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The Seal of the Confessional

  • Rupert D. H. Bursell (a1)

The seal of the confessional was part of the canon law applied in England before the Reformation. It was also part of that law which was continued in force at the Reformation, as is confirmed by the proviso to canon 113 of the 1603 Canons. This proviso is still in force and proprio vigore binds the clergy of the Church of England. By the Act of Uniformity, 1662, the hearing of confessions was enjoined upon those clergy in certain circumstances; the law places no limit upon the frequency of their being heard. It is unsurprising that there are infrequent references to the seal of the confessional since the Reformation; such cases as there are are inconclusive. Nevertheless, although the seal of the confessional may be waived by the penitent, the refusal by an Anglican clergyman to disclose what was said within sacramental confession is based upon a duty imposed on him by the ecclesiastical law rather than upon an evidential privilege. An Anglican clergyman in breach of that duty would be in grave danger of censure by the ecclesiastical courts and such censure might well lead to his deprivation and possible deposition from Holy Orders. The ecclesiastical law is part of the general law of the land and must be applied in both the ecclesiastical and secular courts. Both courts must therefore enforce that clerical duty and uphold any refusal by an Anglican clergyman to answer questions in breach of the seal of the confessional.

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2. Lat. (1215), canon 21 (X, v. 38. 12).

3. Prior to 12 15 the punishment was not only degradation or deprivation but also the undertaking of a disgraceful pilgrimage: see Gratian's Decretum, causa 33, quaest. 3, dis. 6, cap. 2. As to the Decretum see 14 Halsbury's Laws of England (4th ed.) 305, note 2.

4. Councils and Synods, (O.U.P.) ed. by Powicke, and Cheney, (1964) vols 1 & 2 passim. Such provincial synods were merely ad hoc pieces of legislation to bolster the existing canon law rather than the creation of new law: Jacobs, , The Fifteenth Century, (O.U.P.) at 265.

5. See Powicke & Cheney, op. cit. at 139.

6. Provinciale Angliae (1697) at 334. This was no doubt because in at least one thirteenth century manuscript (Cambridge, Gonville & Caius Coll. 349) the text of most of the canons followed without a break after an abridged version of the canons of Oxford, 1222. The error was compounded by Wilkins', Concilia vol. 1 at 595.

7. The following text is that of Lyndwood, op. cit. at 334.

8. See de Burgh, , Pupilla Oculi (1510) fol. XXXVVII d; Lyndwood, op. cit.

9. See the glosses to the words confessionem and generaliter. Bullard & Bell's translation, Lyndwood's Provinciale, omits the all-important glosses.

10. See Helmholz, , Canon Law and the Law of England (Hambledon Press) at 329 and passim. Betrayal of confessions led to clergymen being brought before the consistory courts: Houlbrooke, , Church Courts and the People during the English Reformation, 1520–1570 (O.U.P.) at 195 and 197. However, the fact that a man told a church court that he had admitted a further offence to his confessor of sexual intercourse after abjuration did not mean that the priest was thereby permitted to give evidence of the confession: Helmholz, op. cit. at 149.

11. The calling of witnesses before a jury was apparently not a general practice; although questions might have been asked of either a juror or a witness, it seems that the clergy were exempt from jury service at this time: Nokes, Professional Privilege, 66 L.Q.R. 94.

12. 2 Co. Inst. 628–629.

13. See infra.

14. Badeley, , The Privilege of Religious Confessions in English Courts of Justice (1865) at 1618; Nokes, op. cit. at 95. In summary, Coke relies on the statute Articuli Cleri (9 Edw. II, st. 1, c. 10, now repealed) which provided that “thieves and approvers” should be allowed to confess their sins to priests whenever they wished and continued: “sed caveant confessores, ne erronice hujusmodi appellatores informent”. However, this caveat said nothing about the secrecy of the confessions; its meaning is unclear but it seems, rather, to be concerned with information being conveyed to those in custody. Coke also relies on the case of Friar Ranolph in 7 Hen. V. and on R. v. Garnet (1606) 2 St. Tr. 217. I will deal with the latter in due course; in the former case there is no evidence that the friar was a confessor or that, even if he were, he made any statement directly or indirectly as to any thing he had heard in any confession.

15. See Chadwick, , The Reformation at 105.

16. See canon 21 of the Fourth Lateran Council supra. Indeed, the clergy were themselves on occasion taken before the church courts for offences in relation to confessions: see Hale's, Precedents at 58, 126 and 136; see, too, ibid at 25 and 144.

17. Supra.

18. For a brief summary see 14 Halsbury's Laws of England (4th ed.) at 306308; (1989) 1 Ecc. L.J. (4) at 15–16.

19. 25 Hen. VIII, c. 19.

20. Report of the Archbishop's Committee on Church and State (1916) at 268.

21. 27 Hen. VIII, c. 15.

22. 35 Hen. VIII, c. 16, s.2.

23. Section 3.

24. Emphasis supplied.

25. Gibson, , Codex Iuris Canonici (1761) (2nd ed.) at 951.

26. 3, 4, Edw. VI, c. 11.

27. 1. Phil. & Mar., c.8.

28. 1 Eliz. I, c. 1, ss. 2 & 10.

29. The canon law itself permitted modification by local custom: see 14 Halsbury's Laws of England (4th ed.) at 304 and 306.

