Page:Catholic Encyclopedia, volume 13.djvu/725

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possible. In the case of Du Barre v. Livette (Peake's "Nisi Prius Cases", 108) the same judge, Lord Ken- yon, logically held that the privilege would extend so as to preclude an interpreter between a solicitor and a foreign client from giving evidence of what had passed. In the report of that case we find that the plaintiff's counsel informed the court that Mr. Justice Buller had recently tried on circuit a case of the King v. Sparkes: that the prisoner, in that case, was a "pa- pist" and that it came out at the trial that he had made a confession of his crime (a capital one) to a Protestant clergyman: that this confession was re- ceived in evidence by the judge: and that the prisoner was convicted and executed. It seems obvious from what we are told about the two persons concerned that neither of them could have regarded the con- fession as sacramental. Lord Kenyon said that he would have paused before admitting such evidence. He added "But this ca.se differs from it. The Po- pish religion is now no longer known to the law of this country, nor was it necessary for the prisoner to make that confession to aid him in his defence. But the relation between attorney and client is as old as the law itself".

The case of Butler v. Moore was decided in Ireland by Sir Michael Smith, Master of the Rolls, in 1802. It is reported in MacNally's "Rules of Evidence", p. 253. It concerned the will of Lord Dunboyne, who had abandoned the Catholic Faith: he was al- leged, however, to have returned to it and, thereby, to have come within the penal law which deprived "lapsed papists" of the power to make a will. The circumstances under which he abandoned his Faith and those under which he is generally said to have re- turned to it are as follows: He was Bishop of Cork at the time of the death of the previous peer. Anxious to be able to transmit in a direct line the peerage and the headship of an ancient house, the new Lord Dun- boyne appealed to Rome for a dispensation from his vow of celibacy. It was refused him, and, thereupon, he joined the Protestant Church and married, but had no issue. It is said that one day while he was driving along a country road a woman rushed out of a cottage, calling for a priest for some one who lay dangerously ill inside. Lord Dunboyne answered her "I am a priest", and, entering the cottage, he heard the dying person's confession. From a certain moment, said to have been this, till the end of his life he con- formed again, at least, privately, to the Catholic Faith. His will was disputed by his sister, Mrs. Cath- erine O'Brien Butler, on the ground that, having re- conformed to Catholicism, he was incapable of making one. In order to prove that fact she administered interrogatories to Father Gahan, a priest who had attended Lord Dunboyne shortly before his death, to the following effect : What religion did Lord Dun- boyne profess, first, from 1783 to 1792? and, second, at the time of his death, and a short time before? As to the first question, Fr. Gahan answered that Lord Dunboyne professed the Protestant religion. To the second question he demurred on the ground that his knowledge (if any) arose from a confidential commu- nication made to him in the exercise of his clerical functions, which the principles of his religion forbade him to disclose, nor was he bound by the law of the land to answer. The Master of the Rolls held, after argument by counsel, that there was no privilege, and he overruled the demurrer. Fr. Gahan adhered to his refusal to answer and he was adjudged guilty of con- tempt of court and was imprisoned.

In 1823 in the case of the King v. Redford, which was tried before Best C.J. on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to re- veal a confession. In 1828 in the case of Broad v. XIII.— 42


Pitt (3 C. & P., 518), where the privilege of communi- cations to an attorney was under discussion, the same judge said: "The privilege does not apply to clergy- men since the decision the other day in the case of Gilham. I, for one, will never compel a clergyman to disclose communications made to him by a prisoner: but if he chooses to disclose them, I shall receive them in evidence". As a fact, the case of R. v. Gilham (1 Moo. C. C, 186), tried in 1828, did not decide nor did it even turn on the question of privilege of confes- sion to a clergyman. It turned on the question of the admissibility in evidence against a prisoner of an acknowledgment of his guilt which had been induced by the ministrations and words of the Protestant prison chaplain. The acknowledgment of the mur- der with which he was charged was made by the pris- oner to the jailer and, subsequently, to the authorities; he appears to have made no acknowledgment of it to the chaplain himself. In the case of the King v. Shaw [ (1834) 6 C. & P., 392], a witness who had taken an oath not to reveal a statement which had been made to him by the prisoner, was ordered to reveal it. "Everybody ", said Mr. Justice Patteson, who tried the case, "except counsel and attorneys, is compellable to reveal what they may have heard." In the case of Greenlaw v. King [ (1838) 1 Beav., p. 145], Lord Lang- dale M.R. said: "The cases of privilege are con- fined to solicitors and their clients; and stewards, parents, medical attendants, clergymen, and persons in the most closely confidential relation, are bound to dis- close communications made to them".

The foundation of the rule protecting communica- tions to attorneys and counsel was stated by Lord Brougham, Lord Chancellor, in an exhaustive judg- ment on the subject in the case of Greenough v. Gaskell [(1833) 1 Mylne & Keen, p. 103], to be the necessity of having the aid of men skilled in jurispru- dence for the purpose of the administration of justice. It was not, he said, on account of any particular im- portance which the law attributed to the business of people in the legal profession or of any particular dis- position to afford them protection, though it was not easy to see why a like privilege was refused to others, especially to medical advisers. A like opinion was expressed by Turner V.C. in the case of Russell v. Jackson [ (1851) 9 Hare, p. 391] in the following words: "It is evident that the rule which protects from disclosure confidential communications, be- tween solicitor and client does not rest simply upon the confidence reposed by the client in the solicitor, for there is no such rule in other cases, in which, at least, equal confidence is reposed : in the cases, for in- stance, of the medical adviser and the patient, and of the clergyman and the prisoner". Moreover, in the relationship of lawyer and client the privilege was confined to communications between them made in respect of the particular litigation and it did not ex- tend to communications generally passing between a client and his lawyer professionally. But the princi- ple has developed so as now to include all profes- sional communications passing in a professional ca- pacity, and to the information and belief founded thereon: Minet v. Morgan [ (1873) 8 Chancery Ap- peals, p. 366]; Lyell v. Kennedy [ (1883) 9 Appeal Cases, p. 90]. In the former case Lord Selborne, Lord Chancellor, said: "There can be no doubt that the law of the Court as to this class of cases did not at once reach a broad and reasonable footing, but reached it by successive steps, founded upon that respect for principle which usually leads the Court aright".

In 1853 in the case of the Queen v. Griffin, a Church of England workhouse chaplain was called to prove conversations with a prisoner charged with child-mur- der whom, he stated, he had visited in a spiritual ca- pacity. The judge, Mr. Baron Alderson, strongly in- timated to counsel that he thought such conversations