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Law of the Seal of Confession
In the "Decretum" of the Gratian who compiled the edicts of previous councils and the principles of Church law which he published about 1151, we find (secunda pars, dist. VI, c. II) the following declaration of the law as to the seal of confession: "Deponatur sacerdos qui peccata p nitentis publicare præsumit", i.e., "Let the priest who dares to make known the sins of his penitent be deposed", and he goes on to say that the violator of this law should be made a life-long, ignominious wanderer. Canon 21 of the Fourth Lateran Council (1215), binding on the whole Church, lays down the obligation of secrecy in the following words: "Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance" (see Hefele-Leclercq, "Hist. des Conciles" at the year 1215; also Mansi or Harduin, "Coll. conciliorum"). It is to be noted that neither this canon nor the law of the "Decretum" purports to enact for the first time the secrecy of confession. In a context cited further on the great fifteenth-century English canonist, Lyndwood, speaks of two reasons why a priest is bound to keep secret a confession, the first being on account of the sacrament because it is almost (quasi) of the essence of the sacrament to keep secret the confession. (Cf. also Jos. Mascardus, "De probationibus", Frankfort, 1703, arg. 378.)
At a much earlier date in Anglo-Saxon England we meet with several laws concerning confession. The laws of Edward the Elder (921-4), son of Alfred the Great, enjoin: "And if a man guilty of death (i.e., who has incurred the penalty of death) desires confession let it never be denied him". This injunction is repeated in the forty-fourth of the secular laws of King Canute (1017-35). These laws are prefaced thus: "This then is the secular law which by the counsel of my 'witan' I will that it be observed all over England". The laws of King Ethelred who reigned from 978 to 1016 declare (V, 22): "And let every Christian man do as is needful to him: let him strictly keep his Christianity and accustom himself frequently to shrift (i.e., confess): and fearlessly declare his sins". The very close connexion between the religion of the Anglo-Saxons and their laws, many of which are purely ordinances of religious observance enacted by the State, the repeated recognition of the supreme jurisdiction of the pope, and the various instances of the application in the Church in England of the laws of the Church in general lead conclusively to the opinion that the ecclesiastical law of the secrecy of confession was recognized by the law of the land in Anglo-Saxon England.
In the period between the Norman Conquest and the Reformation we find the law of the Church in general as to the inviolability of the seal of confession stringently enjoined by English councils. The Council of Durham (1220) declared as follows: "Ne sacerdos revelet confessionem-Nullus ira, vel odio, vel Ecclesiæ metu vel mortis in aliquo audeat revelare confessiones, signo vel verbo generali vel speciali ut dicendo 'Ego scio quales vos estis', sub periculo ordinis et beneficii, et si convictus fuerit, absque misericordia degradabitur", i.e., "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" (see Wilkins, "Concilia", I, 577, 595). The Provincial Council of Oxford, held in 1222, contains a similar canon, in which degradation is prescribed for any breach of the seal. We find the law, as laid down by the 21st canon of the Lateran Council, declared in the Acts of the Synod of Exeter in 1287 (Spelman, "Concilia", II, 357).
The fact that the laws of the Church were so emphatic on the subject, coupled with the fact that the Church was then the Church of the nation, affords good ground for inferring that the secular courts recognized the seal. The recognition of it would not have rested on any principle of immunity from disclosure of confidential communications made to clergymen. It would have rested on the fact that confession was a sacrament, on the fact of that necessity for it which the doctrine of the Church laid down, on the fact of the practice of it by both king and people, and on the fact that the practice was wholly a matter of spiritual discipline and one, moreover, in regard to which the Church had so definitely declared the law of absolute secrecy.
It is stated by some, among others by the Commissioners appointed to report upon the ecclesiastical courts in their report published in 1883, that the ecclesiastical courts in England did not regard themselves as bound by the rules of canon law framed by the Church outside England, by the various papal Decrees, Rescripts etc. But the Commissioners add that these courts paid great respect and attention to these Rules, Decrees etc. There seems to be so much weighty evidence against this view that it is difficult to accept it. Sir Frederick Pollock and Professor Maitland in their joint "History of English Law" (I, 94 and 95) say that the jus commune or common law of the universal Church was the law of the Church in England. In this connexion important material is contained in the "Provinciale" of Lyndwood (Oxford, 1679), the only great English canonist.
The "Provinciale" consists of the provincial constitutions of fourteen archbishops of Canterbury from Stephen Langton (d. 1228) to Henry Chichele (d. 1443). When Lyndwood was engaged on this compilation he was the principal official of the Archbishop of Canterbury: he had been, also, the prolocutor of the clergy in the Convocation of Canterbury. Professor Maitland, in his essays on "Roman Canon Law in the Church of England", expresses the opinion that the ecclesiastical courts in England regarded the general body of canon law, including the various papal Decrees and Rescripts and the commentaries of the various great writers, as their law, which they had to administer. In citing Lyndwood as providing us with strong ground for this opinion Professor Maitland aptly says: "At any rate he will state the law which he administers in the chief of all the English ecclesiastical courts".
In the "Provinciale" there is a constitution of Walter, Archbishop of Canterbury, apparently Walter Reynolds, transferred from the See of Worcester to the primatial see in 1313. The constitution begins with a prohibition to priests who have fallen into mortal sin to say Mass without first going to confession and warning them against imagining, as some believers erroneously do, that mortal sins are forgiven by the general confession made in the recitation of the Confiteor. It continues as follows: "Also let no priest dare from anger, hatred or fear, even of death, to disclose in any manner whatsoever, whether by sign, gesture or word, in general or in particular, anybody's confession. And if he shall be convicted of this he shall be deservedly, degraded, without hope of reconciliation".
Upon this constitution we have the following commentary by Lyndwood, occurring upon the word "Confession": "Supply 'Sacramental'. For in a Confession which is not sacramental, when, for instance, anyone in secret counsel reveals to some one else something which is not in the nature of sin, thus, suppose he reveals to a priest what he owes or what is owing to him, the priest is not to receive such a secret under the seal of Confession. And although through indiscretion he may have so received it, he is not to conceal it unless as a matter of counsel or secret. Wherefore, if the priest were ordered (compulsus) by a judge to tell the truth about such a debt, whenever a judge rightly inquires about the matter in order that he may know the truth, he is bound to do so, notwithstanding that he may have received the secret under the seal of Confession. And though he may have sworn to keep the matter secret, yet if afterwards that debt should be forfeited and the judge makes inquiry thereinto, if the priest is examined, he is bound to tell the truth, notwithstanding his sworn promise. For that oath is not binding on him, being an unlawful one and, thus, one not to be kept to the prejudice of another's right"; — he cites in support, St. Thomas Aquinas and Hostiensis — "but if some such debt is unjustly demanded by some tyrant, then though he is aware of the debt he ought to keep silence about it, or to change the subject or to reply sophistically ('respondere sophistice')" — he cites in support a commentary on Raymond de Pennaforte. — "But", Lyndwood continues, "what if the priest should know that matter by any other means than by Confession before the spiritual tribunal (in foro animæ)? It may be said that in as far as he knows it by any other means and he is ordered (compulsus) by a judge he may tell it, but not, of course, so as he heard it in confession: but let him say, as follows: 'I heard it thus or I saw it thus'. But let him always refrain as far as possible from speaking about the person so as to avoid scandal unless there be immediate necessity"; — he cites in support, Innocent IV, the glossary on Raymond de Pennaforte and Astisanus, a Friar Minor and writer of the fourteenth century.
Dealing with the priest's being found guilty of revealing a confession, he says: "But what if the person confessing consents to its being revealed, because, perchance, he calls the Confessor as a witness?" His answer is: "The doctors say that he may reveal it. But understand this in such way that the priest shall on no account reveal that which he knows only through confession (hoc tamen sic intellige quod sacerdos illud, quod scit solum per confessionem, nullo modo debet revelare). But the person who has confessed can intimate the matter to him in some other way which gives him leave to reveal it: and then he can tell, but, none the less, he ought to avoid scandal as much as possible. For he is bound to conceal the confession for two reasons, viz., on account of the sacrament, because it is almost of the essence of the sacrament to conceal the confession (quia quasi de essentia Sacramenti est celare Confessionem): likewise for reason of the scandal. The first is removed by the permission of the person confessing, but the second remains none the less: and, therefore, where scandal is to be feared, he ought not to make use of such permission. These are the pronouncement of Thomas and of Peter, according to what is noted by John in 'Summa Confessionis Rubrica de Confessione celanda, quæstio, 100', and with this pronouncement Johannes Andræus seems to agree. But I ask — what if confession is made of some sin about to be committed, but not yet committed? For instance, some one confesses that he wants to kill a man or to commit some other misdeed and he says that he is unable to resist the temptation. May the priest reveal it? Some say that he may reveal it to such a person as can be beneficial and not detrimental (tali qui potest prodesse et non obesse), but the doctors of theology in this case say in general (communiter) that he must not reveal it, but must keep it entirely secret (omnino celare). Henry de Segusio says, however, that whatever he can properly (bono modo) do for the prevention of the sin, he ought to do, but without mention of person and without betrayal of him who makes the confession. Others say that where the confession is one of a sin about to be committed it is not a real confession, and that to the person making it, a penance cannot be given (neo tali dari potest p nitentia) and for these reasons it may be revealed to those who can be beneficial and not detrimental as I have said before"; — he quotes Rudovicus and Guido of Baysio.
He states that Henry de Bohic "seems to adhere to the opinion of those theologians who say that even where future danger threatens, as, for instance, in the case of a heretic who proposes to corrupt the faith, or of a murder or of some other future temporal injury, the confessor ought to furnish a remedy (adhibere remedium) as far as he can without the revelation of the Confession, as, for instance, by moving those confessing to desist and otherwise using diligence to prevent the purpose of the person confessing. He may, too, tell the prelate to look rather diligently (diligentius) after his flock: provided that he does not say anything through which by word or gesture he might betray the person confessing. And this opinion I hold to be more correct and more in keeping with the law, which speaks plainly. But the other opinion which sanctions the revelation of the Confession to those who can be beneficial and not detrimental might hold good when the person confessing consents to it according to what I have said above".
Lyndwood then continues as follows: "One may deduce from the premises that if a judge maliciously presses and inquires of a priest whether he knows anything of such a fact, which he has, perhaps, heard in confession, if he cannot, by changing the subject or by some other means, turn aside the unjust judge, he can answer that he knows nothing thenceforth (inde), because it is secretly understood (subintelligitur) 'as man': or he can say simply 'I know nothing through confession' because it is secretly understood 'nothing to be revealed to you'." Upon the word "generaliter" there is the following comment: "And so truly, not at all (i.e. the confession is not to be in any way revealed) when the confession has been made to the priest not as judge but as the minister of God. For if anything have been revealed to him as judge he is not bound to conceal it"; — he cites Hostiensis in support. it is to be observed that there is nowhere an exception in respect of the crime of treason. His commentary on the duty of not disclosing the confession of a crime proposed to be committed tends to show that he would not have recognized any such exception.
