CONFESSION, crim. law, evidence. The voluntary declaration made by a
person who has committed a crime or misdemeanor, to another, of the agency or
participation which he had in the same.
2. When made without bias or improper influence, confessions are admissible
in evidence, as the highest and most satisfactory proof: because it is fairly
presumed that no man would make such a confession against himself, if the facts
confessed were not true but they are excluded, if liable to the of having been
3. Confessions should be received with great caution, as they are liable to
many objections. There is danger of error from the misapprehension of witnesses,
the misuse of words, the failure of a party to express his own meaning, the
prisoner being oppressed by his unfortunate situation, and influenced by hope,
fear, and sometimes a worse motive, to male an untrue confession. See the case
of the two Boorns in Greenl. Ev . 214, note 1; North American Review, vol. 10,
p. 418; 6 Carr. & P. 451; Joy on Confess. s. 14, p. 100; and see1 Chit. Cr.
4. A confession must be made voluntarily, by the party himself, to another
person. 1. It must be voluntary. A confession, forced from the mind by the
flattery of hope, or the torture of fear, comes in so questionable a shape, when
it is to be considered as evidence of guilt, that Lo credit ought to be given to
it. 1 Leach, 263. This is the principle, but what amounts to a promise or a
threat, is not so easily defined. Vide 2 East, P. C. 659; 2 Russ. on Cr. 644 4
Carr. & Payne, 387; S. C. 19 Eng. Com. L. Rep. 434; 1 Southard, R. 231 1
Wend. R. 625; 6 Wend. R. 268 5 Halst. R. 163 Mina's Trial, 10; 5 Rogers' Rec.
177 2 Overton, R. 86 1 Hayw. (N. C.) R, 482; 1 Carr. & Marsh. 584. But it
must be observed that a confession will be considered as voluntarily made,
although it was made after a promise of favor or threat of punishment, by a
person not in authority, over the prisoner. If, however, a person having such
authority over him be present at the time, and he express no dissent, evidence
of such confession cannot be given. 8 Car. & Payne, 733.
5. - 2. The confession must be made by the party to be affected by it. It is
evidence only against him. In case of a conspiracy, the acts of one conspirator
are the acts of all, while active in the progress of the conspiracy, but after
it is over, the confession of one as to the part he and others took in the
crime, is not evidence against any but himself. Phil. Ev. 76, 77; 2 Russ. on Cr.
6. - 3. The confession must be to another person. It may be made to a private
individual, or under examination before a magistrate. The whole of the
confession must be taken, together with whatever conversation took place at the
time of the confession. Roscoe's Ev. N. P. 36; 1 Dall. R. 240 Id. 392; 3 Halst.
27 5 .2 Penna. R. 27; 1 Rogers' Rec. 66; 3 Wheeler's C. C. 533; 2 Bailey's R.
569; 5 Rand. R. 701.
7. Confession, in another sense, is where a prisoner being arraigned for an
offence, confesses or admits the crmie with which he is charged, whereupon the
plea of guilty is entered. Com Dig. Indictment, K; Id. Justices, W 3; Arch. Cr.
Pl. 1 2 1; Harr. Dig. b. t.; 20 Am. Jur. 68; Joy on Confession.
8. Confessions are classed into judicial and extra judicial. Judicial
confessions are those made before a magistrate, or in court, in the due course
of legal proceedings; when made freely by the party, and with a full and perfect
knowledge of their nature and consequences, they are sufficient to found a
conviction. These confessions are such as are authorized by a statute, as to
take a preliminary examination in writing; or they are by putting in the plea of
guilty to an indictment. Extra judicial confessions are those wbich are made by
the part elsewhere than before a magistrate or in open court. 1 Greenl. Ev. 216.
See, generally, 3 Bouv. Inst. n. 3081-2.
CONFESSIONS AND AVOIDANCE, pleadings. Pleas in confession and
avoidance are those which admit the averments in the plaintiff Is declaration to
be true, and allege new facts which obviate and repel their legal effects.