30. Ibid. See also 1 Bl Com (14th ed.) at 82 and Read v Bishop of Lincoln (1889) Roscoe's Rep. 1 at 17 per Archbishop Benson. Although both statutes have now been repealed the ecclesiastical law has been incorporated into the law of the land.

31. Edes v Bishop of Oxford (1667) Vaugh. 18 at 21.

32. See, for example, Harrison v Burwell (1670) 2 Ventris 9 at 13 per Vaughn, C J.

33. 31 Hen. VIII, c.14, ss.1, 2 & 3.

34. 1 Edw. VI, c, 12, s. 2.

35. See Phillimore, , Ecclesiastical Law (2nd ed.) at 541542.

36. 2 & 3 Edw. VI, c.1 and 5 & 6 Edw. VI, c.1. The latter was repealed by 1 Mar. sess. 2, c.2 but revived by 1 Eliz. I, c.2.

37. See Bullard, & Bell, , Constitutions and Canons Ecclesiastical 1604 (Faith Press) at xix. “This is the only reference in post-Reformation Canon Law to the seal of the confession”: The Canons of the Church of England, (S.P.C.K.) (1969) at xii.

38. Although quoted here in English, the authoritative text is that in Latin: Bullard & Bell, op. cit. at xvii.

39. This is a reference to the earlier part of the canon which imposed a duty on parsons, vicars and curates to “present to their Ordinaries … all such crimes as they have in charge or otherwise, as by them (being the persons that should have the chief care for the suppressing of sin and impiety in their parishes) shall be thought to require due reformation”: Badeley op. cit. at 31.

40. “Under pain of irregularity” meant the canonical censure of deprivation with its corollary of incapacity from taking any benefice: Blunt, , Book of Church Law (10th ed.) at 175; Winckworth, , The Seal of The Confessional and the Law of Evidence at 4. The canons of 1603 are binding on the clergy in ecclesiastical matters: Matthews v Burdett (1703) 2 Salk. 412; insofar as any of the canons may be a reiteration or declaration of ancient usages and laws of the church which had previously been received into the English law, they obtained no additional force by their incorporation into the 1603 canons: R. v Allen (1872) L.R. 8 Q.B. 69 at 75, per Blackburn, J. In either event canon 113 was binding upon the clergy. The 1603 canons do not proprio vigore bind the laity: Cox's Case (1700) 1 P. Wms 29 at 32; Middleton v Crofts (1736) 2 Atk. 650; More v More (1741) 2 Atk. 157; R v Dibdin [1910] P. 57 (aff. sub nom. Thompson v Dibdin [1912] A.C. 533); Badeley, op. cit. at 32 therefore argues that, as the seal of the confessional may be waived by the penitent (see infra), canon 113 adds nothing to the pre-Reformation position. In one sense, of course, this is correct; however, it is incorrect that, because the penitent may release the priest from his obligation, the duty is not legally binding on the priest prior to that release. Moreover, if the arguments advanced in the text are wrong and the pre-Reformation law was not binding, canon 113 itself created a binding obligation upon the priest, although if this narrow view is taken the seal only applies to “any crime or offence committed to (the priest's) trust and secrecy”: see also footnote 204 infra.

41. Act for the Submission of the Clergy, 1533, s.1.

42. Ibid, s.2.

43. Although it might be argued that the exception was itself “contrariant or repugnant to … the customs, laws, or statutes of the realm” just because it was new, the view expressed in the text (infra) seems the better view.

44. Even this came to be doubted (perhaps influenced by the reception theory concerning the canon law in England: see 14 Halsbury's Laws of England (4th ed.) at 307) by the time Best wrote his Principles of the Law of Evidence, cited in Phillimore, op. cit. at 545–546.

45. Phillimore, op. cit. at 543; Badeley, op. cit. at 31; Winckworth, op. cit. at 3; Nokes. 66 L.Q.R. at 101.

46. Mere concealment of an offence was not itself a capital offence: Badeley, op. cit. at 31–32.

47. See Best, Principles of the Law of Evidence, cited in Phillimore, op. cit. at 545–546. However, this is by no means certain as the concealment of high treason was not a capital offence: see Badeley, op. cit. at 33. The doubt originally expressed in Best had disappeared by 1922: see the 12th ed., cited in Winckworth, op. cit. at 3. See also Nokes, 66 L.Q.R. at 101; Moore, Garth, Church Times, 6th 09, 1963; Belton, , A Manual for Confessors at 91.

48. (1606) 2 St. Tr. 217.

49. (1606) 2 St. Tr. 217 at 246. Although this was only in argument, in 2 Co. Inst. at 628–629 Coke represented that “it was so resolved in the case of Henry Garnet, who would have shadowed his treason under the privilege of Confession”. He continued, however, to concede that there was no true confession: “… although in deed he was only consenting, but abetting the principal conspirators of the powder treason, as by the record appeareth”.

50. See footnote 18 supra. This was also the case in Attorney-General v Briant (1846) 15 L.J. Ex. 265per Alderson, B. at 271.

51. See Bullard, op. cit. at xvii.

52. I understand that a similar consultation led to the retention of the proviso to canon 113 when the remainder of the 1603 canons were repealed in 1969.

53. 2 Co. Inst. at 628–629. His personal papers had been seized by Charles I until 1641: see the Dictionary of National Biography.

54. This seems to be the first suggestion that it is a “privilege”. In one sense, of course, it is a privilege but Coke cannot be referring to a technical evidential meaning of that word.

