Endowed Schools, and other Acts. The power most frequently exercised is that of extending thc term of patents. The appellate jurisdiction is entirely regulated by- statute, with the exeeption of the rarely occurring appeal from orders made by the lord chancellor of Great Britain or of Ireland in exercise of powers conf,rred by royal sign manual for the custody of idiots and lunatics. Appeals lie from the Arches Court of Canterbury, from a vice-admiraltv court abroad, and from the Channel Islands, the Isle of Man, Inaia, and the colonies. Appeals are either of right or by leave. Appeals lie as of right when the value of the matter at issue is of a certain amount (the amount varying according to the appeal rules of the different foreign possessions), and in a few other cases. Appeals lie at the discretion of the judicial committee, on leave being obtained by petition for special leave to appeal. The proceedings in all cases alike, whether original or appellate, are by petition (see PETITION). The petition is addressed to the crown in council in the first instance.
See, in addition to the writers on constitntional history, Sir Harris Nicolas, Proceedings and Ordinances of the Privy Council of England; Dicey, The Privy Council ; Macpherson, Practice of the Judicial Committee of the Privy Council. (J. Wt.)