SEAL
653
SEAL
have the benefit of clergy nor any clergyman privilege
of confession to conceale high treason". It is not
quite clear from his comment, but it seems likely, that
Sir Edward Coke has interpreted the concluding cau-
tion to the confessors as a recognition of the seal of
confession, and, if so, it would seem that he has
wrongly interpreted it, because the translation of the
word "informare" as "to inform against" would ap-
pear to be incorrect. The correct interpretation of
the clause would seem to be as one of warning to the
confessors not to inform these offenders, when they
are admitted to hear their confessions, of what is go-
ing on outside.
Therefore, except in so far as it shows that the right of freely confessing was reserved to these offenders, the statute, in its actual words, contains no declaration of the privilege of the seal of confession. But Sir Edward Coke's comment is important as be- ing a statement by him of the existence of the priv- ilege at common law in respect of felonies. For the exclusion of it from cases of high treason there appears to be no foundation except Sir Edward Coke's own view as quoted, because the two cases which he cites in support of that view nowise support it.
The first of these cases is that of Friar John Ran- dolf, cited from the Rolls of Parliament, 7 Heru-y V, who was the confessor of Queen Joan, widow of Henry IV. There is nothing in that record from which Sir Edward Coke's averment that the queen's conspiracy had been proved by the disclosure of her confession to Friar Randolf can be deduced. The words are "Tant p relation & confession d'une frere John Randolf de I'ordre des Freres Menours come p autres evidences creables". The word "confession is, clearly, there used in its primary sense of an ad- mission. The reports of the matter in Holinshed's "Chronicles" and in Stow's "Chronicle of England" support this view as they state that Randolf was im- prisoned, Holinshed saying that "it was reported that he had conspired with the quaene by sorcerie and ne- cromancie to destroie the King", while Stow says that he had counselled the queen to her crime. Thus, evi- dently, when he was imprisoned on the charge of the conspiracy with the queen he confessed it.
The second case is one which occurred after the Reformation. It is the trial of the Jesuit, Fr. Gar- net (see Garnet, Henry), on the charge of conspir- acy in the Gunpowder Plot. It is reported in the records of the state trials. There is not only no men- tion of any decision by the court that the privilege of confession did not extend to the concealment of high treason, but there is not even the faintest indi- cation of any opinion to that effect by any member of the court. There was no question of the giving of evi- dence by a witness before a court of justice of matter revealed to him in confession. The issue being whether Fr. Garnet was a party to the conspiracy, the question of his cognizance and, if cognizant, of his non-disclosure of it was essential. It was not dis- puted that he had heard the particulars of the plot from Greenwell, one of the conspirators, but the de- fence was that he had heard them only in confession, though he had previously received a general indica- tion of the plot from another of the conspirators, Catesby. Not only was the defence not rejected at once by the court as being bad in law, but, to infer from the arguments put to the prisoner upon it by certain members of the court, it was treated with a seriousness which seems surprising in a post-Refor- mation period, and, especially, at a moment of such strong anti-Catholic feeling.
Lord Salisbury, a member of the court, asked Fr. Garnet if there must not be confession and contrition before the absolution, and, having received an affirma- tive answer, he observed to him that Greenwell had shown no penitence, or intention to desist. "Here- by", he said, "it appears that either Greenwell told
you out of confession, and then there would be no
secrecy: or, if it were in confession, he professed no
penitency, and therefore you could not absolve
him." He further said to him that after Greenwell
had told him in particular what Catesby meant, and
he then called to mind what Catesby had previously
told him (Fr. Garnet) in general, he might have dis-
closed it out of his general knowledge from Catesby.
He further asked him why, after Greenwell's con-
fession, when Catesby wished to tell him the particu-
lars, he had refused to hear him, to which Fr. Gar-
net answered that he was loth to hear any more.
Sir Edward Coke, for the prosecution, addressed to
the court six arguments on the subject, the first being
that this particular confession was not sacramental,
the fifth being that Fr. Garnet had learned of the con-
spiracy from Catesby extra confessionem, and the last
being that "by the common law, howsoever it (the
confession) were, it being a crimen Icesce majestatis, he
ought to have disclosed it". There is no indication
of any adoption by the court of this last proposition.
The confession in question was only an item in the
evidence brought forward. One infers from the re-
port that the court were not satisfied with the de-
fence, as a fact, of the confession, and, also, that they
considered the charge to be proved from the other
evidence.
In a paper on the law relating to confession in crim- inal cases by Mr. Charles H. Hopwood, the writer ad- mits the probability of the recognition of the seal be- fore the Reformation. He says that Garnet's case even as cited by Lord Coke could hardly be in point, inasmuch as Garnet was not called as a witness in the Gunpowder treason trial, and that the obligation of the seal of confession, if put forward by Garnet at all, was only done so by way of his own defence that he was not a conspirator, but merely knew whatever he knew through hearing the confession of the others, and that Sir E. Coke appears almost to confess and avoid this plea by retorting that the confession was one of crime not yet executed. Sir Edward Coke in his commentary on the "Articuli Cleri", c. 10, inter- preting the wording of it as he does, says that it de- clares the common law. His supporting this state- ment by the citation of a then recent case, together with his own argument, already mentioned, in that case, affords strong evidence that this great common lawyer was of opinion that even in his post-Reforma- tion period the common law of England recognized the privilege of confession, except in the case of trea- son. If that is his view, as seems, at least, highly probable, it is profoundly interesting as the opinion of a very distinguished lawyer and a fierce champion of Protestantism.
It is important, however, to bear in mind that by the penal laws Catholicism was a proscribed religion. The practice of it was subjected to severe penal statutes and priests performing its rites were rigor- ously penaUzed. Statute law displaces the common law if the latter is inconsistent with the provisions of the statute. It is true that there is no statute which expressly declares that religious confession shall not be privileged from disclosure in the witness-box. But so many statutes were passed against the practice of the Catholic rehgion that it would seem inconsistent with them to hold that such a privilege still prevailed at common law.
Confession and the Book of Common Prayer. — In the first half of the nineteenth century nearly all these laws were repealed, most of them having been for some time inoperative. There has never been any legisla- tion one way or the other about the disclosure in evi- dence of religious confession. If the privilege had ceased to be part of the common law legislation would be necessary to re-establish it. If it survived in the common law it can only have done so through the al- lowance of it in the case of the Protestant Church of