2. These pleas are to be considered, first, with respect to their division.
Of pleas in confession and avoidance, some are distinguished (in reference to
their subjectmatter) as pleas in justification or excuse, others as pleas in
discharge. Com. Dig. Pleader, 3 M 12. The pleas of the former class, show some
justification or excuse of the matter charged in the declaration; of the latter,
some discharge or release of that matter. The effect of the former, therefore,
is to show that the plaintiff never had any right of action, because the act
charged was lawful; the effect of the latter, to show that though he had once a
right of action, it is discharged or released by some matter subsequent. Of
those in justification or excuse, the plea of son assault demesne is an example;
of those in discharge, a release. This division applies to pleas only; for
replications and other subsequent pleadings in confession and avoidance, are not
subject to such Classification;
3. Secondly, they are to be considered in respect to their form. As to their
form, the reader is referred to Stephens on Pleading, 72, 79, where forms are
given. In common with all pleadings whatever, which do not tender issue, they
always conclude with a verification and prayer of judgment.
4. Thirdly, with respect to the quality of these pleadings, it is a rule that
every pleading by way of confession and avoidance must give color. (q. v.) And
see, generally, 1 Chit. Pl. 599; 2 Chit. Pl, 644; Co. Litt. 282, b; Arch. Civ.
Pl. 215; Dane's Ab. Index, ii. t.; 3 Bouv. Inst. n. 2921, 293 1.
CONFESSOR, evid. A priest of some Christian sect, who receives an
account of the sins of his people, and undertakes to give them absolution of
2. The general rule on the subject of giving evidence of confidential
communications is, that the privilege is confined to counsel, solicitors, and
attorneys, and the interpreter between the counsel and the client. Vide
Confidential Communications. Contrary to this general rule, it has been decided
in New York, that a priest of the Roman Catholic denomination could not be
compelled to divulge secrets which he had received in auricular confession. 2
City Hall Rec. 80, n.; Joy on Conf. 4, p. 49. See Bouv. Inst. n. 3174 and
CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated
professedly by a client to his counsel, solicitor, or attorney, is considered as
a confidential communication.
2. This the latter is not permitted to divulge, for this is the privilege of
the client and not of the attorney.
3. The. rule is, in general, strictly confined to counsel, solicitors or
attorneys, except, indeed, the case of an interpreter between the counsel and
client, when the privilege rests upon the same grounds of necessity. 3 Wend. R.
339. In New York, contrary to this general rule, tinder the statute of that
state, it has been decided that information disclosed to a physician while
attending upon the defendant in his professional character, which information
was necessary to enable the witness to prescribe for his patient, was a
confidential communication which the witness need not have testified. about; and
in a case where such evidence had been received by the master, it was rejected.
4 Paige, R. 460.
4. As to the matter communicated, it extends to all cases where the party
applies for professional assistance. 6 Mad. R. 47; 14 Pick., R. 416. But the
privilege does not extend to extraneous or impertinent communications; 3 John.
Cas. 198; nor to information imparted to a counsellor in the character of a
friend, and not as counsel. 1 Caines' R. 157.
5. The cases in which communications to counsel have been holden not to be
privileged may be classed under the following heads: 1. When the communication
was made before the attorney was employed as such; 1 Vent. 197; 2 Atk. 524; 2.
after the attorney's employment has ceased 4 T. R. 431; 3. when the attorney was
consulted because he was an attorney, yet he refused to act as such, and was
therefore only applied to as a friend; 4 T. R. 753; 4. where a fact merely took
place in the presence of the attorney, Cowp. 846; 2 Ves. 189; 2 Curt. Eccl. R.
