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 PRIVILEGE 
 
 OF 
 
 ilc%ious Confessions 
 
 IN 
 
 ENGLISH COURTS OF JUSTICE 
 
 CONSIDERED, 
 
 IN A LETTER TO A FRIEND, 
 
 EDWARD BADELEY, ESQ., M.A., 
 
 UAH K ISTT.K AT LAW. 
 
 LONDON : 
 
 BUTTERWORTHS, 7, FLEET STREET, 
 
 lain l3ub!igl)fTB to ti)t turn's most titflUnt fflajcstg. 
 HODGES & SMITH, GRAFTON STREET, DUBLIN. 
 
 1865.
 
 LOX00K : 
 FRIKTED BT C. ROWORTH AMD SONi.
 
 Stack 
 Annex 
 
 TEMPLE, July 3rd, 1865. 
 
 MY DEAR SIR, 
 
 As the question whether a Catholic Priest, 
 or a Protestant Clergyman, may refuse to give evi- 
 dence in a Court of Justice, respecting matters which 
 have been revealed to him in a religious confession, 
 has lately been raised in Parliament, and elsewhere, 
 I think it right to state my reasons for the opinion 
 which I gave you some time ago, that he may and 
 ought to do so. I feel most sensibly the disadvan- 
 tages under which I must fulfil my task, after the 
 strong declarations of the Lord Chancellor and Lord 
 Chelmsford, made on the 13th of May last, in the 
 House of Lords, in answer to a question put by 
 Lord Westmeath, at variance with my opinion. 
 There is no person who entertains more sincere 
 respect than 1 do for those noble and learned Lords, 
 or who receives with greater deference any proposi- 
 tion of law which either of them may enunciate ; 
 but as their declarations, on the occasion to which 
 I refer, were not made judicially, nor supported by 
 
 2017260
 
 any legal reasoning, I trust that I shall not be 
 deemed guilty of presumption, if, upon a subject 
 which I have frequently considered, I venture to 
 differ from what they have laid down, and to main- 
 tain the view which I have deliberately taken. 
 
 In dealing then with this subject, I propose, in 
 the first place, to ascertain what was the rule of the 
 Common Law, prior to that series of events which 
 is commonly called the Reformation; next, to see 
 whether that rule was abrogated or altered, at or 
 after that period ; and, lastly, to examine the doc- 
 trine laid down by the English writers on evidence, 
 and the authorities upon which they rely. 
 
 First, then, with respect to the ancient rule of the 
 Common Law upon this point; and, in order to 
 ascertain it, we must of course consider what was 
 then the rule of the Church upon the subject of 
 Confession ; for I think that no laboured argument 
 is needed to prove, that when the State was in strict 
 alliance with the Church, and the Church and the 
 State were both Catholic, the rule of the Church 
 upon any Religious Rite, any matter of religious 
 observance and discipline, which was deemed of 
 universal and absolute obligation, was binding also 
 upon the State, as a body composed of Catholics ; 
 and, at all events, that the civil power would not, 
 in any of its departments, except under very special 
 and extraordinary circumstances, act otherwise than
 
 in strict accordance with it. We know that such 
 was the case, not only in matters relating to public 
 worship and ecclesiastical ceremonies, but also in 
 those relating to Marriage and Divorce, to Excom- 
 munication, to Holy Orders, to the disposal of per- 
 sonal property by Will, and to Intestacy, to the 
 observance of Festivals and Religious Seasons, and 
 to other things which it is needless to enumerate. 
 Even many of our old legal maxims are evidently 
 derived from the Canon Law. It would be irrational 
 therefore to doubt, that in a matter of so serious and 
 so general concern, so important and so imperative, 
 as the Sacrament of Penance, all that the Church 
 enjoined with regard to its due administration, to 
 the conduct, and the protection, of those who ad- 
 ministered or received it, was regarded everywhere 
 as sacred and inviolable. 
 
 Let us see then what the Church prescribed 
 respecting the Seal of Confession ; and in tracing 
 this historically from the earliest ages of Chris- 
 tianity, I cannot do better than refer to the very 
 learned work of Morinus, " Commentarius His- 
 " toricus de Disciplina in administratione Sacra- 
 " menti Pcenitentiae," published at Antwerp in the 
 year 1682. In the 19th Chapter of the Second 
 Book, which is entitled, " Confessionis sigillum 
 " nunquam esse resignandum ab Apostolis continue. 
 " traditione accepit Ecclesia," he begins by saying, 
 
 B2
 
 " Nonnulla nobis obiter dicta sunt quse ad confes- 
 " sionis sigillum spectare possunt ; verum hoc capite 
 " illius non resignandi necessitatem ex Antiquorum 
 " testimoniis demonstrare proponimus. Lectoris 
 " enim scire interest nihil nunc ab Ecclesia de isto 
 " sigillo doceri, quod ab antiqua traditione non 
 " acceperit." He then proceeds to adduce the testi- 
 mony of the principal of the early Fathers, both of 
 the Eastern and the Western Church, and the 
 Canons of various Councils, both Greek and Latin, 
 to .that effect ; and he concludes by citing the 21st 
 Canon of the 4th Council of Lateran, (a general 
 Council, whose decrees were binding on all the 
 Churches of Christendom, held in the year 1215, 
 under Pope Innocent III.,) which he calls " Canon 
 " notissimus," and which he gives in these words ; 
 " Caveat autem omnino sacerdos, ne verbo, aut 
 " signo, aut alio quovis modo aliquatenus prodat 
 " peccatorem. Sed si prudentiori consilio indigu- 
 " erit, illud absque ulla expressione persons caute 
 " requirat. Quoniam qui peccatum in poenitentiali 
 " judicio sibi detectum praesumpserit revelare, non 
 " solum a sacerdotali officio deponendum decer- 
 " nimus, verum etiam ad agendam perpetuam 
 " Poenitentiam in arctum Monasterium detru- 
 " dendum." He adds, as his general inference 
 from the authorities which he has adduced, " Ex 
 " iis quae dicta sunt manifestum puto, nihil nunc
 
 " in Ecclesia doceri de confessionis sigillo, qis,i quod 
 " ab Apostolica traditione accepit." 
 
 When therefore Gratian first reduced the Canon 
 Law into method, by the publication of the " De- 
 cretum," about the year 1151, it is evident, that, in 
 stating the Law respecting the sacredness and in- 
 violability of confession, he stated only the Law of 
 the universal Church, derived from the earliest ages ; 
 the punishment to be inflicted on the Priest who 
 violated it may have differed at different periods, 
 but the Law was undoubtedly the same, and had 
 been sanctioned by penalties similar to those im- 
 posed by the " Decretum." The passage in the 
 " Decretum" occurs under the title " De Poeni- 
 " tentia,"* and is as follows : 
 
 " Deponatur sacerdos qui peccata poenitentis pub- 
 " licare praesumit." 
 
 " Sacerdos ante omnia caveat, ne de his qui ei 
 " confitentur peccata alicui recitet, non propinquis, 
 " non extraneis, neque, quod absit, pro aliquo 
 " scandalo. Nam si hoc fecerit, deponatur, et 
 " omnibus diebus vita3 suae ignominiosus peregri- 
 " nando pergat." 
 
 In the Decretals, the next portion of the Canon 
 Law, the Law is stated to the same effect ; for under 
 the title, " De Poenitentiis et Remissionibus, tit. 38, 
 c. xii," the same Canon of the Council of Lateran 
 
 * Decreti secunda Pars - Distinct, vi. c. 2.
 
 6 
 
 is set forth, which I have already given in the 
 reference which I have made to Morinus De Poeni- 
 tentia, and by which a more severe punishment is 
 inflicted, than that which was prescribed in the 
 " Decretum." 
 
 Such being the rule of the Canon Law, there 
 could be no reasonable doubt, even if we had not 
 positive evidence of the fact, that it was adopted 
 and enforced in England ; but we need not resort 
 to presumptions, for we have, in the Laws of King 
 Henry I., the clearest and most indisputable proof, 
 that this rule of the Church was actually part of 
 the Law of England. Among these Laws we find 
 this, which is remarkable, as being, not only to the 
 same effect, but almost in the same words, as the 
 passage of the "Decretum" which I have cited; 
 " Caveat sacerdos, ne de hiis qui ei confitentur 
 " peccata sua alicui recitet quod ei confessus est; 
 " non propinquis, non extraneis; quod si fecerit, 
 " deponatur, et omnibus diebus vitae suae igno- 
 " miniosus peregrinando pceniteat."* 
 
 I cite this from the " Ancient Laws and Institutes 
 " of England," published under the authority of 
 " the Commissioners of the Public Records of the 
 " Kingdom," in the year 1840. It is also given in 
 
 * Leges Hen. primi, v. 17. Ancient Laws and Institutes of 
 England, vol. i. p. 508. Lambard de priscis Anglor. Legibus, 
 p. 178.
 
 the Edition of Lambard's " Archaionomia," pub- 
 lished in the year 1644, and in other Treatises 
 upon our ancient Laws ; it is to be found also in 
 copies of these Laws which exist in manuscript, 
 not only amongst the ancient Records of the 
 Realm, but also in private Repositories; so that 
 there cannot be any doubt of its genuineness 
 or authenticity. Lord Hale, in the 7th Chapter 
 of his History of the Common Law, refers to 
 this Collection of the Laws of Henry I. and cites 
 it as of considerable authority and value ; he says, 
 " the great essay he (King Henry I.) made was 
 " the composing of an abstract or manual of Laws, 
 " wherein he confirmed the Laws of Edward the 
 " Confessor, ' cum illis emendationibus quibus earn 
 " ' pater meus emendavit Baronum suorum con- 
 " ' cilio,' and then adds his own laws, some whereof 
 " seem to taste of the Canon Law. The whole 
 " Collection is transcribed in the Red Book of the 
 " Exchequer, from whence it is now printed in the 
 " end of Lambard's Saxon Laws, and therefore not 
 " needful to be here repeated ;" and, after quoting 
 some passages in confirmation of certain statements 
 which he had himself made, Lord Hale adds, 
 " These Laws of King Henry I. are a kind of 
 " miscellany, made up of those ancient Laws, 
 " called the Laws of the Confessor, and King 
 " William I., and of certain parts of the Canon
 
 8 
 
 " and Civil Law, and of other provisions, that 
 " custom, and the prudence of the King and 
 " Council, had thought upon, chosen, and put 
 " together." Lord Coke likewise refers to them 
 as one of the sources, and as evidence, of the Com- 
 mon Law.* 
 
 Now as Henry I. began his reign in the year 
 1 100, and died in the year 1 135, this Law, establish- 
 ing the sacredness and inviolability of confession, 
 thus appears to have prevailed in this country long 
 before the publication of the " Decretum ;" and 
 therefore still longer before the Council of Lateran 
 to which I have referred. Probably it was incor- 
 porated with the Laws of Henry I. as well as with 
 the compilation of Gratian, from the same source, 
 some well-known General Council, or decree of the 
 Holy See, then extant in nearly the same form, and 
 recognized as universally binding; at all events, we 
 find it actually part of the Law of England in the 
 time of King Henry I., and it exists there without 
 any exception or limitation ; no crimes or sins are 
 mentioned to which it is not to apply, nor any 
 tribunal, or place, or proceedings, in which it is not 
 to be binding. 
 
 I may also observe, that in the same volume of 
 
 the " Ancient Laws and Institutes of England," 
 
 there are the Laws of King Ethelred, who died in 
 
 1016, amongst which I find one in these words, as 
 
 * Coke's Reps., Pref. to 8th Part.
 
 translated from the Saxon : " And let every Chris- 
 " tian man do as is needful to him ; let him strictly 
 " keep his Christianity, and accustom himself fre- 
 " quently to shrift, and fearlessly declare his sins, 
 " and earnestly pray as he may be instructed ;"* 
 on which it may fairly be asked, how any " Chris- 
 " tian man" could "fearlessly declare his sins" in 
 confession, as required by this Law, if he was liable 
 at the same time to have them divulged by the 
 Priest? 
 
 The Canon of the Council of Lateran of the year 
 1215, which I have noted, as guarding the sacred- 
 ness and inviolability of confession by more severe 
 penalties than the " Decretum," seems to have been 
 received immediately in this country, as it is com- 
 mented upon by one of our earliest Canonists, 
 John de Athon, who flourished towards the end of 
 the same century, about the year 1290 ; and in one 
 of his notes to the Constitutions of Otho,f referring 
 to the reluctance of some persons to confess their 
 sins to the confessor appointed for them, he says, 
 " Licet timere non oporteret, cum in foro Pceni- 
 " tentiali confessionem audit sacerdos vice Dei, nee 
 " prodere potest peccatorem impune. (Extra, de pec. 
 " et remiss, omnis. fi.)" 
 
 * Ancient Laws and Inst. of England, vol. i. pp. 311, 323. 
 
 f See Constitut. Othon. et Othobon., with the Commentary 
 of John de Athon, p. 15, Oxou. 1679, at the end of Lyndwood's 
 Provinciale.
 