A manual, called "Pupilla oculi" (see Gasquet, "Pre-Reformation Essays"), which appears to have been mainly designed for practical use among the clergy, was compiled towards the end of the fourteenth century by John de Burgh, a professor of theology and Chancellor of the University of Cambridge. According to Mr. Edward Badeley who wrote in 1865 a most able pamphlet on the privilege of the seal of confession entitled "The Privilege of Religious Confessions in English Courts of Justice", this manual, to which Professor Maitland also refers, enjoyed great popularity. Its counsels to confessors who may happen to be witnesses in a court of justice are sufficiently like those already cited from Lyndwood's "Provinciale" to render it unnecessary to quote them.
Lyndwood thus affords us, as Professor Maitland points out, even by the fact of citing these various authorities, very strong evidence that the general canon law was the law of the English ecclesiastical courts also. It may be remarked here that before the Reformation ecclesiastical canons were made by the authority of the synod with the sanction of the metropolitan. No crown sanction was required for their validity as canons. But the particular law in question was not one demanding observance in ecclesiastical courts merely, but in the civil and criminal courts of the land and on all occasions. It is an established principle of English law that no such rule or law could have become legally binding in England without being allowed and accepted there. The accuracy of the principle itself seems unquestionable and probably the only difference of opinion will arise as to the causes which might lead to the allowance and acceptance in England of rules of canon law. Adopting merely the basis that only such decrees and such rules of canon law as had been in fact received and accepted in England were binding there, we have evidence that the aforesaid Fourth Lateran Council, as to, at least, two of its decrees, viz., as to pluralities and as to clandestine marriages, was received and accepted in England. The judgments of the Courts in the case of Evans v. Ascuithe, tried in the third year of Charles I and reported in Palmer's "Reports", is based upon the validity of the former decree in England and it cites two cases, decided in the reign of Edward III, showing that the law declared by that decree had been acted upon by the civil courts of the land in that reign. The judgment of the Court of King's Bench delivered by Lord Hardwicke, in the case of Middleton v. Croft [(1736) cases temp. Ld. Hardwicke, 326], though not expressly saying that the second decree was accepted and allowed in England, by its reasoning shows us that such was the case.
Remarkable evidence of the acceptance of the decrees of the Council of Lateran in England is brought to our notice by Professor Maitland in his introduction to his edition of "Pleas of the Crown for the County of Gloucester for the year 1221". Speaking of trial by ordeal he says: "In 1215 the Lateran Council condemned the ordeal and at the beginning of Henry's (the Third) reign the relation of England to Rome was such that this decree of the Church was at once, and of course, obeyed. As already said, the next eyre (i.e. Circuit of judges for trials in the various counties), and a very general eyre it was, took place in the winter of 1218-9. The judges had already started on their journeys when an order of the king in council was sent round to them. It was dated 26th January, 1219, and is of such great moment in the history of our law, and, seemingly, so little known, that its substance shall be stated — 'When you started on your eyre it was as yet undetermined what should be done with persons accused of crime, the Church having forbidden the ordeal'." The order, thereupon, proceeds to suggest certain rules for the judges to follow.
In the Anglican Church
In the "Codex Juris Ecclesiastici Anglicani" (London, 1761) by Dr. Edmund Gibson, chaplain to the Archbishop of Canterbury and afterwards Bishop of London, is found a compilation of the various canons and constitutions which had been made for the Church in England at different times. In his introduction to that work, in which he cites the statute 25 Hen. VIII, c. 21, concerning Peterspence and the exercise of papal jurisdiction in England, the author, in touching upon canon law, says as follows: "This is another branch of the Laws of the Church of England and is partly Foreign and partly Domestick. The Foreign is what we commonly call the Body of Canon Law consisting of the Councils, Decrees of Popes and the like: which obtained in England by virtue of their own Authority (in like manner as they did in other parts of the Western Church) till the time of the Reformation: and from that time have continued upon the foot of Consent, Usage, and Custom". He cites 25 Hen. VIII, c. 21.
He goes on to say that before the Reformation, their not being repugnant to the laws of the land was the condition of these laws being received here. But he also cites commentaries of John de Athon on certain constitutions of Otho and Othobon, which the commentator says were not received here. Dr. Gibson cites a constitution of Simon Sudbury, Archbishop of Canterbury (1378), ordering confessions to be heard three times a year, and that whoever would not confess at least once a year should be prevented from entering a church while living and should not receive Christian burial when dead: and this order was to be published frequently in the churches.
That the particular decree as to the secrecy of the seal of confession was locally re-enacted by English councils and synods has already been shown. Its importance, whether as enacted by the Universal Council of the Lateran or re-enacted by the English councils, seems to have been only confirmatory of something already well established in the Church or, at most, as definitely declaring the punishment for the violation of the secrecy. That the decree was allowed and accepted by the civil courts of England can only be a matter for deduction. There is no direct proof of it, as there is, for instance, in the cases of these two other decrees, which are cited only as some evidence of the probability of the acceptance of this particular decree. Before enumerating other and chief grounds of this probability it is well to remember that if the law of the secrecy of confession was already well established in the Church it would be very unlikely that we should find evidence of any direct notice of the decree as in the cases of the two others.
But there seems to be absolutely no evidence which could cause one to doubt that a rule declared by the Church as to a matter essentially bound up with a sacrament, which formed part of the necessary religious practice of the nation, would have been unhesitatingly accepted by the nation by reason of the mere fact that the universal Church had declared it. As there are such strong grounds for holding that the rule only solemnly declares an obligation upon priests which the nation had always believed to lie upon them, one would not expect to find any overt acceptance of the rule. Again, it is important to remember that the rule itself concerned priests mainly and that, undoubtedly, they were bound by it, and we see from the English canons re-enacting it the severe penalties to which they became liable in the ecclesiastical courts in England for any breach of it. Therefore, the disregard of it by the civil courts would have caused a perpetual conflict between these two tribunals even where the former was only exercising the jurisdiction which rightfully belonged to it, besides the fact that it would have so sharply conflicted with the religion practised by the nation.
The question of jurisdiction over clerks transgressing ecclesiastical law was entirely in the hands of the Church. The "Report of the Ecclesiastical Courts Commission, 1883", to which we have already alluded, tells us that "ecclesiastical jurisdiction in its widest sense covered all the ground of ecclesiastical relations, persons, properties, rights and remedies: clergymen in all their relations". But the jurisdiction of the ecclesiastical courts extended even much further, including as it did the province of marriage, and that of probate coupled with the devolution of movable property in cases of intestacy. Within this latter province there would have been, perhaps, more than in any other province within the jurisdiction of any court, occasion for desiring to know something that might have transpired under the seal of confession. Pollock and Maitland's "History of the Laws of England" tells us that intestacy was regarded with an abhorrence somewhat akin to that with which a death without sacramental confession was regarded. This may probably be a considerable overstatement, but it serves to show that this province was, at least, as much calculated as any other to raise the question of the seal of confession.
Again, let us remember that in some districts, such as Durham and Chester, bishops exercised temporal jurisdiction. Even in the King's Courts, as Lord Coke points out, oftentimes the judges were priests, before Innocent IV prohibited priests from acting as judges. Pollock and Maitland's "History of the Laws of England" gives us as a specimen date, that of 16 July, 1195, on which there sat in the Court of King's Bench an archbishop, three bishops, and three archdeacons. The same book tells us that "it is by popish clergymen that our English common law is converted from a rude mass of customs into an articulate system, and when the 'popish clergymen' yielding at length to the pope's commands no longer sit as the principal justices of the king's court the golden age of the common law is over". It is highly improbable that at a period when systematization of the common law was proceeding at the hands of "popish clergymen" a rule compelling the disclosure of confession would have grown up. Finally, it is worthy of some observation that there is not a single reported case, textbook or commentary, during the whole pre-Reformation period which contains any suggestion that the laws of evidence did not respect the seal of confession. These grounds seem sufficient to lead to the conclusion that before the Reformation the seal was regarded as sacred by the common law of England. Sir Robert Phillimore in his work on (Anglican) ecclesiastical law makes a definite statement to this effect.
The only recorded statute of the English Parliament which deals with the right of confession is Statute I of the 9th year of Edward II, c. 10. The statute is called "Articuli Cleri", and the part referred to deals with the rights of offenders who abjure the realm and, fleeing to a church for refuge, claim privilege of sanctuary. After stating that such persons are to be allowed to have the necessaries of life and that they are to be at liberty to go out of the church to relieve nature, the statute continues as follows: "Placet etiam Domino Regi, ut latrones vel appellatores quandocunque voluerint possint sacerdotibus sua facinora confiteri: sed caveant confessores ne erronice hujusmodi appellatores informent". This law, long obsolete, was repealed in 1863, and is translated in the collections of the Statutes (Statutes of the Realm, I, 173), and in Pickering's edition of "Statutes at Large" (Cambridge, 1782): "And the King's Pleasure is, that Thieves or Appellors (whensoever they will) may confess their Offences unto Priests: but let the Confessors beware that they do not erroneously inform such Appellors".
Sir Edward Coke, the great common lawyer who was Chief Justice under James I, in the 2nd Institute, c. X, says: "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 the branch declareth the common law, that the privilege of confession extendeth only to felonies" . . . "for by the common law", he states further on, "a man indited of high treason could not have the benefit of clergy nor any clergyman privilege of confession to conceale high treason", it is not quite clear from his comment, but it seems likely, that Sir Edward Coke has interpreted the concluding caution to the confessors as a recognition of the seal of confession, and, if so, it would seem that he has wrongly interpreted it, because the translation of the word "informare" as "to inform against" would appear to be incorrect. The correct interpretation of the clause would seem to be as one of warning to the confessors not to inform these offenders, when they are admitted to hear their confessions, of what is going on outside.
Therefore, except in so far as it shows that the right of freely confessing was reserved to these offenders, the statute, in its actual words, contains no declaration of the privilege of the seal of confession. But Sir Edward Coke's comment is important as being a statement by him of the existence of the privilege at common law in respect of felonies. For the exclusion of it from cases of high treason there appears to be no foundation except Sir Edward Coke's own view as quoted, because the two cases which he cites in support of that view nowise support it.
The first of these cases is that of Friar John Randolf, cited from the Rolls of Parliament, 7 Henry V, who was the confessor of Queen Joan, widow of Henry IV. There is nothing in that record from which Sir Edward Coke's averment that the queen's conspiracy had been proved by the disclosure of her confession to Friar Randolf can be deduced. The words are "Tant p relation & confession d'une frere John Randolf de l'ordre des Freres Menours come p autres evidences creables". The word "confession is, clearly, there used in its primary sense of an admission. The reports of the matter in Holinshed's "Chronicles" and in Stow's "Chronicle of England" support this view as they state that Randolf was imprisoned, Holinshed saying that "it was reported that he had conspired with the quaene by sorcerie and necromancie to destroie the King", while Stow says that he had counselled the queen to her crime. Thus, evidently, when he was imprisoned on the charge of the conspiracy with the queen he confessed it.