866; but see Str. 1122; 5. when the matter communicated was not in its nature
private, and could in no sense be termed the subject of a confidential
communication; 7 East,, R. 357; 2 B. & B. 176; 3 John' Cas. 198; 6. when the
things disclosed had no reference to professional employment, though disclosed
while the relation of attorney and client subsisted; Peake's R. 77; 7. when the
attorney made himself a subscribing witness; 10 Mod. 40 2 Curt. Eccl. R. 866; 3
8. when he was directed to plead the facts to wbich he is called to testify.
7 N. S. 179. See a well written article! on this subject in the American Jurist,
vol. xvii. p. 304. Vide, generally, Stark. Ev. h. t.; 1 Greenl. Ev. 236-247; 1
Peters' R. 356; 1 Root, 383; Whart. Dig. 275; Caryls' R. 88, 126, 143; Toth. R.
177; Peake's Cas. 77 2 Stark. Cas. 274; 4 Wash. C. C. R. 718; 11 Wheat. 280; 3
Yeates, R. 4; 4 Munf. R. 273 1 Porter, R. 433; Wright, R. 136; 13 John. R. 492.
As to a confession made to a catholic priest, see 2 N. Y. City Hall Rec. 77.
Vide 2 Ch. Pr. 18-21; Confessor.
CONFIRMATIO CHARTORUM. The name given to a statute passed during reign
of the English king Edward I. 25 Ed. I., c. 6. See Bac. Ab. Smuggling, B.
CONFIRMATION, contracts, conveyancing. 1 . A contract by which that
which was voidable, is made firm and unavoidable.
2. A species of conveyance.
2. - 1. When a contract has been entered into by a stranger without
authority, he in whose name it has been made may, by his own act, confirm it; or
if the contract be made by the party himself in an informal and voidable manner,
he may in a more formal manner confirm and render it valid; and in that event it
will take effect, as between the parties, from the original making. To make a
valid confirmation, the party must be apprised of, his rights, and where there
has been a fraud in the transaction, he must be award of it, and intend to
confirm his contract. Vide 1 Ball & Beatty, 353; 2 Scho. & Lef. 486; 12
Ves. 373; 1 Ves. Jr. 215; Newl. Contr. 496; 1 Atk. 301; 8 Watts. R. 280.
3. - 2. Lord Coke defines a confirmation of an estate, to be "a conveyance of
an estate or right in esse, whereby a voidable estate is made sure and
unavoidable; or where a particular estate is increased."
4. The first part of this definition may be illustrated by the following
case, put by Littleton, 516; where a person lets land to another for the term of
his life, who lets the same to another for forty years, by force of which he is
in possession; if the Iessor for life confirms the estate of the tenant for
years by deed, and afterwards the tenant for life dies, during the term; this
deed will operate as a confirmation of the term for years.. As to the latter
branch of the definition; whenever a confirmation operates by way of increasing
the estate, it is similar in every respect to a release that operates by way of
enlargement, for there must be privity of estate, and proper words of
limitation. The proper technical words of a confirmation are, ratify and
confirm; although it is usual and prudent to insert also the words given and
granted. Watk. Prin. Convey. cbap. vii.
5. A confirmation does not strengthen a void estate. Confirmatio est nulla,
ubi donum precedens est invalidum, et ubi donatio nulla est nec valebit
confirmatio. For confirmation may make a voidable or defeasible estate good, but
cannot operate on an estate void in law. Co. Litt. 295. The canon law agrees
with this rule, and hence the maxim , qui confirmat nihil dat. Toull. Dr. Civ.
Fr. liv. 3, t. 3, c. 6, n. 476. Vide Vin. Ab. h. t.; Com. Dig. 11. t.; Ayliffe's
Pand. *386; 1 Chit. Pr. 315; 3 Gill & John. 290; 3 Yerg. R. 405; Co. Litt.
295; Gilbert on Ten. 75; 1 Breese's R. 236; 9 Co. 142, a; 2 Bouv. Inst. n.
6. An infant is said to confirm his acts performed during infancy, when,
after coming to full age, be expressly approves of them, or does acts from which
such confirmation way be implied. Sec Ratification.
