discretion they would not compel disclosure in practice. But the privilege cannot be said to have been recognized by the common law, either in England or in the United States.7

§ 2395. Statutes recognizing the Privilege. In two jurisdictions of Canada and in more than one half of the jurisdictions of the United States the privilege has been sanctioned by statute. In the application of these statutes, it

has been held, following the dictates of principle, that the privilege applies only to communications made in the understood pursuance of that church discipline which gives rise to the confessional relation,2 and, therefore, in particular to confessions of sin only, not to communications of other tenor; 3 that it includes only the communications, and not information otherwise acquired; * and that it exempts the penitent also, as well as the priest, from disclosure.5

§ 2396. Policy of the Privilege. Even by Bentham, the greatest opponent of privileges, this privilege has, in the following argument, been conceded, to justify recognition :

1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. IX, pt. II, c. VI (Bowring's ed. vol. VII, pp. 367 ff.) : "To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely temporal, to the design of this work. The basis of the inquiry is, that this institution is an essential feature of the catholic religion, and that the catholic religion is not to be suppressed by force. . . . I set out with the supposition, that, in the country in question, the catholic religion was meant to be tolerated. But with any idea of toleration, a coercion of this nature is altogether inconsistent and incompatible. In the character of penitents, the people would be pressed with the whole weight of the penal branch of the law; inhibited from the exercise of this essential and indispensable article of their religion; prohibited, on pain of death, from the confession of all such misdeeds as, if judicially disclosed, would have the effect of drawing down upon them that punishment; and so, in the case of inferior misdeeds, combated by inferior punishments. Such would be the consequences to penitents; to confessors, the consequences would be at least equally oppressive. To them, it would be a downright persecution, if any hardship, inflicted on a man on a religious account, be susceptible of that, now happily odious, name. To all individuals of that profession, it would be an order to violate what by them is numbered amongst the most sacred of religious duties. In this case, as in the case of all conflicts of this kind, some would stand firm under the persecution, others would sink under it. To the former, supposing arrangements on this head efficient and consistent, it would have the effect of imprisonment - a most severe imprisonment for life. . . . The

his professional character, in the course of disci-
pline enjoined by the church to which he be-
longs "); Okl. Stats. 1893, § 335 ("The following
persons shall be incompetent to testify:
Fifth, a clergyman or priest concerning any
confession made to him in his professional char-
acter in the course of discipline enjoined by the
church to which he belongs, without the consent
of the person making the confession

.

pro

vided that, if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if [of?] an attorney, clergyman or priest, physician or surgeon on the same subject, within the meaning of the last three subdivisions of this section "); S. D. Stats. 1899, § 6544 (substantially like Cal. C. C. P. § 1881, unamended); § 6545 (like N. D. Rev. C. § 5704); Utah Rev. St. 1898, § 3414 (like Cal. Č. C. P. § 1881, unamended); Vt. St. 1896, No. 30 ("No priest or minister of the gospel shall be permitted to testify in any court in this State to statements made to him by any person under the sanction of a religious confessional"); Wash. C. & Stats. 1897, § 5994 (like Cal. C. C. P. § 1881, unamended); § 6940 (quoted ante, § 2380); Wis. Stats. 1898, § 4074 (like N. Y. C. C. P. § 833, adding "without consent thereto

by the party confessing"); Wyo. Rev. St. 1887, § 2589 (like Oh. Rev. St. 1898, § 5241).

2 1895, State v. Brown, 95 Ia. 381, 64 N. W. 277 (the defendant met the minister on the train, and communicated his story without any purpose of obtaining advice or assistance; held not privileged); 1835, People v. Gates, 13 Wend. 311, 323 (admissions "not in the course of discipline," held not privileged).

3 1877, Gillooley v. State, 58 Ind. 182; 1901, Hills v. State, 61 Nebr. 589, 85 N. W. 836 (bigamy; defendant's memorandum of instructions, given to a clergyman, who was to communicate to the first wife the reasons stated therein for influencing her to abandon the prosecution, admitted).

