SEAL
652
SEAL
Laws of the Church of England and is partly Foreign
and partly Domestick. The Foreign is what we com-
monly call the Body of Canon Law consisting of the
Councils, Decrees of Popes and the like: which ob-
tained in England by virtue of theii- own Authority
(in like maimer as they did in other parts of the West-
ern Church) till the time of the Reformation: and
from That time have continued upon the foot of Con-
sent, Usage, and Custom", He cites 25 Hen. VIII,
c. 21.
He goes on to say that before the Reformation, their not being repugnant to the laws of the land was the condition of these laws being received here. But he also cites commentaries of John de Athon on certain constitutions of Otho andOthobon, which the commentator says were not received here. Dr. Gib- son cites a constitution of Simon Sudbury, Archbishop of Canterbury (1378), ordering confessions to be heard three times a year, and that whoever would not confess at least once a j^ear should be prevented from entering a church while living and should not receive Christian burial when dead: and this order was to be published frequently in the churches.
That the particular decree as to the secrecy of the seal of confession was locally re-enacted by English councils and synods has already been shown. Its importance, whether as enacted by the Universal Council of the Lateran or re-enacted by the English councils, seems to have been only confirmatory of something already well established in the Church or, at most, as definitelj' declaring the punishment for the violation of the secrecy. That the decree was allowed and accepted by the civil courts of England can only be a matter for deduction. There is no di- rect proof of it, as there is, for instance, in the cases of these two other decrees, which are cited only as some evidence of the probability of the acceptance of this particular decree. Before enumerating other and chief grounds of this probability it is well to remem- ber that if the law of the secrecy of confession was already well established in the Church it would be very unlikely that we should find evidence of any direct notice of the decree as in the cases of the two others.
But there seems to be absolutely no evidence which could cause one to doubt that a rule declared by the Church as to a matter essentially bound up with a sac- rament, which formed part of the necessary religious practice of the nation, would have been unhesitat- ingly accepted by the nation by reason of the mere fact that the universal Church had declared it. As there are such strong grounds for holding that the rule only solemnly declares an obligation upon priests which the nation had always believed to lie upon them, one would not expect to find any overt accept- ance of the rule. Again, it is important to remember that the rule itself concerned priests mainly and that, undoubtedly, they were bound by it, and we see from the English canons re-enact ing it th(^ severe penalties to which they became liahk; in th(! ecclesiastical courts in England for any breach of it. Therefore, the disregard of it by the civil courts would have caused a perpetual conflict between these two tri- bunals even where the former was only exercising the jurisdiction which rightfully b<;longed to it, besides the fact that it would have m sharply conflicted with the religion practised by the nation.
The question of jurisdiction over clerks transgres- sing ecclesiastical law was entirely in the hands of the Church. The " Report of the Ecclesiastical Courts C<^)mmi.Hsion, 1883", to which we have already al- luded, tells us that "ecclesiastical jurisdiction in its widest sense covered all the ground of ecclesiastical relations, persons, properties, rights and remedies: clergymen in all their relations". But the jurisdic- tion of the ecclesiastical courts extended even much further, including an it did the province of marriage,
and that of probate coupled with the devolution of
movable property in cases of intestacy. Within this
latter province there would have been, perhaps, more
than in any other province within the jurisdiction of
any court, occasion for desiring to know something
that might have transpired under the seal of confes-
sion. Pollock and Maitland's "History of the Laws
of England " tells us that intestacy was regarded with
an abhorrence somewhat akin to that with which a
death without sacramental confession was regarded.
This may probably be a considerable overstatement,
but it ser\'es to show that this province was, at least,
as much calculated as any other to raise the question
of the seal of confession.
Again, let us remember that in some districts, such as Durham and Chester, bishops exercised temporal jurisdiction. Even in the King's Courts, as Lord Coke points out, oftentimes the judges were priests, before Innocent IV prohibited priests from acting as judges. Pollock and Maitland's "History of the Laws of England" gives us as a specimen date, that of 16 July, 1195, on which there sat in the Court of King's Bench an archbishop, three bishops, and three archdeacons. The same book tells us that "it is by popish clergymen that our English common law is con- verted from a rude mass of customs into an articulate system, and when the ' popish clergymen ' yielding at length to the pope's commands no longer sit as the principal justices of the king's court the golden age of the common law is over". It is highly improbable that at a period when systematization of the common law was proceeding at the hands of "popish clergy- men" a rule compelling the disclosure of confession would have grown up. Finally, it is worthy of some observation that there is not a single reported case, textbook or commentary, during the whole pre- Reformation period which contains any suggestion that the laws of evidence did not respect the seal of confession. These grounds seem sufficient to lead to the conclusion that before the Reformation the seal was regarded as sacred by the common law of Eng- land. Sir Robert Phillimore in his work on (Angli- can) ecclesiastical law makes a definite statement to this effect.
The only recorded statute of the English Parliament which deals with the right of confession is Statute I of the 9th year of Edward II, c. 10. The statute is called "Articuli Cleri", and the part referred todeala with the rights of offenders who abjure the realm and, fleeing to a church for refuge, claim privilege of sanc- tuary. After stating that such persons are to be al- lowed to have the necessaries of life and that they are to be at liberty to go out of the church to relieve na- ture, the statute continues as follows: "Placet etiam Domino Regi, ut latrones vel appellatores quando- cunque voluerint possint sacerdotibus sua facinora confiteri: sed caveant confessoree ne erronice hujus- modi appellatores informent". This law, long obso- lete, was repeahid in 1S63, and is translated in the col- lections of the Statutes (Statutes of the Realm, I, 173), and in Pickering's edition of "Statutes at Large" (Cambridge, 1782): "And the King's Pleasure is, that Thieves or Appellors (whensoever they will) may confess their Ofi'ences unto Priests: but let the Con- fessors beware that they do not erroneously inform such Appellors".
Sir Edivard Coke, the great common lawyer who was Chief Justice under James I, in the 2nd Institute, c. X, says: "This branch extendeth only to thieves and ap- provers indited of felony, but extendeth not to high treasons: for if high treason be discovered to the con- fessor, he ought to discover it for the danger that thereupon dependcth to the king and the whole realme: therefore the branch dedareth the common law, that the privilege of confession extendeth only to felonies" . . . "for by the common law", he states further on, "a man indited of high treason could not
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