 10 
 
 But, long before the time of John de Athon, the 
 Law of the English Church was clear, for in the 
 Council of Durham, of the year 1220,* I find this 
 Canon, " Ne Sacerdos reveletConfessionem. Nullus 
 " ira, vel odio, vel Ecclesise 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 miseri- 
 " cordia degradabitur." A Canon, in almost the 
 very same words, appears in the previous Consti- 
 tutions of Richard Bishop of Sarum, of the year 
 1217.f And in the Provincial Council of Oxford, 
 held under Archbishop Langton in the year 1222,J 
 it was enacted, " Nullus sacerdos, ira, aut metu 
 " etiam mortis, audeat detegere confessionem ali- 
 " cujus, signo, vel verbo, generaliter aut specialiter, 
 " et si super hoc convictus fuerit, sine spe relaxa- 
 " tionis non immerito debet degradari." The same 
 law appears also in the acts of the Synod of Exeter, 
 held in the year 1287. 
 
 The authority next in order of time, to which I 
 must direct your attention, is the Statute passed 
 in the 9th year of Edward II. (A.D. 1315), stat. 1, 
 called " Articuli Cleri," c. 10 a Statute on which 
 
 * Wilk. Cone. vol. i. p. 577. 
 
 f Spelm. Cone. vol. ii. p. 145. 
 
 j Wilk. Cone. vol. i. p. 595. 
 
 Spelm. Cone. vol. ii. p. 357.
 
 11 
 
 Lord Coke has largely commented in his Second 
 Institute, p. 599638. It is of value to my 
 present purpose, as evidence of the connexion of the 
 Law of the Church with the Law of the State, on 
 the subject of Confession, in the judgment of no less 
 a person than Lord Coke, at least in all cases below 
 the crime of Treason. Whether he was justified 
 in making that exception, I shall consider presently. 
 The 10th chapter of the Statute relates to the cases 
 of persons claiming the privilege of sanctuary, and 
 abjuring the realm, whose rights, it was alleged, 
 had been violated ; to which the answer given is 
 this ; " Qui terram abjuraverint, dum sint in Strata 
 " publica, sunt in pace Domini Regis, nee debent 
 " ab aliquo molestari ; et dum sint in Ecclesia, 
 " custodes eorum non debent morari infra ccemi- 
 " terium, nisi necessitas, vel evasionis periculum, 
 " hoc requirat ; nee arctentur confugere dum sint 
 " in Ecclesia, quin possint habere vitse necessaria, 
 " et exire libere pro obsceno pondere deponendo. 
 " Placet etiam Domino Regi, ut latrones vel ap- 
 " pellatores quandocunque voluerint possint sacer- 
 " dotibus sua facinora confiteri ; sed caveant con 
 " fessores, ne erronice hujusmodi appellatores in- 
 " forment." There are some verbal discrepancies 
 between the passage thus given by Lord Coke, and 
 the corresponding ones, as they appear in Ruff- 
 head's edition of the Statutes, vol. 1, p. 169, and
 
 12 
 
 in the more valuable and important work called 
 " The Statutes of the Realm," published by the 
 authority of the Crown in the year 1810 vol. 1, 
 p. 172 but these discrepancies do not materially 
 affect the sense, and may be disregarded. What 
 is material is, that the right of Confession to a 
 Priest is distinctly and in terms secured to the 
 criminals to whom the Statute relates, and that 
 this right carried with it, in the judgment of Lord 
 Coke, a common law right to the privilege of con- 
 cealment. Lord Coke's commentary is as follows : 
 " Latrones vel Appellatores : This branch ex- 
 " tendeth only to thieves and approvers indicted 
 " of felony, but extended not to high treason ; 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 
 " realm ; therefore this branch declareth the com- 
 " mon law, that the privilege of confession ex- 
 " tendeth only to felonies ; and albeit if a man 
 " indicted of felony becometh an approver, he is 
 " sworn to discover all treasons and felonies, yet is 
 " he not in degree of an approver in law, but only 
 " of the offence whereof he is indicted ; and for 
 " the rest, it is for the benefit of the King, to move 
 " him to mercy : so as this branch beginneth with 
 " thieves, extendeth only to approvers of thievery 
 " or felony, and not to appeals of treason ; for by
 
 13 
 
 " the Common Law, a man indicted of high treason 
 " could not have the benefit of Clergy (as it was 
 " holden in the King's time, when this act was 
 " made), nor any clergyman privilege of confession 
 " to conceal high treason : and so it was resolved 
 " in 7 Hen. 5, whereupon Friar John Randolf, the 
 " Queen Dowager's Confessor, accused her of treason, 
 " for compassing the death of the King : and so it 
 " was resolved in the case of Henry Garnet, Supe- 
 " rior of the Jesuits in England, who would have 
 " shadowed his treason under the privilege of Confes- 
 " sion, although in deed he was not only consenting, 
 " but abetting the principal conspirators of the 
 " powder treason, as by the record of his attainder 
 " appeareth ; and albeit this act extendeth to felo- 
 " nies only, as hath been said, yet the caveat given 
 " to the confessors is observable, ne erronice in- 
 "forment." 
 
 Now, in examining this Commentary, I must con- 
 fess, that if Lord Coke really meant to say, that the 
 Statute in question gave the Seal of Confession to the 
 criminals whom it mentioned, he was, in my opinion, 
 mistaken. The Statute merely provided, that 
 "Thieves and Approvers" should be allowed the 
 benefit of confessing their sins to their Priests 
 whenever they wished ; but of the secrecy of their 
 confessions it said nothing for the "Caveat" at 
 the end of the passage, whatever be its true mean-
 
 14 
 
 ing, (and it is capable of several interpretations) 
 can scarcely be construed to mean this : Lord Coke 
 may fairly be understood to have intended, (and 
 this explanation protects alike his latin and his legal 
 learning,) that the Statute, by establishing the right 
 of these criminals to go to their Confessors, esta- 
 blished also their right to the Seal of Confession, as a 
 right annexed to Confession by the Common as well 
 as by the Ecclesiastical Law ; for Lord Coke must 
 have known full well, as everybody knows who has 
 the least acquaintance with the subject, that the 
 Seal or Secrecy of Confession was implied in the 
 very existence of the Rite itself; that a Priest, by 
 administering the Sacrament of Penance, bound 
 himself by his very act to secrecy, a secrecy which 
 he could not violate without mortal sin, and the 
 forfeiture of all that was most valuable in life. He 
 is therefore quite right in saying, that the Common 
 Law and the Statute give the privilege of Confes- 
 sion to felonies, and therefore, of course, to minor 
 offences ; but when he also says, that " this branch 
 " of the Statute declareth that the privilege of 
 " Confession extendeth only to Felonies," he evi- 
 dently states what is untrue for the Statute 
 " declareth" no such thing it says nothing what- 
 ever about treason or traitors; nor does it, in fact, 
 about misdemeanors, and yet Lord Coke, upon his 
 own principle of construction, could not deny that
 
 15 
 
 the privilege extended to them ; but in saying 
 that " this branch extendeth not to High Treason," 
 and forming therefrom an argument that traitors 
 were not entitled to the privilege of having their 
 confessions concealed, he was neither legally nor 
 logically right; for although it is undoubtedly true, 
 that when a Statute treats of things or persons of 
 an inferior description, it cannot be extended to 
 include those of a superior, (and of that rule Lord 
 Coke was most fully aware,) the consequence of 
 course is, that the superior things and persons are 
 in no way affected ; and therefore the confessions of 
 traitors are necessarily left, so far as this Statute is 
 concerned, in precisely the same situation that they 
 were in before. If then the Statute does not in any 
 way relate to Traitors, we must look to the Common 
 Law, to see if there was any difference between their 
 confessions, and those of Felons and others. But 
 neither the Common Law nor the Ecclesiastical, so 
 far as I have been able to discover, recognises any 
 distinction of the sort. The Law of Henry I. 
 cited above, applies, as we have seen, to all Con- 
 fessions, whosesoever they are, and so do the Laws 
 of the Church which I have already quoted, as 
 well as those which I shall quote presently; and 
 Lord Coke's Law, as well as his Logic, must be 
 deemed in this respect equally faulty, unless some 
 very clear authority can be brought to support him,
 
 16 
 
 for the presumption undoubtedly is strongly against 
 him. Now he does cite two cases, as proof " that 
 " no Clergyman had by the Common Law any 
 " privilege of Confession to conceal High Treason ;" 
 for he says, " so it was resolved in 7 Hen. 5, 
 " whereupon Friar John Randolf, the Queen 
 " Dowager's Confessor, accused her of treason, for 
 " compassing the death of the King ; and so it was 
 " resolved in the case of Henry Garnet, Superior of 
 " the Jesuits in England, who would have sha- 
 " dowed his treason under the privilege of Confes- 
 " sion," &c. 
 
 Now it is remarkable, that these two authorities 
 (and he has no other) completely fail him. The 
 case of Friar Randolf has nothing whatever to do 
 with this question. In the first place, nothing is 
 stated in the Rolls of Parliament, to which alone 
 Lord Coke refers, to show that Friar John Randolf 
 was " the Queen Dowager's Confessor," for he is 
 merely described "un frere John Randolf, de 
 " 1'ordre des Freres Menours,"* a description which 
 does not involve his being confessor to any- 
 body. In the second place, there is nothing which 
 tends, directly or indirectly, to the belief, that he 
 made any statement of any thing which he had 
 heard in confession, or that he ever was called 
 upon to do so ; in the third place, there is not the 
 slightest trace of any "resolution" of any Court, 
 * Rot. Parl. vol. iv. p. 118.
 
 17 
 
 or other authority, high or low, upon this subject. 
 Lord Coke cannot possibly have looked at the 
 authority which he cites, or he could not so com- 
 pletely have falsified it. The Record is simply a 
 direction for the Treasurer of England, or his Deputy, 
 to receive and keep all the goods and chattels, and 
 all the lands, rents, tenements, and possessions, 
 of the Queen Dowager, and of two other persons 
 her accomplices, the Queen having been charged 
 on an Information, " tant per relation et confession 
 " d'un frere John Randolf, de Tordre des Freres 
 " Menours, come per autres evidences cr cables," 
 with having compassed and designed the Death of 
 the King. The Record then directs, that the Trea- 
 surer, or his Deputy, shall allow what may suffice 
 for the maintenance of the Queen and her servants, 
 and that those persons who are chargeable with 
 payments to Her Majesty shall be acquitted by 
 payments to the Treasurer, or his Deputy, by force 
 of that ordinance. It seems therefore, that Friar 
 John Randolf was himself an accomplice, and that 
 his own confession of joint criminality was used as 
 evidence against the Queen. The only other par- 
 ticular notices of this man that I have found are in 
 the 3rd Volume of Holinshed's Chronicles, page 106, 
 and in Stow's Annals, page 358, from either of which 
 Lord Coke may possibly have made his statement, 
 that he was the Queen's Confessor ; for Holinshed 
 
 c
 
 18 
 
 and Stow both say that he had been ; and they state, 
 that he was taken prisoner in Guernsey or Jersey, 
 about the time when the Queen was arrested, that he 
 was thence sent to Normandy, and then by the King's 
 command brought to England, and committed to 
 the Tower, where he was subsequently killed by 
 accident. Holinshed adds, " It was reported that 
 " he had conspired with the Queen by sorcery and 
 " necromancy to destroy the King ;" and Stow 
 says, " that she had devised the King's Death, by the 
 counsel of Randolf;" thus confirming my suggestion, 
 that he was charged as an accomplice in the treason 
 itself, and not examined as a witness : but neither 
 Holinshed, nor Stow, alludes in any way to his 
 having divulged anything which he had heard in 
 confession, or to his having ever been required to 
 do so. 
 
 The second of Lord Coke's authorities is no 
 better than the first. It was not " so resolved," as 
 he states, " in the case of Henry Garnet ;" there is 
 no trace of any such resolution either in the report of 
 Garnet's trial, which is given in the 2nd Volume of 
 Howell's State Trials, page 217, &c., or in the very 
 careful and able examination and review of the 
 proceedings against him, published by Mr. Jardine 
 in the year 1857, and entitled " A Narrative of the 
 " Gunpowder Plot." Lord Coke, who, as Attorney- 
 General, conducted the prosecution of Garnet, seems
 
 19 
 
 to have stated something to the same effect as his 
 commentary on the " Articuli Cleri," but he did so 
 without referring to a single authority, and without 
 the least countenance from the Judges, and therefore 
 his simple " dictum," as Counsel, of what he called 
 the Common Law, is of course of no value. Even 
 if it had been " so resolved " in Garnet's case, as he 
 alleges, the resolution would not have been entitled 
 to much weight, the whole proceedings, including 
 the manner in which Garnet was treated, before, 
 and at, and after his trial, and the Speeches of the 
 Attorney- General Coke, being a disgrace to English 
 Jurisprudence. But the case by no means supports 
 Lord Coke's assertion, that the Common Law dis- 
 allowed the Seal of Confession in cases of treason ; 
 and it must be remembered moreover that Garnet 
 was not a witness, but a prisoner indicted for Treason, 
 and therefore there could not well be any " resolu- 
 " tion " of the Court, as to his liability to reveal 
 anything which he had heard in confession. 
 