55. Badeley, op. cit. at 19 adds: “…it must be remembered moreover that Garnet was not a witness, but a prisoner indicted for Treason, and therefore there could not well be any “resolution” of the Court, as to his liability to reveal anything which he had heard in confession” See also footnote 49 supra.

56. (1606) 2 St. Tr. 217.

57. Concerning Greenwell.

58. Concerning Catesby.

59. (1606) 2 St. Tr. 217 at 252. Badeley, op. cit. at 19 describes this case as “a disgrace to English jurisprudence”.

60. See footnote 35 and 36 supra.

61. See Phillimore, , Ecclesiastical Law (2nd ed.) at 541542. It is enjoined in the Exhortation to Communion in the Communion Service and in the Order for the Visitation of the Sick. It was also indirectly enjoined by reason of Article 35 of the Articles of Religion and the Homily of Repentance: op. cit. at 542. This homily had been published in the reign of Elizabeth I. The clergy had to declare their “unfeigned assent and consent” to the Articles of Religion: Act of Uniformity, 1622, s. 17. It should be borne in mind that the Act was passed against the background of the recent promulgation of the 1603 Canons: see footnote 207 and related text infra.

62. See 14 Halsbury's Laws of England (4th ed.) at 933. Both in 1552 and 1662 it was made clear that the confession might be made either to the parish priest, his curate (who might also be taking the service) or to “some other discreet and learned minister”: see the Exhortation to Communion. Prior to the Reformation, “If in the ordinary way the parish priest was the proper person to hear the confessions of his parishioners and it was necessary to obtain special permission to confess to anyone else, none the less the practice grew up whereby under licence of the bishop certain members of the Mendicant Orders were authorised to hear such confessions and later it became one of the grievances against them, that they usurped in this respect the functions of the parish priest”: Churchill, , Canterbury Administration, (S.P.C.K.), vol. I at 126.

63. 13 & 14 Car. II, c.4. Surprisingly, Nokes overlooks this provision: see 66 L.O.R. at 96.

64. The case of Anon. (1694) Skinner's Rep. 404 was not concerned with the seal of the confessional; indeed, it does not seem to have been in the mind of Holt, C.J. Even if it were, it was obiter dictum and without argument.

65. Cited in Du Barre v Livette (1791) Peake 108 at 109110. The case seems to have been heard c. 1790.

66. The case was cited by Garrow for the prosecution. As Badeley, op. cit. at 58 points out, Garrow was not a member of that circuit and was unlikely to have been present.

67. It is not clear whether or not he was an Anglican clergyman although this may possibly be inferred from his description as a “priest”.

68. It was not a sacramental confession according to the canon law of the Roman Catholic Church which presumably the penitent regarded as applying to him: see Dictionnaire de Droit Canonique, ad v. Confessionem, Discipline Actuelle. Nonetheless, if the clergyman were indeed an Anglican (see footnote 64 supra), it might have been possible to argue that any parishioner might make a legal confession according to the English ecclesiastical law. Even if this were so, however, it is doubtful whether a Roman Catholic could have approached a non-Roman Catholic priest for sacramental absolution. Thus the necessary mutuality of intention would be missing. Therefore defence counsel was incorrect in R. v Gilham (1828) 1 Mood. C.C. 186 at 198 when he cited R. v Sparkes in arguing that: “…. a minister is bound to disclose what has been revealed to him as a matter of religious confession.” It is interesting to note that he added: “And this even in the case of a Roman Catholic priest.”

69. (1791) Peake 108.

70. Ibid at 110.

71. In Falmouth v Moss (1822) 11 Price 455 Baron Garrow stated at 470: “The cases confine (the privilege of non-disclosure) to instances of Counsel, Attornies and Solicitors, who have hitherto been held to be excepted, in respect of this privilege, from all the rest of mankind … Still, beyond these excepted persons the privilege has never been yet extended.” It will be noted that the priest is not mentioned; moreover, his claim to non-disclosure is based on a separate legal duty, not on privilege: but see footnote 54 supra and related text.

72. (1823), cited in arguendo in R. v Gilham (1828) 1 Mood. C.C. 186 at 197 (ex relatione Coleridge).

73. See the argument of counsel for the prosecution in R. v Gilham (1828) 1 Mood. C.C. 186 at 202.

74. (1828) 1 Mood. C.C. 186.

75. In R. v Wild (1835) 1 Mood. C.C.R. 452 a 13 year old was charged with murder. When he was arrested he was told by a man other than a constable: “Now kneel you down, I am going to ask you a very serious question, and I hope you will tell the truth, in the presence of the Almighty.” There upon the prisoner made certain statements. These were held to be strictly admissable but the mode of obtaining them was disapproved of.

76. (1828) 3 C.& P. 518.

77. The judge also in R. v Radford, supra.

78. See too Falmouth v Moss (1822) 11 Price 455; Greenlaw v King (1838) 1 Beav. 137; Russell v Jackson (1851) 9 Hare 387 at 391.

79. (1846) 15 L.J. Ex. 265 at 271.

80. See footnote 14 supra.

81. (1853) 6 Cox 219.

82. These words might by themselves suggest a sacramental confession, if it were not for the fact that the consolations were given during “conversations”.

83. (1860) 2 F. & F. 4.

84. Hill, J.

85. (1860) 2 F. & F. 4 at 6, note (a); see, too, at 9, note (a).

86. For example, the signing of a dumb person must surely be as much included as the speaking of a person who is not dumb. See Badeley, op. cit. at 73.

