Priest–penitent Privilege in England From The Reformation To The Nineteenth Century - Reach of Canon Law

Reach of Canon Law

In the Codex Juris Ecclesiastici Anglicani (London, 1761) by Edmund Gibson, chaplain to the Archbishop of Canterbury 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 Act Concerning Peter's Pence and Dispensations which also deals with the exercise of papal jurisdiction in England, the author, in touching upon canon law, says as follows:

This is another branch of the Laws of the Church of England and is partly Foreign and partly Domestick. The Foreign is what we commonly call the Body of Canon Law consisting of the Councils, Decrees of Popes and the like: which obtained in England by virtue of their own Authority till the time of the Reformation: and from that time have continued upon the foot of Consent, Usage, and Custom.

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 and Othobon, which the commentator says were not received here. Gibson 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 year should be prevented from entering a church while living and should not receive Christian burial when dead. 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 Lateran Councils 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 definitely 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 direct 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 remember 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 sacrament, which formed part of the necessary religious practice of the nation, would have been unhesitatingly 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 acceptance 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-enacting it the severe penalties to which they became liable in the 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 tribunals even where the former was only exercising the jurisdiction which rightfully belonged to it, besides the fact that it would have so sharply conflicted with the religion practised by the nation.

The question of jurisdiction over clerks transgressing ecclesiastical law was entirely in the hands of the Church. The "Report of the Ecclesiastical Courts Commission, 1883", to which we have already alluded, 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 jurisdiction of the ecclesiastical courts extended even much further, including as 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 confession. 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 serves 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, often 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 converted 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 clergymen" 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 England. Sir Robert Phillimore in his work on (Anglican) 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 the Privilege of Sanctuary Act 1315 (9 Edw. II, c.10). The statute is called Articuli Cleri, and the part referred to deals with the rights of offenders who abjure the realm and, fleeing to a church for refuge, claim privilege of sanctuary. After stating that such persons are to be allowed to have the necessaries of life and that they are to be at liberty to go out of the church to relieve nature, the statute continues as follows: "Placet etiam Domino Regi, ut latrones vel appellatores quandocunque voluerint possint sacerdotibus sua facinora confiteri: sed caveant confessores ne erronice hujusmodi appellatores informent". This law, long obsolete, was repealed in 1863, and is translated in the collections 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 Offences unto Priests: but let the Confessors beware that they do not erroneously inform such Appellors".

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