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Lord Chief Justice Holt, as might have been expected, held privileged from disclosure; adding obiter that it was otherwise in the case of a gentleman, parson, &c.' The second and third are decisions, one by Buller, J., on circuit, and the other by the Irish Master of the Rolls, that confessions to a Protestant or Roman Catholic clergyman are not privileged; and in the fourth, the judges in banc say obiter, that the privilege is confined to the cases of counsel, solicitor and attorney. How far a particular form of religious belief being disfavoured by law at the period (A.D. 1802) affected the decision in Butler v. Moore, is not easy to say; but both that case and R. v. Sparkes leave the general question untouched; and on the latter case being cited to Lord Kenyon, in Du Barré v. Livette (e), he said, 'I should have paused before I admitted the evidence there admitted.' He, however, decided that case on the ground that confidential communications to a legal adviser were distinguishable from others. It is also to be observed, that the subject coming incidentally before Best, C. J., in Broad v. Pitt (f), very shortly after R. v. Gilham, he referred to that case as deciding that the privilege in question did not apply to a clergyman; but added, I, for one, will never compel a clergyman to disclose communications made to him by a prisoner; but if he chooses to disclose them, I shall receive them in evidence.' In a case of R. v. Griffin (g), tried before Alderson, B., at the Central Criminal Court, part of the evidence against the accused consisted of certain conversations between her and her spiritual adviser, the chaplain of a workhouse, relative to the transaction which formed the subject of accusation. On this evidence being offered, the judge expressed a strong opinion that it was not receivable, adding, however, 'I do not lay this down as an absolute rule; but I think such evidence ought not to be given;' and the counsel for the prosecution accordingly withdrew it. The case is not fully reported, and the result is not stated."

And lastly, in R. v. Hay (h), where the prisoner was indicted for stealing a watch, the watch was traced to the possession of a Roman Catholic priest, who was called as a witness for the prosecution; and who, on being asked, "From whom did you receive that watch," refused to answer, as he said he "received it in connection with the confessional." Hill, J., ruled that he was bound to answer, on the ground that by the above question he was not asked to disclose anything stated to him in the confessional: a decision apparently unimpeachable in itself, but which leaves the general question untouched.

66

"§ 584. There cannot, we apprehend, be much doubt that previous to the Reformation, statements made to a priest under the seal of confession were privileged from disclosure, except, perhaps, when the matter thus communicated amounted to high

(e) 1 Peake, Ca. p. 108.

(f) 3 C. & P. p. 518.

P.

VOL. I.

(g) 6 Cox, C. C. p. 219.
(h) 2 F. & F. p. 4.

NN

6

treason. In the old laws of Hen. I. () is this passage, Caveat sacerdos ne de hiis qui ei confitentur peccata sua alicui recitet quod ei confessus est, non propinquis nec extraneis; quod si fecerit, deponatur, et omnibus diebus vite sue ignominiosus peregrinando poeniteat.' The laws of Hen. I. are of course not binding per se, and are only valuable as guides to the common law, but it is otherwise with the statute Articuli Cleri (9 Edw. II.), c. 10, which is as follows:- Quandoque aliqui confugientes ad ecclesiam dum sunt in ecclesiâ custodiuntur per armatos infrà cimiterium, et quandoque infrà ecclesiam, ita arte quod non possunt exire locum sacrum causâ superflui ponderis deponendi, nec permittitur eis necessaria victui ministrari. Responsio :

dum sunt in ecclesia, custodes eorum non debent morari infrà cimiterium, nisi necessitas vel evasionis periculum hoc requirat. Nec arcentur confugi dum sunt in ecclesia, quin possint habere cite necessaria, et exire libere pro obsceno pondere deponendo. Placet etiam Domino Regi ut latrones appellatores, quandocumque voluerint, possint sacerdotibus sua facinora confiteri; set caveant confessores ne erronee hujusmodi appellatores informent.' In commenting on this statute, Sir Edward Coke writing, be it remembered, after the Reformation, expresses himself as follows (k):Latrones vel appellatores. This branch extendeth only to thieves and approvers indicted of felony, but extended not to high treasons; for if high treason be discovered to the confessor, he ought to discover it, for the danger that thereupon dependeth to the king and the whole realm, therefore this branch declareth the common law, that the privilege of confession extendeth only to felonies and albeit, if a man indicted of felony becometh an approver, he is sworn to discover all felonies and treasons, yet is he not in degree of an approver in law but only of the offence whereof he is indicted; and for the rest, it is for the benefit of the king to move him to mercy. So, as this branch beginneth with thieves, extendeth only to approvers of thievery or felony, and not to appeals of treason; for, by the common law, a man indicted of high treason could not have the benefit of clergy (as it was holden in the king's time, when this act was made), nor any clergyman privilege of confession to conceal high treason: And so it was resolved in 7 Hen. V. (Rot. Parl. anno 7 Hen. V. nu. 13); whereupon friar John Randolph, the Queen Dowager's confessor, accused her of treason, for compassing of the death of the king: And so it was resolved in the case of Henry Garnet (Hil. 3 Jac.), superior of the Jesuits in England, who would have shadowed his treason under the privilege of confession, &c., and albeit this act extendeth to felonies only, as hath been said, yet the caveat given to the confessors is observable, ne erronice informent.' This passage has been cited to prove the common law on this subject; but it is very doubtful whether the caveat at the end of the above

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enactment was inserted to warn the confessor against disclosing the secrets of the penitent to others. The grammatical construction and context seem to show that it was to prevent his abusing his privilege of access to the criminal by conveying information to him from without, and the clause is translated accordingly in the best editions of the statutes.