The second case is one which occurred after the Reformation. It is the trial of the Jesuit, Fr. Garnet, on the charge of conspiracy in the Gunpowder Plot. It is reported in the records of the state trials. There is not only no mention of any decision by the court that the privilege of confession did not extend to the concealment of high treason, but there is not even the faintest indication of any opinion to that effect by any member of the court. There was no question of the giving of evidence by a witness before a court of justice of matter revealed to him in confession. The issue being whether Fr. Garnet was a party to the conspiracy, the question of his cognizance and, if cognizant, of his non-disclosure of it was essential. It was not disputed that he had heard the particulars of the plot from Greenwell, one of the conspirators, but the defence was that he had heard them only in confession, though he had previously received a general indication of the plot from another of the conspirators, Catesby. Not only was the defence not rejected at once by the court as being had in law, but, to infer from the arguments put to the prisoner upon it by certain members of the court, it was treated with a seriousness which seems surprising in a post-Reformation period, and, especially, at a moment of such strong anti-Catholic feeling.
Lord Salisbury, a member of the court, asked Fr. Garnet if there must not be confession and contrition before the absolution, and, having received an affirmative answer, he observed to him that Greenwell had shown no penitence, or intention to desist. "Hereby", he said, "it appears that either Greenwell told you out of confession, and then there would be no secrecy: or, if it were in confession, he professed no penitency, and therefore you could not absolve him." He further said to him that after Greenwell had told him in particular what Catesby meant, and he then called to mind what Catesby had previously told him (Fr. Garnet) in general, he might have disclosed it out of his general knowledge from Catesby. He further asked him why, after Greenwell's confession, when Catesby wished to tell him the particulars, he had refused to hear him, to which Fr. Garnet answered that he was loth to hear any more. Sir Edward Coke, for the prosecution, addressed to the court six arguments on the subject, the first being that this particular confession was not sacramental, the fifth being that Fr. Garnet had learned of the conspiracy from Catesby extra confessionem, and the last being that "by the common law, howsoever it (the confession) were, it being a crimen l s majestatis, he ought to have disclosed it". There is no indication of any adoption by the court of this last proposition. The confession in question was only an item in the evidence brought forward. One infers from the report that the court were not satisfied with the defence, as a fact, of the confession, and, also, that they considered the charge to be proved from the other evidence.
In a paper on the law relating to confession in criminal cases by Mr. Charles H. Hopwood, the writer admits the probability of the recognition of the seal before the Reformation. He says that Garnet's case even as cited by Lord Coke could hardly be in point, inasmuch as Garnet was not called as a witness in the Gunpowder treason trial, and that the obligation of the seal of confession, if put forward by Garnet at all, was only done so by way of his own defence that he was not a conspirator, but merely knew whatever he knew through hearing the confession of the others, and that Sir E. Coke appears almost to confess and avoid this plea by retorting that the confession was one of crime not yet executed. Sir Edward Coke in his commentary on the "Articuli Cleri", c. 10, interpreting the wording of it as he does, says that it declares the common law. His supporting this statement by the citation of a then recent case, together with his own argument, already mentioned, in that case, affords strong evidence that this great common lawyer was of opinion that even in his post-Reformation period the common law of England recognized the privilege of confession, except in the case of treason. If that is his view, as seems, at least, highly probable, it is profoundly interesting as the opinion of a very distinguished lawyer and a fierce champion of Protestantism.
It is important, however, to bear in mind that by the penal laws Catholicism was a proscribed religion. The practice of it was subjected to severe penal statutes and priests performing its rites were rigorously penalized. Statute law displaces the common law if the latter is inconsistent with the provisions of the statute. It is true that there is no statute which expressly declares that religious confession shall not be privileged from disclosure in the witness-box. But so many statutes were passed against the practice of the Catholic religion that it would seem inconsistent with them to hold that such a privilege still prevailed at common law.
Confession and the Book of Common Prayer
In the first half of the nineteenth century nearly all these laws were repealed, most of them having been for some time inoperative. There has never been any legislation one way or the other about the disclosure in evidence of religious confession. If the privilege had ceased to be part of the common law legislation would he necessary to re-establish it. If it survived in the common law it can only have done so through the allowance of it in the case of the Protestant Church of England. If there was any such allowance it might be argued that by the sanction now given by the State to the practice by Catholics of their religion the same allowance to them, too, is to be implied. In order to consider whether any allowance of the privilege of religious confession endured in the Protestant Church of England, it is necessary to consider whether confession itself endured there and, if so, to what extent.
It is material to recollect that the whole system of spiritual jurisdiction and the administration of canon law in England received a paralyzing blow with the advent of the Reformation. The Submission of the Clergy Act in 1533 (25 Henry VIII, c. 19) deprived the laws of the universal Church, under the headship of the pope, of all the validity in England which was based on the mere ground of their being Decrees of the universal Church. That statute appointed a commission of thirty-two persons, sixteen lay and sixteen ecclesiastical, to inquire into the various ecclesiastical constitutions and canons, and it enacted that such of them as, in the opinion of the commissioners or the majority of them, ought to be abolished, should be abolished, and such of them as, in their opinion, ought to stand, should stand, the king's assent being first obtained; but until they should have so determined, any canons, or constitutions which were not contrariant to the laws, statutes, or customs of the realm or were not to the damage of the king's prerogative, were still to be used and executed as before. The statute was repealed in the reign of Queen Mary, but revived in that of Elizabeth; however, the commission never completed its labours and never arrived at any determination. The same direction is further pursued by other statutes in the same reign. Thus the preamble to 25 Henry VIII, c. 21, states that the realm of England is subject only to such laws as have been made within the kingdom or such as, by the sufferance of the sovereign, the people of the realm have taken by their own consent to be used among them, and to the observance of which they have bound themselves by long use and custom, which sufferance, consent, and custom are the basis of the force thereof.
In an Act of the same reign relating to marriage, the prelude runs thus: "Whereas the usurped power of the bishop of Rome hath always intangled and troubled the meer jurisdiction and regal power of this realm of England". There is, also, the Act 37 Henry VIII, c. 17, which declares that "by the word of God" the king is "supreme head in earth of the church of England", having power and authority to exercise all manner of ecclesiastical jurisdiction. Thus, in the reign of Henry VIII, the whole basis of canon law — the jurisdiction of the universal Church with the pope for its head — was removed, and for such canon law and ecclesiastical jurisdiction as remained a new basis was constructed, viz, that of the consent of the English nation and the royal sufferance. Professor Maitland observes that these various statutes impose upon the ecclesiastical courts "not merely new law, but a new theory about the old law". "Their decisions", he says, "were dictated to them by acts of Parliament — and that is a very new phenomenon." "In this reign", he says, "we come upon a sudden catastrophe in the history of the spiritual courts."
This reign is the introduction of the Protestant Reformation into England inasmuch as it nationalizes the Church, makes it dependent upon the State, separates it from the authority of the pope, and constitutes the king supreme head. Still we find the king sternly checking the growth of Protestant doctrine and by the Statute of the Six Articles, passed in the thirty-first year of his reign, we find it declared that "auricular confession is expedient and necessary to be retained and continued, used and frequented in the Church of God", and it was thereby made a felony to assert a contrary opinion. Therefore, with the exception, conceivably, of its exclusion in cases deemed to offend against the king's prerogative which was then carried to great lengths, there is no reason to think that the privilege of the seal would not have been observed in that reign. But under Edward VI and his Calvinistic uncle, the Lord Protector Somerset, the Church of the State rapidly became Protestant in its doctrine also, and in matters other than that of its headship. In the first year of his reign (1547), we find a mention of confession in a royal injunction issued to all his subjects, clergy and laity. The ninth of the royal injunctions issued that year runs as follows: "That they (i.e. parsons, vicars and other curates) shall in confessions every Lent examine every person that cometh to confession to them, whether they can recite the articles of their faith, and the Ten Commandments in English, and hear them say the same particularly".
In the First Prayer Book of Edward VI, published by parliamentary authority (1548), the Communion service prescribes a general confession. The service for the visitation of the sick contains a mention of confession and a form of absolution in the following words: "Here shall the sick person make a special confession, if he feel his conscience troubled with any weighty matter: After which confession the Priest shall absolve him after this sorte: Our Lord Jesus Christ who hath left power to his Church to absolve all sinners which truly repent and believe in him, of his great mercy forgive thee thine offences; and by his authority committed to me, I absolve thee from all thy sins, in the name of the father and of the son and of the holy ghost". This Prayer Book goes on immediately to say: "and the same form of absolution shall be used in all private confessions.
The Second Prayer Book, which was published in 1552, contains the same form as the First Prayer Book in the service for the visitation of the sick, but it omits all mention of private confession. It also prescribes the general confession in the service before the Communion, as to which last named, however, it expressly denies transubstantiation or consubstantiation. This denial was omitted in the Third Prayer Book and is omitted from the Prayer Book as finally settled in 1662. The service for the visitation of the sick remains the same in that final version with the exception that, instead of saying "Here the sick person shall make a special confession", it says: "shall be moved to make a special confession of his sins , and that, after the direction to absolve him, there are the words "(if he humbly and heartily desire it)". The mention of private confession is omitted.
We receive an indication of the nature of the confession spoken of from the exhortation to the Communion service, prescribed in all the versions of the Prayer Book, which directs the minister to exhort the congregation in the following words: "And if there be any of you whose conscience is troubled and grieved in anything, lacking comfort or counsel let him come to me or to some other discreet and learned priest, taught in the law of God, and confess and open his sin and grief secretly, that he may receive such ghostly counsel, advice and comfort that his conscience may be relieved and that of us (as of the ministers of God and of the Church) he may receive comfort and absolution to the satisfaction of his mind, and avoiding of all scruple and doubtfulness: requiring such as shall be satisfied with a general confession not to be offended with them that do use, to their further satisfying, the auricular and secret confession to the Priest: nor those also which think needful or convenient for the quietness of their own consciences particularly to open their sins to the priest to be offended with them that are satisfied with their humble confession to God and the general confession to the church". The latter part, from "requiring, etc.", was omitted in the Second and subsequent Prayer Books. In the ordination service prescribed in the Prayer Book the bishop is to speak the following words: "Receive the holy ghost for the office and work of a Priest in the Church of God now committed to thee by the Imposition of our hands. Whose sins thou dost forgive they are forgiven; and whose sins thou dost retain they are retained".
The two "Books of the Homilies" are official documents of the Protestant Church of England. The publication of homilies was much encouraged by Archbishop Cranmer and other leaders of the Reformation in England and by the sovereign, King Edward VI. They were designed for the use of the clergy in their parish churches, mainly in order to put doctrine before the people in plain language. The first "Book of the Homilies" appeared in 1547. The reading of the homilies or one of them every Sunday in parish churches was enjoined by royal authority. They subsequently received sanction from the mention made of them in the Communion service contained in the Prayer Book. It is evident that it was intended that further homilies should be written later.