1880, Toomes' Estate, 54 Cal. 509, 515 (a priest's testimony to a testatrix' mental condition just before death, admitted, because covering, not a confession, but only the testatrix' " proper condition of mind to make a confession"). Compare R. v. Hay, 2 F. & F. 4, cited ante, § 2394.

5 1880, Massé v. Robillard, 10 Rev. Légale 527 (under the statutory privilege in Quebec, the penitent himself cannot be compelled to disclose the communications of the priest).

advantage gained by the coercion - gained in the shape of assistance to justice — would be casual, and even rare; the mischief produced by it, constant and all-extensive. Without reckoning the instances in which it happened to the apprehension to be realized, the alarm itself, intense and all-comprehensive as it would be, would be a most extensive as well as afflictive grievance. . . . If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature, — repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past, — such are the well-known consequences of the institution; though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form, and the complexion of the moral part of their character in other respects. But, without any violation of this part of his religious duty, and even without having succeeded so far as to have produced in the breast of the misdoer any permanent and efficacious repentance, modes are not wanting in which it may be in the power, as it naturally will be in the inclination, of a conscientious and intelligent confessor, to furnish such information as shall render essential service to the interests of justice. I mean, by ministering to the prevention of such individual misdeeds as, though meditated, are as yet at a stage short of consummation; or of such others as, though as yet not distinctly in contemplation, are in a way to present themselves to the same corrupted mind. Who the misdoer is, the confessor knows better than to disclose; as little will he give any such information as may lead to the arrestation of the delinquent, under circumstances likely to end in his being crushed by the afflictive hand of the law. But, without any such disclosure, he may disclose what shall be sufficient to prevent the consummation of the impending mischief. . . . Warnings of this kind, if I understand aright, have not unfrequently been given, warnings, which might have been given and would have been given in better times, — might (had they been given) have operated as preventives to the most grievous public calamities."1

The propriety of the privilege may be tested by the four canons already laid down for privileged communications (ante, § 2285). (1) Does the communication originate in a confidence of secrecy? It is so commonly understood. The ecclesiastical rules, to be sure, do provide in some measure that the penitent cannot obtain absolution unless he makes reparation, which may involve an open repetition of the confession; and this, it may be argued, indicates that ultimate secrecy is not an assumption of the confessional. Whether in theory or in practice such is the case, must be a question of fact as to actual ecclesiastical rules. In any event the ultimate disclosure in that manner must be supposed to rest upon the priest's discretion according to the needs. of each case. Thus, in effect, it may be assumed that a permanent secrecy, subject only to an optional variation by the priest, is an essential of any real confessional system as now maintained. In so far as it may not be, in the discipline of any particular church, the privilege cannot apply. (2) Is confidentiality of communication essential to the relation? In other words, would penitential confessions, under such a system as the above, continue to be made if they were liable to be demanded for disclosure in a court of justice when needed? In so far as such confessions concern crimes and wrongs, they

1 In the following place also the arguments Introductory Report to the Code of Evidence are considered: circa 1823, Edward Livingston, (Works, ed. 1872, I, 467).

§ 2445. Same: (b) Agreements affecting the Implied Terms.

2446. Rule binding upon the Parties to the Document only.

§ 2447. Burden of Proof; Who must Produce the Document.

3. Integration required by Law.

§ 2450. At Common Law: (1) Judicial Records.

§ 2451. Same: (2) Corporate Acts and Records; (3) Negotiable Instruments.

§ 2452. Under Statutes: (1) Wills; (2) Ballots; (3) Insurance Policies.

§ 2453. Conclusive Certificates, distinguished.

C. SOLEMNIZATION OF LEGAL ACTS.

2454. Writing as a Formality; Statute of Frauds.

§ 2455. Same: Discharge and Alteration of Specialties, etc.