87. Cited in Hansard's Parliamentary Debates, series 3, volume 179 (House of Lords), 12th May, 1865.

88. At the trial itself defence counsel was Coleridge, later to be Lord Chief Justice. In a letter he wrote subsequently to Mr Gladstone he stated that the question was not ultimately decided as the defendant pleaded guilty. The trial judge was Willes, J., who had concluded that the question of the seal of the confessional would have had to be decided. “He took infinite pains and he was much interested, because the point, since the Reformation had never been decided. There were strong dicta of strong judges – Lord Ellenborough, Lord Wynford and Lord Alderson – that they would never allow counsel to ask a clergyman the question. On the other hand, Hill, a great lawyer and good man, but a strong Ulster Protestant, had said there was no legal privilege in a clergyman.” After the case the judge told Coleridge that he was satisfied that there was a legal privilege in a priest to withhold what passed in the confessional. Coleridge's letter ended: “Practically, while Barristers and Judges are gentlemen the question can never arise. I am told it has never arisen in Ireland in the worst of times.” (See, however, Butler v Moore (1802), MacNally's Rules of Evidence at 253 and infra.) This letter is to be found in the Life and Correspondence of Lord Coleridge, (1904). vol. II at 364 and is quoted in Lindsay, , 12 N.I.L.Q. (1959) 160 at 164165.

89. Ibid at para. 180.

90. For example, the Lord Chancellor speaks of the clergyman being “privileged”, rather than of his being under a duty. However, he does recognise that in Roman Catholic canon law the seal of the confessional can only apply to a confession made by a fellow Catholic.

91. It is referred to in Best on Evidence (12th ed., 1922) at 121 (1).

92. As to Ireland see infra.

93. See, however, Ruthven v De Bour (1901) 45 S.J. 272.

94. (1876) L.R. 2 Ch.D. 644.

95. At 650–651: see also der James, L.J. at 656.

96. (1881) 17 Ch.D. 675 at 681.

97. (1893) 69 L.T. 468. In Noverre v Noverre (1846) 1 Robertson's Ecclesiastical Reports 428 (a Consistory court case) the co-respondent's father, a clergyman, gave evidence of the wife's confession of her adultery to him during an “interview” (see at 438) in which he was going to tell her that “the acquaintance between her and (his) son must cease.” This evidence was given and received without question, although the clergyman attempted to “interpose an obstacle to the administration of justice” (see at 439) by withholding a letter.

98. Per Jeune, P. at 469.

99. The Globe, 13th 07, 1909, cited in Phipson on Evidence (13th ed.) at 15–09.

100. [1949] P. 94.

101. At 97.

102. [1955] P. 202.

103. See, too, Pais v Pais [1971] P. 119.

104. [1963] 1 All E. 767.

105. At 771.

106. That is, in relation to the questions as to the practice of the clergy in the confessional; such questions were presumably strictly irrelevant, however.

107. (1901) 45 S.J. 272.

108. Op. cit. at 84.

109. Ibid at 157.

110. See Winckworth, op. cit. at 3.

111. 14 Halsbury's Laws of England (4th ed.) at 308, note 1. This seems to have occurred after consultation with the Attorney-General: see footnote 52 supra. The explanation give by the archbishops in the introduction to The Canons of the Church of England, S.P.C.K. (1969) at xii was that since the reference to the seal of the confession in 1603 “the modern law of evidence has developed in ways which raise difficulties about the enactment of a new Canon on the seal of the confession.”

112. On the 29th April, 1959. See also Phillimore, op. cit. at 539–540 and contrast Poole v Bishop of London (1859) 5 Jur. N.S. 522 at 526 per the Archbishop of Canterbury.

113. See Acts of the Convocations of Canterbury and York, 1921–1970, S.P.C.K. (1971) at 111; The Canons of the Church of England, S.P.C.K. (1969) at xii. Acts of Convocation have no legal effect but only moral force; “they are guide lines for pastoral work, based on sound Anglican doctrine” per Sir Cecil Havers, Deputy-Dean of the Arches, in Bland v Archdeacon of Cheltenham [1971] 3 W.L.R. 706 at 713; Kemp, , Counsel and Consent at 200201.

114. “Synod” in York.

115. See footnote 113 supra.

116. See Lindsay, , 12 N.I.L.R. (1959) 160 and footnote 88 supra, the comment of Lord Coleridge.

117. (1802), MacNally's Rules of Evidence at 253.

118. Unless this is to be inferred from the claim that “the principles of his religion” forbade disclosure.

119. (Cp.) the clergyman's claim in Normanshaw v Normanshaw (1893) 69 L.T. 468, supra.

120. (1887) 22 L.R.I. 158.

121. See at 159–160.

122. But see infra: the “duty” may have arisen out of honour rather than any legal obligation!

123. See footnote 119 supra and related text.

124. At 160.

125. At 159. If the analysis in the text is correct, this statement was an obiter dictum.

126. (1903) 37 I.L.T.J. 275. The brief note about this case ends: “The decision of the Court in R. v Gibney (Jeff. C.C. 15) was merely that information acquired through the confession was admissible in evidence; it was not decided whether such evidence was compellable.”

127. Although no doubt unusual, there is no theological or legal reason why a confession should not be heard in the street: see, for example, Box, , The Theory and Practice of Penance (S.P.C.K.) at 74.

128. [1945] I.R. 515.