 It may seem strange to many persons, that Lord 
 Coke should have made such statements as these ; 
 but every Lawyer, familiar with his writings, well 
 knows, how unscrupulous he was in many respects, 
 and particularly in his references to old cases a 
 failing which was noticed by Lord Mansfield in the 
 case of The King and Cowle* where he says, " Lord 
 * 2 Burr. Rep. 859. 
 C2
 
 20 
 
 " Coke was very fond of multiplying Precedents and 
 " authorities, and, in order to illustrate his subject, 
 " was apt, besides such authorities as were strictly 
 " applicable, to cite other cases which were not appli- 
 " cable to the particular question under his judicial 
 " consideration." And in a much later case* Mr. 
 Justice Heath remarks, " After all, what reliance can 
 " there be had on these dicta of Lord Coke, under all 
 " the circumstances attending them ? They were not 
 " the result of a calm, dispassionate enquiry : that 
 " great Lawyer was much heated in the controversy 
 " between the Courts at Westminster and the Eccle- 
 " siastical Courts. In every part of his conduct his 
 " passions influenced his judgment. ' Vir acer et 
 " ' vehemens.' His law was continually warped by 
 " the different situations in which he found him- 
 " self." It will not then be an unfair corollary to 
 say, that in a matter like Confession, to which he 
 was evidently unfriendly, whatever he admits of its 
 privilege by the Common Law may safely be re- 
 ceived, and what he denies may be rejected, at least 
 when he adduces no better authorities than those of 
 Friar John Randolf 's Case and Henry Garnet's. 
 
 To return however from this digression, and to 
 
 proceed in chronological order from the Statute of 
 
 Edward II. in the year 1315, when we see, according 
 
 to Lord Coke's opinion, that by this statute, and by 
 
 * Jefferson v. Bishop of Durham, 1 Bos. & Pull. 131.
 
 21 
 
 the Common Law, Confessions to a Priest, in crimes 
 below the degree of treason, could not be required in 
 Evidence. A Provincial Council, held in England 
 in the year 1322, passed a Canon in these words : 
 " Item nullus sacerdos, ira, odio, vel metu etiam 
 " mortis, audeat in aliquo detegere alicujus confes- 
 " sionem, signo vel verbo, specialiter vel generali- 
 " ter ; et si super hoc convictus fuerit, sine spe re- 
 " conciliationis non immerito debet degradari :" a 
 canon almost verbatim the same as that passed in 
 the Council of Oxford, just a century before, which 
 I have already cited. 
 
 At the close of the same century, about the year 
 1385, we have the celebrated work of John de 
 Burgh, called the " Pupilla Oculi," a manual com- 
 posed for the use of the English Clergy, and well 
 entitled to the great popularity which it is known 
 to have enjoyed. The author was a writer of con- 
 siderable authority, for he was Chancellor of the 
 University of Cambridge, as well as Professor of 
 Theology, and Rector of Collingham. He therefore 
 well knew what was the Law universally received in 
 England upon the subject of Confession ; and of it's 
 inviolable secrecy he says, " De celatione confessionis 
 " sciendum est, quod in omni casu tenetur confessor 
 " celare confessionem sibi factam ; quia sicut Deus 
 " tegit peccatum interius, ita etiam debet Confessor; 
 e t ideo tanquam violator sacramenti peccat, qui
 
 22 
 
 " Confessionem revelat; uncle si aliquod grave peri- 
 " culum immineret, ut de haeretico qui corrumperet 
 " fidem, vel de aliquo matrimonio illicito, quod 
 " aliqui velint contrahere, vel de aliquo magno 
 " damno temporali, et hoc sciret solum per confes- 
 " sionem, non debet confessor hoc revelare ; sed 
 " potius debet eos monere qui confiteutur, ut obvient 
 " vel ut desistant ; et Praelato potest dicere quod 
 " vigilet super gregem suum, vel aliud simile ; sed 
 " confitentem nullo modoprodere licet; nectenetur 
 " ad praeceptum Praia ti revelare aliquid de sibi 
 " confessis, nee excommunicatio propter hoc in eum 
 " lata tenet ; nee in testem adductus tenetur aliquid 
 " de his dicere."* He then goes on to show, how, 
 if a Judge should press him upon any matter which 
 he has only heard in confession, he may answer that 
 he knows nothing about it, or that he knows nothing 
 which ought to be disclosed " nihil inde scio tibi 
 " revelandum;" and he marks the distinctions 
 very clearly, between what is to be considered as 
 strictly made known to the Priest in confession, and 
 what is not. He never suggests the possibility of 
 the Priest's being committed to prison for his contu- 
 macy, or of his declining to answer being deemed a 
 contempt of the Court, or of the Judge's being dis- 
 satisfied with such a refusal to answer, and it is in 
 the highest degree improbable, that if any such 
 * Pupil. Oc. pars quint, cap. 6.
 
 23 
 
 occurrence had been likely to arise, John de Burgh 
 would not have alluded to it. 
 
 The language of Lyndwood,* our greatest canon- 
 ist, who flourished in the 15th century, and died 
 A.D. 1446, is to the like effect as that of John de 
 Burgh, and his comments upon the Provincial 
 Constitutions which I have cited are so very much 
 the same, that it would be a needless repetition 
 were I to extract them at length. It is, however, 
 material to observe, that neither the one nor the 
 other makes any such distinction as Lord Coke 
 suggests, but both agree that the inviolable secrecy 
 of Confession applies alike to all cases, without ex- 
 ception. 
 
 And thus matters continued, till the time of Henry 
 VIII., without any doubt or question whatever, re- 
 specting either the sacredness or the inviolability of 
 Confession. In fact, these were too well established 
 to be the subjects of discussion in any of the Courts 
 of Law, as the whole realm was Catholic, the esta- 
 blished Religion was Catholic, and many of the 
 Judges, from time to time, had been, as Lord Coke 
 has repeatedly told us, not only Catholics, but Clergy - 
 men.f Even therefore if we had not had the evi- 
 dence which we have, no reasonable person could 
 have doubted that the rule which prevailed univer- 
 
 * Lynd. Provinc., pp. 334, 335. Ed. Oxon. 
 t See 1st Inst. 304, b. ; 2nd lust. 265.
 
 24 
 
 sally elsewhere, from the earliest ages, prevailed also 
 in England : For otherwise England would have 
 stood alone in Christendom, upon a matter of 
 religion, justly deemed of the very highest im- 
 portance, and of general obligation and almost 
 daily practice. In such a case, the very silence of 
 authors is no slight evidence ; for in an age when 
 Treasons were common, and other capital Felonies 
 very numerous, cases bearing upon this subject 
 must often have arisen. But although we meet 
 with many instances, in the old books, of confessions 
 obtained by various means, there are none, so far as 
 I can discover, relating to confessions of a strictly 
 religious character, nor can I find any case re- 
 corded, in which a Priest was required to give 
 evidence of anything which he had heard in the 
 confessional. 
 
 And if the privilege of confession was thus 
 secured by the common law, and parcel of that 
 law, as I confidently maintain that it was, I would 
 fain ask, whether up to this period, any Act of 
 Parliament had altered or infringed it ? for I cer- 
 tainly am at a loss to know, how any authority 
 less than that of an Act of Parliament could in any 
 way affect it. Lord Coke says,* " the common law 
 " has no controller in any part of it, but the High 
 " Court of Parliament ; and if it be not abrogated 
 * Istlnst. 115, b.
 
 25 
 
 " or altered by Parliament, it remains still, as 
 " Littelton saith." And Lord Hale declares, to 
 the same effect,* " this common law, though the 
 " usage, practice, and decisions, of the King's 
 " Courts of Justice may expound and evidence it, 
 " and be of great use to illustrate and explain it, 
 " yet it cannot be authoritatively altered or changed 
 " but by Act of Parliament." He then goes on to 
 explain that many parts of the Canon Law, as well 
 as of the Civil, have become incorporated with and 
 parcel of the Common Law of England, and are 
 therefore unalterable, except by Parliament. 
 
 Then was any change made in the reign of 
 Henry VIII. ? So far from it, a Statute was 
 passed, the Statute 25 Hen. 8, c. 19, which tends 
 very strongly to confirm the Law upon the sub- 
 ject of Confession ; for in that Statute, by which 
 the King was authorized to appoint thirty-two 
 persons to revise the canons, constitutions, and or- 
 dinances, theretofore made by the Clergy of the 
 Realm, there is this proviso, " Provided also, that 
 " such canons, constitutions, ordinances, and 
 " synodals provincial, being already made, which 
 " be not contrariant or repugnant to the laws, 
 " statutes and customs of this Realm, nor to the 
 " damage or hurt of the King's Prerogative Royal, 
 " shall now still be used and executed, as they were 
 * Kale's Hist, of the Com. Law, Chap. 2.
 
 " afore the making of this Act, till such time as 
 " they be viewed, searched, or otherwise ordered and 
 " determined, by the said thirty-two persons, or the 
 " more part of them, according to the tenor, form 
 " and effect of this present Act."* 
 
 Now the Canons, Constitutions, &c., to which 
 this Statute refers, undoubtedly comprised those 
 Provincial Canons and Constitutions respecting 
 Confession, and the secrecy of Confession in all 
 cases, to which I have above referred, for they were 
 certainly in full force, " in viridi observantia," at 
 that time ; and it is clear that the exception in this 
 Proviso was not intended to exclude them, as, in- 
 dependently of the fact that they were " not con- 
 " trariant or repugnant to the laws, statutes, and 
 " customs of this Realm, nor to the damage or 
 " hurt of the King's Prerogative Royal," the 
 Statute which was passed some years afterwards, 
 entitled " An Act abolishing Diversity in Opinions" 
 (Stat. 31 Hen. 8, c. 14), distinctly and in terms 
 declared, that " auricular confession was expedient 
 " and necessary to be retained, and continued, used, 
 " and frequented, in the Church of God," and that 
 " Act professes to have been made " by the assent 
 " of the Lords Spiritual and Temporal, and other 
 " learned men of the Clergy in Convocation, and 
 '* by the consent of the Commons in Parliament 
 * See Caudrey's Case, 5 Co. Rep. 32 b.
 
 27 
 
 " assembled, after a great, and long, deliberate, and 
 " advised disputation and consultation."* 
 
 We have thus these Provincial Canons and Con- 
 stitutions confirmed by an Act of Parliament which 
 is still in force, for the Stat. 25 Hen. 8, c. 19, though 
 repealed by the Stat. 1 & 2 Phil. & M. c. 8, was 
 revived by the Stat. 1 Eliz. c. 1, s. 6, and has re- 
 mained so to this very day ; and we know that the 
 thirty-two commissioners, appointed by the Crown, 
 never completed their work. And if those Pro- 
 vincial Canons and Constitutions stand so con- 
 firmed, being in strict accordance with the ancient 
 Common Law, and not abrogated by subsequent 
 enactments, I must ask those who say, that the 
 Seal of Confession exists no longer, how they can 
 support their assertion ? No doubt, many of the 
 ancient Canons and Constitutions to which the 
 Stat. 25 Hen. 8, c. 19, applies, have lost their 
 force, in consequence of their incompatibility with 
 subsequent enactments ; but it is for persons who 
 allege, that those which secure the sacred invio- 
 lability of Confession are of this number, to prove 
 their point by incontrovertible arguments, not by 
 vague surmises, nor by loose statements of text 
 writers, nor by extrajudicial dicta of Judges, how- 
 ever eminent, or however respected. 
 
 Let us see then what happened in the reign of 
 * See The Statutes of the Realm, Vol. 3, p. 739.
 
 28 
 
 Edward VI., and in the subsequent periods of the 
 Reformation. And here we are at once met by an 
 article in the Royal Injunctions, issued by Edward 
 VI. in the year 1547, directing all " Parsons, 
 " Vicars and other Curates," that " they shall in 
 Confessions every Lent examine every person 
 ' that cometh to Confession to them ;" &c.* It is evi- 
 dent therefore that the practice of Confession was then 
 not only fully sanctioned, but universally prevalent. 
 In the next year, 1548, the first order for the admi- 
 nistration of the Holy Communion was published 
 by the King's authority, and prefaced by a royal 
 proclamation ; and in the Notice, or " Warning," 
 required to be given by the Minister to the Con- 
 gregation, in the week previous to the Administra- 
 tion of the Sacrament, there occurs this remarkable 
 passage : " And if there be any of you, whose 
 " conscience is troubled and grieved in any thing, 
 " 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 a Minister 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 
 * See Cardwell's Doc. Annals, Vol. 1, p. 10.
 
 29 
 
 " such, as shall be satisfied with a general Confes- 
 " sion, 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 which 
 " are satisfied with their humble confession to God, 
 " and the general confession to the Church ; but in 
 " all these things to follow and keep the rule of 
 " Charity ; and every man to be satisfied with his 
 " own conscience, not judging other men's minds or 
 " acts, whereas he hath no warrant of God's word 
 " for the same."* 
 
 Here then is "auricular Confession," both name 
 and thing, expressly authorized in the very time of 
 the Reformation ; and in the year following (A.D. 
 1549) we have the Book of Common Prayer, which 
 is commonly called the first Book of Edward VI., 
 published and authorized by Act of Parliament ; 
 and it is remarkable, that the Act of Parliament 
 which required the use of this Prayer Book, (Stat. 
 2 & 3 Edw. 6, c. 1,) declared it to have been 
 compiled " by the aid of the Holy Ghost." Now 
 in the Exhortation prefixed to the Communion 
 Office,! the same reference to, and sanction of, " the 
 
 * See the Two Books of Common Prayer of Edward VI., 
 edited by Cardwell, p. 428. 
 f Ib. p. 278.
 
