4o. Social. Husband and wife. end of the above enactment was inserted to warn the confessor against disclosing the secrets of the penitent to others. The grammatical construction and context seem to shew 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 (ƒ). § 589. If the refusing to hold spiritual communications sacred is an error, 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, encourages, or permits it-the sole question for them ought to be whether the party who bonâ fide seeks for spiritual advice should be allowed it freely. By a statute of New York (g), "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 (h); and the like principle is recognized in France (i). § 590. 4°. Social. The applications of this principle to social life are few. The principal instance is in the case of communications between husband and wife. (ƒ) See the edition already cited. Also Ruffhead's edition of the Statutes, A.D. 1762. § 179, who adds, "Le système contraire détruirait la confiance, qui seule peut amener le re (g) 1 Greenl. Evid. § 247, pentir, en donnant au prêtre les note (2), 4th Ed. (h) Id. apparences d'un délateur d'au tant plus odieux qu'il serait revêtu (i) Bonnier, Traité des Preuves, d'un caractère sacré." Such, says Professor Greenleaf (k), "belong to the class of privileged communications, and are therefore protected, independently of the ground of interest and identity which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures, by providing that it shall be kept for ever inviolable; that nothing shall be extracted from the bosom of the wife, which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce, or by the death of the husband, the wife is still precluded from disclosing any conversations with him; though she may be admitted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that relation." The recent statute, 16 & 17 Vict. c. 83, 16 & 17 Vict. which renders husbands and wives competent and compellable witnesses for or against each other in civil cases, contains the special enactment, that "No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage (1)." And the evidence of neither husband nor wife will be received to disprove the fact of sexual intercourse having taken place between them (m)—a rule justly designated by Lord Mansfield as "founded in decency, morality, and policy (n).” But secrets dis- Secrets of busiclosed in the ordinary course of business, or the confi- ness or frienddence of friendship, are not protected (o). (k) 1 Greenl. Evid. § 254, 4th Ed. (1) See that statute in the Appendix, No. 1. (m) R. v. Reading, Cas. Temp. Hardw. 79; R. v. Rook, 1 Wils. 340; R. v. Luffe, 8 East, 192; (n) Goodwright d. Stevens v. (0) See the judgment of Lord c. 83. ship not protected. Rejection of evidence tendered for ex pense, vexation, or delay. § 591. Courts of justice, as has been shewn in the Introduction to this work (p), possess an inherent power of rejecting evidence tendered for the purpose of creating expense, or causing vexation or delay. Such malpractices are calculated to impede the administration of the law, as well as injure the opposite party. Kenyon in Wilson v. Rastall, 4 the State Trials there referred to. (p) Introd. sect. 2, § 47. CHAPTER IX. AUTHORITY OF RES JUDICATA. "Res § 592. THE maxim "Res judicata pro veritate acci- Maxim pitur (p)" is a branch of the more general one, "Interest veritate accijudicata pro reipublicæ ut sit finis litium;" and the reasons which pitur." have led to the universal recognition of both are explained in the Introduction (q). § 593. "Res judicata," says the Digest (r), "dicitur, Res judicata. quæ finem controversiarum pronunciatione judicis accipit; quod vel condemnatione vel absolutione contingit." But in order to have the effect of res judicata the decision must be by a court of competent jurisdiction, concurrent or exclusive," judicium à non suo judice datum nullius est momenti (s)." The decisions of such tribunals are conclusive until reversed; but no decision is final unless either pronounced by a tribunal from which there lies no appeal, or the parties have acquiesced in the decision, or the time limited by law for appealing has elapsed (t). Moreover, the conclusive effect is limited to the actual point decided-it does not extend to any matter which came collaterally in question, though within the jurisdiction of the court; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument, unless perhaps by necessary inference, from the judgment (u). (p) Co. Litt. 103 a. (g) Sect. 2, §§ 41, 43, 44. (t) Poth. Obl. Part 4, ch. 3, sect. 3, art. 1. (u) Per De Grey, C. J., deli vering the opinion of the judges Difference between the sub § 594. The principle in question must not be confounded with the rule of law which requires records to judicial portions be in writing (x), and presumes conclusively that they stantive and of a record. are correctly made (y). The mode of proving judicial acts is a very different thing from the effect of those acts when proved, and the rules regulating the effect of res judicata would remain exactly as they are if the decisions of our tribunals could be established by oral testimony (z). In truth, the record of a court of justice consists of two parts, which may be denominated respectively the substantive and judicial portions. In the former-the substantive portion-the court records or attests what has been done by itself, or taken place to its knowledge. To this unerring verity is attributed by law, which will neither allow the record to be contradicted in these respects (a), nor the facts thus attested to be proved in any other way than by production of the record itself, or by copies verified in the prescribed manner (b)." Nemo potest contra recordum verificare per patriam (c)."-"Quod per recordum probatum, non debet esse negatum (d)." In the judicial portion, on the contrary, the court expresses its judgment or opinion on the matter before it; and this has only a conclusive effect between, and indeed in general is only evidence against, 212. (r) Part 2, ch. 3, sect. 1, §§ 211, acknowledge it, the statement of the judge is in that case final respecting his judgment." See also the Dimetian Code, book 2, ch. 5, $ 4. (y) Supra, ch. 1, sect. 2, subsect. 1, § 329. (z) The ancient laws of Wales required in general the testimony of two witnesses, but one of the exceptions to this rule was the case of a judge respecting his judgment. "If," says the Venedotian Code, bk. 2, c. 4, § 4, "one of two parties between whom a lawsuit has taken place, deny the judgment, and the other (a) Co. Litt. 260 a; Finch, Law, 231; Gilb. Ev. 7, 4th Ed.; 4 Co. 71 a; Litt. R. 155; Hetl. 107; 1 East, 355; 2 B. & Ad. 362. (b) See several instances collected, 1 Phill Ev. 441, 10th Ed. (c) 2 Inst. 380. (d) Branch, Max. 186. |