"$585. If it be an error to refuse to hold sacred the communications made to spiritual advisers, an opposite and greater one is the attempt to confine the privilege to the clergy of some particular creed. Courts of municipal law are not called on to determine the truth or merits of the religious persuasion to which a party belongs; or to inquire whether it exacts auricular confession, advises, or permits it; the sole question ought to be whether the party who bonâ fide seeks spiritual advice should be allowed it freely. By a statute of New York, 'No minister of the Gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.' A similar statute exists in Missouri, Wisconsin, Michigan, and Iowa, and the like principle is recognized in France"().

It seems to me at least not improbable that, when this ques- Probable tion is again raised in an English court of justice, that court decision. will decide it in favour of the inviolability of the confession, and expound the law so as to make it in harmony with that of almost every other Christian state.

(1) Bonnier, Traité des Preuves, § 179, who adds, "Le système contraire détruirait la confiance, qui seule peut amener le repentir, en

donnant au prêtre les apparences
d'un délateur, d'autant plus odieux
qu'il serait revêtu d'un caractère

sacré."

CHAPTER VII.

MARRIAGE.

SECT. 1.-General Law as to the Celebration of Marriage.
2.-Conditions Precedent-Consent, Physical and Mental
Capacity, Cultus Disparitas.

3.-Conditions Precedent-Incapacity to contract within
prohibited Degrees.

4.-Conditions Precedent-Restrictions as to Descendants of George II.

5.-Marriage by Banns-Publication.

6.-Marriage by Banns-Duty and Liability of Clergyman. 7.-Marriage without Banns.

8.-Civil Marriage-Subsequent Religious Service.

9.-Circumstances of Marriage.

10.-Marriages when Void-Divorce.

11.-Statutes as to the Celebration of Marriage.

General character.

SECT. 1.-General Law as to the Celebration of Marriage.

"Nuptiæ sunt conjunctio maris et fæminæ, et consortium omnis vitæ, divini et humani juris communicatio" (a). "Nuptiæ autem sive matrimonium est viri et mulieris conjunctio individuam vitæ consuetudinem continens" (b).

In this admirable language did the Roman jurists express the distinction taught by heaven-inspired morality, by reason, and the usage of civil life, between the holy estate of matrimony and the transient union of man and woman for the mere gratification of animal passion. So our Prayer Book says that marriage "is not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men's carnal lusts and appetites, like brute beasts that have no understanding ” (c).

(a) Dig. lib. xxiii. tit. 2. 1.

(b) Inst. lib. i. 9, 1; Tacitus in his Germania (18), says, "Severa illic matrimonia, nec ullam morum partem magis laudaveris. Nam prope soli barbarorum singulis uxoribus

contenti sunt, exceptis admodum paucis, qui non libidine, sed ob nobilitatem, plurimis nuptiis ambiuntur."

(c) The form of solemnization of matrimony.

The Christian law did not affect the civil status and relations of Christian law, marriage (d), but superadded to it a religious character, and proclaimed it to be an ordinance of God (e).

It was obvious that the Christian law would desire marriage desired open to be solemnized openly and in the congregation of the faithful, solemnization. though it might not require such public solemnization as essential to the validity of the bond, and such we find to be the case. Tertullian (f), writing in the third century, observes: "Ideo penes nos occultæ quoque conjunctiones, id est non prius apud ecclesiam professæ juxta mæchiam et fornicationem judicari periclitantur." While in the early collection of canon law we find it laid down that the secrecy of the solemnization did not affect the jural or legal validity of the contract. "Si donationum ante nuptias, vel dotis instrumenta defuerint, pompa etiam, aliaque nuptiarum celebritas omittatur, nullus existimet ob id, deesse rectè alias inito matrimonio, firmitatem, vel ex eo natis liberis jura posse legitimorum auferri, si inter pares honestate personas, nullâ lege impediente fiat consortium, quod ipsorum consensu atque amicorum fide firmetur" (g).

Our own

The church early recognized the fact that in blessing and Sanctity of sanctifying the estate of matrimony it blessed and sanctified the rite. whole relation of family (h). The Roman church afterwards raised this contract to the rank of a sacrament. church, while denying that it possessed the indispensable characteristic of a sacrament of the Gospel, namely, that it was ordained as such by our Lord, has always recognized the special sanctity of the religious rite by which it ought to be solemnized.

It is remarkable that the civil legislation of the Roman Civil law of emperors, even after they had become Christians, was founded Rome. upon heathen principles, and the laws of Justinian recognized the liberty of husband and wife to dissolve the contract by mutual consent, and retained many provisions of the early Roman law (i) which were incompatible with the Christian character of the contract (k).

church.

Meanwhile the church, chiefly under the influence of St. Law of the Augustine, began, especially after the fifth century, comparatively regardless of the civil consequences of this contract of contracts, and apart from the provisions of secular legislation respecting it, to invest the marriage bond more and more with a religious character. It was not till after the reign of Justinian that in the East any approach was made to harmony between

(d) Matt. xix. 3-9; Mark, x. 2-12.

(e) See Hyde v. Hyde and Woodmansee, a case where Lord Penzance refused to recognize as valid a Mormon marriage, L. R. 1 P. & D. p. 130.

(ƒ) De Pudicitia, c. 4, cited by Eichhorn Gründsatze des Kirchenrechts, ii. 297.

15.

(g) Codex, lib. v. 4, 22.

(h) Ephes. v. 22-25; 1 Tim. ii.

(i) It is not very easy to ascertain what the practice of the Greek church as to divorce à vinculo has been and is.

(k) Nov. 22, cap. 4; cf. Nov. 117,

cap. 8.

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