statement was read over to him, and he said it was correct, "as a dying man." The deceased died two days afterwards, and on the 3rd of September the witnesses made their depositions before the magistrates against the prisoner on a charge of murder of the deceased, and the deposition of the deceased was included as having been taken on that charge under the same caption. On its being proposed by the learned counsel for the prosecution to put in evidence this deposition, it was objected by the learned counsel for the prisoner that it was taken on a charge of a different offence, namely, of cutting and wounding the deceased, who subsequently died. WIGHTMAN, J.—The caption shows that the examination was taken on a charge of murder, and the caption shows that it is the examination of the man charged with being murdered, for the "murder" of himself. Blanshard submitted that it was admissible, for the name of the person charged with being murdered might be struck out of the caption. WIGHTMAN, J.-Then that would not be the charge on which he was examined. Blanshard referred to Beeston's Case (a). WIGHTMAN, J.—If the prisoner had been charged with feloniously cutting and stabbing the deceased, and the deceased had afterwards died, the deposition taken on the charge of cutting and stabbing might have been used on the charge of murder. Blanshard submitted that the caption was sufficient. WIGHTMAN, J.-Will it do without any caption at all? Unfortunately the charge in the caption is a charge of murder, and the caption states this to be the examination of the man who is charged as having been murdered. I want an authority where a man is charged with murder on (a) 24 L. J., M. C. 5; 1 Dears, C. C. 405. 1859. REGINA v. CLARKE. 1859. REGINA บ. CLARKE. 1860. Spring Assizes. Semble, that statements made to a priest or clergyman in sacramental or quasi sacramental confession are privi leged, but anything said or done out of confession is closure may the examination of the man murdered, before I can admit this. Blanshard then proposed to put the document in evidence as a dying declaration. The evidence of the surgeon showed that he had told the deceased he had no chance of recovery before he made the statement, and he died two days after. When the surgeon told him that, the deceased spoke out and said, "Oh, I am a dying man." WIGHTMAN, J., held the document admissible as a dying declaration after this evidence. The examination of the deceased stated an account of the quarrel, and that the prisoner had stabbed him. The surgeon's evidence proving that these stabs had caused the death of the deceased, The prisoner was found guilty of manslaughter, and sentenced to fifteen years' penal servitude. Durham, coram Hill, J. REGINA v. HAY. WILLIAM HAY, aged twenty-two, pitman, was charged with robbing Daniel Kennedy of a silver watch, at Jarrow, on the 25th December last. Headlam for the prosecution. On the 24th of December the prosecutor had been drinking at the Bee's-wing public-house, in the Felling, not so, even al- and left about twelve o'clock at night. On his way home, though its dis- the ground being very slippery, he fell down, and was incidentally assisted to his feet by the prisoner and three other men. They walked a short distance together, but the prosecutor feeling the prisoner's hand in his pocket told him to take it out, which he did. The men then endeavoured to get the prosecutor to go a long way with them, but he refused, disclose the identity of the party. and walked away by himself. After having left the prisoner and the other men, he proceeded on his way home. When he had gone a short distance, he was joined by a man named M'Cormack, who struck him a blow on the eye with a stick or morgan rattler" without the least provocation. The prisoner Hay then joined M'Cormack, and kept hold of the prosecutor's hands while the other robbed him of his watch and 15s. in silver. M'Cormack had absconded. Inspector Rogers, by whom the prisoner was apprehended, stated that from information he received he went to the house of the Rev. John Kelly, a Roman Catholic priest, from whom he received a watch, which the prosecutor identified as his property, and who was now called. The crier of the Court was about to administer the oath to him, when he objected to the form of the oath. HIS LORDSHIP.-What is the objection? The Rev. Mr. Kelly.-Not that I shall tell the truth, and nothing but the truth; but, as a minister of the Catholic Church, I object to the part that states that. I shall tell the whole truth. HIS LORDSHIP said, the meaning of the oath is this: it is the whole truth touching the trial which you are asked; which you, legitimately according to law, can be asked. If anything is asked of you in the witness-box which the law says ought not to be asked-for instance, if you are asked a question the answer to which might criminate yourself- you would be entitled to say, "I object to answer that question, because the answer might criminate myself," and the law would sustain the objection. You can therefore have no objection as a loyal subject, and in duty to the laws of the country, to answer the whole truth touching the case which may be lawfully asked (a). Therefore you must be sworn. (a) Boyle v. Wiseman, 24 L. J., Exch. 160. 