The second "Book of the Homilies" was published by the authority of Queen Elizabeth and was appointed to be read in every parish church. It contains a homily on Repentance, the second part of which, definitely and with argument, condemns the doctrine of the necessity of auricular confession. The condemnation concludes as follows: "I do not say but that, if any do find themselves troubled in conscience, they may repair to their learned curate or pastor, or to some other godly learned man, and shew the trouble and doubt of their conscience to them, that they may receive at their hand the comfortable salve of God's word: but it is against the true Christian liberty, that any man should be bound to the numbering of his sins, as it hath been used heretofore in the time of blindness and ignorance". We find, on the other hand, on the revival of Catholicism under Edward's successor, Queen Mary, some special mentions of confession which appear to indicate that its practice was regarded as one of the tests of orthodoxy. In articles of visitation of his diocese by Bonner, Bishop of London, in 1554, we find the following inquiry under Art. XX: "Whether any person have refused or contemned to receive the sacrament of the altar, or to be confessed and receive at the priest's hand absolution according to the laudable custom of this realm?" Among similar articles set forth in 1557 by Cardinal Pole for the visitation of his Archdiocese of Canterbury, we find the following: "Touching the Lay People. III. Item, Whether they do contemn or despise by any manner of means any other of the sacraments, rites or ceremonies of the church, or do refuse or deny auricular confession?"
This may be said to constitute the official documentary evidence of the doctrine and discipline of the Church of England with regard to confession. It was not ranked as a sacrament, and the exercise of it was to be optional, the only instance with regard to which we find any imperative words used being that of a dying person who should feel his conscience troubled with "any weighty matter". It may be that these last words are a literal translation of the Latin "gravi materia" frequently used, and so, perhaps, may denote, approximately, grievous or mortal sin. But even as to this occasion we find, as already pointed out, the words "shall make" altered to "shall be moved to make". It was not part of the doctrine of the Church of England as it continued established under Edward VI and, subsequently, from the accession of Elizabeth onwards, that auricular confession was necessary for forgiveness. The Statute of the Six Articles was repealed in the first year of Edward VI. The opinion and belief in the Protestant Church of England during that and the succeeding centuries were opposed to such a doctrine.
Anglican Canonists and Theologians
Bishop Hooker, the Caroline divine, was opposed to obligatory confession. In the afore-mentioned "Codex Juris Ecclesiastici Anglicani" of Dr. Gibson, the writer characterizes as follows the Sacraments of Penance and Extreme Unction: "Title XXI. The Two Popish Sacraments of Penance and Extreme Unction". In the "Parergon Juris Canonici Anglicani", published by Dr. John Ayliffe (London, 1726), we find in the introduction (p. XL) this passage: "Tho' several Titles of the Canon Law are out of use with us here in England by reason of the gross Idolatry they contain in them, as the Title of the Authority and Use of the Pall, the Title of the Mass, the Title of Relicts, and the Worship of the Saints, the Title of Monks and Regular Canons, the Title of keeping the Eucharist and Chrism, and such other of the like Quality: Yet these are retained in the general". lit is true that he does not include confession amongst these titles, but, on the other hand, he makes no reference to any laws as to it in the Church of England. Moreover, in the chapter on public penance (p. 420) we find a statement that penance is distinguished by the Romanists and the canon law as (1) external which includes confession to a priest, and that it is this first kind which they make a sacrament for the interest and advantage of the priesthood as it consists in the absolution of the priest. "But", Dr. Ayliffe continues, "we Protestants who deny Penance to be a Sacrament say that it consists in sorrow, confessing to God in Foro Conscientiæ."
In Wheatley's "Rational Illustration of the Book of Common Prayer, being the substance of everything liturgical in Bishop Sparrow, Mr. L'Estrange, Dr. Comber, Dr. Nichols, and all former Ritualists, Commentators or Others upon the same Subject, collected and reduced into one continued and regular method and interspersed all along with new observations", we find (p. 374) the following comment on the words contained in the service for the visitation of the sick, which have been set out above: "i.e. I suppose if he has committed any sin, for which the censure of the Church ought to be inflicted or else if he is perplexed concerning the nature or some nice circumstances of his crime". On the words of absolution we find this marginal note: "Seems only to respect the censures of the Church", which means, apparently, that it is not the imparting of a Divine forgiveness for the actual sin.
The only occasion in which the concealment of a confession is imposed as a duty by the Protestant Church of England seems to be in the canons which were made in 1603. Canon 113 deals with the suppression of evil deeds by the reporting thereof by the persons concerned with the administration of each parish. It provides for the presentment to the Ordinary by parsons, vicars, or curates of the crimes and iniquities committed in the parish. It concludes with the following reservation: "Provided always, That if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him: we do not in any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same) under pain of irregularity".
There are three points to be observed in the canon: First, the confession there referred to, from the likeness of the words used to those used in such parts of the liturgy as mention confession, which have been noticed above, seems to be the confession mentioned in the liturgy, viz, such form of confession as survived in the Protestant Church of England. Second, there is an express exemption from the duty of secrecy where such duty should conflict with one imposed by the civil power under a certain penalty. There does not appear to have been, in fact, at that time any law which made the mere concealment of any crime, including treason, an offence punishable with forfeiture of life. But this in no way affects the principle laid down in the canon. The exemption is a marked departure from the pre-Reformation ecclesiastical law on the subject as shown by the pre-Reformation English canons and otherwise. Third, even apart from the exemption, the language used to declare the injunction bears a marked contrast to the language used to declare the secrecy in pre-Reformation days. It is evident that secrecy is not quasi of the essence of this confession, as Lyndwood had declared it to be of the confession of which he wrote. The confession as to whose secrecy the Fourth Lateran Council in behalf of the Church in the whole world, and the English Councils of Durham, Oxford, etc., in behalf of the Church in England, had made stringent decrees seems to have been banished by the Reformation.
It results from the Submission of the Clergy Act, mentioned above, that a canon is void if it contravenes common or statute law, and, accordingly, it becomes void if at any subsequent period a statute inconsistent with it is passed, as was held in the recent case of R. v. Dibdin (Law Reports, 1910, Probate, 57). It does not seem that there was in 1603 any statute to which canon 113 was necessarily contrariant or that any has been passed since. When we have to decide whether or not it conflicted with the common law it must be remembered that many items of the common law must have disappeared or have undergone considerable alteration by such a change in the whole national life as that which was caused by the Reformation. Rules of canon law and certain precepts of the Church had, undoubtedly, formed some of the stones in the growing fabric of English common law. So, where the practices to which these rules or precepts applied were repudiated or considerably modified one must expect a corresponding cessation or modification of the common law relating thereto. Of many such instances confession would be one. Even the Established Church of England did not claim for this confession which she sanctioned absolute inviolability, as the canon which has just been quoted shows.
The Civil Courts
It was decided by the Court of King's Bench in a judgment delivered by Lord Hardwicke in the case of Middleton v. Croft, already referred to, that the canons of 1603, though binding on the clergy, do not bind the laity. The reason for this is that though canons, in order to be valid must, as these did, receive the royal sanction, they are made in convocation, and, thus, without representation of the laity. Accordingly, if this canon infringed a right enjoyed by the lay subjects of the realm it would, seemingly, in as far as it did so, not be valid against them. Thus, a canon purporting to forbid clergymen from appearing as witnesses in any action which a subject might lawfully bring in the king's courts would, seemingly, be void as against the subject. The fundamental principle is that a witness shall give in evidence the whole truth that he knows concerning the matter in dispute and that the parties to the dispute are entitled to have that evidence given. The rules which regulate and which, in certain exceptional cases, restrict the giving of evidence are the growth of practice and of the rulings of judges, occurring mainly within the last two to three centuries (see the judgment of Parke B. in the case of The Queen v. Ryle, 9 M. & W., 244). The rule which excludes evidence, the requiring of which would be contrary to public policy, as may occur in relation to the conduct of the business of a state department, is an instance. In view of the absolute repudiation by the State of the jurisdiction of the Catholic Church and in view of the abandonment of the Sacrament of Confession as practised before the Reformation, one may fairly presume that, from the date of that event, confession would no longer have been regarded as a ground from motives of public policy, entitling to an exemption from the principle of the disclosure of all the truth known about the cause, were it to be civil or criminal.
Important Cases and Decisions
We know for certain that in the gradual growth of the rules of evidence as laid down within the last two to three centuries by the judges of the King's Courts the cases of privilege from exemption from disclosure are few, and that the only private relationship which the courts recognized as enjoying the privilege was that between client and attorney or counsel. We find an express instance of the recognition of privilege in the case of that particular relationship in the judgment of the Court of King's Bench in 1663 in the case of Sparke v. Middleton (I Keble's Reports, 505). In an anonymous case reported in Skinner's "Reports", 404, in 1693, Lord Chief Justice Holt said that the privilege would extend to a law scrivener, because he would be counsel to a man with whom he would advise. But he is reported to have added "otherwise of a Gentleman, Parson etc.". Mr. Badeley in his pamphlet, already referred to, maintains that Lord Holt did not mean this last assertion to be general and exclusive. This may conceivably be so. It is recorded in another anonymous case, which we find in Lord Raymond's "Reports", p. 733, that the same judge refused to admit the evidence of a person entrusted by both the parties to the cause to make and keep secret a bargain; and he added that "(by him) a trustee should not be a witness in order to betray the trust". But the last decision cannot be said to be in agreement with the law of evidence as generally laid down.
In the case of Vaillant v. Dodemead [(1743) 2 Atkyn's "Reports", 524] Lord Hardwicke L.C. held that to claim the privilege as clerk in court or agent to a party was too general, "for", he said, "no persons are privileged from being examined in such cases but persons of the profession, as counsel, solicitor, or attorney". But we find the privilege even in the cases of the relationship of client to attorney or counsel restricted to the subsistence of that relationship when professionally created by the employment by the client of the attorney or counsel as such and that it is not extended to confidential communications taking place between a person and a friend whom he confidentially consults because he happens to be a solicitor (Wilson v. Rastall, 1792, 4 Term Reports, 753). In the Duchess of Kingston's case [(1796), 20 State Trials, p. 572] it was held that a physician or surgeon was compellable to give evidence of matters which might have come to his knowledge in the course of his professional relationship to a party to a suit. The great commentator on the laws of England, Mr. Justice Blackstone, confines the privilege to communications made for the purpose of a legal cause. He specifies the persons who are exempted as "counsel, attorney or other person intrusted with the secrets of the cause". Mr. Serjeant Peake in his work on the law of evidence expressly excludes clergymen or priests or physicians.
At the same time one may observe in the judgment in the case of Wilson v. Rastall as in some other cases the indication of a potentiality of an expansion of this side of the law of evidence. "I have always understood", Lord Kenyon said, giving judgment, "that the privilege of a client only extends to the case of the attorney for him: Though whether or not it ought to be extended farther, I am happy to think may be inquired into in this cause." He meant that the matter would not be definitely concluded as an appeal would be possible. In the case of Du Barré v. Livette (Peake's "Nisi Prius Cases", 108) the same judge, Lord Kenyon, logically held that the privilege would extend so as to preclude an interpreter between a solicitor and a foreign client from giving evidence of what had passed. In the report of that case we find that the plaintiff's counsel informed the court that Mr. Justice Buller had recently tried on circuit a case of the King v. Sparkes: that the prisoner, in that case, was a "papist" and that it came out at the trial that he had made a confession of his crime (a capital one) to a Protestant clergyman: that this confession was received in evidence by the judge: and that the prisoner was convicted and executed. It seems obvious from what we are told about the two persons concerned that neither of them could have regarded the confession as sacramental. Lord Kenyon said that he would have paused before admitting such evidence. He added "But this case differs from it. The Popish religion is now no longer known to the law of this country, nor was it necessary for the prisoner to make that confession to aid him in his defence. But the relation between attorney and client is as old as the law itself".