 30 
 
 auricular and discreet confession to the Priest," is 
 repeated in almost all the very same words, and in 
 the Office for the Visitation of the Sick, in the same 
 book,* there is this Rubric : " 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 form ; and the same form of abso- 
 " lution shall be used in all private confessions ; " 
 thus recognizing auricular and secret confession, not 
 only in the case of sickness, but on other occasions. 
 In the 2nd Prayer Book of Edward VI., published 
 in the year 1552, and in the later Prayer Books, 
 revised and sanctioned in the years 1559, and 1662, 
 these passages were in part omitted, but the Exhorta- 
 tion in the Communion Office, and the Rubric in 
 the Office for the Visitation of the Sick, are equally 
 express in encouraging special and private confes- 
 sion ; and the same form of absolution is prescribed. 
 Nowhere are the Laity forbidden to make, or the 
 Clergy to receive, private confessions, but the con- 
 trary ; and the power of forgiving and retaining 
 sins, conferred at the Ordination of Priests, is tied 
 to no time or circumstances ; and in the Homily 
 of Repentance, (which is one of those authorized 
 by the 39 Articles, (Art. 35,) a general liberty of 
 resorting to the Clergy for such purposes is plainly 
 
 * Cardwell's Two Books of Common Prayer of Edward VI., 
 p. 363.
 
 31 
 
 declared. Lastly, in the 113th of the Canons of 
 the year 1603, which the Courts of Law have 
 declared to be binding upon the Clergy, we find 
 the following proviso : " 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 any way bind the 
 " said Minister by this our constitution," (the 
 Canon had just provided for making presentments 
 of crimes to the Ordinary,) " but do straitly charge 
 " and admonish him, that he do not at any time 
 " reveal and make known to any person whatso- 
 " ever 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." 
 
 What particular crimes are here intended in this 
 latter exception I am unable to discover; for the 
 mere concealment of Treason, or of Felony, was no 
 more than the offence of misprision, the stat. 1 & 2 
 Ph. & Ma. c. 10, s. 8, having enacted, " that con- 
 " cealment or keeping secret of any High Treason 
 " be deemed and taken only misprision of Treason," 
 and the concealment of Felony being by Common 
 Law a misdemeanor only ; in neither case there- 
 fore, neither of them being a capital offence, could 
 the Priest's " own life be called into question for
 
 32 
 
 " concealing the same," even supposing that the 
 concealment in consequence of a religious confession 
 would have been in any case, or at any period, a 
 misprision in point of Law, which I venture very 
 strongly to doubt. This exception therefore in the 
 Canon seems in reality to amount to nothing; while 
 it is evident, that the Proviso was designed to give 
 protection to religious confession generally, and to 
 prevent any Clergyman from violating it, whether in 
 Court or elsewhere. I must observe, however, that 
 this Canon, although binding upon the Clergy, is not 
 binding upon the Laity ; * and that as the secrecy 
 of confession is the privilege, not of the Priest, but 
 of the Penitent, the Laity may truly say, " We 
 " know nothing about the Canon of 1603, but we 
 " know that our confessions are privileged by the 
 " Common Law, and by earlier Canons confirmed 
 " by Parliament ; and although this Canon of 
 " 1603 merely requires you, the Clergy, to preserve 
 " the secrecy of our confessions ' under pain of 
 " irregularity,' we claim the protection of a more 
 " stringent rule, and declare that you are bound to 
 " keep our confessions inviolate, under the old 
 " penalties, as confirmed long before your Canon of 
 " 1603 was in existence." 
 
 Upon the whole, it is beyond all question, that 
 neither the proceedings of the 16th, nor those of 
 the 17th century, (including therefore the whole 
 * See Middleton v. Croft, Cases temp. Lord Hardwicke, 326.
 
 33 
 
 period of the Reformation) made any change what- 
 ever in the sacred and inviolable character of this 
 religious Rite. They certainly did not render 
 unlawful the general use of private penitential 
 confession, and it is perfectly clear, that, both by 
 Parliament and by Convocation, the continuance 
 of it in certain cases was directly encouraged and 
 enjoined. It is also worthy of remark, that the 
 Rubric of the Book of Common Prayer, in the 
 Order for the Visitation of the Sick, as finally altered 
 and settled in the year 1662, carries this matter 
 further than the Rubrics in force before ; for the 
 former Rubric merely said, " Here shall the sick 
 " person make a special confession, if he feel his 
 " conscience troubled with any weighty matter ;" 
 whereas the present Rubric says, " Here shall the 
 " sick person be moved to make a special confession 
 " of his sins, if he feel his conscience troubled with 
 " any weighty matter," thereby seeming to show, 
 that the confession is now to be, not merely a special 
 confession, confined to some particular weighty matter; 
 but a special confession of all his sins, if he desires 
 to confess and receive absolution for any. And as 
 the Rubrics, as well as the rest, of the Book of 
 Common Prayer, are now part of the Law of the 
 Land, having been confirmed by the Stat. 13 & 14 
 Car. II. c. 4, the Clergy of the Established Church 
 are positively required, not merely to receive the con-
 
 34 
 
 fessions of Penitents in certain cases, when volun- 
 tarily tendered, but actually to urge and exhort the 
 making of them, where parties may be reluctant to 
 make them. But if the practice has thus remained, 
 and been thus recognised and authorized, it will 
 certainly need better arguments than any which I 
 have ever seen advanced, to show that the privilege 
 of secrecy, which had before attached to it, was lost 
 at the Reformation. If it be said, that it was no 
 longer imperatively required of the members of the 
 Church, the answer is obvious, and, I think, con- 
 clusive, that to allow it in any case, and still more 
 to encourage and enjoin it in some, was equivalent 
 to a pledge on the part of the Church and of Par- 
 liament, that it should be attended by all the 
 privileges recessary to its free exercise ; that those 
 privileges existed by the Law of the State, as well 
 as by the Law of the Church, and that there is 
 nothing in the Statute Book, directly or indirectly, 
 to annul or weaken them. If again, it be objected, 
 that the Sacramental character of Confession was 
 done away, and that therefore its inviolability was 
 affected, it may be replied, first, that the Sacra- 
 mental character of Penance has not been denied 
 by the English Church, but only a lower place 
 assigned to it than to Baptism and the Eucharist, 
 the same having been the case with regard to Con- 
 firmation, Matrimony, and Orders ; 2ndly, that
 
 35 
 
 granting that its sacramental character has been 
 disparaged, it has not fared better than these other 
 ordinances, and yet every one knows that the rules 
 of the Canon and Common Law do generally apply 
 to these, and if so, Why should they not apply also 
 to Confession ? 3rdly, that the absolute denial of its 
 sacramental character would not at all destroy its 
 privilege of secrecy, inasmuch as that privilege rests, 
 not merely, nor even mainly, upon its sacramental 
 character, but upon other grounds of the highest 
 importance, the avoidance of scandal, and the 
 necessity of secrecy to the maintenance of the Rite. 
 
 The arguments therefore which deny this privi- 
 lege are utterly worthless. I do not choose to 
 discuss here the question of its policy, although 
 I may possibly have something to say upon that 
 subject hereafter : I am now dealing strictly with 
 the legal question, and on that I maintain, that the 
 law protects it, as it has always done. 
 
 This reasoning, respecting the changes which 
 occurred at and after the Reformation, applies of 
 course almost entirely to the Protestant Church, 
 then by law established on the ruins of the Catholic. 
 The right of Catholics, at the present day, to have 
 their confessions protected in Courts of Justice, rests 
 upon a somewhat different ground from that of 
 Anglicans, but not very difficult to support. That 
 they had that right originally, by the Common Law 
 
 D2
 
 36 
 
 as well as by the Laws Ecclesiastical, up to the 
 period of the Reformation, cannot, I presume, be 
 doubted. If they lost it at that time, they lost it, 
 not because the privilege itself was taken away, or 
 treated as illegal, by any special enactment, but 
 because the Religion itself, of which it formed part, 
 was proscribed, and the Priests and Professors of 
 that Religion exposed to the most cruel persecution, 
 under a code of Laws as tyrannical and barbarous 
 as ever disgraced a civilized nation. The proscrip- 
 tion of the Religion itself was the proscription of all 
 those of its ordinances and its privileges, which were 
 not specially retained by the new system established. 
 But happily those days of tyranny and barbarism 
 are ended, and the Religion is restored, not indeed 
 as the Religion of the State, but as one sanctioned 
 and protected by Law. The Catholic therefore is 
 reinstated in his right to the perfect enjoyment of 
 all the ordinances of his Creed, and of those privi- 
 leges which are necessary to the performance of 
 every one of his religious duties. If he is not, he 
 has not that benefit which the Legislature intended 
 to give him ; for what a mockery would it be to 
 tell him, " True it is, you are now permitted to go, 
 " as your ancestors went, to confession, where your 
 " religion requires you to make a full acknowledg- 
 " ment of all your sins, and the Priest is bound to 
 " hear you ; but remember, that he is now liable to 
 " be called upon at any time, upon pain of impri-
 
 37 
 
 " sonmerit, to reveal whatever you confess, and 
 " therefore, if unfortunately you have committed 
 " any heinous crime, which presses heavily upon 
 " your conscience, and for which you more parti- 
 " cularly need the consolation and advice of your 
 " spiritual Director, he may be made the means of 
 " bringing you, however deeply you may repent 
 " your sins, to penal servitude, or to an ignominious 
 " death, unless he refuses to betray his trust, and 
 " by his refusal to commit a breach of the Law." 
 But who does not see, that this would practically 
 be a denial altogether of the Sacrament of Penance 
 to the Catholic who most requires it ; and if so, 
 that his religion is restored to him, not as his an- 
 cestors had it, but in a mutilated state and an 
 utterly insufficient manner ? 
 
 Look again at the condition of the Priest he is 
 bound, under the most solemn obligations of his 
 religion, never, under any circumstances, or what- 
 ever may be the demand made upon him, to reveal 
 any sin which a penitent has confessed to him, and 
 it may be perfectly true, and indeed everybody 
 who knows what Catholic Priests are, can testify, 
 that not one of them would so violate his religion 
 and his honour, as to be guilty of such a crime, for 
 all that the world could give or take away : 
 
 " Phalaris licet imperet, ut sit 
 " Falsus, et admoto dictct perjuria tauro."
 
 38 
 
 But is any Priest to be exposed to the alternative, 
 of either violating his most solemn obligations, and 
 destroying his position and his character, or exposing 
 himself to punishment and to prison, for refusing to 
 violate his conscience, and his duty to God and 
 man ? How can he be said to be restored to the 
 free exercise of his religion, or to the due perform- 
 ance of those very duties which the Law has actu- 
 ally authorized him to perform ? Until I am shown 
 some Act of Parliament, which has expressly de- 
 stroyed the secrecy of religious confession, I must 
 take the liberty of doubting, whether any Catholic 
 can be deprived of it, as he actually had it by Law 
 till his religion itself was exterminated, and since 
 the free enjoyment of his religion has been restored 
 to him, without any legislative restriction. 
 
 With respect to Protestant Dissenters, the ques- 
 tion may possibly not be quite so easy of solution, 
 as that respecting the members of the Established 
 Church, or the Roman Catholics. But if there are 
 any of them, as I believe there are some, who recog- 
 nize the duty, and conform to the practice, of pri- 
 vate religious confession, they may fairly ask, why 
 they should not have it, with all the privileges 
 which always belonged to it, and which are essen- 
 tial to its due observance ? If their forms of reli- 
 gion are legalised, they are entitled to protection in
 
 39 
 
 the exercise of them all. The right of confession 
 they probably retain, as a remnant of the religious 
 system from which they separated at or after the 
 Reformation, and thus it may be deemed to have 
 passed to them unimpaired and unaffected, and 
 therefore privileged ; while the Anglican Church 
 itself shows, that the Reformation has not abro- 
 gated it, and that it is not inconsistent with the 
 religion of Protestants. In connexion with this 
 branch of the subject, I may quote the observations 
 of Mr. Best, in his able and excellent work on the 
 Principles of the Law of Evidence (page 694) ; he 
 says, " If the refusing to hold spiritual communica- 
 " tions sacred is an error, an opposite and greater 
 " one is the attempt to confine the privilege to the 
 " Clergy of some particular creed. Courts of 
 " Municipal Law are not called on to determine 
 " the truth or merits of the religious persuasion to 
 " which a party belongs, or to enquire whether it 
 " exacts auricular confession, advises, encourages, 
 " or permits it ; the sole question for them ought 
 " to be, whether the party who bond fide seeks for 
 " spiritual advice should be allowed it freely. By a 
 " statute of New York, ' 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 dis-
 
 40 
 
 " ' cipline enjoined by the rules or practice of such 
 " ' denomination.' A similar statute exists in Mis- 
 " souri, and the like principle is recognized in 
 " France ;" and he adds, in a note, a passage from 
 Bonnier's Traite des Preuves, s. 179, " Le systeme 
 " contraire detruirait la confiance, qui seule peut 
 " amener le repentir, en donnant au pretre les 
 " apparences d'un delateur, d'autant plus odieux 
 " qu'il serait revetu d'un charactere sacre." 
 
