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651
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•Summa Confessionis Rubrica de Confessione cel-
anda, qusestio, 100', and with this pronouncement
Johannes Andra^us seems to agree. But I ask — what
if confession is made of some sin about to be com-
mitted, but not yet committed? F'or instance, some
one confesses that he wants to kill a man or to com-
mit some other misdeed and he says that he is unable
to resist the temptation. May the priest reveal it?
Some say that he may reveal it to such a person as can
be beneficial and not detrimental (tali qui potest pro-
desse et non obesse), but the doctors of theology in
this case say in general (communiter) that he must
not reveal it, but must keep it entirely secret (om-
nino celare). Henry de Segusio says, however, that
whatever he can properly (bono modo) do for the pre-
vention of the sin, he ought to do, but without men-
tion of person and without betrayal of him who makes
the confession. Others say that where the confession
is one of a sin about to be committed it is not a real
confession, and that to the person making it, a pen-
ance cannot be given (neo tali dari potest poenitentia)
and for these reasons it may be revealed to those who
can be beneficial and not detrimental as I have said
before"; — he quotes Rudovicus and Guido of Baysio.
He states that Henry de Bohic "seems to adhere to the opinion of those theologians who say that even where future danger threatens, as, for instance, in the case of a heretic who proposes to corrupt the faith, or of a murder or of some other future temporal injury, the confessor ought to furnish a remedy (adhibere re- medium) as far as he can without the revelation of the Confession, as, for instance, by moving those confes- sing to desist and otherwise using diligence to prevent the purpose of the person confessing. He may, too, tell the prelate to look rather diligently (diligent ius) after his flock : provided that he does not say anything through whi(!h by w^ord or gesture he might betray the person confessing. And this opinion I hold to be more correct and more in keeping with the law, which speaks plainly. But the other opinion which sanc- tions the revelation of the Confession to those who can be beneficial and not detrimental might hold good when the person confessing consents to it according to what I have said above".
Lyndwood then continues as follows: "One may deduce from the premises that if a judge maliciously presses and inquires of a priest whether he knows anything of such a fact, which he has, perhaps, heard in confession, if he cannot, by changing the sub- ject or by some other means, turn aside the unjust judge, he can answer that he knows nothing thence- forth (inde), because it is secretly understood (sub- intelligitur) 'as man': or he can say simply 'I know nothing through confession' because it is secretly un- derstood ' nothing to be revealed to you '. " Upon the word " generaliter " there is the following comment : "And so truly, not at all (i. e. the confession is not to be in any way revealed) when the confession has been made to the priest not as judge but as the minister of God. For if anything have been revealed to him as judge he is not bound to conceal it"; — he cites Hos- tiensis in support. It is to be observed that there is nowhere an exception in respect of the crime of trea- son. His commentary on the duty of not disclosing the confession of a crime proposed to be committed tends to show that he would not have recognized any such exception.
A manual, called "Pupilla oculi" (see Gasquet, " Pre-Reformation Essays"), which appears to have been mainly designed for practical use among the clergy, was compiled towards the end of the fourteenth century by John de Burgh, a professor of theology and Chancellor of the University of Cambridge. Accord- ing to Mr. Edward Badeley who wrote in 1865 a most able pamphlet on the privilege of the seal of confes- sion entitled "The Privilege of Religious Confessions in English Courts of Justice", this manual, to which
Professor Maitland also refers, enjoyed great popu-
larity. Its counsels to confessors who may happen to
be witnesses in a court of justice are sufficiently like
those already cited from Lyndwood's "Provinciale"
to render it unnecessary to quote them.
Lyndwood thus affords us, as Professor Maitland points out, even by the fact of citing these various authorities, very strong evidence that the general canon law was the law of the English ecclesiastical courts also. It may be remarked here that before the Reformation ecclesiastical canons were made by the authority of the synod with the sanction of the metropolitan. No crown sanction was required for their validity as canons. But the particular law in question was not one demanding observance in ec- clesiastical courts merely, but in the civil and crim- inal courts of the land and on all occasions. It is an established principle of English law that no such rule or law could have become legally binding in England without being allowed and accepted there. The accuracy of the principle itself seems unquestionable and probably the only difference of opinion will arise as to the causes which might lead to the allowance and acceptance in England of rules of canon law. Adopt- ing merely the basis that only such decrees and such rules of canon law as had been in fact received and ac- cepted in England were binding there, we have evi- dence that the aforesaid Fourth Lateran Council, as to, at least, two of its decrees, viz., as to pluralities and as to clandestine marriages, was received and accepted in England. The judgments of the Courts in the case of Evans v. Ascuithe, tried in the third year of Charles I and reported in Palmer's "Reports", is based upon the validity of the former decree in England and it cites two cases, decided in the reign of Edward III, showing that the law declared by that decree had been acted upon by the civil courts of the land in that reign. The judgment of the Court of King's Bench delivered by Lord Hardwicke, in the case of Middleton v. Croft [(1736) cases temp. Ld. Hard- wicke, 326], though not expressly saying that the sec- ond decree was accepted and allowed in England, by its reasoning shows us that such was the case.
Remarkable evidence of the acceptance of the de- crees of the Council of Lateran in England is brought to our notice by Professor Maitland in his introduc- tion to his edition of "Pleas of the Crown for the County of Gloucester for the year 1221". Speaking of trial by ordeal he says: "In 1215 the Lateran Council condemned the ordeal and at the beginning of Henry's (the Third) reign the relation of England to Rome was such that this decree of the Church was at once, and of course, obeyed. As already said, the next e>Te (i. e. Circuit of judges for trials in the vari- ous counties), and a very general eyre it was, took place in the winter of 1218-9. The judges had already started on their journeys when an order of the king in council was sent round to them. It was dated 26th January, 1219, and is of such great moment in the his- tory of our law, and, seemingly, so little known, that its substance shall be stated — ' When you started on your eyre it was as yet undetermined what should be done with persons accused of crime, the Church hav- ing forbidden the ordeal'." The order, thereupon, proceeds to suggest certain rules for the judges to follow.
In the Anglican Church. — In the "Codex Juris Ecclesiastici Anglican!" (London, 1761) by Dr. Ed- mund Gibson, chaplain to the Archbishop of Canter- bury and afterwards Bishop of London, is found a compilation of the various canons and constitutions which had been made for the Church in England at different times. In his introduction to that work, in which he cites the statute 25 Hen. VIII, c. 21, con- cerning Peterspence and the exercise of papal jurisdic- tion in England, the author, in touching upon canon law, says as follows: "This is another branch of the