The case of Butler v. Moore was decided in Ireland by Sir Michael Smith, Master of the Rolls, in 1802. It is reported in MacNally's "Rules of Evidence", p. 253. It concerned the will of Lord Dunboyne, who had abandoned the Catholic Faith: he was alleged, however, to have returned to it and, thereby, to have come within the penal law which deprived "lapsed papists" of the power to make a will. The circumstances under which he abandoned his Faith and those under which he is generally said to have returned to it are as follows: He was Bishop of Cork at the time of the death of the previous peer. Anxious to be able to transmit in a direct line the peerage and the headship of an ancient house, the new Lord Dunboyne appealed to Rome for a dispensation from his vow of celibacy. It was refused him, and, thereupon, he joined the Protestant Church and married, but had no issue. It is said that one day while he was driving along a country road a woman rushed out of a cottage, calling for a priest for some one who lay dangerously ill inside. Lord Dunboyne answered her "I am a priest", and, entering the cottage, he heard the dying person's confession. From a certain moment, said to have been this, till the end of his life he conformed again, at least, privately, to the Catholic Faith. His will was disputed by his sister, Mrs. Catherine O'Brien Butler, on the ground that, having reconformed to Catholicism, he was incapable of making one. In order to prove that fact she administered interrogatories to Father Gahan, a priest who had attended Lord Dunboyne shortly before his death, to the following effect: What religion did Lord Dunboyne profess, first, from 1783 to 1792? and, second, at the time of his death, and a short time before? As to the first question, Fr. Gahan answered that Lord Dunboyne professed the Protestant religion. To the second question he demurred on the ground that his knowledge (if any) arose from a confidential communication made to him in the exercise of his clerical functions, which the principles of his religion forbade him to disclose, nor was he bound by the law of the land to answer. The Master of the Rolls held, after argument by counsel, that there was no privilege, and he overruled the demurrer. Fr. Gahan adhered to his refusal to answer and he was adjudged guilty of contempt of court and was imprisoned.
In 1823 in the case of the King v. Redford, which was tried before Best C.J. on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession. In 1828 in the case of Broad v. Pitt (3 C. & P., 518), where the privilege of communications to an attorney was under discussion, the same judge said: "The privilege does not apply to clergymen since the decision the other day in the case of Gilham. I, for one, will never compel a clergyman to disclose communications made to him by a prisoner: but if he chooses to disclose them, I shall receive them in evidence". As a fact, the case of R. v. Gilham (1 Moo. C. C., 186), tried in 1828, did not decide nor did it even turn on the question of privilege of confession to a clergyman. It turned on the question of the admissibility in evidence against a prisoner of an acknowledgment of his guilt which had been induced by the ministrations and words of the Protestant prison chaplain. The acknowledgment of the murder with which he was charged was made by the prisoner to the jailer and, subsequently, to the authorities; he appears to have made no acknowledgment of it to the chaplain himself. In the case of the King v. Shaw [(1834) 6 C. & P., 392], a witness who had taken an oath not to reveal a statement which had been made to him by the prisoner, was ordered to reveal it. "Everybody", said Mr. Justice Patteson, who tried the case, "except counsel and attorneys, is compellable to reveal what they may have heard." In the case of Greenlaw v. King [(1838) 1 Beav., p. 145], Lord Langdale M.R. said: "The cases of privilege are confined to solicitors and their clients; and stewards, parents, medical attendants, clergymen, and persons in the most closely confidential relation, are bound to disclose communications made to them".
The foundation of the rule protecting communications to attorneys and counsel was stated by Lord Brougham, Lord Chancellor, in an exhaustive judgment on the subject in the case of Greenough v. Gaskell [(1833) 1 Mylne & Keen, p. 103], to be the necessity of having the aid of men skilled in jurisprudence for the purpose of the administration of justice. It was not, he said, on account of any particular importance which the law attributed to the business of people in the legal profession or of any particular disposition to afford them protection, though it was not easy to see why a like privilege was refused to others, especially to medical advisers. A like opinion was expressed by Turner V.C. in the case of Russell v. Jackson [ (1851) 9 Hare, p. 391] in the following words: "It is evident that the rule which protects from disclosure confidential communications, between solicitor and client does not rest simply upon the confidence reposed by the client in the solicitor, for there is no such rule in other cases, in which, at least, equal confidence is reposed: in the cases, for instance, of the medical adviser and the patient, and of the clergyman and the prisoner". Moreover, in the relationship of lawyer and client the privilege was confined to communications between them made in respect of the particular litigation and it did not extend to communications generally passing between a client and his lawyer professionally. But the principle has developed so as now to include all professional communications passing in a professional capacity, and to the information and belief founded thereon: Minet v. Morgan [(1873) 8 Chancery Appeals, p. 366]; Lyell v. Kennedy [(1883) 9 Appeal Cases, p. 90]. In the former case Lord Selborne, Lord Chancellor, said: "There can be no doubt that the law of the Court as to this class of cases did not at once reach a broad and reasonable footing, but reached it by successive steps, founded upon that respect for principle which usually leads the Court aright".
In 1853 in the case of the Queen v. Griffin, a Church of England workhouse chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in a spiritual capacity. The judge, Mr. Baron Alderson, strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, "I do not lay this down as an absolute rule: but I think such evidence ought not to be given".
In 1865 the question attracted public attention in England upon the prosecution of Constance Kent for a murder committed five years previously. She made a statement confessing her guilt to a Church of England clergyman, the Rev. Arthur Wagner, and she expressed to him her resolution to give herself up to justice. He assisted her in carrying out this resolution and he gave evidence of this statement before the magistrates. But he prefaced his evidence by a declaration that he must withhold any further information on the ground that it had been received under the seal of "sacramental confession". He was but slightly pressed by the magistrates, the fact of the matter being that the prisoner was not defending the charge. At the Assizes, Constance Kent pleaded guilty and her plea was accepted so that Mr. Wagner was not again called. The position which Mr. Wagner assumed before the magistrates caused much public debate in the press. There was considerable expression of public indignation that it should have been suggested that Mr. Wagner could have any right as against the State to withhold evidence on the ground which he had put forward. The indignation seems to have been largely directed against the assumption that sacramental confession was known to the Church of England. Questions were asked in both Houses of Parliament. In the House of Lords, Lord Westbury, Lord Chancellor, in reply to the Marquis of Westmeath, stated that "there can be no doubt that in a suit or criminal proceeding a clergyman of the Church of England is not privileged so as to decline to answer a question which is put to him for the purposes of justice, on the ground that his answer would reveal something that he had known in confession. He is compelled to answer such a question, and the law of England does not even extend the privilege of refusing to answer to Roman Catholic clergymen in dealing with a person of their own persuasion". He stated that it appeared that an order for commitment had in fact been made against Mr. Wagner. If that is so, it was not enforced.
On the same occasion Lord Chelmsford, a previous Lord Chancellor, stated that the law was clear that Mr. Wagner had no privilege at all to withhold facts which came under his knowledge in confession. Lord Westmeath said that there had been two recent cases, one being the case of a priest in Scotland, who, on refusing to give evidence, had been committed to prison. As to this case Lord Westmeath stated that, upon an application for the priest's release being made to the Home Secretary, Sir George Grey, the latter had replied that if he were to remit the sentence without an admission of error on the part of the Catholic priest and without an assurance on his part that he would not again in a similar case adopt the same course, he (the Home Secretary) would be giving a sanction to the assumption of a privilege by ministers of every denomination which, he was advised, they could not claim.
Lord Westbury's statement in the House of Lords drew a protest from Dr. Phillpotts, the then Bishop of Exeter, who wrote him a letter strongly maintaining the privilege which had been claimed by Mr. Wagner. The bishop argued that the canon law on the subject had been accepted without gainsaying or opposition from any temporal court, that it had been confirmed by the Book of Common Prayer in the service for the visitation of the sick, and, thus, sanctioned by the Act of Uniformity. From the bishop's reply to Lord Westbury's answer to his letter it is apparent that Lord Westbury had expressed the opinion that the 113th canon of 1603 simply meant that the "clergyman must not mero motu and voluntarily and without legal obligation reveal what is communicated to him in confession". He appears, also, to have expressed an opinion that the public was not at the time in a temper to bear any alteration of the rule compelling the disclosure of such evidence.
The second case referred to by Lord Westmeath was that of the Queen v. Hay, tried before Mr. Justice Hill at the Durham Assizes in 1860 (2 Foster and Finlaison, p. 4). The prosecutor had been robbed of his watch by the prisoner and another man. A police inspector had subsequently received the watch from Fr. Kelly, a priest in the neighbourhood, upon his calling at the presbytery. Fr. Kelly was summoned as a witness by the prosecutor, and as the oath was about to be administered to him he objected to its form — not, he explained, to that part of it which required him to tell the truth and nothing but the truth, "but as a minister of the Catholic Church", he said, "I object to that part which states that I shall tell the whole truth". The judge answered him: "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'". The judge told him that he must be sworn. When asked by counsel from whom he had received the watch Fr. Kelly replied: "I received it in connexion with the confessional". The judge said: "You are not asked at present to disclose anything stated to you in the confessional: you are asked a simple fact — from whom did you receive that watch which you gave to the policeman?". Fr. Kelly protested: "The reply to a question would implicate the person who gave me the watch, therefore I cannot answer it. If I answered it my suspension for life would be a necessary consequence. I should be violating the laws of the Church as well as the natural laws". The judge said: "On the ground that I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose: but you are asked to disclose from whom you received the stolen property on the 25th December last. Do you answer or do you not?". Fr. Kelly replied: "I really cannot, my Lord", and he was forthwith committed into custody.
It may be fairly deduced from Mr. Justice Hill's words that he would not have required Fr. Kelly to disclose any statement which had been made to him in the confessional, and, in this sense, his words may be said to give some support to the Catholic claim for privilege for sacramental confession. But we need not wonder that he was not ready to extend the protection to the act of restitution, though, even in the eyes of non-Catholics, it ought, in all logic, to have been entitled to the same secrecy, in view of the circumstances under which, obviously, it was made.