129. He was fined £10 but did not appeal.

130. Ibid at 524. This is contrary to the position under the Roman Catholic canon law: see Dictionnaire de Droit Canonique, ad v Confesseur Obligation Du Secret and Schieler-Heuser, , Theory and Practice of the Confessional, (2nd ed.) at 469 and 485. Gavan Duffy, J. at 524 suggests that the priest is not a “cipher”.

131. Gavan Duffy, J. said at 517: “No canon law was cited to me and I shall determine the issue without reference to the law of the Church.”

132. There is an analogy between this decision and those in England decided on the basis of “without prejudice” negotiations such as McTaggart v McTaggart [1949] P. 94 at 97. However, it is one that is distinguished by Gavan Duffy, J. at 524 because of the “tri-partite character” of what at 516 he calls“the sacerdotal privilege”.

133. See, for example, at 521. (Cp.) 12 N.I.L.Q. at 168–169. In 1634 the Church of Ireland had passed a canon (canon 64) in the same terms as canon 113 of the 1603 Canons of the Church of England. Its present status is unclear: see 12 N.I.L.Q. at 170, note 1.

134. Supra.

135. Butterworths, (1865).

136. Apart from those cited by Coke, these were: Sparkes v Middleton, 1 Keb. Rep. 505; Cuts v Pickering, and Jones v Countess of Manchester, 1 Vent. Rep. 197; Anon., Skin. Rep. 404; Bac. Abr., tit. Evidence, A. 2; Vaillant v Dodemead, 2 Atkins' Rep. 524; The Duchess of Kingston's Case, 20 How. State Trials 573; R. v Sparkes, cited in Peake's N. P. Cas. 78; Wilson v Rastall, 4 T.R. 753; R. v Gilham, Moo. C.C.R. 186; R. v Wild, Moo. C.C.R. 452; Butler v Moore, MacNally's Rules of Evidence, 253: see Badeley, op. cit. at 49 et seq.

137. Peake, , Compendium of the Law of Evidence at 190; Starkie, , Treatise on the Law of Evidence, vol. II at 322; Phillips, , Law of Evidence, vol. I at 176177; Roscoe, , Digest of the Law of Evidence in Criminal Cases at 175; Taylor, , Law of Evidence, Vol. II at 755–777; Best, Treatise on the Principles of Evidence at 690. See also Nokes, op. cit, at 96, footnotes 47 and 49; Whitehead, , Church Law (2nd ed.) at 98; and Blunt, , The Book of Church Law (2nd ed.), at 173176.

138. See supra.

139. Op. cit. at 74–75.

140. Scott's Case, 1 Dears. & Bell's C.C.R. 67.

141. Op. cit. at 547. See, too, Blunt, , The Book of Church Law (2nd ed., 1876) at 173176.

142. Best, op. cit. (12th ed.) at 505.

143. Winckworth, , The Seal of the Confessional and the Law of Evidence at 16; Moore, Garth, “Should a Priest Tell?”, The Church Times, 6th 09, 1963; Moore, Garth and Briden, , Introduction to English Canon Law (2nd ed.) at 101; Lindsay, , 12 N.I.L.Q. at 160; and see 71 L.T. Jo. 170.

144. 66 L.Q.R. at 94 et seq.

145. See infra. Strangely, Cross, on Evidence (6th ed.) at 404405 only considers the claim of the Roman Catholic priest although it cites both Nokes, 66 L.Q.R. 88 and Lindsay, 12 N.I.L.Q. 160.

146. Op. cit. at 94.

147. Indeed see the cases cited infra.

147A. Op. cit. at 98.

148. See footnote 145 supra.

149. Op. cit. at 101. It is especially surprising in the light of the Acts of the Convocations of Canterbury and York in 1959: see footnote 113 supra and relevant text.

150. The ecclesiastical jurisdiction over the laity in these and most other cases was abolished (or, at the least, made impossible of implementation) by the Ecclesiastical Jurisdiction Measure, 1963: see 14 Halsbury's Laws of England (4th ed.) at 308, note 10.

151. (13th ed.) at 15–09.

152. See footnote 145 supra.

153. Although Cross on Evidence (6th ed.) at 404 speaks of “the canon law” it is clear that it does not refer to the Anglican ecclesiastical (or canon) law. The argument for the Roman Catholic priest is very different from that in relation to the Anglican clergyman: “The only legal arguments that could be advanced in support of the (Roman Catholic) priest's refusal to testify concerning statements in the confessional would be first that the privilege must have existed at the time of the Reformation, and it has not been displaced by any statute or authoritative decision since that date; secondly, that disclosure would incriminate the priest by the (Roman Catholic) canon law and thirdly that the privilege is implicitly recognised in R v Hay.” Cross on Evidence clearly does not think these arguments are valid. See too Nokes, op. cit. at 102–103. In fact a better argument would seem to be one based on analogy: “If it be an error to refuse to hold sacred the communications made to spiritual advisers, an opposite and greater one is the attempt to confine the privilege to the clergy of some particular creed.”-per Best, cited by Phillimore, op. cit. at 547; see also Cook v Carroll [1945] I.R. 515 at 520 et seq. per Gavan Duffy, J.

154. (1859) 5 Jur. N.S. 522; on appeal, (1861) 14 Moo. P.C.C. 262. For further details see Brodrick, and Freemantle, , Ecclesiastical Judgements of the Privy Council at 176et seq.

