Page:Catholic Encyclopedia, volume 13.djvu/728

 SEAL

660

SEAL

them was to the privilege allowed to communications between legal advisers and their clients. It is no- ticeable that, in dealing with this question, the Catho- lic religion alone presents itself to the mind of Jeremy Bentham as being concerned with it. The whole chapter is exclusively limited to the claim for protec- tion for the Catholic practice of confession. It must be admitted by the most ordinary impartial observer that Catholics are in fact upon a different and much stronger footing in regard to the matter than any other religious body, because they are the only large re- ligious organization, in Western Europe and America, of whose discipline, in the continuation of long tradi- tion and practice, confession forms a vital constitu- ent part. It is noticeable that British judges and lawyers, where denying the existence of the privilege, have stated that it cannot be allowed even in the case of Catholics, thereby recognizing, in the light of obvi- ous fact, that their claim is not only most forcible but is pecuhar.

As it has been sought to indicate, one can hardly contend as a legal sequence that the removal of the proscription of Catholicism by the State has revived the privilege in favour of confession, the existence of which in pre-Reformation days has been sought here to be proved. But there are cogent arguments, on the ground of public policy and of the desirability of can- did consistency in state conduct, in favour of the seal being respected. The Catholic religion is now not only tolerated in England and Ireland, but it is sanc- tioned by the State, which appoints as its owti officers Catholic chaplains to the army, the navy, and to the prisons. Moreover, the State knows full well that confession is an essential part of Catholic practice and that the inviolability of the seal is an essential part of confession; the three main objects for which these chaplains are required are that they may hear the con- fessions of the persons in their charge, say Mass in their presence, and communicate them. To say that, despite these facts, the Catholic chaplain of a remand prison might be required, under pain of committal, to disclose, on the prisoner's trial, a sacramental confes- sion which the latter had made, would seem like laying a trap for both the priest and the prisoner. No one having the least acquaintance with trials as con- ducted by English or Irish judges to-day can think of such an event except as being in the remotest degree improbable. Yet, if the confession should have been made voluntarily, without the inducement of any hope or fear by any person possessed, in some way, of authority, the same legal principles would seem to apply to it as would apply to such a confession made by any other penitent or in any other place. If it should become an establi-shed principle^ whether by judicial ruling or by legislation, that religious confes- sion should be immune from disclosure in courts of justice, it is highly probable that the principle will embrace any denomination in which a confession in the nature of a religious exercise shall have occurred. One is disposed to believe that such a principle would accfjrd with the bulk of modern feeling towards the question.

Irela.vd. — The legal position as to the seal of con- fession is the same with regard to Ireland as it is with regard to England.

Scotland. — In Scottish law there does not appear to be any exact or clearly defined principle protecting from disclosure confessions to clergymen. But there appears to be a recognized leaning towards such pro- tection, at least, to a limited extent. It is to be ob- served that none of the works referred to below men- tion sacramental confession as practised by Catholics, which, perhaps, would be regarded by the courts as having a peculiar claim to protection. In the case of Anderson and Marshall, which is cited by Hume as having taken place in 1728, Hume tells us that Anderson had made a conf ession in the presence of a minister and

two bailies. Though Anderson, he tells us, had sent for the minister in order to disburden his con- science to him, evidence of the confession was received at the trial of Anderson. Hume comments unfavourably upon the reception in evidence of this confession, on the ground that the admission of such evidence tends to deprive a prisoner of the relief of confession to a person in a spiritual capacit3\ But he says further on (p. 350) that there is no privilege on the part of "surgeons, physicians or clergymen with respect even to circumstances of a secret nature, which have been revealed to them in the course of their duty". He thinks that probably no clergyman will ever be called upon to disclose any confession made to him by a prisoner under arrest. He goes on to give a h3'pothetical case of a person pursuing a course of crime and then, being suddenly seized with compunc- tion, making a confession to the clergyman of his par- ish, and, finally, relapsing and completing his crime. He thinks that in such a case, on the crime being com- mitted, the clergyman might, on the ground of public expediency, be required to give evidence of this con- fession, made at the previous stage, as being impor- tant in the history of the crime. But he cites no authority.

Tait, in his "Treatise on the Law of Evidence in Scotland" (p. 396), having dealt with the disqualifi- cation of a witness by having been agent or advocate of the opposite party, says: "There is only one other situation in which the law allows the exclusion of evi- dence on the ground of confidence, and that chiefly in reference to proceedings of a criminal nature as where a prisoner in custody and preparing for his trial, has confessed his crime to a clergyman in order to obtain spiritual advice and comfort". But Tait's authority seems to be derived from Hume, who is cited above. Alison, in his work on the "Practice of the Criminal Law of Scotland", having cited An- derson and Marshall's case, makes the following state- ment: "And there is nothing exceptionable in the ad- mission of such testimony, if he heard the confession tanquam quilibet, that is, if he heard it as an ordinary acquaintance or bystander, and not in the confidence and under the seal of a religious duty. But our law utterly disowns any attempt to make a clergyman of any religious persuasion whatever divulge any confes- sions made to him in the course of religious visits, or for the sake of spiritual consolation ; as subversive of the great object of punishment, the reformation and improvement of the offender".

India. — In India the British law as to the seal of confession is the same as in England

British Colonies.— Apart from any express legis- lation or from any local law to the contrary i)revailing, the law on the subject in the British Colonies and throughout the British Empire would be the same as that which prevails in England. In Cape Colony the law is the same as in England. The legal ad- viser is privileged: there is no ordinance or statute extending the privilege to the priest. Of the Com- monwealth of Australia, Victoria, by the Evidence Act, 1890, S. 55, has enacted that "No clergyman of any church or religious denomination shall, without con- sent of the person making the confession, divulge in any suit, action or procecnling whether civil or crim- inal any confession made to him in his professional character according to the usage of the church or re- ligious denomination to which he belongs". In New Zealand, by the Evidence Act, 1908, S. 8 (l),"a min- ister shall not divulge in any proc(!eding any confes- sion made to him, in his ])rofossinal character, ex- cept with the consent of the person who made such confession".

For the Dominion of Canada the law on the subject is the same as in England. There is no Dominion legislation upon the subject. But the Province of Quebec, by Art. 273 of its Code of Civil Procedure, has