The laws of evidence except where they have been prescribed or declared by statute are the growth of the rulings of judges and of practice which has been followed. Thus, their origin affords an opportunity for development in accordance with the development of society itself and of its principles and opinions. We have seen this development in regard to the extension of the privilege, accorded from the beginning to communications passing between counsel and attorneys and their clients. It is conceivable that this spirit of development may spread itself over other provinces as to which no privilege shall theretofore have been recognized. It is possible that it may be even now ready to declare the privilege in the case of religious confession when that case next arises. Some indication of this possibility is found in the case of Ruthven v. De Bonn, which was tried before Mr. Justice Ridley and a jury in 1901. The defendant, a Catholic priest, having been asked a general question as to the nature of the matters mentioned in sacramental confession, was told by the judge that he was not bound to answer it. The writer was present in court at the hearing of the trial and, as far as his recollection serves him, he understood Mr. Justice Ridley to say something to the effect that the judges had come to this mind in the matter, but the report of the trial in "The Times" of 8 February, 1901, does not contain such a statement. The learned judge said to the plaintiff, who was conducting his case in person: "You are not entitled to ask what questions priests ask in the confessional or the answers given.
If upon a case involving the question of the privilege next arising a ruling in favour of it should be made, this would be probably rather as a growth of the conception of public policy and not as a matter of traditional common law. There is a case in 1893 (Normanshaw v. Normanshaw, 69 L. T., 468) which was heard before the then President of the Divorce Court, Sir Francis Jeune, which shows a kind of middle attitude with regard to the question. A witness, a vicar of the Church of England, objected to giving evidence of a conversation which he had had with the respondent upon her being sent to see him after her misconduct. Upon the witness objecting to disclose the conversation, the President said that each case of confidential communication should be dealt with on its own merits and that he saw no reason why this particular converstaion should not be disclosed and he ordered the witness to disclose it. In summing up he remarked that it was not to be supposed for a single moment that a clergyman had any right to withhold evidence from a court of law, and that it was a principle of our jurisprudence that justice should prevail, and that no unrecognized privilege could be allowed to stand in the way of it. But it is to be observed that there had been no allegation of a religous confession. It is probable from the manner in which the President expressed himself that if a sacramental confession had been alleged he would not have ordered its disclosure. On the other hand, in 1881, in the case of Wheeler v. Le Marchant (17 Ch. D., 681), where the production of certain correspondence between the defendants' solicitors and their surveyors, passing before action brought, was in question, the Court of Appeal held that the principle which protected communications between client and legal advisers did not extend to the communications between solicitors and other persons not made for the purposes of litigation. The following words were spoken in his judgment by Sir George Jessel M.R., a judge of great eminence: "In the first place, the principle protecting confidential communications is of a very limited character. . . . There are many communications, which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. . . . Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important than his life or his fortune, are not protected".
The tenth edition of Taylor, "On Evidence", edited by Hume-Williams, contains a note by the editor saying that he has advised magistrates that they are bound not to suffer statements to be withheld from evidence on the ground of their having been made by way of religious confession. But the editor appears to base the obligation of their disclosure on the decision in the case of R. v. Gilham, which, as said above, does not seem to be to the effect attributed to it. In Sir Robert Phillimore's work on "The Ecclesiastical Law of the Church of England" we find the following statement: "It seems to me at least not improbable that, when this question is again raised in an English court of justice, that court will decide it in favour of the inviolability of the confession, and expound the law so as to make it in harmony with that of almost every other Christian state". In Best's work on "The Law of Evidence" we find not only an expression of opinion that the privilege should be accorded but one to the effect that there is ground for holding that the right to the privilege is existent.
As regards the policy of exempting from disclosure statements made to clergymen by way of religious confession, opinion is not unanimous. Jeremy Bentham, writing in the early years of the nineteenth century, devotes a whole chapter to serious, considered argument that Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries. The chapter is headed: "Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper". The following are extracts of some of the most remarkable passages in it. "Among the cases", it begins, "in which the exclusion of evidence presents itself as expedient, the case of Catholic confession possesses a special claim to notice. In a political state, in which this most extensively adopted modification of the Christian religion is established upon a footing either of equality or preference, the neccssity of the exclusion demanded will probably appear too imperious to admit of dispute. In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the Catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods. Any reasons which plead in favour of the exclusion in this case will, a fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established."
He refers the reasons in favour of the exclusion to two heads:
Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession. "The advantage gained by the coercion", he says, "gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. . . . The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice. 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. 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 wellknown 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." These words are all the more remarkable when we call to mind what a strenuous opponent the author of them was to the privilege allowed to communications between legal advisers and their clients. It is noticeable that, in dealing with this question, the Catholic religion alone presents itself to the mind of Jeremy Bentham as being concerned with it. The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession. It must be admitted by the most ordinary impartial observer that Catholics are in fact upon a different and much stronger footing in regard to the matter than any other religious body, because they are the only large religious organization, in Western Europe and America, of whose discipline, in the continuation of long tradition and practice, confession forms a vital constituent part. It is noticeable that British judges and lawyers, where denying the existence of the privilege, have stated that it cannot be allowed even in the case of Catholics, thereby recognizing, in the light of obvious fact, that their claim is not only most forcible but is peculiar.
As it has been sought to indicate, one can hardly contend as a legal sequence that the removal of the proscription of Catholicism by the State has revived the privilege in favour of confession, the existence of which in pro-Reformation days has been sought here to be proved. But there are cogent arguments, on the ground of public policy and of the desirability of candid consistency in state conduct, in favour of the seal being respected. The Catholic religion is now not only tolerated in England and Ireland, but it is sanctioned by the State, which appoints as its own officers Catholic chaplains to the army, the navy, and to the prisons. Moreover, the State knows full well that confession is an essential part of Catholic practice and that the inviolability of the seal is an essential part of confession; the three main objects for which these chaplains are required are that they may hear the confessions of the persons in their charge, say Mass in their presence, and communicate them. To say that, despite these facts, the Catholic chaplain of a remand prison might be required, under pain of committal, to disclose, on the prisoner's trial, a sacramental confession which the latter had made, would seem like laying a trap for both the priest and the prisoner. No one having the least acquaintance with trials as conducted by English or Irish judges to-day can think of such an event except as being in the remotest degree improbable. Yet, if the confession should have been made voluntarily, without the inducement of any hope or fear by any person possessed, in some way, of authority, the same legal principles would seem to apply to it as would apply to such a confession made by any other penitent or in any other place. If it should become an established principle, whether by judicial ruling or by legislation, that religious confession should be immune from disclosure in courts of justice, it is highly probable that the principle will embrace any denomination in which a confession in the nature of a religious exercise shall have occurred. One is disposed to believe that such a principle would accord with the bulk of modern feeling towards the question.
The legal position as to the seal of confession is the same with regard to Ireland as it is with regard to England.
In Scottish law there does not appear to be any exact or clearly defined principle protecting from disclosure confessions to clergymen. But there appears to be a recognized leaning towards such protection, at least, to a limited extent. It is to be observed that none of the works referred to below mention sacramental confession as practised by Catholics, which, perhaps, would be regarded by the courts as having a peculiar claim to protection. In the case of Anderson and Marshall, which is cited by Hume as having taken place in 1728, Hume tells us that Anderson had made a confession in the presence of a minister and two bailies. Though Anderson, he tells us, had sent for the minister in order to dlsburden his conscience to him, evidence of the confession was received at the trial of Anderson. Hume comments unfavourably upon the reception in evidence of this confession, on the ground that the admission of such evidence tends to deprive a prisoner of the relief of confession to a person in a spiritual capacity. But he says further on (p. 350) that there is no privilege on the part of "surgeons, physicians or clergymen with respect even to circumstances of a secret nature, which have been revealed to them in the course of their duty", He thinks that probably no clergyman will ever be called upon to disclose any confession made to him by a prisoner under arrest. He goes on to give a hypothetical case of a person pursuing a course of crime and then, being suddenly seized with compunction, making a confession to the clergyman of his parish, and, finally, relapsing and completing his crime. He thinks that in such a case, on the crime being committed, the clergyman might, on the ground of public expediency, be required to give evidence of this confession, made at the previous stage, as being important in the history of the crime. But he cites no authority.
Tait, in his "Treatise on the Law of Evidence in Scotland" (p. 396), having dealt with the disqualification of a witness by having been agent or advocate of the opposite party, says: "There is only one other situation in which the law allows the exclusion of evidence on the ground of confidence, and that chiefly in reference to proceedings of a criminal nature as where a prisoner in custody and preparing for his trial, has confessed his crime to a clergyman in order to obtain spiritual advice and comfort". But Tait's authority seems to be derived from Hume, who is cited above. Alison, in his work on the "Practice of the Criminal Law of Scotland", having cited Anderson and Marshall's case, makes the following statement: "And there is nothing exceptionable in the admission of such testimony, if he heard the confession tanquam quilibet; that is, if he heard it as an ordinary acquaintance or bystander, and not in the confidence and under the seal of a religious duty. But our law utterly disowns any attempt to make a clergyman of any religious persuasion whatever divulge any confessions made to him in the course of religious visits, or for the sake of spiritual consolation; as subversive of the great object of punishment, the reformation and improvement of the offender".
In India the British law as to the seal of confession is the same as in England
Apart from any express legislation or from any local law to the contrary prevailing, the law on the subject in the British Colonies and throughout the British Empire would be the same as that which prevails in England. In Cape Colony the law is the same as in England. The legal adviser is privileged: there is no ordinance or statute extending the privilege to the priest. Of the Commonwealth of Australia, Victoria, by the Evidence Act, 1890, S. 55, has enacted that "No clergyman of any church or religious denomination shall, without consent of the person making the confession, divulge in any suit, action or proceeding whether civil or criminal any confession made to him in his professional character according to the usage of the church or religious denomination to which he belongs". In New Zealand, by the Evidence Act, 1908, S. 8 (1), "a minister shall not divulge in any proceeding any confession made to him, in his professional character, except with the consent of the person who made such confession.
For the Dominion of Canada the law on the subject is the same as in England. There is no Dominion legislation upon the subject. But the Province of Quebec, by Art. 275 of its Code of Civil Procedure, has enacted that a witness "cannot be compelled to declare what has been revealed to him confidentially in his professional character as religious or legal adviser". But even apart from this express legislation the privilege of the seal has been transmitted, in Quebec, from the old French law of the province, the continuance of the liberty of the Catholic religion having been guaranteed (see Gill v. Bouchard, 1896, R. J., 5 Q. B., 138).
In the case of Massé v. Robillard [(1880) 10 Revue légale, p. 527] — which turned upon a political election — a witness was asked, with regard to his voting, whether he had been to confession to a certain priest and for what reason that priest had refused to hear his confession. The defendant to the suit objected to the question as being a violation of the privilege of confession. It was argued on the other side that the privilege did not extend so as to prohibit a penitent from revealing what had been said by the priest. The court upheld the objection, deciding that a witness cannot be asked what a priest said to him during confession and that the disclosure of what has been said during confession is not permitted.
