English Legal History and its Materials
This was originally planned as two 1000-word essays. Putting everything on one page seems more appropriate because there is one central theme.

Part One: The Rise of Protected Confession

Shame And Guilt

Ruth Benedict, in The Chrysanthemum and the Sword, popularized a distinction between shame cultures and guilt cultures, distinguishing the extent to which a culture controls the conduct of its members by social repercussions versus individual conscience. She created this distinction to explain differences in the psyches of Japanese and Americans in the context of the Second World War, but its explanatory power reaches far beyond that. In places with strong continuity of community and where individuals are readily forced to account for themselves to the community, shame is a powerful motivator. South Asian microfinance pioneers build a successful business model around shame: New loans could not be given out until existing borrowers were shamed into repaying. The only problem with this business model was that shame was potentially too powerful, resulting in numerous suicide clusters when people could not repay their debts.(1) When social shame is not as functionally capable for the control of conduct due to possibilities of privacy, disintegration of community, or other social practices that limit the tyranny of the village, guilt culture develops as an alternative to maintain control over individual behavior. The individual conscience - a self, a mental component of the individual, the super-ego, becomes a stand-in for the panchayati raj. The individual learns to subject their own future and past conduct to critical examination. Common to the development of guilt culture is the idea that, through being accountable to the self, one reaches a higher plane of moral development(2) than Oliver Wendell Holmes's "bad man" who merely fears the social and legal consequences of his actions.(3) When properly functioning, guilt reduces the need for law and shame by allowing individuals, acting in private, to regulate their own conduct.

The first objection of econodwarfs and scoundrels to the operation of guilt in society was immortalized by Plato in his telling of the Ring of Gyges story in The Republic - someone truly immune to unwanted consequences, someone with magical privacy that operated perfectly and inviolably, would be a thief and a rapist and probably even a murderer.(4). This criticism was later echoed by English materialist Thomas Hobbes, in his work Leviathan, in 1651. What Hobbes implicitly revealed is that guilt was reinforced through England's Christianity - the social shame internalized into the conscience is re-externalized, not into the community, but into a divine and omnipotent being who ensures final justice for all actions, causing a Holmesian bad man to abide by the dictates of morality so long as he believes, regardless of his innate inclinations. But, in the tradition of Aristotle's golden mean, and akin to its cousin shame, guilt may be too strong as well as too weak. When the guilt response towards a part of ourselves becomes too powerful, a paralyzing non-acceptance of that self results, preventing the integration of multiple personality states, and with consequences potentially no less destructive than severe shame. Christianity centers not on the prevention of moral guilt through upright conduct, a position more closely associated with Judaism and Islam, but rather on the absolution of guilt which is declared to exist in everyone.

The Rise of the Box

In a Europe where Christianity was principally governed by one holy catholic and apostolic church with its associated canon law, the priesthood created power for itself by requiring its presence and participation in the sacraments. The marking points of human life, birth, marriage, and death, were not to take place without a member of the priesthood - the Catholic sacraments of Baptism, Marriage, and Last Rites. But the most powerful and most frequent of the miracles performed by the priesthood involved the twin sacraments of guilt - Confession and the Eucharist itself. By going into a box with the priest and confessing one's sins, the priest had the power to grant penance, which, when completed, resulted in one's absolution, purified once again and free to accept the body and blood of Christ through the Eucharist. During English power struggles between the Church and the Saxon throne, the tightrope between ecclesiastical forgiveness and secular punishment was carefully navigated. King Alfred's laws declare "If any man seek a cloak for those offenses which have not yet been revealed, and then confess himself in God's name, let it be half forgiven," creating a weak secular parallel to the the idea of forgiveness and penance through self-initiated confession. At the same time, because of the immense psychological and religious importance of absolution, access to the confession became a sacrosanct matter guaranteed to even the worst villains of England. In conjunction with the English synod and the Archbishop, King of the Anglo-Saxons Edward the Elder, Son of Alfred the Great declared around 921 A.D. that "If a man guilty of death desires confession, let it never be denied him"(5)

However, for the priesthood to manifest distinct power over the miracle, and for the higher moral plane of guilt to continue to operate as intended, a confession to a priest must possess secrecy. The Ecclesiastical Council of Durham in 1220 declared " "A priest shall not reveal a confession-let none dare from anger or hatred or fear of the Church or of death, in any way to reveal confessions, by sign or word, general or special, as (for instance), by saying 'I know what manner of men ye are' under peril of his Order and Benefice, and if he shall be convicted thereof he shall be degraded without mercy." As a protection against a centralizing state and a guarantee of a unique role for priests as purveyors of absolution, the power of the priest to grant holy absolution and hear confession must be protected from outside interference.(6) In this way, the genesis for a parallel system of penance and absolution outside of the King's Justice allowed for a specific domain of power for the priesthood even amidst English centralization of law and secular power.

Part Two: Confession's Fall And Conspicuous Continuing Absence

In the present day and for the past hundred years, England does not recognize a priest-penitent privilege protecting religious confessions, and only conversations involving legal advice are privileged.(7). This fall involves both a change in religious institutions, as a state church formed which did not utilize individualized confession, and a legal change as the canon law protecting the seal of confession was undermined by the evolving common law.

