Page:Catholic Encyclopedia, volume 13.djvu/727

This page needs to be proofread.




religious confession when that case next arises. Some indication of this possibihty is found in the case of Ruthven v. De Bonn, which was tried before Mr. Jus- tice Ridley and a jury in 1901. The defendant, a CathoUc priest, having been asked a general question as to the nature of the matters mentioned in sacra- mental confession, was told by the judge that he was not bound to answer it. The writer was present in court at the hearing of the trial and, as far as his recol- lection serves him, he understood Mr. Justice Ridley to say something to the effect that the judges had come to this mind in the matter, but the report of the trial in " The Times " of 8 February, 1901, does not con- tain such a statement. The learned judge said to the plaintiff, who was conducting his case in person: "You are not entitled to ask what questions priests ask in the confessional or the answers given".

If upon a case involving the question of the privi- lege next arising a ruling in favour of it should be made, this would be probably rather as a growth of the con- ception of public policy and not as a matter of tra- ditional common law. There is a case in 1893 (Nor- manshaw v. Normanshaw, 69 L. T., 468) which was heard before the then President of the Divorce Court, Sir Francis Jeune, which shows a kind of middle attitude with regard to the question. A witness, a vicar of the Church of England, objected to giving evidence of a conversation which he had had with the respondent upon her being sent to see him after her misconduct. Upon the witness objecting to disclose the conversation, the President said that each case of confidential communication should be dealt with on its own merits and that he .saw no reason why this par- ticular converstaion should not be disclosed, and he ordered the witness to disclose it. In summing up he remarked that it was not to be supposed for a single moment that a clergyman had any right to withhold evidence from a court of law, and that it was a prin- ciple of our jurisprudence that justice should prevail, and that no unrecognized privilege could be allowed to stand in the way of it. But it is to be observed that there had been no allegation of a religous confession. It is probable from the manner in which the President expressed himself that if a sacramental confession had been alleged he would not have ordered its disclosure. On the other hand, in 1881, in the case of Wheeler v. Le Marchant (17 Ch. D., 681), where the production of certain correspondence between the defendants' solicitors and their surveyors, passing before action brought, was in question, the Court of Appeal held that the principle which protected communications between client and legal advisers did not extend to the communications between solicitors and other pensons not made for the purposes of litigation. The follow- ing words were spoken in his judgment by Sir George Jessel M.R., a judge of great eminence: "In the first place, the principle protecting confidential communi- cations is of a very limited character. . . . There are many communications, which, though absolutely nec- essary because without them the ordinary business of life cannot be carried on, still are not privileged. . . . Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important than his hfe or his fortune, are not protected".

The tenth edition of Taylor, "On Evidence", edited by Hume-Williams, contains a note by the editor say- ing that he has advised magistrates that they are bound not to suffer statements to be withheld from evidence on the ground of their having been made by way of religious confession. But the editor appears to base the obligation of their disclosure on the de- cision in the case of R. v. Gilham, which, as said above, does not seem to be to the effect attributed to it. In Sir Robert Phillimore's work on "The Ecclesiastical Law of the Church of England " we find the following statement: "It seems to me at least not improbable

that, when this question is again raised in an English court of justice, that court will decide it in favour of the inviolability of the confession, and expound the law so as to make it in harmony with that of almost every other Christian state". In Best's work on "The Law of Evidence" we find not only an expres- sion of opinion that the privilege should be accorded but one to the effect that there is ground for holding that the right to the privilege is existent.

Jeremy Benlham. — As regards the policy of ex- empting from disclosure statements made to clergy- men by way of religious confession, opinion is not unanimous. Jeremy Bentham, writing in the early years of the nineteenth century, devotes a whole chapter to serious, considered argument that Catholic confession should be exempted from disclosure in ju- dicial proceedings, even in Protestant countries. The chapter is headed: "Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper". The following are extracts of some of the most remarkable passages in it. "Among the cases", it begins, "in which the exclusion of evidence presents itself as expedient, the case of Catholic con- fession possesses a special claim to notice. In a politi- cal state, in which this most extensively adopted modi- fication of the Christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded will probably appear too imperious to admit of dispute. In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the Catholic religion is barely tolerated : in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suprression by coercive methods. Any reasons which plead in favour of the exclusion in this case will, a fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established."

He refers the reasons in favour of the exclusion to two heads: (1) evidence (the aggregate mass of evi- dence) not lessened; and (2) vexation, preponderant vexation. Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession. "The advantage gained by the coercion", he says, "gained in the shape of assist- ance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. . . . The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice. To form any comparative estimate of the bad and good effects flowing from this institution, be- longs not, even in a point of view purely temporal, to the design of this work. The basis of the inquiry is that this institution is an essential feature of the Catholic religion, and that the Catholic religion is not to be suppressed by force. If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the as- surance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past : such are the \yell- known consequences of the institution: though in a proportion which, besides being everywhere unascer- tainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form, and the complexion of the moral part of their character in other resepcts."

These words are all the more remarkable when we call to mind what a strenuous opponent the author of