In the case of Gill v. Bouchard, referred to above, it was held by the Court of Queen's Bench, on an appeal from a judge of the Superior Court, that a priest, who was being sued for damages for having (it was alleged) induced an apprentice to leave his master, could not be compelled to disclose what he had said to the apprentice on the subject during the latter's confession, even though his advice to the apprentice was the alleged unlawful act for which he was being sued. It was held that the priest was protected by Art. 275 of the Code of Civil Procedure, and that, in the absence of evidence to the contrary, the priest's statement that whatever he had said was said while he was fulfilling his functions as religious adviser must be final and conclusive. Thus, unless the person seeking to get in evidence what has passed in the confessional can prove that such matter has not passed in the performance of the practice of confession or in the fulfilment by the priest of his duty as confessor or religious adviser, the priest's statement that if anything has passed, it has passed in the fulfilment of such duty or in the course of confession is conclusive, and any question upon the matter is entirely precluded by that statement. In this particular case the priest had, at the trial, answered: "If I spoke to the child about the matter it was in the confessional". (The boy's father told the court that the boy had said that drinking and bad words took place at his master's workshop.) The priest was then asked whether "he had counselled or advised the apprentice to leave his master's service, either in the confessional or elsewhere?". The priest objected to answering this question and contended that he was not legally bound to do so. The judge of the Superior Court held, on the ground that the question was one as to whether the priest had or had not committed a legal wrong, that he was not exempt from the obligation of answering it, and as the priest continued to refuse, he was declared guilty of contempt of court and ordered to be imprisoned. This decision, as already mentioned, was, after an exhaustive argument of the question, reversed on appeal by the Court of Queen's Bench, which declared the law to be as stated above.
In Newfoundland, by the Consolidated Statutes, 1872, C. 23, s. 11, which section has since been incorporated in the Consolidated Statutes, 1892, it is enacted that "a clergyman or priest shall not be compellable to give evidence as to any confession made to him in his professional character".
UNITED STATES OF AMERICA
The position of the question at common law is the same in America as it is in England. In the case of the Commonwealth v. Drake [(1818) 15 Mass., 154], we find it argued on the one side that a confession of a criminal offence made penitentially by a member of a certain Church to other members, in accordance with the discipline of that Church, may not be given in evidence. These others were called as witnesses. The solicitor-general, on the other hand, argued that religious confession was not protected from disclosure. It is true that he, also, took the point that in this case "the confession was not to the church nor required by any known ecclesiastical rule", but was made voluntarily to friends and neighbours. The court held that the evidence was rightly received. On the other hand, in the case of People v. Phillips (1 Southwest L. J., 90), in the year 1813, the Court of General Sessions in New York, in a decision rendered by De Witt Clinton, recognized the privilege, and 10 Dec., 1828 it was embodied in the law of the State of New York. This was directly owing to the trial of Rev. Anthony Kohlmann, S.J., who refused to reveal in court information received under the seal of confession. (See KOHLMANN, ANTHONY; and Sampson, "The Catholic Question in America", New York, 1813, appendix). There is also Smith's case reported in the "New York City Hall Recorder", vol. II, p.77, which, apparently, was decided in the same way. But these few reported cases, as to the first of which we have no report of the grounds of the decision, and the two latter of which come from inferior courts, are hardly of sufficient weight to help to a real determination of the question one way or the other. If the question had ever had occasion to call for the considered judgment of a court of appeal, there is no doubt that the answer to it at common law would have been deduced from its history in England.
But some of the states have made the privilege a matter of statute law. In Arizona (Revised Statutes, 1910, S. 2535, par. 5) a clergyman or priest cannot without the consent of the person making the confession be examined as to any confession made to him in his professional character in the course of discipline enjoined by the Church to which he belongs. The same provision is enacted in the Penal Code, S. 1111, with the prelude "There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate".
The Territory of Alaska (C. C. P., 1900, S. 1037) and the State of Oregon (annot. C. C. P., 1892, S. 712, par. 3) have provisions almost identically the same as that prevailing in Arizona with the substitution of the words "shall not" for "cannot". The States of Colorado (Annotated Statutes, 1891, S. 4824), California (Code of Civil Procedure, 1872, S. 1881, par. 3), Idaho (Revised Stat., 1887, S. 5958), Minnesota (Gen. Stat., 1894, S. 5662), Montana. (Code of Civil Proc, 1895, S. 3163 (3), Nevada (Gen. Stat., 1885, S. 3405), Washington (Code and Stat. 1897, S. 5994), Utah (Rev. Stat., 1898, S. 3414) North Dakota (Rev. Codes, 1895, S. 5703 (3), and South Dakota (Stat., 1899, S. 6544) have statutory provisions similar to that prevailing in Arizona.
In California the provision was amended by the Code Commission, 1901, by the addition to S. 1881 of the words: "Nor as to any information obtained by him from a person about to make such confession and received in the course of preparation for such confession". The Commission also added a section (1882) to the effect that when a person who has made such a confession testifies, without objection on his part, to it or to any part of it, the clergyman to whom it was made may be examined fully as to it in the same action or proceeding: and that nothing contained in S. 1882 is to affect the right of the court to admit evidence of such confession when no objection is reasonably interposed thereto, or when the court finds as an inference from proper evidence that the consent has been expressly or impliedly given. But all the amendments of the Commission have been held to be void on formal grounds (Lewis v. Dunne, 134 Cal., 291). By the Statutes of the State of Arkansas, 1894 (S. 2918): "No minister of the gospel or priest of any denomination shall be compelled to testify in relation to any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination". By the Revised Statutes of the State of Indiana, 1897 (S. 507), certain classes of persons are enumerated who are "not to be competent witnesses", which classes include "clergymen as to confessions or admissions made to them in course of discipline enjoined by their respective churches". Similarly, in the State of Missouri (Revised Statutes, 1899, S. 4659), "a minister of the gospel or priest of any denomination, concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination," is to be incompetent to testify.
The States of Kansas [General Statutes, 1901, S. 4771 (5)], and Oklahoma (Statutes, 1893, S. 335) have laws by which "a clergyman or priest, concerning any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession" is to be incompetent as a witness. In the State of Iowa it is enacted (Code, 1897, S. 4608) that no "minister of the gospel or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline". But the prohibition is not to apply to cases where the party in whose favour it is made waives the right. The State of Nebraska (Compiled Statutes, 1899, S. S. 5907 and 5908) has like provisions. It has, also, (S. 5902) a similar enactment to that in force in Kansas, which has been mentioned above. In the State of Kentucky it is enacted (C. C. P., 1895, 606 (5) that a clergyman or priest shall not testify to any confession made to him in his professional character in the course of discipline enjoined by the Church to which he belongs, without the consent of the person confessing. In Ohio (Annotated Revised Statutes, 1898, S. 5241) and in Wyoming (Revised Statutes, 1887, S. 2589) there are almost identical enactments, save for the final qualification as to consent, which is omitted. North Dakota (Revised Codes, 1895, S. 5704) and South Dakota (Statutes 1899, S. 6545) have provisions that if a person offers himself as a witness that is to be deemed a consent to the examination also of a clergyman or priest on the same subject within the meaning of the enactment. Colorado (Annotated Statutes, 1891, S. 4825) and Oklahoma have like provisions as to implied consent.
In the State of Michigan it is enacted (Compiled Laws, 1897, S. 10, 180) that "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". In the State of New York it is enacted (Code of Civil Procedure, 1877, S. 833) that "a clergyman or other minister of any religion shall not be allowed to disclose a confession made to him in his professional character in the course of discipline enjoined by the rules or practice of the religious body to which he belongs". By S. 836 the protection is to apply unless the person who has confessed expressly waives it upon the trial or examination. In the State of Wisconsin (Statutes, 1898, S. 4074) there is an enactment like unto S. 833 of the New York Code of Civil Procedure with the addition of the qualification "without consent thereto by the party confessing". In the State of Vermont it is enacted (Statutes, 1896, no. 30) that "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". In Hawaii it is enacted (Civil Law, 1897, S. 1418) that "no clergyman of any church or religious denomination shall, without the consent of the person making the confession, divulge in any action, suit or proceeding, whether civil or criminal, any confession made to him in his professional character according to the uses of the church or religious denomination to which he belongs".
It will be noted that in each case, with the exception of Hawaii, Iowa, and Vermont, the enactment contains the words "discipline enjoined", while of these others, Hawaii has the words "according to the uses of the church or religious denomination", and Vermont has the words "under the sanction of a religious confessional". Iowa appears to have the most widely-worded provision on the subject: a "confidential communication to a clergyman properly entrusted to him in his professional capacity" is included in the same sentence with confidential communications to an attorney, counsellor, or doctor, and the only other qualification put upon it is that it should be "necessary and proper to enable him (the clergyman) to discharge the functions of his office according to the usual course of practice or discipline". But the statutes would not cover a casual communication made to a clergyman which is not made to him by reason of his professional capacity (State v. Brown, 1895, 95 Iowa, 381). In like manner it was held in 1835 in the State of New York that a communication made to a clergyman by a member of his congregation, but not made to him as a clergyman or in the course of discipline, was not within the privilege (People v. Gates (1835), 13 Wend., 311). Similarly, in Indiana, it has been held that where the evidence given by a priest does not concern any confession made to him in the course of discipline, enjoined by the Church, the evidence is admissible (Gillooley v. State (1877), 56 Ind., 182); that only statements made to clergymen in obedience to some supposed religious duty are privileged (Knight v. Lee, 80 Ind., 201). The States of Georgia, Louisiana, North Carolina, Pennsylvania, Tennessee, and Texas have statutes protecting communications made to attorneys professionally. From the fact of such communications being protected by statute while these passing between priest and penitent are not so protected it does not necessarily follow that no privilege is accorded to those latter communications, because the former were already privileged at common law.
In the western portion of the Continent of Europe the sacredness of the seal of confession received public recognition at a very early date. Among the Capitularies of Charlemagne the first capitulary of the year 813, Article XXVII, is as follows: "that inquiry shall be made whether what is reported from Austria (de partibus Austriæ) is true or not, viz., that priests, for reward received, make known thieves from their confessions (quod presbyteri de confessionibus accepto pretio manifestent latrones)". The Austria here referred to is the eastern part of the old Western Empire, then called Austria. In France it was an incontestably established principle not only that a confessor could not be examined in a court of justice as to matters revealed to him in confession, but that admissions made in confession, if disclosed, might not be received or acted upon by the court and would not be evidence. Merlin and Guyot, distinguished writers on French jurisprudence, cite a decree of the Parliament of Normandy deciding the principle and laying down that a person charged upon the evidence of a confession cannot be convicted and must be discharged. They cite decrees of other Parliaments laying down the sacredness of the seal of confession. Among others, they cite a decree of the Parliament of Paris in 1580, that a confessor could not be compelled to disclose the accomplices of a certain criminal, whose names the criminal had confessed to him when going to the scaffold. These decrees were judicial. From the able and comprehensive argument of the appellant's counsel in the Quebec case of Gill v. Bouchard, which has been mentioned above, much valuable information on the French law upon the subject is to be obtained. In that argument there is cited a decree by the Parliament of Flanders in 1776 declaring that the evidence of a witness who repeated a confession which he had overheard was not admissible, and reversing the judgment which had been passed on the admission of such evidence.