 These observations of Mr. Best relate perhaps 
 rather to the policy, than to the Law of this question ; 
 but I quote them as in part confirmatory of what I 
 have stated, with regard to Catholics and Protestant 
 Dissenters, that when the Law secures to them the 
 free exercise of their religion, it guarantees them 
 the full enjoyment of every privilege necessary to 
 the due observance of all its Rites; that if it intended 
 to make any exception or restriction, it was bound 
 to state it plainly, as the grant would otherwise be 
 a snare and a delusion; and that the Law may now 
 be deemed to recognise penitential confession simply 
 as a religious Rite, independently of the particular 
 profession of Faith of which it forms part. 
 
 But it is now time to turn to the English writers 
 on the Law of Evidence, who have referred to this 
 question, and to examine their statements, and the 
 cases on which they rely. Amongst these, the first
 
 41 
 
 in order of time appears to be Mr. Serjeant Peake, 
 who, in his " Compendium of the Law of Evidence," 
 says; " This rule of Professional confidence extends 
 " only to the case of facts stated to a legal Practi- 
 " tioner, for the purpose of enabling him to conduct 
 " a cause ; and therefore a confession to a Clergy - 
 " man, or a Priest, for the purpose of easing the 
 " culprit's conscience, the statement of a man to 
 " his private friend, or of a patient to his physician, 
 " is not within the protection of the Law." The 
 only authorities which he cites in support of these 
 positions are the case of The King v . Sparkes, in 
 Peake's Nisi Prius Cases, page 78, and the case of 
 the Duchess of Kingston, in the 20th Volume of 
 the State Trials. 
 
 Mr. Serjeant Peake is followed by Mr. Starkie, 
 who, in his " Treatise on the Law of Evidence," 
 after mentioning the privilege which exempts 
 counsel, solicitors, and attorneys, from divulging 
 " any matter which has been communicated to 
 " them in professional confidence," says,f " All other 
 " Professional Persons, whether Physicians, Sur- 
 " geons, or Divines, are bound to disclose the secrets 
 " which have been reposed in them in the practice 
 " of their professions, when called upon to do so for 
 " the purposes of justice. It has been held, that a 
 
 * Peake on Evid. p. 180. 
 
 f Stark, on Evid. vol. ii. p. 322.
 
 42 
 
 " Roman Catholic Priest is bound to reveal secrets 
 " confided to him in the course of confession." 
 
 In support of these propositions, Mr. Starkie cites 
 the cases of Wilson v. Rastall, 4 T. R. 753 ; Rex v. 
 Duchess of Kingston, 11 State Tr. 243; and those 
 reported in 1 Keb. Rep. 505, 1 Vent. 197, Skinner, 
 404 ; Peake's Cases, 77 ; Butler v. Moore, before 
 Sir Mich. Smith, Master of the Rolls, Macnally, 
 253 ; Vaillant v. Dodemead, 2 Atk. 524 ; and Bac. 
 Ab. Evidence, A. 2. 
 
 Mr. Phillips, in his Treatise, after saying, that 
 " The professional privilege is confined to the cases 
 " which have been enumerated," (those of Bar- 
 risters, Attorneys, and Solicitors,)* adds, "a con- 
 " fession to a Clergyman is not privileged," for 
 which he refers to the case of " The King v. Sparkes, 
 " cited in Du Barre v. Livette, Peake, 77," observ- 
 ing, " the confession was made by a Papist." He 
 then adds, in a note, " In Broad v. Pitt, 3 C. & P. 
 " 519, Lord Wynford said that it had been decided 
 " in Gilham's Case, R. & M. Cr. Cas. 194, that the 
 " privilege did not extend to Clergymen, but that 
 " he would never compel a Clergyman to disclose 
 " communications made to him by a prisoner, but 
 " if he chose to disclose them, he should receive 
 " them in evidence. He also observed, that the 
 " confidence in the case of Attorneys was a great 
 * Phill. on Evid. vol. i. pp. 176, 177.
 
 43 
 
 " anomaly in the Law. A confession to a Popish 
 " Priest has been held not to be privileged Butler 
 " v. Moore, Macnally, 253. In Du Barre v. 
 " Livette, Peake, 108, Lord Kenyon apparently 
 "dissents from the decision in R. v. Sparkes." 
 
 Mr. Roscoe, in his " Digest of the Law of Evi- 
 dence in Criminal Cases,"* after speaking of the 
 privilege of Counsel, &c., says, " Other professional 
 " persons, whether Physicians, Surgeons, or Clergy - 
 " men, have no such privilege," for which he refers 
 to the cases of Wilson v. Rastall, and the Duchess 
 of Kingston's Case, already cited by the writers 
 just noticed. He then goes on, " Thus, where 
 " the prisoner, being a Roman Catholic, made a 
 " confession, before a Protestant Clergyman, of the 
 " crime for which he was indicted, that confession 
 " was permitted to be given in evidence at the trial, 
 " and he was convicted and executed. Sparkes' 
 " Case, cited Peake, N. P. C. 78. Upon this case 
 " being cited, Lord Kenyon observed, that he 
 " should have paused before he admitted the evi- 
 " dence ; but there appears to be no ground for 
 " this doubt. In Gilham's Case, Ry. & M. C. C. R. 
 " 198, it was admitted by the counsel for the pri- 
 " soner, that a Clergyman is bound to disclose 
 " what has been revealed to him as matter of 
 * Roscoe on Criminal Evid. p. 175.
 
 44 
 
 " religious confession, and the prisoner in that case 
 " was convicted and executed." 
 
 Mr. Pitt Taylor, in his masterly work on 
 Evidence,* lays down the law thus : " Clergy- 
 men and Medical Men are bound to disclose any 
 " information, which, by acting in their professional 
 " character, they have confidentially acquired." 
 And he afterwards says : " Though the Law of 
 " England encourages the Penitent to confess his 
 " sins, for the unburthening of his conscience, 
 " and to receive spiritual consolation and ease of 
 " mind, yet the Minister, to whom the confession 
 " is made, is merely excused from presenting the 
 " offender to the Civil Magistrate, and enjoined 
 " not to reveal the matter confessed, under pain of 
 " irregularity. In all other respects, he is left to 
 " the full operation of the rules of the Common 
 " Law, which recognize no distinction between 
 " Clergymen and Laymen, but provide that all 
 " confessions and other matters, not confided to 
 " legal counsel, must be disclosed, when required 
 " for the purposes of justice. Neither penitential 
 " confessions made to the Minister, or to members 
 " of the party's own Church, nor even secrets con- 
 " fided to a Roman Catholic Priest in the course of 
 " confession, are regarded as privileged communi- 
 " cations." And he cites in proof of his statements, 
 * Taylor on Evid. vol. ii. pp. 755, 756, 757, 3rd ed.
 
 45 
 
 " Rex v. Gilham, 1 Moo. C. C. 186; Butler v. 
 " Moore, Macnally's Ev. 253 - 255 ; Anon., Skin. 
 " 404 ; Du Barre v. Livette, Peak. R. 77 ; Com v. 
 " Drake, 15 Mass. 161 :" and in a note he refers to 
 the dictum of Lord Chief Justice Best, in Broad v. 
 Pitt, 3 C. & P. 519, and M. & M. 234, S. C., 
 which I have already given. He also adds, "in 
 " R. v. Griffin, 6 Cox, Cr. Gas. 219, Baron Alder- 
 " son is reported to have gone further, and to have 
 " expressed an opinion, that communications made 
 " by a prisoner to a Clergyman ought not to be 
 " disclosed." 
 
 Mr. Best, in his " Treatise on the Principles of Evi- 
 dence,"* to which I have already referred, states the 
 Law on this subject with far greater caution, and, as 
 will be seen, with far greater accuracy. His words 
 are these : " Whether communications made to Cler- 
 " gymen by persons applying for spiritual advice are, 
 " or should be, protected from disclosure in Courts 
 " of Justice, presents a question of some difficulty. 
 " It is commonly, thought that the decisions of the 
 " Judges in the cases of Rex v. Gilham and Rex v. 
 " Wild, added to some others that will be cited per- 
 " sently, have determined it in the negative, and 
 " the practice is in accordance with that notion. 
 " But the former of these cases only shows, that a 
 " confession of guilt, made by a prisoner to the 
 * Best on Evid. p. 690.
 
 46 
 
 " world, or a Magistrate, in consequence of the 
 " spiritual exhortations of a Clergyman that it will 
 " be for his soul's health to do so, is receivable in 
 " evidence against him a decision perfectly well 
 " founded, because such exhortations cannot pos- 
 " sibly be considered illegal ' inducements to con- 
 " ' fess.' By this expression, as shown in a former 
 " chapter, the law means language calculated to 
 " convey to the mind of a person suspected of an 
 " offence, that, by confessing, he will better his 
 " position with reference to the temporal conse- 
 " quences of that offence. And the ground on 
 " which a Confession made after such an induce- 
 " ment to confess is rejected is, the reasonable 
 " apprehension that, in consequence, the party 
 " may have made a false acknowledgment of guilt, 
 " an argument wholly inapplicable where he is 
 " only told that a spiritual benefit is to be derived 
 " from telling the truth. The case of Rex v. Wild 
 " is even less to the purpose ; as the party who 
 " used the exhortation there neither was, nor pro- 
 " fessed to be, a Clergyman, and, wholly un- 
 " solicited, thrust it on the prisoner. The other 
 " cases to which allusion has been made are an 
 " anonymous one in Skinner, Rex v. Sparkes, 
 " Butler v. Moore, and \Vilson v. Rastall. In the 
 " first the question was respecting a confidential 
 " communication to a Man of Law, which Lord
 
 47 
 
 " Chief Justice Holt, as might have been expected, 
 " held privileged from disclosure, adding obiter that 
 " ' it was otherwise in the case of a Gentleman, 
 " * Parson, &c." The second and third are decisions, 
 " one by Buller, J., on circuit, and the other by the 
 " Irish Master of the Rolls in 1802, that confessions 
 " to a Protestant and a Roman Catholic Clergyman 
 " respectively are not privileged ; and in the fourth 
 " the Judges in bane say obiter, that the privilege 
 " is confined to the cases of Counsel, Solicitor, and 
 " Attorney. How far a particular form of religious 
 " belief, being disfavoured by Law at the period, 
 " affected the latter of those decisions, is not easy 
 " to say ; but both of them leave the general ques- 
 " tion untouched ; and on Rex v. Sparkes being 
 " cited to Lord Kenyon in Du Barre v. Livette, 
 " he said, * I should have paused before I admitted 
 " the evidence then admitted/ He however 
 " decided that case on the ground, that confidential 
 " communications to a legal adviser were distin- 
 " guishable from others. It is also to be observed, 
 " that the subject coming incidentally before Best, 
 " C. J., in Broad v. Pitt, very shortly after Rex v. 
 " Gilham, he referred to that case, as deciding that 
 " the privilege in question did not apply to a 
 " Clergyman ; but added, * I, for one, will never 
 " * compel a Clergyman to disclose communications
 
 48 
 
 " * made to him by a prisoner ; but if he chooses to 
 " * disclose them, I shall receive them in evidence.' " 
 Mr. Best then adds, " There cannot, we appre- 
 " hend be much doubt, that, previous to the Refor- 
 " mation, statements made to a Priest under the 
 " Seal of Confession were privileged from dis- 
 " closure, except perhaps when the matter thus 
 " communicated amounted to High Treason. In 
 " the old laws of Henry I. is this passage, ' Caveat 
 " * sacerdos ne de hiis qui ei confitentur peccata 
 " ' sua alicui recitet quod ei confessus est, non 
 " * propinquis, non extraneis ; quod si fecerit, 
 " ' deponatur, et omnibus diebus vitae suaB ignomi- 
 " ' niosus peregrinando poeniteat.' The laws of 
 " Henry I. are of course not binding per se, and 
 " are only valuable as guides to the Common Law, 
 " but it is otherwise with the Statute Articuli Cleri 
 " (9 Edw. 2, c. 10), which is as follows." He then 
 sets out the passage of this Statute which I have 
 already quoted, and afterwards the Commentary of 
 Lord Coke, which I have also given at length ; and 
 concludes by saying, " This passage has been cited 
 " to prove the Common Law on this subject, but 
 " we much doubt whether the caveat at the end of 
 " the above enactment, (' caveant confessores ne 
 " ' erronice hujusmodi appellatores informent,') was 
 " inserted to warn the Confessor against disclosing
 
 49 
 
 " the secrets of the Penitent to others. The gram- 
 " matical construction and context seem to show, 
 " that it was to prevent his abusing his privilege of 
 " access to the criminal by conveying information 
 " to him from without, and the clause is translated 
 " accordingly in the best editions of the Statutes." 
 
