in the liturgy, viz. such form of confession as sur- vived in the Protestant Church of England. Second, there is an express exemption from the duty of se- crecy where such duty should conflict with one im- posed by the civil power under a certain penalty. There does not appear to have been, in fact, at that time any law which made the mere concealment of any crime, including treason, an offence punishable with forfeiture of life. But this in no way affects the prin- ciple laid down in the canon. The exemption is a marked departure from the pre-Reformation ecclesi- astical law on the subject as shown by the pre-Refor- mation English canons and otherwise. Third, even apart from the exemption, the language used to declare the injunction bears a marked contrast to the language used to declare the secrecj' in pro-Reformation daj^s. It is evident that secrecy is not quasi of the essence of this confession, as Lj-ndwood had declared it to be of the confession of which he wTote. The confession as to whose secrecy the Fourth Lateran Council, in be- half of the Church in the whole world, and the Eng- lish Councils of Durham, Oxford, etc., in behalf of the Church in England, had made stringent decrees seems to have been banished by the Reformation.
It results from the Submission of the Clergy Act, mentioned above, that a canon is void if it contra- venes common or statute law, and, accordingly, it be- comes void if at any subsequent period a statute in- consistent with it is passed, as was held in the recent case of R. v. Dibdin (Law Reports, 1910, Probate, 57). It does not seem that there was in 1603 any statute to which canon 113 was necessarily contrari- ant or that any has been passed since. When we have to decide whether or not it conflicted with the com- mon law it must be remembered that many items of the common law must have disappeared or have un- dergone considerable alteration by such a change in the whole national life as that which was caused by the Reformation. Rules of canon law and certain precepts of the Church had, undoubtedly, formed some of the stones in the growing fabric of English common law. So, where the practices to which these rules or precepts applied were repudiated or consider- abl}' modified one must expect a corresponding cessa- tion or modification of the common law relating thereto. Of many such instances confession would be one. Even the Established Church of England did not claim for this confession which she sanctioned absolute inviolability, as the canon which has just been quoted shows.
The Civil Courts. — It was decided by the Court of King's Bench in a judgment delivered by Lord Hard- wicke in the case of Middleton v. Croft, already re- ferred to, that the canons of 1603, though binding on the clergy, do not bind the laity. The reason for this is that though canons, in order to be valid must, as these did, receive the royal sanction, they are made in convocation, and, thus, without representation of the laity. Accordingly, if this canon infringed a right en- joyed by the lay subjects of the realm it would, seemingly, in as far as it did so, not be valid against them. Thus, a canon purporting to forbid clergymen from appearing as witnesses in any action which a sub- ject might lawfully bring in the king's courts would, seemingly, be void as against the subject. The funda- mental principle is that a witness shall give in evidence the whole truth that he knows concerning the matter in dispute and that the parties to the tlispute are en- titled to have that evidence given. The rules which regulate and which, in certain exceptional cases, re- strict the giving of evidence are the growth of prac- tice and of the rulings of juflges, occurring mainly within the last two to three centiirir-s (sec the judg- ment of Parke B. in the ca.se of TIk- C^uccsn v. Ryle, 9 M. & \y., 244). The rule which excludes evidence, the requiring of which would be contrary to public policy, as may occur in relation to the conduct of the
business of a state department, is an instance. In view of the absolute repudiation by the State of the jurisdiction of the Catholic Church and in view of the abandonment of the Sacrament of Confession as prac- tised before the Reformation, one may fairly presume that, from the date of that event, confession would no longer have been regarded as a ground from motives of public policy, entitling to an exemption from the principle of the disclosure of all the truth known about the cause, were it to be civil or criminal.
Important Cases and Decisions. — We know for cer- tain that in the gradual growth of the rules of evidence as laid down within the last two to three centuries by the judges of the King's Courts the cases of privilege from exemption from disclosure are few, and that the only private relationship which the courts recognized as enjoying the privilege was that between chent and attorney or counsel. We find an express instance of the recognition of privilege in the case of that par- ticular relationship in the judgment of the Court of King's Bench in 1663 in the case of Sparke v. Mid- dleton (I Keble's Reports, 505). In an anony- mous case reported in Skinner's "Reports", 404, in 1693, Lord Chief Justice Holt said that the privilege would extend to a law scri^-ener, because he would be counsel to a man with whom he would advise. But he is reported to have added " otherwise of a Gentle- man, Parson etc.". Mr. Badeley in his pamphlet, al- ready referred to, maintains that Lord Holt did not mean this last assertion to be general and exclusive. This may conceivably be so. It is recorded in an- other anonymous case, which we find in Lord Ray- mond's "Reports", p. 733, that the same judge re- fused to admit the evidence of a person entrusted by both the parties to the cause to make and keep secret a bargain; and he added that "(by him) a trustee should not be a witiK?ss in order to betray the trust". But the last decision cannot be said to be in agree- ment with the law of evidence as generally laid down.
In the case of Vaillant v. Dodemead [ (1743) 2 Atkyn's "Reports", 524] Lord Hardwicke L. C. held that to claim the privilege as clerk in court or agent to a party was too general, "for", he .said, "no persons are privileged from being examined in such cases but persons of the profession, as counsel, solicitor, or at- torney". But we find the privilege even in the cases of the relationship of client to attorney or counsel restricted to the subsistence of that rela- tionship when professionally created by the employ- ment by the client of the attorney or counsel as such, and that it is not extended to confidential communi- cations taking place between a person and a friend whom he confidentially consults because he happens to be a .solicitor (Wilson v. Rastall, 1792, 4 Term Re- ports, 753). In the Duchess of Kingston's case [(1796), 20 State Trials, p. 572] it was held that a physician or surgeon was compellable to give evidence of matters which might have come to his knowledge in the course of his professional relation.ship to a party to a suit. The great commentator on the laws of England, Mr. Justice Blackstone, confines the privi- lege to communications made for the purpose of a legal cau.se. He specifies the persons who are ex- empted as "counsel, attorney or other person in- trusted with the secrets of the cause". Mr. Ser- jeant Peake in his work on the law of evidence ex- pressly excludes clergymen or priests or physicians.
At the same time one may observe in the judgment in the ca.se of Wilson v. Rastall as in some other cases the indication of a j)()tent iaiity of an expansion of this 8id(> of the law of evidence. "1 have always under- stood", Lord Kcnyon s;iid, giving judgmc^nt, "that the privilege of a client only cxt(!nds to (he case of the attorney foiliirii: Though whet her or not it ought (o be extended fart her, I am happy to think may Ix; inquired into in this cause. " lie meant that the matter would not be definitely concluded as an appeal would be