Edward Coke's Coup

Legally, benefit of clergy was a provision which evolved out of secular courts lacking jurisdiction over ecclesiastical officials, and evolved into a sort of system for lesser sentences for literate or well-off first-time offenders. However, benefit of clergy was understood not to apply to high treason, the highest category of criminal offence in the common law of England.(8) Edward Coke argued in the second part of the Institutes that a similar exception had always held for the law of the seal of confession: such information was not confidential or privileged in instances of high treason. However, the one pre-Reformation case he cites, the case of Friar John Randolph and Joan of Navarre conspiring to murder Henry V, does not seem to prove this was an accepted rule of common law, as Randolph confessed to direct involvement in the conspiracy and a confession under the law of the seal does not appear to have been at issue in the case.(9) The actual first case creating a high treason exception to the law of the seal of confession appears to be one prosecuted by Edward Coke himself, the trial of Jesuit father Henry Garnet for hearing of a confession to the 1605 Gunpowder plot. The Gunpowder Plot and resulting trials were massive public spectacles which entranced the public and are still commemorated to this day in England(10) with illustrated manuscripts of the trials being printed and references being made to conspirators in popular plays at the time, including Macbeth. Ironically, the issue could not have arisen with an Anglican priest, as the 113th Anglican canon passed the prior year contained both a weakening of the seal of confession and an explicit treason exception to it, so religious privilege in treason cases already could not be claimed by Anglican priests(11). Ultimately, after canon law had been edited to break the seal of confessional when plots against the monarchy were at issue, Edward Coke edited the treason exception back into the common law regarding the seal of confession.

The Decline and Fall of Confession

The broader legal context for both the Gunpowder Plot itself and the waning of confession in general involves the proscription of Catholicism in the wake of the founding of the Church of England as a distinct body headed by the English Monarchy. Elizabeth's Acts of Uniformity required participation in Anglican services and following the Anglican Book of Common Prayers with penalties of fines or imprisonment by 1559(12). Two hundred years prior, John Wycliffe's most dangerous assault on the power of the Catholic church was a dispute of the truth of transubstantiation, the miracle of the Eucharist.(13). The 1559 Act of Uniformity required all churches legally operating in England to use the 1552 Book of Common Prayers, which contained a passage known as the Black Rubric explicitly denying transubstantiation. "And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here."(14) The greatest miracle of the clergy was outlawed, and the second-greatest, of confession, penance, and absolution, suffered a slower decline. While not explicitly proscribed in 1559, the 1552 Book of Common Prayer shifted confession to be a part of the collective act of the Christian Mass(15). The 1662 revision of the book created after the restoration of the Stuart Monarchy included, as compromise with Presbyterians and reformists, commentary stating that confession and absolution cannot be given at the pleasure of the priest and are not sacramental to the Church of England.(16). Essentially, the priest could judge that an individual was likely to be absolved because of their contrition and penance and say "I pronounce thee absolved", but could not grant or deny absolution at their pleasure.

Privilege's End

Consequently, the Anglican faith did not hold confession in the same spiritual and absolute regard, and the Catholic faith which did was marginalized, and technically if not entirely illegal at times, leading to a decline in private confession as an English social practice. In the Seventeenth and Eighteenth centuries, likely due to the active persecution of Catholics, I cannot find any legal cases specifically about priest-penitent privilege, but the cases dealing the final deathblow to priest-penitent privilege in England ironically emerge during the early nineteenth century period of Catholic emancipation, most notably _R. v. Gilham_(1828). This line of cases came to stand for the proposition that confession had never been protected in English common law, and to the extent it was privileged, had only been privileged by canon law. Some detractors fought valiantly to argue this was a misinterpretation, notably Jeremy Bentham in his 1827 discussion of proper rules of evidence in English law.(17). While some Catholic and Mormon sources continue to maintain to this day that this line of cases is misconstrued(18), from the early 20th century onwards legal texts summarize that there is no priest-penitent privilege in the English common law at all.(19)

Part Three: Jeremy Bentham's Body Lies A-Mouldering On A Chair

Does recognition of the Sacred precede its regulation?

The motivation for the prior two parts of history is the present. A new box is emerging. It contains not only our regrets and fears, but also our hopes and dreams.(20) The scope of the priest in confession is prescribing a particular penance, one specific behavior that can lead to absolution. The tracking search engine, on the other hand, plumbs the psyche and aims to produce desired results that lead to a never-ending loop of behavior and consumption. On the other hand, the search engine, like the confessional, has real positive effects in society; Exposing as much of the knowledge in the world as possible to everyone is a a re-enactment of Wycliffe's translation of the Bible into English on a secular and cosmic scale. Consequently, the first demand in the context of the search engine may parallel the first demand relating to confession in English law: if a man desire it, may it not be denied to him. Already, the Indian state of Kerala has declared that internet access must be denied to no one, and free WiFi? must be available across the land in the same way parishes open to hear confessions were made available, and not the pseudo-internet walled garden of Free Basics.(21)

Perhaps, to recognize the sacredness and inviolability of the box, the first step is always to recognize it is so indispensable for our certain form of life and character that access must be granted to everyone. We may even come to recognize doing generally expected research via search engine to fall under a duty of due care, in the way the Councils of the 13th and 14th centuries sought to declare confession obligatory. Perhaps we already have, as the idea of performing research without search tools is viewed as obsolete and insane. The idea that everyone ought to have access to the box is a relatively easy sell, but the box itself, in a way, exists in a state of Anglicanism. Nominal state control and the government being allowed inside the box is an accepted compromise for the protection and non-liability of the owners and the operators of the box.

