SEAL
661
SEAL
enacted that a witness " cannot be compelled to de-
clare what has been revealed to him confidentially in
his professional character as religious or legal ad-
viser". But even apart from this express legislation
the privilege of the seal has been transmitted, in Que-
bec, from the old French law of the province, the con-
tinuance of the liberty of the Catholic religion having
been guaranteed (see Gill v. Bouchard, 1896, R. J.,
5 Q. B., 138).
In the case of Masse v. Robillard [(1880) 10 Revue legale, p. 527] — which turned upon a political elec- tion — a witness was asked, with regard to his voting, whether he had been to confession to a certain priest and for what reason that priest had refused to hear his confession. The defendant to the suit objected to the question as being a violation of the privilege of confes- sion. It was argued on the other side that the privi- lege did not extend so as to prohibit a penitent from revealing what had been said by the priest. The court upheld the objection, deciding that a witness cannot be asked what a priest said to him during con- fession and that the disclosure of what has been said during confession is not permitted.
In the case of Gill v. Bouchard, referred to above, it was held by the Court of Queen's Bench, on an ap- peal from a judge of the Superior Court, that a priest, who was being sued for damages for having (it was alleged) induced an apprentice to leave his master, could not be compelled to disclose what he had said to the apprentice on the subject during the latter's con- fession, even though his advice to the apprentice was the alleged unlawful act for which he was being sued. It was held that the priest was protected by Art. 275 of the Code of Civil Procedure, and that, in the ab- sence of evidence to the contrary, the priest's state- ment that whatever he had said was said while he was fulfilling his functions as religious adviser must be final and conclusive. Thus, unless the person seeking to get in evidence what has passed in the confessional can prove that such matter has not passed in the performance of the practice of confession or in the ful- filment by the priest of his duty as confessor or re- ligious adviser, the priest's statement that if anything has passed, it has passed in the fulfilment of such duty or in the course of confession is conclusive, and any question upon the matter is entirely precluded by that statement. In this particular case the priest had, at the trial, answ;ered: " If I spoke to the child about the matter it was in the confessional ". (The boy's father told the court that the boy had said that drinking and bad words took place at his master's workshop.) The priest was then asked whether "he had counselled or advised the apprentice to leave his master's service, either in the confessional or elsewhere?". The priest objected to answering this question and contended that he was not legally bound to do so. The judge of the Superior Court held, on the ground that the ques- tion was one as to whether the priest had or had not committed a legal wrong, that he was not exempt from the obligation of answering it, and as the priest con- tinued to refuse, he was declared guilty of contempt of court and ordered to be imprisoned. This de- cision, as already mentioned, was, after an exhaustive argument of the question, reversed on appeal by the Court of Queen's Bench, which declared the law to be as stated above.
In Newfoundland, by the Consolidated Statutes, 1872, C. 23, s. 11, which section has since been in- corporated in the Consolidated Statutes, 1892, it is enacted that "a clergyman or priest shall not be com- pellable to give evidence as to any confession made to him in his professional character".
United States of America. — The position of the question at common law is the same in America as it is in England. In the case of the Commonwealth v. Drake [(1818) 15 Mass., 154], we find it argued on the one side that a confession of a criminal offence made
penitentially by a member of a certain Church to other
members, in accordance with the discipline of that
Church, may not be given in evidence. These others
-were called as witnesses. The solicitor-general, on the
other hand, argued that religious confession was not
protected from disclosure. It is true that he, also,
took the point that in this case "the confession was
not to the church nor required by any known ecclesias-
tical rule", but was made voluntarily to friends and
neighbours. The court held that the evidence was
rightly received. On the other hand, in the case of
People V. Phillips (1 Southwest L. J., 90), in the year
1813, the Court of General Sessions in New York, in a
decision rendered by De Witt Clinton, recognized the
privilege, and 10 Dec, 1828 it was embodied in the
law of the State of New York. This was directly ow-
ing to the trial of Rev. Anthony Kohlmann, S.J., who
refused to reveal in court information received under
the seal of confession. (See Kohlmann, Anthony;
and Sampson, "The Catholic Question in America",
New York, 1813, appendix). There is also Smith's
case reported in the " New York City Hall Recorder ",
vol. II, p. 77, which, apparently, was decided in the same
way. But these few reported cases, as to the first of
which we have no report of the grounds of the de-
cision, and the two latter of which come from in-
ferior courts, are hardly of sufficient weight to help
to a real determination of the question one way or the
other. If the question had ever had occasion to call
for the considered judgment of a court of appeal, there
is no doubt that the answer to it at common law
would have been deduced from its history in England.
But some of the states have made the privilege a matter of statute law. In Arizona (Revised Stat- utes, 1910, S. 2535, par. 5) a clergyman or priest can- not without the consent of the po^rson making the con- fession be examined as to any confession made to him in his professional character in the course of disci- pline enjoined by the Church to which he belongs. The same provision is enacted in the Penal Code, S. 1111, with the prelude "There are particular rela- tions in which it is the policy of the law to encourage confidence and to preserve it inviolate".
The Territory of Alaska (C. C. P., 1900, S. 1037) and the State of Oregon (annot. C. C. P., 1892, S. 712, par. 3) have provisions almost identically the same as that prevailing in Arizona with the substitu- tion of the words "shall not" for "cannot". The States of Colorado (Annotated Statutes, 1891, S. 4824), California (Code of Civil Procedure, 1872, S. 1881, par. 3), Idaho (Revised Stat., 1887, S. 5958), Minnesota (Gen. Stat., 1894, S. 5662), Montana (Code of Civil Proc, 1895, S. 3163 (3), Nevada (Gen. Stat., 1885, S. 3405), Washington (Code and Stat. 1897, S. 5994), Utah (Rev. Stat., 1898, S. 3414), North Dakota (Rev. Codes, 1895, S. 5703 (3), and South Dakota (Stat., 1899, S. 6544) have statutory provisions similar to that prevailing in Arizona.
In California the provision was amended by the Code Commission, 1901, by the addition to S. 1881 of the words: "Nor as to any information obtained by him from a person about to make such confession and received in the course of preparation for such confes- sion". The Commission also added a section (1882) to the effect that when a person who has made such a confession testifies, without objection on his part, to it or to any part of it, the clergyman to whom it was made may be examined fully as to it in the same ac- tion or proceeding: and that nothing contained in S. 1882 is to affect the right of the court to admit evi- dence of such confession when no objc^ction is season- ably interposed thereto, or when the court finds as an inference from proper evidence that the consent has been expressly or impliedly given. But all the amendments of the Commission have been held to be void on fonnal grounds (Lewis v. Dunne, 134 Cal., 291). By the Statutes of the State of Arkansas, 1894
