THE PRIVILEGE OF THE CONFESSIONAL.

THE Rev. Mr. Wagner, by refusing to answer the questions of the magistrates as to the statements made to him by Constance Kent, has re-opened a very difficult question, be-

cause diffeient people determine it on. quite different prin- ciples. To some it is a question of religious belief. To

others a point of honour. And neither of these classes will ever consent, or perhaps be able, to recognize that the law on the subject must be regulated by considerations of expediency, and that the real question is what rule is most for the public good. It must, we think, be due to an amiable weakness of this sort that some of our contemporaries have been attribut- ing great importance to the 113th canon of 1603. It has been solemnly set forth—or rather, as we shall show presently, not set forth—as if it were a novelty, and as if the uniform practice of the Courts since the Reformation had been adopted by lawyers and submitted to by the clergy in ignorance of its existence—a position extravagant in itself, and for which there is not a shadow of evidence. But to fully under- stand the meaning of the canon it is necessary to recall the state of the law at the time the canons of 1603 received the Royal assent. Before the Reformation there can be very little doubt, though the subject is not free from obscurity, that priests were not bound to reveal statements made to them under the seal of confession. But the exemption was subject to this remarkable exception, that it did not extend to confessions of treason. And the priest who, through the confessional, became acquainted with treasonable matter, was not merely liable to be examined as a witness, but actually committed a capital crime if he did not go to the magistrate and volun- tarily disclose it. He was not merely a good witness, but bound on pain of death, to turn informer. This being the state of the law, the 25th Henry VIII., c. 19, the statute of which we have heard so much lately, enacted that such existing canons, &c., as were not "repugnant to the laws, statutes, and customs of this realm," nor injurious to the Royal prerogative, should remain in force as before the passing of that Act. It is, we believe, on this Act that Sir George Bowyer, with some plausibility, founds his argument for the privilege of the clergy. He says the Act abolished nothing which was customary and not contrary to law, and the privilege of the clergy except in cases of treason was customary, and was not contrary to law. He seems, however, to overlook the effect of the various statutes altering the formu- lmies and doctrines of the Church by which confession to a priest ceased to be binding on the laity, and similarly the reception of confessions became optional in the priest. We imagine that the reason why a priest was privileged from giving evidence was to be found in the compulsoriness of con- fession, and cessante rations cessat ipsa lex is a principle which would apply. Be this, however, as it may, there can be no doubt that practically the privilege ceased. Probably the Protestant clergy ceased to ask for it ; and when the law caught a Romish priest it made a criminal of him, not a wit- ness. It was with reference to this state of things that the 113th canon of 1603 was passed. "If any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him, we do not any way bind the said minister by this our Constitution, but do straitly charge and admonish him that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be

such crimes as by the laws of this realm his own life may be called in question for concealing the same), under pain of irregularity."—Canon 113.

We give this canon at length, because The Saturday Review, which purported to do so, omitted the words in italics, and a correspondent of The Times, who signs himself "H" has done the same thing, though the latter does give his readers

the usual warning of the abridgment. When these words are restored it becomes quite obvious that the framers in no way intended to claim a legal exemption from giving evidence for

the clergy. The canon does not "any way bind" the clergy- man, but merely says, if you choose to receive the confession you can only reveal it under pain of irregularity,—no very

terrible penalty. But there can be very little doubt that the true meaning of the canon is to prohibit the clergy from turning informers. The doctrine of the primitive Church as stated in the sixth book of Hooker (ch. iv., 2), is that private confession of sins which affect our fellow men is only a preliminary to public confession, and it may very wen be that where their penitents declined this completion of their peni- tence, some of the clergy may have thought themselves bound to reveal anything which amounted to crime. The express exception of crimes of which, like treason, every one was legally bound to give information, seems to support this con- struction of the canon, which has also, we believe, the sanc- tion of Bishop Gibson.

But even if the canon as clearly prohibited the clergy from giving evidence, as we conceive it clearly does not, it could have no legal validity whatever. It is true that canons

which have received the Royal assent are thought to bind the clergy, but the 25th Henry VIII., c. 19, gave validity only

to such part of the existing ecclesiastical law as was not repugnant to the common law, and "canons and constitutions made since that statute," says Mr. A. J. Stephens, Q.C., "enjoy their force and authority under the same limitations." A canon which is repugnant to the laws, statutes, and cus- toms of this realm does not bind even the clergy, and, on the other hand, the law does bind them, even when it is repug- nant to the canons. The marriage of divorced persons is contrary to the canons, but there can be no doubt that a

parish priest would have been bound to marry them if the Divorce Act had not expressly exempted him. And even if there were any doubt about the law in the sixteenth century there can be none now. It may be that there is no reported decision of any Court sitting in banco, it may be that Lord Wynford said that he would never commit a clergyman for refusing to answer, and that Baron Alderson said that he thought such evidence ought not to be tendered,—but there can be no doubt that the practice of the Courts and the dicta of the judges ever since the Reformation have been perfectly uniform. If there is no decision on the point, it must be because there has never been any doubt about it, for certainly if a judge had ever allowed such a privilege to the clergy his ruling would not have passed unquestioned. And obviously such expressions as those of Lord Wynford and Baron Alderson admit the existence of a law which they think it impolitic to enforce. They do not deny, but elude it.