1860. REGINA บ. HAY. 1860. REGINA v. HAY. The witness took the oath in the usual form, and gave the following evidence:-I have been twelve years Catholic priest at the Felling. On Christmas-day I received the watch produced. Headlam then asked, from whom did you receive that watch? Witness. I received it in connexion with the confessional. HIS LORDSHIP.-You are not asked at present to disclose anything stated to you in the confessional (a); you (a) It has been erroneously supposed that the learned Judge denied that any privilege attached to confession; but, as will be seen, he did not deny it; on the contrary, impliedly admitted it, and drew a distinction which would otherwise have been futile. That there is such a privilege can scarcely be denied. As a learned writer truly observes: "There cannot be a doubt that, previous to the Reformation, statements made to a priest under the seal of confession were privileged, except, perhaps, when the matter thus communicated amounted to high treason." (Best on Presumptive Evidence, p. 596.) The learned writer, in support of the exception suggests, cited from the "Ancient Laws and Institutes of England," a passage from the "Laws of Henry I.;" a comparison of which with the Saxon law in the same work (to which Lord Coke alludes as the sources of our common law) will show that the recognition was of Saxon, and the exception of Norman origin. The sanctity of confession, with that exception, has been recognized; as in the 9th Edw. II., c. 10: "Placet etiam Domino Regi, ut latrones, vel (?) appellatores, quandocunque voluerint, possint sacerdotibus sua facinora confiteri, sed caveant confessores, ne erronice hujusmodi appellatores informent." Hereon Lord Coke comments thus: "Latrones vel appellatores. This branch extendeth only to thieves and approvers indited of felony, but extendeth 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 Realme; therefore this branch declareth the common law, that the priviledge of confession extendeth only to felonies: so this branch beginneth with thieves, extendeth only to approvers of thievery or felony, and not to appeales of treason." Now, here it is clearly recognized by Coke that there was such a privilege; and neither in Randolph's case nor Garnet's does it appear that the communication was in sacramental confession; and so under the seal of confession. On are asked a simple fact-from whom did you receive that watch which you gave to the policeman? the contrary in Garnet's case, Lord Coke gave six reasons why the communication should not be deemed sacred; not one of which involved a denial of the privilege, but all of which implied its existence the main reason being, that the communication was not in confession-the distinction taken by HILL, J., in the above case. The authority of Lord Coke, therefore, is clear that there was such a privilege at common law; and that such privilege continued after the separation from Rome, and after the alteration of religion. There had been no statute to take it away; and, on the contrary, the Prayer Book, sanctioned by statute, contained services in which (vide the Ordination Service) the clergy received power to give absolution, and (vide the Visitation of the Sick) were expressly directed, in certain cases, to administer it. The cases in which they were so directed were just those in which alone it is obligatory, as members of the Roman Catholic Church, to confess (i.e., grievous or weighty sins); and the form of absolution (ego te absolvo, &c.) is precisely that used by Roman Catholic priests, i. e., judicial or sacramental; and not declaratory merely, as in the Morning and Evening Services. (Vide, as to this distinction, Wheatley or Shepherd on the Book of Common Prayer.) And though it is a common idea that the Church of England denies that confession is a sacrament, that is an error; for the answer in the Catechism as to the number of the Sacraments, "Two only generally necessary to salvation," does not amount to a statement that there are only two sacraments; nor even that only two are ever necessary for salvation, but that only two are generally so. And it has been held that, according to our law, marriage is a sacrament (Richards v. Dovey, Willes Rep. 622), and it seems, from some decisions, to follow that confirmation is so. Even the Roman Catholic Church does not consider all the seven sacraments she holds necessary to salvation. For instance, extreme unction is not. This has been regularly proved in our Courts in criminal cases, and acted upon (Regina v. Howell, 1 C. & K. 689). It follows, then, that not only was there nothing in the change which took place at the Reformation to alter the case as to the privilege attaching to confession, but that there was, on the contrary, an express recognition of it by statute. For of course the recognition of confession implies, in the absence of anything to the contrary, the recognition of its secresy, because such was the common law rule; and if it were otherwise, no one would be likely to confess, and therefore the directions to the Anglican clergy, to exhort their penitents to confess, would be idle and futile. It follows, also, that the clergy of the Established Church would be within the privilege in cases in which, acting according to the rubric of the Service for the Visitation of the |