155. See also the letter of the Bishop of Exeter written in 1852 to the Reverend G. R. Prynne and quoted in Phillimore, op. cit. at 540: “As I do not think that the Church of England prohibits your receiving to confession those who seek it as an habitual practice, I do not presume to prohibit your doing so. The church seems to me to discourage such a practice; therefore I should endeavour to dissuade one who came to me in pursuance of the practice from persisting to desire it. If I had sufficient reason to believe that he had not endeavoured honestly and earnestly to quiet his own conscience by self-examination, and other acts of repentance, I should not myself admit him. More than this I must decline saying.”

156. The matter was heard in consequence of a mandamus: R. v Archbishop of Canterbury (1859) 28 L.J. Q.B. 346.

157. (1859) 5 Jur. N.S. 522 at 523.

158. See, for example, ibid at 525 and 526. In the former passage Dr Lushington said: “Now, the bishop had said nothing as to contravening the laws of the church: he had spoken of the spirit and practice of the church…”

159. Ibid at 526.

160. This was certainly the view of the Dean of the Arches in arguendo in Capel St Mary, Suffolk v Packard [1927] P. 289 at 296.

161. Compare the allegations made in Olavi Silverstete (1496) Hale's Precedents 58: “Dominus Robertus Godard curatus et rector ibidem notatur quod e(s)t malus conciliator parochianorum suorum, eos in eorum confessionibus, ad committendum crimen adulterii sum eodem, quem dominus monuit ad comparendum coram eo crastino, certis articulis etc. responsurum post meridiem.”

162. Ibid at 524.

163. Ibid.

164. This conclusion is perhaps not surprising in the light of the false allegations made against the curate. He had stated in reply that “He asked her questions, because she requested him to do so, but the questions were of as general and guarded a character as possible.” Ibid at 526.

165. See footnote 155 supra.

166. (1859) 5 Jur. N.S. 522 at 525.

167. Ibid at 526.

168. This was so even though Mr Poole contented himself with “a general description” of what had taken place rather than, as Dr Lushington felt would have been more satisfactory, stating “to the best of his recollection, the questions he did actually put” ibid at 526.

169. (1861) 14 Moo. P.C.C. 263.

170. (1878) 4 P.D. 93.

171. Ibid at 100. He had already been proceeded against under the Public Worship Regulation Act, 1874, in relation to other matters: Hudson v Tooth (1877) 2 P.D. 125.

172. (1878) 4 P.D. 93 at 100.

173. Ibid at 100 and 104.

174. Ibid at 104.

175. [1901] P. 95.

176. Ibid at 96. It apparently had curtains: ibid at 118. As to their history the chancellor stated at 118: “Confessional boxes in some form or other were a usual and appropriate piece of church furniture in English churches prior to the Reformation, as they still are in Roman Catholic churches, for convenience and to forward and encourage the practice of priests receiving habitual confessions from members of their congregation. It is for the like use that they were introduced into this church and are now sought to be retained in it. The fact that no such pieces of church furniture were allowed to remain in English churches at the time of the Reformation, and that they have never been reintroduced into our churches since the Reformation by lawful authority, is cogent evidence that the practice of habitual confession in a church forms no part of the prescribed doctrine of the Church of England”. A number of years ago I was on a pilgrimage in the Holy Land. Also on the pilgrimage was a woman from Northern Ireland who seemed to take a special interest in the confessional boxes of the various churches. At the end of the tour I asked what was special about their design. “Oh, nothing!” she said in a heavy brogue. “I was only looking for someone who couldn't understand my confession!”

177. Ibid at 119–120.

178. Ibid at 120.

179. Ibid at 104. That this would be an “abuse” was accepted on behalf of the opponents but “as to which no evidence has been or could be given in this case” ibid at 106.

180. See also footnote 176 supra and contrast footnote 155 supra. In Capel Si Mary, Suffolk v Packard [1927] P. 289 at 296–297 the Dean of the Arches stated with reference to Davey v Hinde [1901] P. 95 at 118–119; [1903] P. 221 at 234: “I know of no authority which decides that a particular person may not go to confession habitually … The Chancellor seems to have confused habitual with compulsory confession.” See, too, at [1927] P. 289 at 301.

181. See R. v Tristram [1901] 2 K.B. 141; on appeal, [1902] 1 K.B. 816. See, generally, 14 Halsbury's Laws of England (4th ed.) at 1278.

182. Davey v Hinde [1903] P. 221. Additional evidence was given, inter alia, on the merits; amongst additional authorities the Parliamentary Return as to Confesional Boxes was also cited: ibid at 224–225.

183. Ibid at 234. Strangely, however, his order only mentioned “the three confessional boxes” that were to be removed: ibid!

184. In Markham v Shirebrook Overseers [1906] P. 239; sub nom. Re Holy Trinity, Shirebrook [1905] 22 T.L.R. 278 one of the items sought to be removed from the church was a crucifix originally placed in the vestry on a chest of drawers containing the eucharistic vestments. Although the vicar raised no objection to its removal from its altered position, it was presumably this that led to his cross-examination “about confessional practices which had taken place between himself and one of the servers“. The vicar gave evidence that “… each had confessed to the other and each had given the other absolution” see The Times, 15th 12, 1905. Presumably, this had occurred in preparation for the Eucharist.

185. [1927] P. 289; the drafting of the resultant faculty led to [1928] P. 69.

186. The summary is taken from the judgment of the Dean of the Arches: ibid at 301.

187. Ibidat 301.

188. See footnote 180 supra.

189. See, for example, the position in Poole v Bishop of London supra.

190. [1927] P. 289 at 301.