Do the old masters have lessons for today?

The best stepping-off point from the recognition of the box as sacred and owed to everyone seems to be the development of a set of understandings, developed through both practical social and philosophical reflection akin to the ecclesiastical councils of the 12th-14th centuries.(22) If a box is sufficiently sacrosanct to be owed to everyone, ideas about what make it sacred and what about the relationship is so essential to make it inviolable even by the secular force of the state are necessary. This is because without a theological perspective on what is sacred and inviolable about the relationship, exceptions for what serves the interest of the state will be made, and those exceptions will have no real boundaries to prevent them from overrunning everything. For the priest to disclose by sign or word the confession, to blame or accuse in courts of the King, undermines the ability of the priest to serve as the direct conduit to the forgiveness of God. The practical infinity of information available through the box is, in its own way, the mind of God. Jeremy Bentham thought the chilling effect of every word not confessed to the priest was an epistemic injustice upon humankind, where the great mass of evidence for all things would be permanently lessened if the box did not keep its secrets.(23) Perhaps a correct tactic moving forward is to hold that learning is so sacred it cannot be chilled by the prospect that what one sought to learn should be used against them later.

Alternatively, the anticlerical ideas of protestants like John Milton may hold some sway. Who is great-souled enough to act like an absolute intermediary between man and God himself, and who is so puny as to need an intermediary?(24) In the pamphlet Of True Religion, Catholicism is vile most of all because it takes implicit authority by standing between Man and God and uses that authority wrongly, leading the gullible members of the congregation astray.(25) In this way Cambridge Analytica can be seen as no more than a rogue bishop exploiting a corrupt system which is always executing a man-in-the-middle attack between Man and God. Yet, this idea need not solely protestant - Dante reserved the final two circles of Hell in lower Cocytus for traitors to their guests and traitors to their benefactors. The Free Software Movement began because Richard Stallman saw a deep profanity in a program disrespecting the user. And he saw the sea shifting away from programs wholly executed by the user to Service as a Software Substitute. What of the service which betrays its guest, its lord and benefactor? If we come to see it as an offense worthy of the lowest circles of Hell, legal protections will materialize. And if the relationship with the box is schizophrenically viewed as casual or insignificant when it is anything but, the legal protections will continue to wither away here, too.

-- JoeBruner - 06 Apr 20



1 : http://www.thehindu.com/business/Rising-suicides-force-AP-ordinance-to-check-microfinance-firms/article15780132.ece

2 : Revisiting Shame and Guilt Cultures: A Forty-Year Pilgrimage, Millie R. Creighton, Ethos, p. 280

3 : Oliver Wendell Holmes, Path of the Law, passim. https://www.gutenberg.org/files/2373/2373-h/2373-h.htm

4 : Republic, 2:359a–2:360d

5 : Reeves's History of the English Law, p. 51

6 : Wilkins, "Concilia", I, 577, 595

7 , 19 : Halsbury's Laws of England, vol. 31, Privilege

8 : Pollock and Maitland, p.446

9 : Religious Confession Privilege and the Common Law, A. Keith Thompson, p. 48-50

10 : see, e.g., https://www.bl.uk/collection-items/the-trial-of-henry-garnet-1606

11 : Thompson, p.77

12 : https://history.hanover.edu/texts/engref/er80.html

13 : John Wyclif, Denying Transubstantiation, Stephen E. Lahey and De Eucharistia, John Wycliffe

14 : And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here.

15 : An Introduction To The History Of The Successive Revisions of the Book of Common Prayer, James Parker, 1877, n53, https://archive.org/details/thesuccessivere00parkuoft

16 : , ibid, p. 306

17 : Rationale of Judicial Evidence, Bentham, 1827, Chapter 6 in its entirety

18 : See, e.g., The Catholic Encyclopedia on Law of the Seal of Confession in England, or Thompson, introduction

20 : Freedom of Thought Requires Free Media, Eben Moglen

21 : https://www.independent.co.uk/news/world/asia/kerala-free-wifi-india-state-citizens-basic-human-right-internet-a7631461.html

22 : See, e.g., discussion of the 1220 Council of Durham in the Conclia Scotiae, vol. 113, p.270

23 : Bentham, Ch. 6, p. 51-52

24 : Both Milton's anticlerical tracts and the Areopagitica itself touch on these ideas.

25 : Of true religion and false politics: Milton and the uses of anti‐Catholicism, Ray Tumbleson, Prose Studies, 1992 Vol. 15 p. 260


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r6 - 09 Apr 2018 - 02:01:10 - JoeBruner
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