Muteau, another distinguished French jurist, speaks in clear and emphatic terms of the sacredness of the seal, citing, also, various instances in proof. He tells us in a foot-note of a certain Marquise de Brinvilliers, among whose papers, after she had been arrested, was found a general confession (apparently made in pursuance of religious discipline) accusing herself of an attempt to murder various members of her family. The court trying her, he says, absolutely ignored this confession: Muteau gives us a quotation from rodius in Pandect f. 73, in which rodius says: "He who has confessed to a priest is not held to have confessed". In Bonino's case, which is cited in the course of the appellant's argument in Gill v. Bouchard as having been decided by the Court of Cassation of Turin (at that time part of the French Empire) in February, 1810, and as being reported in the "Journal du Palais périodique", VIII, 667, the court is reported to have decided that an open avowal made by a penitent in consequence of his being counselled in confession to make such avowal ought not to be received in evidence against him.
Merlin and Muteau tell us that formerly the breach of the seal by a priest was punishable with death. Guyot says that canonists are not agreed as to whether the breach is an offence cognizable by the civil courts (si c'est un délit commun ou un cas royal), but that several canonists maintain that the civil judges ought to have cognizance of it. This appears to be his own view because the breach is a grave crime against religion and society, a public scandal, and a sacrilege. He cites, however, a decree of the Parliament of Toulouse of 16 Feb., 1679, deciding that the cognizance of the offence belonged to the ecclesiastical judge.
All these three writers except from the general inviolability of the seal the single case of high treason, that is, an offence against the person of the king or against the safety of the State. Merlin and Guyot, appear to base their authority for this exception on a statement by Laurent Bouchel, a distinguished French advocate (1559-1629). He practised before the French Parliament; he was also an expert in canon law and he wrote a work on the Decrees of the Gallican Church. They cite Bouchel as stating that "on account of the gravity and importance of the crime of high treason the confessor is excused if he reveals it that he (Bouchel) does not know if one ought to go further and say that the priest who may have kept such a matter secret and not have denounced it to the magistrate would be guilty and would be an accomplice; that one cannot doubt that a person who is informed of a conspiracy against the person and estate of the prince would be excommunicated and anathematized if he did not denounce it to the magistrate to have it punished". It is to be noticed that this statement by Bouchel, as cited by Merlin and Guyot, does not mention any decree or decision or any other authority supporting it. Muteau, in excepting high treason, appears to base the exception mainly upon a decree of Louis XI, of 22 December, 1477, enjoining "upon all persons whatsoever" to denounce certain crimes against the safety of the State and the person of the king which might come to their knowledge. He says that the theologians have invariably maintained that confessors were not included among persons bound to reveal high treason. Muteau points out, also, that the Inquisition itself uniformly laid down that "never, in no interest," should the seal of confession be violated.
Dalloz (aîné) in his learned and comprehensive work on jurisprudence, in which the whole of French law is compiled and commented on under the numerous subjects affected by it, says that as the laws of France (his work was published in 1853, when he was an advocate practising at the imperial Court of Paris) protect the rules of ecclesiastical discipline, they could not exact from the clergyman, in breach of these rules, the disclosure of secrets revealed to him in the exercise of his ministry. Citing the canon of the Council of Lateran enjoining the secrecy of the seal, which, he tells us, only reproduces an older rule going back to the year 600, he observes that the inviolability declared by it is absolute and without distinction.
The decision of the Court of Cassation in Laveine's case (30 Nov., 1810, Receuil général des lois et des arrêts, XI, i, 49) affords support, not by the actual decision, but by certain words used in it, to the contention for the exception of high treason, while the actual decision is commonly cited as one of the leading judicial authorities for the general principle of the immunity of the confessor. It was a case in which restitution had been made by a thief through a priest outside confession, the thief, however, stating at the time that he regarded the conversation as being to his confessor and as made under the seal of confession, to which the priest assented. The court of first instance held that only a communication received in sacramental confession would be privileged and that, therefore, the priest was bound in this case to disclose the name of the thief. The Court of Cessation reversed this decision. Its judgment commences with a reference to the existence of the Concordat and to the result that the Catholic religion is placed under the protection of the State, and it goes on to say that a confessor may not be ordered to disclose secret communications made to him in the exercise of his calling, "excepting those cases which appertain directly to the safety of the State" (hors les cas qui tiennent immédiatement à la sûreté de l'état). Commenting on these words, Dalloz (aîné) says that the jurist, Legraverend, admits the exception. Dalloz appears not to agree with it. "The oath," he says, "prescribed by the Concordat and the Organic Articles is no longer used: even if it were, the obligation which would result from it to disclose to the Government what was being plotted to its prejudice in the diocese or elsewhere could not apply to confession. The duty of informing having been, moreover, struck out from our laws, at the time of the revision of the penal code in 1832, it could not subsist in such a case."
By Art. 378 of the French Penal Code "doctors, surgeons, and other officers of health as well as apothecaries, mid-wives, and all other persons who, by their status (état) or profession are the depositaries of secrets confided to them, revealing such secrets, except in cases in which the law obliges them to inform (hors les cas où la loi les oblige à se porter dénonciateurs) shall be punished with imprisonment from one to six months, and with a fine of from 100 to 500 francs." The exception, mentioned in the article, of persons obliged by law to be informers, as pointed out by M. Dalloz, has become obsolete owing to the fact that Articles 103-107, which dealt with the obligation of informing, were repealed by the law of 28 April 1832. Dr. H. F. Rivière, counsellor to the Court of Cassation, in his edition of the French Codes (Code Pénal, p. 68) has a note to that effect. M. Armand Dalloz, the son and collaborator of the author of the "Jurisprudence générale," says in another work: "Supposing that one may admit a derogation from this principle in favour of the interests of the State compromised by some plot, which is, at least, very debatable, one must, nevertheless maintain in private cases the obligation of secrecy in its integrity". The same writer says that the exception of the confessor is deduced from the principle of Art. 378 of the Penal Code, from the needs of the soul and, above all, from the laws which have recognized the Catholic religion. "And it would be repugnant," he continues, "that one could, in any case at all, force the religious conscience of the confessor in constraining him to break, in defiance of one of the most imperious duties of his office, the seal of confession."
In Fay's case [(Dec. 4, 1891), Receuil général des lois et des arrêts, 1892, 1, 473] the Court of Cassation held that the ministers of religions legally recognized are obliged to keep secret communications made to them by reason of their functions; and that with regard to priests no distinction is made as to whether the secret is made known in confession or outside it, and the obligation of secrecy is absolute and is a matter of public policy: C. Penal 378. The annotator of the report begins his notes by saying that it is an universally admitted point that the exemption from giving evidence is necessarily extended to priests with regard to the matters confided to them in confession. He cites, among other cases, one of the Court of Cassation in Belgium declaring that there has never been any doubt that priests are not bound to disclose confessions in the witness-box. The Concordat between France and the Holy See having been broken, and, consequently, the Catholic religion being no longer established in France under the auspices of the State, part of the grounds adduced for some of the decisions cited above cease to hold good. But Art. 378 of the Penal Code endures, and, as shown, there is no longer any statutory obligation upon the classes of persons enumerated in it to give information of crime of any nature. Consequently, in virtue of that article, confessors are not only absolutely exempt from any obligation ever to disclose a confession, but they are under a statutory obligation never to do so.
In Spain, from an indirect report given by Muteau, we get stern proof, at a comparatively early period, of the abhorrence in which a breach of the seal of confession was held. According to Muteau, Raviot, in his "Observations sur le reccuil des arrêts de Perrier", cites a Spanish writer as stating that under James I of Aragon, who reigned in the thirteenth century, if a priest were convicted of a breach of the seal of confession, his tongue was cut out. The same unnamed author says, we are told, that priests convicted of the offence have been handed over by popes to the civil power to receive the punishment of death. In a country in which there are still to-day so many laws for maintaining respect for the Catholic religion, it is clear that the law would not demand that priests should be required to reveal in the witness-box what had been said to them in sacramental confession.
Farinaccius, a famous sixteenth-century Italian writer on jurisprudence, perhaps the most gifted and able lawyer of his day, and almost universally followed (his "Praxis criminalis" being for two centuries the standard for the great majority of criminal jurisdictions in Western Continental Europe) expressly denies that cases of high treason form any exception to the general and uniform rule of the inviolability of the seal of confession. He states (Quæst. 51: nn. 99, 100 and 101) as follows: "Sacerdos non potest delicta commissa per confitentem revelare etiam quod sint atrocissima ac etiam quod continentur sub crimine læsæ majestatis, imo nec etiam ad id cogi potest de mandato papæ", i.e., "a priest may not reveal the offences committed by the person confessing, even though they be of the most atrocious, and even though they come under the crime of high treason: and, what is more, he cannot even be compelled thereto by order of the pope". In modern Italy, by the Code of Civil Procedure, Art. 288, doctors, surgeons, etc., and every other person to whom by reason of his state, profession, or office a secret has been confided, may not be obliged to give evidence of such secret under pain of nullity (i. e., of his evidence), save in the cases in which the law expressly obliges them to give information of any matter to the public authority. There appears to be no such express obligation upon priests in the law.
By the Code of Civil Procedure for the German Empire of 30 Jan., 1877, book II, part I, title 7, par. 348, certain classes of persons are entitled to refuse to give evidence. The fourth class consists of "clergymen in respect of matters which have been confided to them in their exercise of the care of souls". It was held by a decision of the Imperial Court of 8 June, 1883, that if a clergyman should have communicated to a third person any matter so confided to him he would not be exempt from giving evidence of the communication to the third person. Dr. von Wilmowski and Justizrath Levy in their edition of the German Imperial Code of Civil Procedure have a comment expressing doubt as to the correctness of this decision. Paragraph 350 enacts that clergymen may not refuse to give evidence when they are released from the obligation of secrecy. Dr. von Wilmowski and Levy comment as follows upon this paragraph: "Whether clergymen are effectually released through the consent of the confident or through permission of their superiors is to be decided according to the religious conceptions (Religionsbegriffe) of the denomination to which the clergyman belongs. By Catholic ecclesiastical law a release from the obligation to keep secret anything communicated under the seal of confession is entirely excluded (c. 12, X, de p nit. 5, 38)"
In Austria by the Code of Criminal Procedure (Straf-process-Ordnung) of 23 May, 1873, par. 151, certain classes of persons may not be examined as witnesses and if they should be so examined their evidence shall be null and void (bei sonstiger Nichtigkeit ihrer Aussage). The first class consists of clergymen in respect of what has been confided to them in confession or otherwise under the seal of clerical professional secrecy.
In Egypt there is in the Penal Code (Art. 274) a provision to the same effect as that of Art. 378 of the French Penal Code.
By the Penal Code of Mexico, promulgated 20 December, 1891, Art. 768, confessors, doctors, surgeons etc. are not to be compelled by the authorities to reveal secrets which have been confided to them by reason of their state or in the exercise of their profession, nor are they to be compelled to give notice of offences of which they have become cognizant in this way.
By the Penal Code of the United States of Brazil, Art. 192, it is a penal offence to reveal any person or secret of whom or which notice or cognizance is had by reason of office, employment, or profession (see CONFESSION; SECRET).
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