191. Although he does not mention the seal of the confessional, he does refer expressly to canon 113 of the 1603 Canons.

192. In St Peter St Helier. Morden, and St Olave, Miteham [1951] P. 303 at 316 Chancellor Garth Moore quoted this aspect with approval; see, too, In re St Augustine's, Brinkway [1963] P. 364 at 372–373 per Elphinstone, Ch.

193. As they did not indicate that confession was deemed to be compulsory: [1927] P. 289 at 302.

194. The Dean of the Arches stated: “The Rector's views as to confession, however erroneous they may be, cannot free him from his duty to hear confessions under the circumstances stated in the Prayer Book, and cannot render illegal reasonable arrangements for hearing confessions” - ibid at 303.

195. [1934] P. 134.

196. Ibid at 139–140.

197. As to what form may be used see 14 Halsbury's Laws of England (4th ed.) at 940.

198. [1954] P. 369.

199. Ibid at 380.

200. This refers to an ecclesiastical court of the Church of England and a confession heard by a clergyman of the Church of England. By the Welsh Church Act, 1914, s.3: “As from the date of disestablish ment ecclesiastical courts and persons in Wales and Monmouthshire shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law.” Prior to disestablishment the law of the Church in Wales had been the same as that of the Church of England but thereafter, by reason of Ibid.,, s.3(2), the same rules continued on the basis of a fictitious contract: see Green, , The Constitution of the Church in Wales 9798; 14 Halsbury's Laws of England (4th ed.) at 322–323. Thus the position of a clergyman of the Church in Wales, when considering the seal of the confessional, is similar to that of a Roman Catholic priest: see footnote 153 supra. This would seem also to be the case if a clergyman of the Church in Wales were to hear the confession of a member of the Church of England whilst officiating in an English parish, although in this case it might be argued that it should be the law of the Church of the penitent that should apply. The position is obscure but it may be doubted whether a clergyman who is neither a clergyman of the Church of England, nor a person ordained by a bishop of the Episcopalian Church in Scotland duly beneficed or licensed in England (see 14 Halsbury's Laws of England (4th ed.) at 670), nor an over seas clergyman acting with the permission of the Archbishop of Canterbury or York (Ibid., at 667–669), has jurisdiction to hear such a confession: the wording of the Exhortation to Communion (see footnote 61 supra), it is suggested, ought strictly so to be interpreted (cp. footnote 62 supra). As to the position in Northern Ireland see Lindsay, op. cit.; as to Eire see Cookv Carroll [1945] I.R. 515 and footnote 133 supra.

201. (1868) L.R. 3 H.L. 17 at 53–55 per Lord Westbury; see, too, In re St Mary's, Westwell [1968] 1 W.L.R. 513 at 516. For a detailed discussion see (1989) 1 Ecc. L.J. (4) at 15 et seq. and 14 Halsbury's Laws of England (4th ed.) at 307.

202. No doubt there is other historical evidence available also.

203. (1868) L.R. 3 H.L. 17 at 53 per Lord Westbury. He explained this at 54–55: “… (I)f such a rule had been pleaded by the bishop to have been the invariable usage of the church from the earliest times down to the Reformation, (which would be evidence of its being a law of the Church,) and that it had been continued and uniformly recognised and acted upon by the bishops of the Anglican Church since the Reformation, (which might have shewn it to have been received and adopted as part of the law ecclesiastical recognised by the common law,) the fitness of the rule ought not be questioned.” It should be noted that the rule need not have been adjudicated upon by the courts.

204. The proviso to canon 113 in fact only speaks of “any crime or offence so committed to (the priest's) trust and secrecy” This is because it is a restatement of the pre-Reformation canon law in the light of the duty imposed by the rest of the canon (now repealed) to present to the Ordinary “such enormities as are apparent in the parish”

205. 205. See footnote 40 supra.

206. See footnotes 61–63 and related text supra.

207. See Bennion, , Statutory Interpretation (Butterworths) at 263 and 515–517. “In a word, if Confession is authorised, or permitted, as a religious Rite, its secrecy is authorised and permitted also; for with out it, the Rite itself is neutralized, and the rules which sanction it are a dead letter…” - per Badeley, op. cit. at 75. The Act of Uniformity, 1662, has now been repealed; under the present legislation the use of the 1662 Prayer Book is authorised and its continued availability safeguarded: see 14 Halsbury's Laws of England (4th ed.) at 933 and 936–937.

208. Pace Nokes, op. cit. at 101 and text to footnote 149 supra.

209. Whether a secular or an ecclesiastical court.

210. To breach the seal of the confessional would not be an offence “involving matters of doctrine, ritual or ceremonial” under s.14(1)(a), although to maintain a doctrine contrary to the principles of auricular confession as recognised and enjoined by the 1662 Prayer Book might be: see Bland v Archdeacon of Cheltenham [1972] Fam. 157 at 164–165per Sir Cecil Havers, Deputy Dean of the Arches; 14 Halsbury's Laws of England (4th ed.) at 1354.

211. See 14 Halsbury's Laws of England (4th ed.) at 1353.

212. See 14 Halsbury's Laws of England (4th ed.) at 1362.

213. Ecclesiastical Jurisdiction Measure, 1963, ss. 23 and 39 (1) (a).

214. Unless the proceedings were brought under s. 14(l)(a): see s.40.

215. See Bland v Archdeacon of Cheltenham [1972] Fam. 157 at 172per Deputy Dean of the Arches (these were pastoral problems within the parish, however); 14 Halsbury's Laws of England (4th ed.) at 1350, note 1, and 1363, note 1.