 Such are the statements made by these various 
 writers upon this important subject, amongst whom 
 Mr. Best evidently differs, very widely, from all the 
 others. I shall now examine in their order the 
 several authorities which are relied upon by those, 
 who deny the right of the Clergy to withhold the 
 evidence of what they have heard in Confession. 
 These authorities are, as we have seen, Sparke v. 
 Sir Hugh Middleton, 1 Keb. Rep. 505 ; Cuts v. 
 Pickering, and Jones v. The Countess of Man- 
 chester, 1 Vent. Rep. 197 ; An Anonymous Case, 
 Skinn. Rep. 404 ; Bac. Abr. tit. Evidence, A. 2 ; 
 Vaillant v. Dodemead, 2 Atkins' Rep. 524 ; The 
 Duchess of Kingston's Case, 20 How. State Trials, 
 573 ; The King v. Sparkes, cited in Peake's N. P. 
 Cas. 78 ; Wilson v. Rastall, 4 T. R. 753 ; Rex v. 
 Gilham, Moo. C. C. R. 186; Rex v. Wild, Moo. 
 C.C. R. 452 ; Butler v. Moore, Macnally on Ev. 253. 
 
 Now the three first of these cases are cited by 
 Mr. Starkie alone, as supporting his statement on 
 this subject ; and I certainly am at a loss to see how 
 they bear upon it at all. The case of Sparke v. Sir
 
 50 
 
 Hugh Middleton relates merely to the disclosures 
 which counsel are exempted from making, and says 
 nothing, even incidentally, about any other persons 
 whatever. That of Cuts v. Pickering has not the 
 most remote reference to any person, except a soli- 
 citor ; and that of Jones v. The Countess of Man- 
 chester relates only to the liability of a trustee to 
 produce certain documents, Lord Chief Justice Hale 
 observing obiter, " that it was against the duty of a 
 " counsellor or solicitor, &c., to discover the evi- 
 " dence which he who retains him acquaints him 
 " with." These cases therefore are not in point 
 in the slightest degree, for nothing is said in any 
 one of them respecting any minister of religion, nor 
 does any one lay down any general rule, or allude 
 to the evidence of any other person than those enu- 
 merated. 
 
 The anonymous case in Skinner's Reports is not 
 of much value, though cited both by Mr. Starkie 
 and by Mr. Pitt Taylor, and it really lays down no 
 generally exclusive rule. It was a mere Nisi Prius 
 case, in which the only question was, whether an 
 attorney should be compelled to disclose the nature 
 of a corrupt agreement, which he had been em- 
 ployed to prepare, and Lord Holt held that he 
 should not ; the report then adds ; " it seems to 
 "be the same law of a scrivener, and he (Lord 
 " Holt) cited a case, where, upon a covenant to 
 " convey as counsel should advise, and ' counsel
 
 51 
 
 '' * did not advise' being pleaded, conveyances made 
 " by the advice of a scrivener were allowed to be 
 " good evidence upon this issue, for he is a counsel 
 " to a man with whom he will advise, if he be 
 " instructed and educated in such way of practice ; 
 " otherwise of a Gentleman, Parson, &c." Now 
 independently of this being a mere obiter dictum 
 of a Judge at Nisi Prius, it is evident that Lord 
 Holt was not considering, or referring to, the case 
 of a Clergyman entrusted by a Penitent in matters 
 of spiritual concern his words really are only appli- 
 cable to the subject before him, and simply mean, 
 that if a Gentleman, a Parson, or any other person, 
 not educated or practising as a Lawyer, is consulted 
 on matters which properly belong only to a man 
 professionally educated as a Lawyer, the com- 
 munications made between such persons cannot be 
 considered professional in other words, the Gentle- 
 man, or the Parson, cannot be treated as a Lawyer, 
 though he has apparently acted in that capacity. 
 
 This case therefore has no more bearing than the 
 other three upon the question now under considera- 
 tion, and it is only extraordinary, that they should 
 have been adduced at all, as connected with the 
 subject of Religious Confessions. 
 
 The passage in Bacon's Abridgment, to which 
 only Mr. Starkie has referred, amounts to nothing ; 
 for the original text of Bacon states merely the 
 E 2
 
 52 
 
 privilege of " Counsellors, Attorneys, and Soli- 
 " citors," without any exclusion of other per- 
 sons. The Editor Gwillim indeed has added 
 to Bacon's text, and says, " This privilege is con- 
 " fined to the cases of Counsel, Solicitor and 
 " Attorney, and does not extend to any other 
 " Piofessions ;" but he has given no authority 
 for this, except the Duchess of Kingston's Case 
 in the State Trials, and the case of Wilson 
 v. Rastall in Term Reports, each of which I shall 
 consider presently, and show that it is irre- 
 levant. 
 
 The case of Vaillant v. Dodemead is next in 
 order. It was a case in Chancery before Lord 
 Hardwicke, respecting a collusive assignment of a 
 lease, and a question arising upon a demurrer to 
 certain interrogatories, which had been administered 
 to a Mr. Bristow, " Clerk in Court in the Cause," 
 the Lord Chancellor, in considering the objections 
 made to the demurrer, said, "The third objection 
 " is, that it is too general ; for the words are, that 
 " he knew nothing but as Clerk in Court, or Agent. 
 " Now, the word agent is very extensive and un- 
 " certain, for no persons are privileged from being 
 " examined in such cases, but persons of the Pro- 
 " fession, as Counsel, Solicitor, or Attorney, for an 
 " Agent may be only a Steward, or Servant." 
 Now Lord Hardwicke cannot fairly be supposed to
 
 53 
 
 have meant more than he actually said, and by 
 using the words, " in such cases," he showed that 
 his attention was confined to cases of the same 
 nature as the one before him : he did not refer to 
 cases of a totally different kind, still less to cases 
 foreign to his own jurisdiction. Had he done so, 
 his observations would have been entirely extra- 
 judicial, and consequently of no importance. Lord 
 Hardwicke was simply determining the meaning of 
 the word " agent," and showing that it was too 
 generic, and might include unprivileged persons. 
 It is as if he had said, " By the word ' agent,' I 
 " cannot understand a legal agent, as it may mean 
 " a steward, or a servant, neither of whom has any 
 " privilege; I cannot hold it to mean a Barrister, 
 " Solicitor, or Attorney, who properly constitute 
 " * the Profession,' and who therefore are alone 
 " entitled, in cases like the present, to the pri- 
 " vilege of a professional or legal agent." And 
 this construction makes his language analogous 
 to that of Lord Holt, in the case in Skinner's 
 Reports just mentioned, that a person consulted, 
 and assuming to advise, as a Lawyer, cannot 
 claim the privilege of a Lawyer, if he is not really 
 a member of the Profession. Lord Hardwicke 
 certainly cannot be deemed to have laid down any 
 general rule, or to have even expressed an opinion 
 upon matters which were not before him, or to have 
 interfered with principles not submitted to his
 
 54 
 
 notice; particularly when it is remembered, that 
 no authority before Lord Hardwicke's time can be 
 adduced to show, that the privilege in question was 
 confined to the legal profession ; certainly not one 
 that affected in any way the rights of Ministers of 
 Religion, with respect to Confessions made to 
 them ; the previous cases, so far as I can discover, 
 having only decided that Barristers, Solicitors, and 
 Attorneys are privileged, not that other classes 
 generally are not. 
 
 The case of Vaillant v. Dodemead therefore does 
 not touch the present question. 
 
 The Duchess of Kingston's case, in the State 
 Trials, has been used to support the view of those, 
 who confine this privilege to members of the Legal 
 Profession. But it does nothing of the kind ; it 
 lays down no general rule; and so far from de- 
 ciding that Priests and Ministers of Religion have 
 no privilege, it says nothing whatever about them. 
 The only persons, whose privilege was considered at 
 all in that case, were a Surgeon, a Peer, and an 
 Attorney. The question relating to the Surgeon 
 occurred first, upon the objection of Mr. Cresar 
 Hawkins to disclose certain matters, which had 
 come to his knowledge professionally : the objection 
 was npt argued, nor was there any discussion about 
 it; but, Lord Mansfield intimating the opinion of 
 the House of Lords, " that a Surgeon has no privi- 
 " lege to avoid giving evidence in a Court of Jus-
 
 55 
 
 " tice, but is bound by the Law of the land to do 
 " it," Mr. Hawkins gave his evidence without fur- 
 ther hesitation. The next question was as to the 
 liability of a Peer to give evidence, who had been a 
 friend of the prisoner, and claimed to be relieved 
 from disclosing what he thought that his honour 
 required him to conceal. The House decided that 
 he was bound to answer, the prisoner herself at the 
 same time releasing him from all obligation to 
 silence. The last question related merely to the 
 extent of an Attorney's privilege, the witness 
 leaving it to the House to say, whether the matter 
 on which he was examined was matter which, 
 as an Attorney, he was bound to testify. There is 
 not therefore, in the whole of the Duchess of King- 
 ston's case, what the writers on evidence have 
 assumed that it contains : it is confined entirely to 
 the points which I have mentioned, and conse- 
 quently is no authority for anything beyond them. 
 The case of Wilson v. Rastall, which related 
 only to an Attorney, has been also cited, for the 
 same purpose as the Duchess of Kingston's Case ; 
 and the language of Mr. Justice Duller has been 
 much relied upon. That learned Judge there says, 
 " This doctrine of privilege was fully discussed in 
 " a case before Lord Hardwicke. The privilege 
 " is confined to Counsel, Solicitor, and Attorney ; 
 " but, in order to raise the privilege, it must be
 
 56 
 
 " proved, that the information, which the adverse 
 " party wishes to learn, was communicated to the 
 " witness in one of those characters ; for if he be 
 " employed merely as a steward, he may be ex- 
 " amined." And subsequently he observes, " I 
 " take the distinction to be now well settled, that 
 " the privilege extends to those three enumerated 
 " cases at all times, but that it is confined to those 
 " cases only. There are cases to which it is much 
 " to be lamented that the law of privilege is 
 " not extended ; those in which medical persons 
 " are obliged to disclose the information which 
 " they acquire, by attending in their professional 
 " characters. This point was very much considered 
 " in the Duchess of Kingston's Case, when Sir 
 " C. Hawkins, who had attended the Duchess as a 
 " medical person, made the objection himself, but 
 " was overruled, and compelled to give evidence 
 " against the prisoner." 
 
 It is evident, that in making these observations, 
 the learned Judge went much further than he was 
 justified in doing : In the first place, when he said, 
 that " this doctrine of privilege was fully discussed 
 before Lord Hardwicke," he very much overstated 
 the fact ; for if he referred, as it is clear that he 
 did, to the case of Vaillant v. Dodemead, there is 
 nothing in the report of that case which shows, 
 that the doctrine was really discussed at all, for,
 
 57 
 
 the report, as I have already shown, contains only 
 the Demurrer, with the formal objections to it, 
 and the Lord Chancellor's judgment thereon : and 
 as to the observation, that " the privilege was 
 confined to the three enumerated cases only," I 
 would ask, when and where had it ever been so 
 confined ? No reported decision, before Lord 
 Hardwicke's, had so confined it, and that decision, 
 as we have seen, does not warrant any such con- 
 struction. Even if it did, it would not by any 
 means have " settled " the law, for it must be 
 remembered, that Lord Hardwicke's decision, as 
 well as this of Mr. Justice Duller, was, so far as it 
 may be supposed to have laid down any general 
 and exclusive rule, entirely extrajudicial, for the 
 case before each of the Judges related solely to the 
 privilege of a legal agent, or attorney, not to that 
 of any other persons. Again, when Mr. Justice 
 Duller said, that the privilege of medical persons 
 had been " very much considered in the Duchess of 
 Kingston's Case," he stated what was not true; 
 for the report in the State Trials shows, that, upon 
 Mr. Hawkins objecting to give evidence, the Lord 
 High Steward put the question to the Lords, with- 
 out having it " considered," or argued, at all, and 
 that Mr. Hawkins yielded his objection at once, 
 when Lord Mansfield suggested that the Lords 
 considered him bound to answer.
 
 58 
 
 Mr. Justice Buller's authority therefore, in Wilson 
 v. Rastall, for the doctrine for which it is cited, 
 loses all its importance, when it is shown, not only 
 that his observations were extrajudicial, but that 
 the cases to which he referred fail to support his 
 statements. 
 