CONFIRMEE. He to whom a confirmation is made.
CONFIRMOR. He who makes a confirmation to another.
CONIFISCATION. The act by which the estate, goods or chattels of a
person who has been guilty of some crime, or who is a public enemy, is declared
to be forfeited for the benefit of the public treasury. Domat, Droit Public,
liv. 1, tit. 6, s. 2, n. 1. When property is forfeited as a punishment for the
commission of crime, it is usually called a forfeiture. 1 Bl. Com. 299.
2. It is a general rule that the property of the subjects of an enemy found
in the country may be appropriated by the government, without notice, unless
there be a treaty to the contrary. 1 Gallis. R. 563; 8 Dall. R. 199; N. Car.
Cas. 79. It has been frequently provided by treaty that foreign subjects should
be permitted to remain and continue their business, notwithstanding a rupture
between the governments, so long as they conducted themselves innocently and
when there was no such treaty, such a liberal permission has been announced in
the very declaration of war. Vattel, liv. 3, c. 4, 63. Sir Michael Poster,
(Discourses on High Treason, p. 185, 6, mentions several instances of such
declarations by the king of Great Britain; and he says that aliens were thereby
enabled to acquire personal chattels and to maintain actions for the recovery of
their personal rights, in as full a manner as alien friends. 1 Kent, Coin.
3. In the United States, the broad principle has been assumed "that war gives
to the sovereign full right to take the persons and confiscate the property of
the enemy, wherever found. The mitigations of this rigid rule, which the policy
of modern times has introduced into practice, will more or less affect the
exercise of this right, but cannot impair the right itself." 8 Cranch, 122-3.
Commercial nations have always considerable property in the possession of their
neighbors: and when war breaks out the question, what shall be done with enemies
property found in the country, is one rather of policy than of law, and is
properly addressed to the consideration of the legislature, and not to courts of
law. The strict right of confiscation exists in congress; and without a
legislative act authorizing the confiscation of enemies' property, it cannot be
condemned. 8 Cranch, 128, 129. See Chit. Law of Nations, c. 3; Marten's Law of
Nat. lib. 8, c. 3, s. 9; Burlamaqui, Princ. of Pol. Law, part 4, c. 7; Vattel,
liv. 3, c. 4, 63.
4. The claim of a right to confiscate debts, contracted by individuals in
time of peace, and which remain due to subjects of the enemy in time of war,
rests very much upon the same principles as that concerning the enemy's tangible
property, found in the country at the commencement of the war. But it is the
universal practice to forbear to seize and confiscate debts and credits. 1 Kent,
Com. 64, 5; vide 4 Cranch, R. 415 Charlt. 140; 2 Harr. & John. 101, 112, 471
6 Cranch, R. 286; 7 Conn. R. 428: 2 Tayl. R. 115; 1 Day, R. 4; Kirby, R. 228,
291 C. & N. 77, 492.
CONFLICT. The opposition or difference between two judicial
jurisdictions, when they both claim the right to decide a cause, or where they
both declare their incompetency. The first is called a positive conflict, and
the, latter a negative conflict.
CONFLICT OF JURISDICTION. The contest between two officers, who each
claim to have cognizance of a particular case.
CONFLICT OF LAWS. This phrase is used to signify that the laws of
different countries, on the subject-matter to be decided, are in opposition to
each other; or that certain laws of the same country are contradictory.
2. When this happens to be the case, it becomes necessary to decide which law
is to be obeyed. This subject has occupied the attention and talents of some of
the most learned jurists, and their labors are comprised in many volumes. A few
general rules have been adopted on this subject, which will here be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and jurisdiction
within its own territory. The laws of every state, therefore, affect and bind
directly all property, whether real or personal, within its territory; and all
persons who are resident within it, whether citizens or aliens, natives or
foreigners; and also all contracts made, and acts done within it. Vide Lex Loci
contractus; Henry, For. Law, part 1, c. 1, 1; Cowp. It. 208; 2 Hag. C. R. 383.