216. Ecclesiastical Jurisdiction Measure, 1963, ss. 23(2), 39(2) and 40.

217. Compare Poole v Bishop of London (1861) 14 Moo. P.C.C. 262.

218. See footnotes 3–7 and related text supra and canon 113 of the 1603 Canons.

219. See Badeley, op. cit. at 75–78. In Cook v Carroll [1945] I.R. 515 at 521 Gavan Duffy, J. said: “The relation that concerns me directly is that of the Irish parish priest towards two of his parishioners and theirs towards him at a crisis, in a moment of gravest anxiety, which he will often be in a much better position to relieve than anyone else. As a rule, he is regarded as being truly the spiritual father of his people…; he is, therefore, more likely than others to get to the truth in a matter of extreme delicacy and so more likely than others to induce the delinquent here (seducer or calumniatrix) to make proper amends.” The judge was of course (see supra), concerned with a wider relationship than that of priest and penitent but he continued: “… (W)herever intimate confidence exists between parish priest and people, it wears a sacred character of immense potential benefit to the community, both to resolve the most delicate problems of life and to shield the flock from public scandal in things of shame…” See, too, 12 N.I.L.Q. at 169.

220. See Box, , The Theory and Practice of Penance (S.P.C.K.) at 7et seq.

221. Ibid., at 12. See, too, Badeley, op. cit. at 75: “… without (secrecy), the rite itself is neutralised, and the rules which sanction it are a dead letter…”

222. See footnote 40 supra.

223. Ecclesiastical Jurisdiction Measure, 1963, S. 49(1)(a). A person upon whom such a censure has been pronounced may be deposed from Holy Orders: Ibid.,, ss. 50 and 51. The censure of deprivation had been passed upon the appellant in Bland v Archdeacon of Cheltenham [1972] Fam. 157 at 161 and 170–171; in the circumstances it was varied to one of rebuke: Ibid., at 171.

224. Emphasis supplied.

225. See footnotes 40 and 204 supra.

226. For the various ecclesiastical censures see the Ecclesiastical Jurisdiction Measure, 1963, s. 49(1).

227. The possible censures range from deprivation to rebuke. Deprivation is the most severe: see Ibid.,, s.49 and Bland v Archdeacon of Chelthenham [1972] Fam. 157 at 170–171 where the proper approach to sentencing is discussed.

228. See Phillimore, op. cit., at 837 et seq.

229. See 14 Halsbury's Laws of England (4th ed.) at 308. note 10, 1266 and 1350.

230. See Phillimore v Machon (1876) 1 P.D. 481 at 487489per Lord Penzance; Redfern v Redfern [1891] P. 139 at 145 and 147 per Lindley and Bowen, LJJ; Elliot v Albert [1934] K.B. 316 at 660 and 666 per Scrutton and Maugham, LJJ; Cole v P.C. 433A [1937] 1 K.B. 316 at 333 per Goddard, J.; Blunt v Park Lane Hotel [1942] 2 K.B. 253 at 256 and 257–259 per Lord Clauson and Goddard, L.J.; Manchester Corporation v Manchester Palace of Varieties Ltd [1955] P. 133 at 149–150 per Lord Goddard, Court of Chivalry.

231. 66 L. Q. R. at 101.

232. Namely, “an answer which would involve an admission of sin, and would therefore expose the witness to ecclesiastical censure”.

233. It is understood that a number of such prosecutions have been brought under the Ecclesiastical Jurisdiction Measure, 1963, but that in each case so far the accused has renounced his Holy Orders rather than let the matter proceed to censure.

234. See supra.

235. Most, if not all, clergy would refuse to answer in spite of any threats of proceedings for contempt: see, for example, the unreported case in 1905 cited in footnote 91 and related text supra.

236. See supra. If the clergyman had acted under compulsion it is likely that an order of prohibition would be issued and the conflict resolved there: see 14 Halsbury's Laws of England (4th ed.) at 1268.

237. See footnotes 31–32 and related text supra.

238. See footnote 153 supra.

239. See Cross, op. cit. at 404 quoting Stephen, , Digest of the Law of Evidence (12th ed.) at 220.

240. See footnote 54 and related text supra.

241. This is compounded by the similarity between the two in that each may be the subject of waiver.

242. Op. cit. at 94.

243. “if you make a thing lawful to be done, it is lawful in all its consequences” –per Baron Alderson in Scott's Case, 1 Dears, & Bell's C.C.R. 67, quoted by Badeley, op. cit. at 75.

244. [1980] A.C. 402.

245. [1989] Crim. L.R. 285.

246. Such a discretion, if it exists, applies as much to evidence in an ecclesiastical court as in a secular court.

247. See Cross, op. cit. at 167 elseq. and R. v Sang [1980] A.C. 402.

248. Du Bane v Livette (1791) Peake 108 at 109110 per Lord Kenyon; Broad v Pitt (1828) 3 C. & P. 518 at 519 per Best, CM.; R. v Griffin (1853) 6 Cox 219 at 219 per Alderson, B.; see, too, Ruthven v De Bour (1901) 45 S.J. 272 and Phipson, op. cit. at 15–09.

1. L1.B. (Exon.), M.A., D.Phil. (Oxon). This article is dedicated to the memory of Evelyn Garth Moore.

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Ecclesiastical Law Journal
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