SEAL
658
SEAL
ought not to be given in evidence, saying that there
was an analogy between the necessity for privilege in
the case of an attorney to enable legal evidence to be
given and that in the case of the clergyman to enable
spiritual assistance to be given. He added, "I do
not lay this down as an absolute rule: but I think
such evidence ought not to be given".
In 1865 the question attracted public attention in England upon the prosecution of Constance Kent for a murder committed five years previously. She made a statement confessing her guilt to a Church of England clergyman, the Rev. Arthur Wagner, and she ex- pressed to him her resolution to give herself up to justice. He assisted her in carrying out this resolu- tion and he gave eviilence of this statement before the magistrates. But he prefaced his evidence by a dec- laration that he must withhold any further infor- mation on the ground that it had been received under the seal of "sacramental confession". He was but slightly pressed by the magistrates, the fact of the matter being that the prisoner was not defending the charge. At the Assizes, Constance Kent pleaded guilty and her plea was accepted so that Mr. Wagner was not again called. The position which Mr. Wag- ner assumed before the magistrates caused much pub- he debate in the press. There was considerable ex- pression of public indignation that it should have been suggested that Mr. Wagner could have any right as against the State to -wnthhold evidence on the ground which he had put forward. The indignation seems to have been largely directed against the assumption that sacramental confession was known to the Church of England. Questions were asked in both Houses of Parhament. In the House of Lords, Lord Westbury, Lord Chancellor, in reply to the Marquis of West- meath, stated that "there can be no doubt that in a suit or criminal proceeding a clergyman of the Church of England is not privileged so as to decline to answer a question which is put to him for the purposes of justice, on the ground that his answer would reveal something that he had known in confession. He is compeUed to answer such a question, and the law of England does not even extend the privilege of refus- ing to answer to Roman Catholic clergymen in dealing with a person of their owti persuasion". He stated that it appeared that an order for commitment had in fact been made against Mr. Wagner. If that is so, it was not enforced.
On the same occasion Lord Chelmsford, a previous Lord Chancellor, stated that the law was clear that Mr. Wagner had no privilege at all to withhold facts which came under his knowledge in confession. Lord West- meat h said that there had been two recent cases, one being the case of a priest in Scotland, who, on refusing to give evidence, had been committed to prison. As to this case Lord Westmeath stated that, upon an ap- plication for the priest's release being made to the Home Secretary, Sir George Grey, the latter had re- plied that if he were to remit the sentence without an admiasion of error on the part of the Catholic priest and without an assurance on his part that he would not again in a similar case adopt the same course, he (the Home Secretary) would be giving a sanction to the assumption of a privilege by ministers of every de- nomination which, he was advised, they could not claim.
Lord Westbury's statement in the Hou.se of Lords drew a protest from Dr. Phillpotts, the then Bishop of Exeter, who wrote him a letter strongly maintaining the privilfgc which had been claimed by Mr. Wagner. The bishop argued that the canon law on the subject had bfcn accepted without gain.sayiiig or oi)position from any temporal court, that it had been confirmed by the Book of Cornrnon Prayer in the service for the visitation of the sick, and, thus, sanctioned by the Act of Uniformity. From the bishop's reply to Lord West- bury's answer to his letter it is apparent that Lord
Westbury had expressed the opinion that the 113th
canon of 1603 simply meant that the "clergyman must
not mero motu and voluntarily and without legal obli-
gation reveal what is communicated to him in confes-
sion' ' . He appears, also, to have expressed an opinion
that the public was not at the time in a temper to bear
any alteration of the rule compelling the disclosure of
such evidence.
The second case referred to by Lord Westmeath was that of the Queen v. Hay, tried before Mr. Jus- tice Hill at the Durham Assizes in 1860 (2 Foster and FinlaisoUj p. 4). The prosecutor had been robbed of his watch by the prisoner and another man. A police inspector had subsequently received the watch from Fr. Kelly, a priest in the neighbourhood, upon his call- ing at the presbytery. Fr. Kelly was summoned as a witness by the prosecutor, and as the oath was about to be administered to him he objected to its form — not, he explained, to that part of it which required him to tell the truth and nothing but the truth, "but as a minister of the Catholic Church", he said, "I ob- ject to that part which states that I shall tell the whole truth". The judge answered him: "The mean- ing of the oath is this: it is the whole truth touching the trial which you are asked: which you legiti- mately, according to law, can be asked. If anything is asked of you in the witness-box which the law says ought not to be asked — for instance, if you are asked a question the answer to which might criminate your- self — you would be entitled to say, ' I object to answer that question ' " . The judge told him that he must be sworn. Wlien asked by counsel from whom he had received the watch Fr. Kelly replied: "I received it in connexion with the confessional". The judge said: "You are not asked at present to disclose any- thing stated to you in the confessional : you are asked a simple fact — from whom did you receive that watch which you gave to the policeman?". Fr. Kelly pro- tested: "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 vio- lating the laws of the Church as well as the natural laws ". The judge said : "On the ground that I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confes- sional. That you are not asked to disclose : but you are asked to disclose from whom you received the stolen property on the 25th December last. Do you answer or do you not?". Fr. Kelly replied: "I really cannot, my Lord", and he was forthwith committed into custody.
It may be fairly deduced from Mr. Justice Hill's words that he would not have required Fr. Kelly to disclo.se any statement which had been made to him in the confessional, and, in this sense, his words may be said to give some support to the Catholic claim for privilege for sacramental confession. But we need not wonder that he was not ready to extend the pro tection to the act of restitution, though, even in the eyes of non-Catholics, it ought , in all logic, to have been entitled to the same secrecy, in view of the circum- stances under which, obviously, it was made.
The laws of evidence except where they have been prescribed or declared by statute are the growth of the rulings of judges and of practice which has been fol- lowed. Thus, their origin affords an opportunity for d(!velopment in accordance with the development of society itself and of its principles and opinions. We havc^ seen this develoijinc^nt in regard to the extension of Uw {)rivil('gc, accorded from the beginning to communi(;:t1ion,s jjiissing between counsel and attor- neys and their clients. It is conceivable that this spirit of development may spread itself over other provinces as to which no privilege shall then^tofore have been recognized. It is possible that it may be even now ready to declare the privilege in the case of