It is proper, however, to observe, that ambassadors and other public ministers,
while in the territory of the state to, which they are delegates, are exempt
from the local jurisdiction. Vide Ambassador. And the persons composing a
foreign army, or fleet, marching through, or stationed in the territory of
another state, with whom the foreign nation is in amity, are also exempt from
the civil and criminal jurisdiction of the place. Wheat. Intern. Law, part 2, c.
2, 10; Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above qualification, a state may
regulate the manner and circumstances, under which property, whether real or
personal, in possession or in action, within it shall be held, transmitted or
transferred, by sale, barter, or bequest, or recovered or enforced; the
condition, capacity, and state of all persons within it the validity of
contracts and other acts done there; the resulting rights and duties growing out
of these contracts and acts; and the remedies and modes of administering justice
in all cases. Story, Confl. of Laws, 18; Vattel, B. 2, c. 7, 84, 85; Wheat.
Intern. Law, part 1, c. 2, 5.
5. - 2. A state or nation cannot, by its laws, directly affect or bind
property out of its own territory, or persons not resident therein, whether they
are natural born or naturalized citizens or subjects, or others. This result
flows from the principle that each sovereignty is perfectly independent. 13
Mass. R. 4. To this general rule there appears to be an exception, which is
this, that a nation has a right to bind its own citizens or subjects by its own
laws in every place; but this exception is not to be adopted without some
qualification. Story, Confl. of Laws, 21; Wheat. Intern. Law, part 2, c. 2,
6. - 3. Whatever force and obligation the laws of one, country have in
another, depends upon the laws and municipal regulations of the latter; that is
to say, upon its own proper jurisprudence and polity, and upon its own express
or tacit consent. Huberus, lib. 1, t. 3, 2. When a statute, or the unwritten or
common law of the country forbids the recognition of the foreign law, the latter
is of no force whatever. When both are silent, then the question arises, which
of the conflicting laws is to have effect. Whether the one or the other shall be
the rule of decision must necessarily depend on a variety of circumstances,
which cannot be reduced to any certain rule. No nation will suffer the laws of
another to interfere with her own, to the injury of her own citizens; and
whether they do or not, must depend on the condition of the country in which the
law is sought to be enforced, the particular state of her legislation, her
policy, and the character of her institutions. 2 Mart. Lo. Rep. N. S. 606. In
the conflict of laws, it must often be a matter of doubt which should prevail;
and, whenever a doubt does exist, the court which decides, will prefer the law
of its own country to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide,
generally, Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of
Laws; Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de
Collisions Legum; Boullenois, Traits de Ia personnalite' et de la realite de
lois, coutumes et statuts, par forme d'observations; Boullenois, Dissertations
sur des questions qui naissent de la contrariete des lois, et des coutumes.
CONFRONTATION, crim. law, practice. The act by which a witness is
brought in the presence of the accused, so that the latter may object to him, if
he can, and the former may know and identify the accused, and maintain the truth
in his presence. No man can be a witness unless confronted with the accused,
except by consent.
CONFUSION. The concurrence of two qualities in the same subject, which
mutually destroy each other. Potli. Ob. P. 3, c. 5 3 Bl. Com. 405; Story Bailm.
CONFUSION OF GOODS. This takes place where the goods of two or more
persons become mixed together so that they cannot be separated. There is a
difference between confusion and commixtion; in the former it is impossible,
while in the latter it is possible, to make a separation. Bowy. Comm. 88.
2. When the confusion takes place by the mutual consent of the owners, they
have an interest in the mixture in proportion to their respective shares. 2 Bl.
Com. 405; 6 Hill, N. Y. Rep. 425. But if one willfully mixes his money, corn or
hay, with that of another man, without his approbattion or knowledge, the law,
to guard against fraud, gives the entire property without any account, to him
whose original dominion is invaded land endeavored to be rendered uncertain,
without his cosent. Ib.; and see 2 Johns. Ch. It. 62 2 Kent's Comm. 297.