 The next case is that of The King v. Sparkes, a 
 case which the more I consider, the more astonished 
 I am that any stress has ever been laid upon it : 
 we have no report of the case, we are not even 
 told when or where it occurred, except that it was 
 somewhere upon the Northern Circuit ; we know 
 nothing of the circumstances under which the con- 
 fession referred to was made ; or of the reasons on 
 which it was received in evidence ; all the know- 
 ledge of it which we have is derived from a casual 
 reference to it, in an argument of the plantijf's 
 counsel, in a Nisi Prius case, before Lord Kenyon, 
 when Mr. Garrow, (who was not a member of the 
 Northern Circuit, and therefore most probably 
 knew nothing about it, except from some very im- 
 perfect statement,) in arguing for the admissibility 
 of a witness, who had acted as an interpreter 
 between the defendant (a foreigner) and his at- 
 torney, said, that " a case much stronger than that 
 " had been determined by Mr. Justice Duller, on 
 " the - Northern Circuit. It was a case in which 
 " the life of the prisoner was at stake. The
 
 59 
 
 " name of it was The King v. Sparkes. There 
 " the prisoner, being a Papist, had made a confes- 
 " sion, before a Protestant Clergyman, of the crime 
 " for which he was indicted, and that confession 
 " was permitted to be given in evidence on the trial, 
 " and he was convicted and executed. The reason 
 " against admitting that evidence (continued the 
 " learned Counsel) was much stronger than in 
 " the case then before the Court ; there the prisoner 
 " came to the Priest for ghostly comfort, and to ease 
 " his conscience, oppressed with guilt." Now, in- 
 dependently of the extreme looseness and insuffi- 
 ciency of this statement, and of our entire ignorance 
 of some of the most important facts, an ignorance 
 which renders it impossible to be relied upon, there 
 is one very obvious remark to be made, which at 
 once almost disposes of it. The confession was 
 made by a Catholic prisoner to a Protestant Clergy- 
 man, and such a confession, as every Catholic 
 knows, would not be a Sacramental Confession, or 
 made, under the Seal of Confession, to a person 
 whom the penitent would deem competent to give 
 him absolution. The presumption therefore is, that 
 this confession, though possibly made, as the Coun- 
 sel suggested, " for ghostly comfort, and to ease his 
 " conscience oppressed with guilt," was not one 
 which the prisoner expected, or even wished, to be 
 concealed, and the Protestant Clergyman, in di-
 
 no 
 
 vulging it, most probably had reason to believe, 
 (and it must be hoped, for his own sake, that he 
 had,) that he was not violating any secret confi- 
 dence, or acting a base or dishonourable part. Such 
 a state of things is not uncommon ; and we shall 
 presently see, in the case of the King v. Gilham, that a 
 confession was made in a manner somewhat similar, 
 and was very properly received in evidence. This 
 consideration alone is sufficient to show, that the 
 case of the King v. Sparkes is no authority for the 
 position which it is commonly cited to support; inde- 
 pendently of the fact, that there are no circumstances 
 stated on which any reliance can be placed ; and 
 that the little value which it might have been sup- 
 posed to have possessed is neutralized by the de- 
 clared opinion of Lord Kenyon, who, when it was 
 cited, expressed his dissatisfaction with Mr. Justice 
 Buller's decision; Mr. Justice Duller being a 
 Judge, whose views upon this subject of privilege, 
 as we have already seen, were by no means accu- 
 rate or trustworthy. At all events, the case shows 
 nothing as to the obligation of a Priest or Minister 
 to disclose any religious confession, or any confi- 
 dential communication ; for the Protestant Clergy- 
 man may have volunteered his testimony, being 
 under no moral obligation to withhold it, and not 
 having had it extorted from him by any compulsion 
 or order of the Court.
 
 Gl 
 
 The case of the King v. Gilham, to which I just 
 now adverted, has been frequently, and, I may say, 
 unaccountably supposed to prove, that " Clergy- 
 men are bound to disclose any information, which, 
 by acting in their professional character, they have 
 confidentially acquired." But any person who 
 takes the trouble of reading it must see at once, 
 that it proves no such thing; and it is astonishing 
 that the case should have been so much misunder- 
 stood as it has been. The prisoner Gilham was 
 charged with murder, and, soon after his commit- 
 ment, the gaoler, in one or two interviews with 
 him, and the Chaplain of the gaol, in several, 
 worked very strongly upon his conscience, and 
 urged upon him the duty of repentance, and the 
 confession of his guilt. These conversations the 
 Chaplain, who seems to have had very little know- 
 ledge of his duty, reported at once to the Magis- 
 trates ; and the prisoner, agitated by all that had 
 been said to him, at length confessed the crime, not 
 however to the Chaplain in the first instance, but 
 to the gaoler, and then to the Mayor and the Town 
 Clerk. These confessions were received in evidence 
 at the trial, and the only question respecting them 
 on that occasion, and upon an argument afterwards 
 before the Judges upon a case reserved, was, 
 whether they were legally admissible, in conse- 
 quence of their having been almost extorted from
 
 62 
 
 the prisoner by the manner in which he had been 
 previously worked upon by the gaoler and the 
 Chaplain ; no question was raised as to the legal 
 obligation of the Chaplain to give the evidence 
 which he had given, or to disclose any confidential 
 communications of the prisoner ; in fact there was 
 no opportunity for any such question, as the Chap- 
 lain had, long before the trial, of his own accord, 
 openly stated all that had passed between himself 
 and the prisoner ; and nothing which related either 
 to the duty, or to the conduct, of the Chaplain was 
 even once alluded to by the Judges. With this 
 explanation the case of the King v. Gilham may be 
 dismissed, as it has been completely misrepresented, 
 and did not in fact settle, or even raise, the point 
 for which it has been cited. The admissions of 
 counsel, to which Mr. Roscoe alludes, in the state- 
 ment which I have quoted from his work, are 
 nothing to the purpose; and the prisoner was 
 convicted and executed, not in consequence of a 
 religious confession, made in secret confidence to a 
 Priest, or Minister, and revealed by him, as Mr. 
 Roscoe would lead his readers to suppose, but upon 
 admissions of guilt, made to the gaoler and to the 
 Magistrates, and brought about, partly by remorse 
 of conscience, and partly by religious exhortations 
 urged a good while before. The observation 
 therefore, respecting the effect of the decision in
 
 63 
 
 Gilham's Case, reported to have been made by Lord 
 Wynford, and referred to by Mr. Phillips, if made 
 at all, was evidently made under a mistake, and 
 at all events was an entirely extrajudicial remark. 
 I must not however dismiss the case of Rex v. 
 Gilham, without noticing another, which was cited 
 by the prisoner's Counsel in his argument before 
 the Judges, the case of Rex v. Radford, tried at 
 Exeter Summer Assizes in the year 1823, before 
 Lord Chief Justice Best, the prisoner being indicted 
 for murder. In that case, a Clergyman had pre- 
 vailed upon the prisoner to confess, by dwelling on 
 the heinousness of the crime with which he was 
 charged, and the denunciations of Scripture against 
 it, without giving him any caution that it would 
 be used in evidence against him ; and the Lord 
 Chief Justice refused to allow the Clergyman to 
 state the confession, saying, " that he thought 
 " it dangerous, after the confidence thus created, 
 " which would throw the prisoner off his guard, 
 " and the impression thus produced, to allow 
 " what he then said to be given in evidence against 
 " him." 
 
 Upon this case I will only observe, that although 
 perhaps it does not amount to much, on either side 
 of the present question, particularly as we do not 
 know all the circumstances under which the confes- 
 sion was made, it tends at least to show, as does 
 the case of Broad v. Pitt, the leaning of the learned
 
 64 
 
 Judge's mind against the reception of such confes- 
 sions in evidence, when made to Clergymen in the 
 discharge of their professional duties ; and, at all 
 events, the case, so far as it goes, appears to be more 
 in point, and more favourable to my argument, than 
 the case of Rex v. Gilham is either apposite or 
 adverse to it. 
 
 The case of the King v. Wild has been men- 
 tioned, but is, if possible, even more irrelevant than 
 the case of the King v . Gilham ; for the question 
 there turned upon the admissibility of certain con- 
 fessions of the prisoner, a boy under fourteen years 
 of age, which had not been made to any Minister 
 of Religion, and respecting which no Minister of 
 Religion gave, or was asked to give, or was capable 
 of giving, any evidence whatever. They were con- 
 fessions made to some of the prisoner's own friends 
 and neighbours, who had gathered round him at 
 the inn to which he had been taken soon after his 
 apprehension, and who, in a solemn manner, had 
 desired him to kneel down and tell the truth, and 
 these, or similar, statements the prisoner had re- 
 peated the next day to the innkeeper's son, before 
 his removal to the gaol. There was nothing in 
 them of a confidential nature, as regarded either 
 the communications themselves, or the persons to 
 whom they were made, and it is really absurd to 
 cite the case as having the slightest bearing upon 
 this subject.
 
 65 
 
 These are the only English cases on which the 
 writers on Evidence appear to rely, for their exclu- 
 sion of Priests and Ministers of Religion from the 
 privilege contended for. The examination of them, 
 I think, has shown, that they do not by any means 
 establish the rule which those writers lay down. In 
 not one of them, has the question of clerical privilege 
 ever been fairly raised by argument, or settled by 
 solemn decision. Of the only two relating expressly 
 to Clergymen, and supposed to be adverse to the 
 privilege, one, the case of The King v. Gilham, 
 has no bearing upon the question at all ; the other, 
 the case of The King v. Sparkes, is so imperfectly 
 reported, that no reliance can be placed upon it, and 
 it is quite consistent with the supposition that the 
 Clergyman volunteered his testimony, and was justi- 
 fied in giving it ; the rest, with one exception, in 
 which the claims of a Surgeon and of a Peer were 
 in question, were cases relating to Attorneys and 
 legal advisers ; and although, in some of these, the 
 rule was stated to be, that the privilege was confined 
 to members of the Legal Profession, it is clear that 
 no mere casual expressions of Judges, however dis- 
 tinguished, no extrajudicial statements of law, with- 
 out argument or consideration, are of any real value. 
 Many such statements may possibly be found in 
 other cases, as, for instance, in the judgments of 
 Baron Wood and Baron Garrow, in the case of
 
 66 
 
 Lord Falmouth v. Moss, (11 Price's Rep. 455), 
 where the question related only to the privilege of 
 a steward ; and in Lord Brougham's judgment in 
 the case of Greenough v. Gaskell (1 M. & K. 103), 
 which respected the privilege of an attorney; if 
 indeed Lord Brougham can be considered to have 
 made any statement upon this point, when he said 
 merely, that " it might not be very easy to discover, 
 " why a like privilege had been refused to others, 
 " especially to medical advisers." But in answer to 
 them it may be asked, why, if none but legal advisers 
 are privileged, and such has always been the rule 
 of the Common Law, have separate questions been 
 raised, so often as they have been, respecting dif- 
 ferent classes of persons, as Clerks, Bankers, Medical 
 Men, Stewards, Friends, and others, for whom the 
 same privilege has been claimed, and the claim con- 
 sidered open to argument ? If separate arguments 
 and decisions were necessary in these cases, the sup- 
 posed rule cannot have been generally admitted, or 
 even generally known ; and if its existence has to 
 be thus proved by a sort of process of exhaustion, the 
 proof, so far as it relates to Priests and Ministers of 
 Religion, is evidently still incomplete, and it has yet 
 to be applied to them. If, again, this exclusive rule 
 was not promulgated before the time of Lord Hard- 
 wicke, how can it be said to have been a rule of the 
 Common Law ? or, if it was a rule, how happens it 
 that the earliest English writers on Evidence say
 
 67 
 
 nothing about it ? Lord Chief Baron Gilbert, 
 whose Treatise is lauded as almost faultless by 
 Blackstone,* does not mention it, nor does Black- 
 stone himself, though they both speak of barristers, 
 solicitors, and attorneys, as privileged. Perhaps 
 those who have succeeded them have supposed, that 
 by this " expressio unius" they intended the " ex- 
 " clusio alterius ;" but such an inference cannot be 
 admitted, they probably meant no more than this, 
 that they knew that the Lawyers' privilege had been 
 expressly decided, but that they declined to pro- 
 nounce upon that of others, where they had no 
 such decisions to guide them. 
 
 This dearth of authority, however, in the English 
 Courts, and in English writers, has been supposed 
 to be compensated by an Irish case, which is re- 
 ported in Macnally's Rules of Evidence, page 253, 
 and occurred before the Master of the Rolls in 
 Ireland, in the year 1802. It is the case of Butler 
 v. Brown, in which the question being one respect- 
 ing the validity of Lord Dunboyne's Will, the 
 Catholic Priest, who had attended him in his last 
 illness, was called to say, whether he had died a 
 Catholic. The Priest refused to give evidence of what 
 he declared to be " a confidential communication, 
 " made to him in the exercise of his clerical func- 
 " tions." It was admitted that there had been no 
 * 3 Bla. Com. p. 367, note. 
 
 F2
 
 68 
 
 previous decision upon the subject, and the refusal 
 of the Priest was defended on the analogy of other 
 cases of privilege, and on the inconsistency which 
 would exist in the law, if it sanctioned, or even 
 tolerated, the Roman Catholic Religion, and at the 
 same time compelled its ministers to violate the 
 tenets of that Religion, by betraying the confidence 
 reposed in them. The Master of the Rolls, however, 
 decided against the privilege of the Priest, " thinking 
 " the analogy of the cases not so strong, and the 
 " principle on which the privilege was claimed not 
 " so clear, as to justify him in deciding otherwise." 
 This is the whole substance of this case, so far as 
 it can be collected from the very imperfect report of 
 it which alone exists ; and I can scarcely suppose, 
 that even in Ireland it is deemed of much value. 
 It was admitted to be a case " of the first impres- 
 " sion," and seems to have been very imperfectly 
 and inadequately argued ; it was decided only by a 
 single Judge, of no great judicial eminence ; and the 
 judgment, as reported, is about as meagre and un- 
 satisfactory as any judgment can well be : It rests 
 upon no principle ; it cites no authority ; it contains 
 no careful balancing of arguments ; it ignores alto- 
 gether the rights which a Priest might possess by 
 the Common Law ; it shows no attempt to elicit 
 truth, either by legal reasoning, or by historical 
 research : " sit pro ratione voluntas" seems to be its
 
 utmost effect. Taking it therefore in the full 
 sense, in which it seems to have been understood 
 by the writers on Evidence, I think it of no import- 
 ance, as it certainly is not binding in any Court of 
 Law or Equity in England, and it has no such 
 intrinsic merit, as to give it any independent au- 
 thority. 
 
