SEAL
662
SEAL
CS. 2918) : "No minister of the gospel or priest of any
denomination shall be compelled to testify in rela-
tion to any confession made to him in his professional
character, in the course of discipline enjoined by the
rules or practice of such denomination ". By the Re-
vised Statutes of the State of Indiana, 1897 (S. 507),
certain classes of persons are enumerated who are
"not to be competent witnesses", which classes in-
clude "clergj-men as to confessions or admissions
made to them in course of discipline enjoined by their
respective churches". Similarly, in the State of Mis-
souri (Revised Statutes, 1899, S. 4659), "a minister of
the gospel or priest of any denomination, concerning a
confession made to him in his professional character,
in the course of discipline enjoined by the rules of
practice of such denomination," is to be incompetent
to testify.
The States of Kansas [General Statutes, 1901, S. 4771 (5)], and Oklahoma (Statutes, 1893, S. 335) have laws by which "a clergyman or priest, concern- ing anj^ confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the con.sent of the person making the confession" is to be incompe- tent as a witness. In the State of Iowa it is enacted (Code, 1897, S. 4608) that no "minister of the gospel or priest of any denomination shall be allowed, in giv- ing testimony, to disclose any confidential communi- cation properly intrusted to him in his professional capacity, and necessarj^ and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline". But the pro- hibition is not to apply to cases where the party in whose favour it is made waives the right. The State of Nebraska (Compiled Statutes, 1899, S. S. 5907 and 5908) has like provisions. It has, also, (S. 5902) a similar enactment to that in force in Kan- sas, which has been mentioned above. In the State of Kentucky it is enacted (C. C. P., 1895, 606 (5) that a clergyman or priest shall not testify to any confes- sion made to him in his professional character in the course of discipline enjoined by the Church to which he belongs, without the consent of the person confess- ing. In Ohio (Annotated Revised Statutes, 1898, S. 5241) and in Wyoming (Revised Statutes, 1887, S. 2589) there are almost identical enactments, save for the final qualification as to consent, which is omitted. North Dakota (Revi-sed Codes, 1895, S. 5704) and South Dakota (Statutes 1899, S. 6545) have provi- sions that if a person offers himself as a witness that is to be deemed a consent to the examination also of a clergyman or priest on the same subject within the meaning of the enactment. Colorado (Annotated Statutes, 1891, S. 4825) and Oklahoma have like pro- visions as to implied consent.
In the State of Michigan it is enacted (Compiled Laws, 1897, S. 10,180) that " No minister of the gospel or priest of any denomination whatsoever shall be al- lowed to disclose any confessions made to him in his professional character in the course of discipline en- joined by the rules or practice of such denomination ". In the State of New York it is enacted (Code of Civil Procedure, 1877, S. 833) that "a clergyman or other minister of any religion shall not be allowed to dis- closfi a confession made to him in his professional character in the course of discipline enjoined by the rules or practice of the religious body to which he be- longs". By S. 836 the protection is to apply unless the person who has confessed expressly waives it upon the trial or examination. In the State of Wisconsin (Statutes, 1898, S. 4074) there is an enactment like unto S. 833 of the New York Code of Civil Procedure with the addition of the qualification "without con- sent thereto by the party confessing". In the State of Vermont it is enacted (Statutes, 1896, no. 30) that "no priest or minister of the gospel shall be permitted to testify in any court in this State to statements made
to him by any person under the sanction of a religious
confessional". In Hawaii it is enacted (Civil Law,
1897. S. 1418) that "no clergj^man of any church or
religious denomination shall, without the consent of
the person making the confession, divulge in any
action, suit or proceeding, whether civil or criminal,
any confession made to him in his professional char-
acter according to the uses of the church or religious
denomination to which he belongs".
It will be noted that in each case, with the excep- tion of Hawaii, Iowa, and Vermont, the enactment contains the words "discipline enjoined", while of these others, Hawaii has the words "according to the uses of the church or religious denomination", and Vermont has the words "under the sanction of a re- ligious confessional ". Iowa appears to have the most widely-worded provision on the subject: a "confi- dential communication to a clergyman properly en- trusted to him in his professional capacity" is in- cluded in the same sentence with confidential commu- nications to an attorney, counsellor, or doctor, and the only other qualification put upon it is that it should be "necessary and proper to enable him (the clergy- man) to discharge the functions of his office according to the usual course of practice or discipline". But the statutes would not cover a casual communication made to a clergyman which is not made to him by reason of his professional capacity (State v. Brown, 1895, 95 Iowa, 381). In like manner it was held in 1835 in the State of New York that a communication made to a clergyman by a member of his congregation, but not made to him as a clergyman or in the course of discipline, was not within the privilege (People v. Gates (1835), 13 Wend., 311). Similarly, in Indi- ana, it has been held that where the evidence given by a priest does not concern any confession made to him in the course of discipline, enjoined by the Church, the evidence is admissible (Gillooley v. State (1877), 56 Ind., 182); that only statements made to clergy- men in obedience to some suppo.sed religious duty are privileged (Knight v. Lee, 80 Ind., 201). The States of Georgia, Louisiana, North Carolina, Pennsylvania, Tennessee, and Texas have statutes protecting com- munications made to attorneys professionally. From the fact of such communications being protected by statute while these passing between priest and peni- tent are not so protected it does not necessarily fol- low that no privilege is accorded to these latter com- munications, because the former were already privi- leged at common law.
France. — In the western portion of the Continent of Europe the sacredness of the seal of confession re- ceived public recognition at a very early date. Among the Capitularies of Charlemagne the first ca- pitulary of the year 813, Article XXVII, is as follows: "that inquiry shall be made whether what is re- ported from Austria (de partibus Austria;) is true or not, viz., that priests, for reward received, make known thieves from their confessions (quod presby- teri de confcssionibus accepto pretio manifestent la- trones) ". The Austria here referred to is the eastern part of the old Western Empire, then called Austria. In France it was an in(;ontestal)ly established i)rinci- ple not only that a confessor could not be examined m a court of justice as to matters revealed to him in confession, but that admissions made in confession, if disclosed, might not be received or acted upon by the court and would not be evidence. Merlin and Guyot, distinguished writers on French jurisprudence, cite a decree of the Parliament of Normandy deciding the principle and laying down that a person charged upon the evidence of a confession cannot be convicted and must be discharged. They cite decrees of other Par- liaments laying down the sacredness of the seal of con- fession. Among others, they cite a decree of the Par- liament of Paris in 1580, that a confessor could not be compelled to disclose the accomplices of a certain
