LETTER X.

On the supposed legal necessity of a Minister of the Church of England giving evidence in a Court of Justice of what has been confided to him in Confession.

It is not very long ago, since we were told in the Report of a Trial at Law, that a learned Judge permitted an obitèr dictum to fall from him, of which I may be allowed to say that it filled the breast of many a true friend of our Church with pain and amazement. Besides expressing a very strong opinion against the propriety of confidential communications, especially between clergymen and accused or suspected persons, and saying that nothing of such confidence is recognised in the doctrine of the Church of England, whatever might be the case in the Roman Communion, (in all which I sincerely believe there must have been some very gross error in the report)-he is said to have intimated, that the law of England does not protect the Priesthood of its own Church from the necessity of disclosing in evidence what has been confided to them under the seal of Confession.

As this was, I repeat, merely an obitèr dictum, not a point deliberately ruled, I trust I shall not be deemed presumptuous, if I submit one or two considerations, which make me hope, that, if the matter ever come to be formally adjudged, the decision must be different.

In its consequences to your Priesthood, I feel no exultation. It is, I conceive, clearly and undeniably just, that they, too, should be protected. To enforce the opposite opinion, which, however, has been ruled in Ireland, and doubtless soundly ruled, to be the law of the land,*—would be the most grievous act of persecution that could be inflicted, not on your Priest only, but also on your People. They are bound by the strongest obligations of their religion, to confess their sins; and if the sins so confessed are charged on them as crimes, they are, in fact, punished by human judicatures for obedience to the demands of religion in a point by no means criminal. The law, whilst it disclaims and discourages every mode of seeking confession, would in that case make use of the most powerful of all instruments even to extort it. Still, with all this evil annexed to it, I apprehend that the principle in the law of evi

*See Starkie's Law of Evidence.

dence, which recognizes no ground of privileged communication, but the confidence between attorney and client, and the public policy of the land,-leaves your Priesthood quite unprotected; while the ground on which I should venture to submit, that the Clergy of the Church of England are protected, does not extend to yours.

The dictum of the learned Judge, to which I have alluded, is understood to rest on a case cited in Peake's N. P. C. 3 Ed. p. 108. Du Barrè v. Livette. On that occasion, a case, K. v. Sparkes, was quoted as having occurred on the Northern Circuit before Mr. J. Buller; but of which I am enabled by one of the Counsel for the Prisoner to state, that the facts were materially different from the statement given in Peake. They were briefly as follows:-The Prisoner, who was charged with murder at the assizes for Northumberland, in 1787, was a Member of the Church of England (not a Papist, as the case states) who had gone to a Clergyman of his own Church, and confessed to him. That Clergyman was afterwards required to give evidence of the Confession, and an objection to it taken by the Prisoner's Counsel was overruled by Mr. J. Wilson, (before whom, not Mr. J. Buller, the case was tried,) after consulting

with the other Judge of Assize, the late Lord Loughborough. When this case was quoted in Du Barrè v. Livette, Lord Kenyon said, "It "is sufficient for me, sitting here, to say, that "this case materially differs from that cited; but

I should have paused, before I admitted the evi"dence there received. The case, as it respects "the Judge who determined it, is entitled to every attention from me: but this case differs "from it."*

66

Such an intimation of Lord Kenyon's opinion will be a sufficient excuse for me, in presuming to think, that the late dictum may, perhaps, be found to be not entirely wellgrounded.

But against the application of the general principle of the law of Evidence to confession made to a Priest, however I may lament it, however I may think, (as I certainly do think,) that substantial justice would require, that this also be a privileged communication, I do not venture to argue. It is on a special ground of

* His Lordship, on the supposition of the prisoner having been (as was erroneously stated in the case cited to him) a Papist, proceeded to say, "The Popish religion is now unknown "to the law of this country," implying, I submit, that if it were known to the law, its ordinances would be recognized; and, consequently, that the religion of the Church of England being known to the law, its ordinances must be admitted and sanctioned by it.

law in our case, which appears to have been not adverted to in the argument before Mr. J. Wilson, that I would rest our claim to protection.

The Liturgy and Rubrics of the Church of England are,-(I will not say, part of the law of the land; that might be going too far; though that, I believe, has been said,—but they are) not merely recognized by it, as containing nothing but what is true, and enjoining nothing but what is fit,-they are regarded by the law as pointing out, in all particulars included in them, the real duty of Christians. The 13th and 14th Charles II. c. 4. enjoins the use of the Book of Common Prayer" to the intent that every Person in this realm may certainly know the rule to which he is to conform in public Worship, and administration of Sacraments, and other rites and ceremonies of the Church of England." Now, we have already seen, that, in certain circumstances, the Rubric, thus highly sanctioned, enjoins secret Confession to a Priest, as a part of Christian Duty, and that the Liturgy, in another place, specially invites the penitent to similar confession. Does, then, the Law of England subject to civil mischiefs of the gravest kind those who comply with what it admits to be their duty as Christians, because they comply with it? Is it thus, that the great boast of