§ 2456. Other Formalities than Writing; Signature, Seal, Attestation, Registration, Stamp.

D. INTERPRETATION OF LEGAL ACTS.

§ 2458. General Nature of Interpretation; Standard and Sources of Interpretation. $2459. Same: "Intention" and "Meaning," distinguished.

1. Standard of Interpretation. § 2461. General Principle; Four Standards, -Popular, Local, Mutual, Individual.

INTRODUCTORY.

§ 2400. Parol Evidence Rule, not a Rule of Evidence. "Few things," wrote Professor Thayer, "are darker than this, or fuller of subtle difficulties"; and this condition of the law all members of the profession will concede. Two circumstances appear to be responsible for it, first, an inherent necessity for certain distinctions, simple in themselves but subtle and elusive in their application, and, secondly, the unfortunate prevalence of a terminology in which the subject cannot possibly be discussed with entire accuracy and lucidity. With these two features as marked as they are, it is not strange that the so-called parol evidence rule is attended with a confusion and an obscurity which make it the most discouraging subject in the whole field of Evidence. Rather is it surprising that, in spite of these obstacles, so much has actually been achieved of consistency and of definiteness in the law as it stands. What is chiefly needed to-day, for clarifying the subject and rendering manageable its mass of rules, is, first of all, a systematic arrangement of all the connected principles in their due relation, and, secondly, a simple and accurate nomenclature which shall replace the present absurdly incorrect usage and thus make intelligible discussion possible. No one can attempt to re-state the law, except with a due sense of temerity. But the present condition of the subject is beyond endurance; unless improved, it threatens within a generation to result in an irrational and incurable chaos. In the following

treatment the object will be, while preserving as much as possible the language of present usage, to set forth the rules systematically and to discuss them in their proper terms, and thus to assist the future development to proceed along natural and harmonious lines.

But at the outset certain discriminations must be kept in mind:

(1) First and foremost, the rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process, — the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of fact are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all (ante, § 2). But this prohibition of proving it is merely the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all, the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any rule of law whatever might be reduced to a rule of evidence; a ruling (for example) that on a plea of self-defence, in an action of battery, no evidence of the plaintiff's insulting words is to be received, would become the legitimate progeny of the law of evidence. This employment of terms of evidence for rulings of substantive law, by reason of the constant dramatic presentation of the latter in the course of a trial, is an old and natural failing of the profession, and has been already noticed at the outset of the general subject of Evidence (ante, § 2). But in the present department it has risen to a dominating influence of confusion, because there existed in this branch of the law no systematic terminology capable of holding its ground against the usurpation. Let us dismiss, then, once for all, any notion that the parol evidence rule, in any of its aspects,1 is concerned with any precautions or limitations based on probative value, or indeed with any regulation of evidence in the legitimate sense of that word. This must be the first step to a clear understanding of the working of the rule.2

(2) Next, the matter excluded by the rule is not inherently or even most commonly anything that can be properly termed "parol." That word (in spite of its numerous other derived applications) signifies and implies essentially the idea "oral," i. e. matter of speech, as contrasted with matter of writing.3 Now, so far as the phrase "parol evidence rule" conveys the impression that what is excluded is excluded because it is oral- because somebody spoke or

1 Except, perhaps, the statute of frauds and the rule for interpreting by declarations of intention, where there is a possible question.

2 1903, Archbald, J., in Pitcairn v. Hiss Co., 125 Fed. 110 ("According to the modern and better view, the rule which prohibits the modification of a contract by parol is a rule, not of evidence, but of substantive law. The writing is the contractual act, of which that

which is extrinsic, whether resting in parol or in other writings, forms no part"). Compare Professor Thayer's exposition, in his Preliminary Treatise, p. 390.

3 It is necessary to abandon the improper use of "verbal as synonymous with "oral.' The former signifies "relating to words," whether written or oral; the latter signifies "spoken," whether words or sentences.