Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/28

Rh documents, it is by no means so common or definite a word as "privilege." The former term is far more likely to be used in the sense of physical or personal freedom (i. e., absence of physical restraint), as distinguished from a legal relation; and very frequently there is the connotation of general political liberty, as distinguished from a particular relation between two definite individuals. Besides all this, the term "privilege" has the advantage of giving us, as a variable, the adjective "privileged". Thus, it is frequently convenient to speak of a privileged act, a privileged transaction, a privileged conveyance, etc.

The term "license", sometimes used as if it were synonymous with "privilege," is not strictly appropriate. This is simply another of those innumerable cases in which the mental and physical facts are so frequently confused with the legal relation which or privilege there are associated powers and rights, etc.: for instance, the power to acquire a title to the things severed from the realty); Bourne v. Taylor (1808), 10 East., 189 (Ellenborough, C. J.): "The second question is whether the replication ought to have traversed the liberty of working the mines. * * * The word liberty, too, implies the same thing. It imports, ex vi termini, that it is a privilege to be exercised over another man's estates"); Wickham v. Hawkes (1840), 7 M. & W., 63, 78–79; Quinn v. Leathem (1901), A. C. 495, 534 (per Lord Lindley: see quotation aent [sic], p. ); Pollock v. Farmers' Loan & Trust Co. (1895), 157 U. S., 429, 652 (per White, J., "rights and liberties"); Mathews v. People (1903), 202 Ill., 389, 401 (Magruder, C. J.: "It is now well settled that the privilege of contracting is both a liberty, and a property right.").For legislative use of the term in question, see the Copyright Act, 8 Anne (1709) c. 19 ("Shall have the sole right and liberty of printing each book and books for the term of * * *").Like the word "privilege" (see ante p. 38, n. 48), the term "liberty" is occasionally used, especially in the older books, to indicate a franchise, or complex of special rights, privileges, powers, or immunities. Thus in Noy's Maxims (1641) there is this definition: "Liberty is a royal privilege in the hands of a subject;" and, similarly, Blackstone (2 Com. 37) says: "Franchise and liberty are used as synonymous terms; and their definition is, a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject."This definition is quoted in S. F. Waterworks v. Schottler (1882), 62 Cal. 69, 106, and Central R. & Banking Co. v. State (1875), 54 Ga., 401, 409. Compare also Rex v. Halifax & Co. (1891), 2 Q. B., 263.