 But it is most material to observe, that the case 
 does not really meet the point for which it has been 
 so often cited ; for the reason alleged by the Priest, 
 for his refusal to give the required evidence, is in 
 no respect conclusive or sufficient. He is merely 
 reported to have said, that what he was asked, " was 
 " a confidential communication made to him in the 
 " exercise of his clerical functions." It does not 
 appear, that it was a matter revealed to him in Con- 
 fession; in fact it is most probable that it was not; 
 or that, although possibly it had been alluded to in 
 Confession, it was one which he was strictly bound 
 by the rules of the Church to conceal, for he might 
 have known it quite independently of any Confes- 
 sion, or simply as a confidential friend, in either of 
 which cases the rule does not apply. 
 
 The case therefore cannot be cited as any au- 
 thority to prove, that religious Confessions are not 
 privileged, for it falls completely short of this. 
 With these observations I feel that I may safely 
 discard it.
 
 70 
 
 I have thus examined all the cases which have 
 been referred to by the writers on Evidence, to esta- 
 blish the rule which they have laid down, with the 
 exception of one, to which Mr. Pitt Taylor refers, 
 an American case, Com. v. Drake, 15 Mass. 161, 
 which I have not been able to find. But an 
 American case, relating to a question like the 
 present, which must be governed entirely by 
 English law, cannot possibly be of the slightest im- 
 portance either way, and therefore it is unnecessary 
 to notice it. I ought, however, in justice to that 
 learned writer, to say, that he has candidly men- 
 tioned, as opposed to his view, not only the opinion 
 of Lord Chief Justice Best in the case of Broad v. 
 Pitt, already noticed, but also that of Baron Alder- 
 son in the case of the King v. Griffin, which is re- 
 ported in the 6th volume of Cox's Criminal Cases, 
 p. 219. In this latter case, a woman, who was 
 charged with the murder of her child, had had 
 frequent conversations with the Chaplain of the 
 Workhouse, of which she had been an inmate, who 
 had visited her, as her spiritual adviser, to admi- 
 nister the consolations of religion. When he was 
 called to give evidence of what had passed, Baron 
 Alderson said, " I think that these conversations 
 " ought not to be given in evidence. The principle 
 " upon which an Attorney is prevented from di- 
 " vulging what passes with his client is because,
 
 71 
 
 " without unfettered means of communication, the 
 " client would not have proper legal assistance. 
 " The same principle applies to a person, deprived 
 " of whose advice the prisoner would not have 
 " proper spiritual assistance. I do not lay this 
 " down as an absolute rule, but I think that such 
 " evidence ought not to be given." 
 
 There is therefore no authority, in any one of 
 these cases, for asserting, that any Minister of Re- 
 ligion is bound to disclose in evidence any matter 
 which has been revealed to him in Confession. 
 The point, I repeat, has never been so decided, it 
 has never been argued, it has not even been 
 raised ; and we have seen that some eminent 
 Judges have strongly discountenanced it. I ought 
 however to notice a case, which occurred at the 
 Lent Assizes for the County of Durham, in the year 
 1860, before Mr. Justice Hill, then one of the 
 Judges of the Court of Queen's Bench. The case, 
 I believe, has not been reported, except in the 
 newspapers of the time, and it appears to have been 
 this : A prisoner was indicted for stealing a watch, 
 which had been restored to the prosecutor by a 
 policeman, who had received it from the Reverend 
 John Kelly, the Catholic Priest of the district in 
 which the robbery had been committed. Mr. 
 Kelly was called as a witness, and, being asked 
 from whom he had received the watch, stated that
 
 72 . 
 
 he " had received it in connection with the Confes- 
 " sional :" the Judge then 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?" To which the witness an- 
 swered, " The reply to that 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 rejoined, 
 " On the ground I have stated to you, you are not 
 " asked to disclose anything which a penitent may 
 " have said to you in the Confessional, but you are 
 " asked to disclose from whom you received stolen 
 " property, on the 25th of December last ? Do you 
 " answer it, or not?" On the witness saying, that 
 he really could not, the Judge at once adjudged 
 him guilty of contempt of Court, and ordered him 
 to be committed to gaol. 
 
 Now, with all due respect for Mr. Justice Hill, 
 who, I have no doubt, acted quite conscienti- 
 ously, I must take the liberty of holding, that 
 he had no more right to commit this witness 
 to prison, than he had to commit any other 
 person in the Court. Doubtless he was mis- 
 led by some of those statements of the writers
 
 73 
 
 on Evidence, which I have shown to be without 
 foundation. No objection was made at the time to 
 his conduct, although it was commented upon in 
 very severe terms, not only in the Provincial, but 
 also in several of the London, newspapers, and in an 
 excellent letter from one of the jurymen, which was 
 published immediately afterwards : for the Priest 
 was a person universally respected and beloved, 
 and the treatment which he received excited very 
 general indignation. The Judge, however, (and 
 this is very material,) did not venture to insist upon 
 the disclosure of what the witness had been told in 
 the Confessional, but drew an utterly absurd and 
 untenable distinction, between what was said and 
 what was done in Confession, or as the witness 
 stated, " in connection with the Confessional;" a 
 distinction, which, as the juryman very sensibly 
 remarked in his letter, "was defective in casuistry;" 
 for it is evident, that what is done in Confession, 
 or an act to which the Penitent makes the Priest a 
 party, in the immediate fulfilment of the satisfaction 
 enjoined, and as part of the Penance prescribed, 
 and which the Priest cannot disclose, without be- 
 traying what has been confessed to him, or com- 
 promising in some degree the position or cha- 
 racter of the Penitent, must be as much under the 
 Seal of Confession as anything which has been said. 
 But the Judge did make the distinction ; and 
 therefore the case, so far as it is worth anything,
 
 74 
 
 rather favours than opposes the position which I 
 maintain. 
 
 The supposed adverse authorities being thus 
 removed, the rule, so confidently and inconsiderately 
 based upon them, falls of course with them, 
 and the right which originally existed by the 
 Common Law remains clear, unimpeached, and 
 unimpeachable. We have seen that, from the earliest 
 ages of the Christian Church, the Seal of Confession 
 was annexed inviolably, and under the most solemn 
 sanctions, to the Rite of Confession itself; that it 
 was incorporated with the most ancient Laws, both 
 Civil and Ecclesiastical, of this realm; that it was 
 confirmed by Statutes in the period immediately 
 preceding the Reformation ; that it continued un- 
 altered and unaffected during the whole of that 
 period, and afterwards ; Penitential Confession 
 having been not only allowed, but sanctioned gene- 
 rally, and enjoined in some cases, by the Rubrics of 
 the several Books of Common Prayer, and by the 
 Book now required to be used, without any enact- 
 ment in any single statute, expressly or impliedly 
 interfering with its secrecy ; while this secrecy is 
 expressly commanded by the Canons made since 
 the Reformation, and declared by the Courts to be 
 binding upon the Clergy. 
 
 Under these circumstances, I know not how any 
 person can venture to affirm, that confessions are 
 not privileged in Courts of Justice. Even if Sta-
 
 75 
 
 tutes and Canons had left this privilege douhtful, 
 which I fearlessly maintain that they have not, it 
 exists, as we have seen, by the Common Law ; and 
 therefore the legal maxim would apply to it, " Quae 
 Communi Legi derogant, stricte interpretari de- 
 bent."* In a word, if Confession is authorized, or 
 permitted, as a religious Rite, its secrecy is autho- 
 rized and permitted also ; for without it, the Rite 
 itself is neutralized, and the rules which sanction it 
 are a dead letter ; but, as was well said by Baron 
 Alderson, in another case,f " if you make a thing 
 lawful to be done, it is lawful in all its conse- 
 quences." 
 
 With respect to the policy or expediency of 
 allowing this privilege, it is no part of my present 
 undertaking to discuss it ; my object is simply to 
 ascertain what the Law really is, not whether it is 
 good or bad. But I may be allowed to state my 
 firm conviction, that it is of the utmost importance, 
 even in a social point of view, to maintain the pri- 
 vilege to its full extent. There can be no doubt, 
 that so far from tending to defeat the administra- 
 tion of Justice, it aids and strengthens it in a 
 degree, of which probably none but those, who are 
 in the habit of receiving the confessions of peni- 
 tents, are at all aware : but it is notorious, particu- 
 
 * Jenk. Cent. 29 ; Vin. Abr. Vol. 20, p. 14. 
 f Scott's Case, 1 Dears. & Bell's C. C. R. 67.
 
 76 
 
 larly in Ireland, that the restitution of stolen pro- 
 perty, and satisfaction for many other wrongs 
 committed, as well as the prevention of very many 
 crimes, are brought about by the exhortations of 
 the Priest in the Confessional, and by his refusal of 
 absolution to those who reject his salutary admo- 
 nitions. Look, again, to the cruelty which you 
 inflict on the penitent, if you cut him off from 
 the comfort, and the benefit, of freely and securely 
 unburthening his conscience, in the manner most 
 satisfactory to himself. What is so likely to lead 
 him to an entire reformation of his life, " to turn 
 " him from darkness to light, and from the power of 
 " Satan unto God," as the solemnity of Penitential 
 Confession, and the engagements to holiness which 
 he is then required to make ? and is it not, or 
 may it not be, as important to him, in regard to 
 his eternal interests, to allow him the most full and 
 confidential intercourse with his spiritual adviser, 
 as it is to his temporal, to secure to him the same 
 advantage in his communications with his solicitor 
 or his attorney ? But it is not only cruelty which 
 you inflict, if you practically deny him this Rite of 
 his religion ; you act fraudulently and deceitfully to- 
 wards him : you urge him, nay, you enjoin him, 
 to confess his sins, if he has any which weigh 
 heavily upon his conscience, but you convert the
 
 77 
 
 Minister to whom he resorts, into an Informer and 
 a Spy ; and while you thus deceive the penitent 
 by hollow exhortations to his duty, and by false 
 professions of Religion, of sanctity, and of regard 
 for his security, you at the same time compel the 
 Minister to act a perfidious part, and to violate his 
 most sacred obligations, not only as a Minister 
 of Religion, but even as a Gentleman, and a 
 Man of honour. To require the secrets of con- 
 fession to be disclosed is, to my mind, a most 
 iniquitous and disgusting tyranny, utterly unworthy 
 of any system of Laws which professes to be religious, 
 or just, or humane. It cannot even be excused on 
 the ground of public policy or expediency: For 
 what injury to the public can this privilege cause ? 
 Was it productive of injury, when it existed undis- 
 puted in this country in former days? Is it found 
 to be injurious in Scotland, where it has always 
 prevailed ? Or in France, where the violation of it 
 is visited with, I believe, civil, as well as ecclesias- 
 tical, punishment ? Why is it more to be dreaded 
 here than in America, where the States of Missouri 
 and New York, not to mention others, protect the 
 Ministers of every religious denomination, from 
 disclosing anything which they have learnt in con- 
 fession ? Why may it not be allowed here, as well 
 as in Russia, where, under the Laws of Peter the
 
 78 
 
 Great, the Seal of Confession is very strictly pre- 
 served ; and where the Emperor Nicholas, as I have 
 been informed, once banished a Priest, who had 
 violated it, to Siberia, although his offence was 
 committed to serve the ends of justice? 
 
 If other countries, not only Catholic but Pro- 
 testant, find the privilege not inconsistent with the 
 administration of justice, or with the other interests 
 of Society, why should it be otherwise in this? 
 Away then with the miserable pretext of policy or 
 expediency, to which no liberal or enlightened 
 mind can possibly resort, even if it were worth 
 any thing, when so many considerations of far 
 higher import, and of far nobler character, point so 
 clearly in the opposite direction. " Summa ratio est 
 quse pro Religione facit," is an old maxim of English 
 Law ;* and no person, I am satisfied, who knows 
 anything of the subject, or considers it seriously, 
 can reasonably doubt, that the cause of Religion is 
 deeply interested, in maintaining the sacred inviola- 
 bility of Confession. 
 
 And now I must conclude my letter. I hope 
 that I have convinced you, that the point of law, 
 which I have endeavoured, however feebly, to esta- 
 blish, is correct, or that at all events it has not yet 
 been overruled by authority, and cannot now be 
 
 * Wingate's Max. p. 3 ; Broome's Legal Max. p. 15, &c.
 
 79 
 
 set aside, either by inconsiderate assertions, or by 
 foregone conclusions. 
 
 I am ever, 
 
 My dear Sir, 
 Your very faithful Servant, 
 
 EDWARD BADELEY.
 
 LONDON: 
 
 PRINTED BY C. ROWORTH AND SONS, 
 BELL YARD, TEMPLE BAR.
 
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