It is useless, however, to pursue further a question which does not admit of serious doubt. Claims of a special law for the clergy are so rife in the present day, and the con- cession of them would be so dangerous, that they obtain an amount of consideration which intrinsically they do not merit. These strange theories are set up by men who know very well that, if they were openly to ask for exemption from the duty of giving evidence for the clergy as such, they would have no chance of success. If anything is clear, it is that there must be one law for all classes of men, and that either all men or none must be allowed to refuse to reveal state- ments made to them in confidence. A layman's sense of honour deserves as much consideration as a priest's theory of religion. A medical man might rest his case on a higher ground, and so also might a clerk, or servant, for the master cannot avoid trusting him. But we cannot allow that the existing law puts a man under any hardship whatever. He is in no way bound to:receive people's confessions under promise of secrecy, and a criminal who confesses without a promise cannot claim to impose an illegal obligation on another without his consent. If on the other hand a man chooses to give an illegal promise, priest or layman, he cannot complain if he has to submit to the consequences or break his word. A gentleman -would choose the first, but if he were a reasonable man ho would feel that his punishment was deserved. If it be asked, what is the good of maintaining a law which simply prohibits all confessions, and thus destroys the solitary chance of reforming the criminal? we answer that the privilege never could be

limited to the clergy. The Quakers were exempted from if the means of calling a free Parliament competent to govern taking oaths, and now every man, whatever be his creed, en- as well as represent exist an Mexico, and it is certain that joys the same exemption. That alteration of the law is pro- if called it would either expel the Austrian contingent, or bably beneficial, but it is not necessary to point out that to quarrel with the French, or pass laws which would virtually give every man power to refuse to give evidence of what was end the experiment it is the necessity of the Emperor to told him in confidence would render the administration of carry through. On the other hand a fettered or fiotitious justice impossible. representative body would • simply diminish the responsibility

A special exemption for the Romish clergy has been justi- which is the best guarantee for the fair exercise of a necessary fled by Bentham on the plausible ground that it is involved dictatorship, and the Emperor in rejecting that device has in the toleration of the Catholic Church. But toleration brought himself face to face with his people. The delegation merely implies that you shall not legislate for the purpose of of such powers is, however, a different matter, and the discouraging a given creed. It does not require you to give statute, while ordaining that prefects shall be governed by exemptions from laws passed without any reference to the laws, expressly entrusts the Emperor with the power of religion, whenever any sect chooses to have conscientious raying out special commissioners invested with all the powers scruples about them. We tolerate Mormons, but we are not which he may choose to confide to their hands. These instrn- bound to allow any Mormon to commit bigamy. There is ments will require to be -narrowly watched, for they, unlike certainly this to be said for the Romish clergy, that the duty the Emperor, are not responsible either to a nation or to the of receiving confessions is not imposed on them by conscience, public opinion of an Order, while they cannot have that which is a plea open to the most unconscientious of men, but freedom from class or local interests which an Emperor from by an external authority, so that the privilege can hardly be the very nature of his position can hardly lose. They will be made a mere cloak for criminal combination. But it obviously satraps without that permanence in office which is the best could never low, be confined to the Romish clergy, and indeed check upon capricious or violent exercise of great official Englishmen ea:hardly be expected to pass a law which would power.

be a positive encouragement to a system which they believe to Nevertheless the people are not left without franchises, the be productive of actual temporal inconveniences of an aggra- idea of the Emperor being obviously that so far as he can he vated kind. will terminate every oppression except his own. The Rrefects In conclusion, we must add that the present rule is uniform, of districts, for instance, are to be aided by councila,'consist- intelligible, founded on principle, and practically innocuous. ing of the Chief Judge, the highest revenue officer, a landed If a man is told of a crime in confidence he has nothing to do proprietor, a merchant, and either a miner or a manufacturer, but to keep his own counsel. Mr. Wagner was under no with power of advice and of remonstrance, though without necessity to accompany Constance Kent before the magistrate direct authority. Under them are the mayor, assisted by or to be summoned as a witness. If he had remained at home, municipalities directly elected by the people, renewed every like a sensible man, he would have escaped his present two years, and invested with the sole right—except when embarrassment. When a Catholic priest gets into the witness- otherwise directed by an Imperial law—of imposing municipal box it is almost always through his own imprudence or clumsi- taxes and sanctioning municipal expenditure. Military officers ness. Counsel, too, when such a case occurs, commonly exercise are specially forbidden to exercise any authority over the a kindly discretion, which is sanctioned by the judges, and ask civil authorities, or to give any orders whatever except during for the confession only when it is absolutely necessary for the the continuance in any locality of the state of siege, and one- purposes of justice. When it is necessary they are bound to third of the Constitution is taken up with what are called put the question, and we venture to think that the judge is individual guarantees. The Emperor promises to his subjects equally bound to commit the witness who refuses to answer. —who, by the way, include all foreigners who may purchase

The comparison -which is sometimes drawn between the case land—equality before the law, personal security, security of of a clergyman and a solicitor is perfectly unsound. The property, religious freedom, and "the liberty of publishing privilege is asked for clergymen for the sake of the witness ; their opinions." Nobody is to be arrested except under a it is conceded to solicitors for the sake of the client. In warrant signed and sealed by competent authority, and when attorney cannot waive his privilege, however willing he may so arrested must be examined before a judge within three be to do so, and his client can of course make him reveal days, must be informed of the charge against him, of the everything, however unwilling he may be. The law gives the name of his accuser, and of all evidence necessary for his privilege to the attorney because a man must have legal defence. Property cannot be taken, even for State purposes, advice. Deny that necessity, and there would be no reason without previous compensation ; forced labour is abolished

why the privilege should exist another day. except in the cases provided for by law, such as sentences for