3. There may be a case neither of consent nor of wilfulness, in the confusion
of goods; as where a bailee by negligence or unskilfuluess, or inadvertence,
mixes up his own goods of the same sort with those bailed; and there may be a
confusion arising from accident and unavoidable casualty. Now, in the latter
case of accidental intermixture, the rule, following the civil law, which deemed
the property to be held in common, might be adopted; and it would make no
difference whether the mixture produced a thing of the same sort or not; as, if
the wine of two persons were mixed by accident. See Dane's Abr. ch. 76, art. 5,
4. But in cases of mixture by unskilfulness, negligence, or inadvertence, the
true principle seems to be, that if a man having undertaken to keep the property
of another distinct from, mixes it with his own, the whole must, both at law and
in equity, be taken to be the property of the other, until the former puts the
subject under such circumstances, that it may be distinguished as satisfactorily
as it might have been before the unauthorized mixture on his part. 15 Ves. 432,
436, 439, 440; 2 John. Ch. R. 62; Story on Bailm. c. l, 40. And see 7 Mass. 11.
123; Dane's Abr. c. 76, art. 3, 15; Com. Dig. Pleader, 3 M 28; Bac. Ab.
Trespass, E 2; 2 Campb. 576; 2 Roll. 566, 1, 15 2 Bul. 323. 2 Cro. 366 , 2 Roll.
393; 5 East, 7; 21 Pick. R. 298.
CONFUSION OF RIGHTS, contracts. When the qualities of debtor and
creditor are united in the same person, there arises a confusion of rights,
which extinguishes the two credits; for instance, when a woman obliges marries
the obligor, the debt is extinguished. 1 Salk. 306; Cro. Car. 551; 1 Ld. Raym.
515; Ca. Ch. 21, 117. There is, however, an excepted case in relation to a bond
given by the husband to the wife; when it is given to the intended wife for a
provision to take effect after his death. 1 Ld. Raym. 515; 5 T. R. 381; Hut. 17
Hob. 216; Cro. Car. 376; 1 Salk. 326 Palm. 99; Carth. 512; Com. Dig. Baron &
Feme, D. A further exception is the case of a divorce. If one be bound in an
obligation to a feme sole and then marry her, and afterwards they are divorced,
she may sue her former husband on the obligation, notwithstanding, her action
was in suspense during the marriage. 26 H. VIII. 1.
2. Where a person possessed of an estate, becomes in a different right
entitled to a charge upon the estate; the charge is in general merged in the
estate, and does not revive in favor of the personal representative against the
heir; there are particular exceptions, as where the person in whom the interests
unite is a minor, and can therefore dispose of the personalty, but not of the
estate; but in the case of a lunatic the merger and confusion was ruled to have
taken place. 2 Ves. jun. 261. See Louis. Code, art. 801 to 808; 2 Ld. R. 527; 3
L. R. 552 4 L. R. 399, 488. Burge on Sur. Book 2, c. 11, p. 253.
CONGE'. A French word which signifies permission, and is understood in
that sense in law. Cunn. Diet. h. t. In the French maritime law, it is a species
of passport or permission to navigate, delivered by public authority. It is also
in the nature of a clearance. (q. v.) Bouch. Inst. n. 812; Repert. de la Jurisp.
du Notoriat, by Rolland de Villargues. Conge'.
CONGEABLE, Eng. law. This word is nearly obsolete. It is derived from
the French conge', permission, leave; it signifies that a thing is lawful or
lawfully done, or done with permission; as entry congeable, and the like. Litt.
CONGREGATION. A society of a number of persons who compose an
ecclesiastical body. In the ecclesiastical law this term is used to designate
certain bureaux at Rome, where ecclesiastical matters are attended to. In the
United States, by congregation is meant the members of a particular church, who
meet in one place worsbip. See 2 Russ. 120.