The Law of the Seal of Confession

In the "Decretum" of the Gratian who compiled the edicts of previous councils and the principles of Church law which he published about 1151, we find (secunda pars, dist. VI, c. II) the following declaration of the law as to the seal of confession: "Deponatur sacerdos qui peccata p nitentis publicare præsumit", i.e., "Let the priest who dares to make known the sins of his penitent be deposed ", and he goes on to say that the violator of this law should be made a life-long, ignominious wanderer. Canon 21 of the Fourth Lateran Council (1215), binding on the whole Church, lays down the obligation of secrecy in the following words: "Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner : but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance" (see Hefele - Leclercq, "Hist. des Conciles" at the year 1215; also Mansi or Harduin, "Coll. conciliorum"). It is to be noted that neither this canon nor the law of the "Decretum" purports to enact for the first time the secrecy of confession. In a context cited further on the great fifteenth-century English canonist, Lyndwood, speaks of two reasons why a priest is bound to keep secret a confession, the first being on account of the sacrament because it is almost ( quasi ) of the essence of the sacrament to keep secret the confession. (Cf. also Jos. Mascardus, "De probationibus", Frankfort, 1703, arg. 378.)

ENGLAND

Medieval England

At a much earlier date in Anglo-Saxon England we meet with several laws concerning confession. The laws of Edward the Elder (921-4), son of Alfred the Great, enjoin: "And if a man guilty of death (i.e., who has incurred the penalty of death) desires confession let it never be denied him". This injunction is repeated in the forty-fourth of the secular laws of King Canute (1017-35). These laws are prefaced thus: "This then is the secular law which by the counsel of my 'witan' I will that it be observed all over England ". The laws of King Ethelred who reigned from 978 to 1016 declare (V, 22): "And let every Christian man do as is needful to him: let him strictly keep his Christianity and accustom himself frequently to shrift (i.e., confess): and fearlessly declare his sins ". The very close connexion between the religion of the Anglo-Saxons and their laws many of which are purely ordinances of religious observance enacted by the State, the repeated recognition of the supreme jurisdiction of the pope, and the various instances of the application in the Church in England of the laws of the Church in general lead conclusively to the opinion that the ecclesiastical law of the secrecy of confession was recognized by the law of the land in Anglo-Saxon England.

In the period between the Norman Conquest and the Reformation we find the law of the Church in general as to the inviolability of the seal of confession stringently enjoined by English councils. The Council of Durham (1220) declared as follows: "Ne sacerdos revelet confessionem-Nullus ira, vel odio, vel Ecclesiæ metu vel mortis in aliquo audeat revelare confessiones, signo vel verbo generali vel speciali ut dicendo 'Ego scio quales vos estis', sub periculo ordinis et beneficii, et si convictus fuerit, absque misericordia degradabitur", i.e., "A priest shall not reveal a confession-let none dare from anger or hatred or fear of the Church or of death, in any way to reveal confessions, by sign or word, general or special, as (for instance), by saying 'I know what manner of men ye are' under peril of his Order and Benefice, and if he shall be convicted thereof he shall be degraded without mercy" (see Wilkins, "Concilia", I, 577, 595). The Provincial Council of Oxford, held in 1222, contains a similar canon, in which degradation is prescribed for any breach of the seal. We find the law, as laid down by the 21st canon of the Lateran Council, declared in the Acts of the Synod of Exeter in 1287 (Spelman, "Concilia", II, 357).

The fact that the laws of the Church were so emphatic on the subject, coupled with the fact that the Church was then the Church of the nation, affords good ground for inferring that the secular courts recognized the seal. The recognition of it would not have rested on any principle of immunity from disclosure of confidential communications made to clergymen. It would have rested on the fact that confession was a sacrament, on the fact of that necessity for it which the doctrine of the Church laid down, on the fact of the practice of it by both king and people, and on the fact that the practice was wholly a matter of spiritual discipline and one, moreover, in regard to which the Church had so definitely declared the law of absolute secrecy.

It is stated by some, among others by the Commissioners appointed to report upon the ecclesiastical courts in their report published in 1883, that the ecclesiastical courts in England did not regard themselves as bound by the rules of canon law framed by the Church outside England, by the various papal Decrees, Rescripts etc. But the Commissioners add that these courts paid great respect and attention to these Rules, Decrees etc. There seems to be so much weighty evidence against this view that it is difficult to accept it. Sir Frederick Pollock and Professor Maitland in their joint "History of English Law" (I, 94 and 95) say that the jus commune or common law of the universal Church was the law of the Church in England. In this connexion important material is contained in the "Provinciale" of Lyndwood (Oxford, 1679), the only great English canonist.

The "Provinciale" consists of the provincial constitutions of fourteen archbishops of Canterbury from Stephen Langton (d. 1228) to Henry Chichele (d. 1443). When Lyndwood was engaged on this compilation he was the principal official of the Archbishop of Canterbury : he had been, also, the prolocutor of the clergy in the Convocation of Canterbury. Professor Maitland, in his essays on "Roman Canon Law in the Church of England ", expresses the opinion that the ecclesiastical courts in England regarded the general body of canon law, including the various papal Decrees and Rescripts and the commentaries of the various great writers, as their law, which they had to administer. In citing Lyndwood as providing us with strong ground for this opinion Professor Maitland aptly says: "At any rate he will state the law which he administers in the chief of all the English ecclesiastical courts ".

In the "Provinciale" there is a constitution of Walter, Archbishop of Canterbury, apparently Walter Reynolds, transferred from the See of Worcester to the primatial see in 1313. The constitution begins with a prohibition to priests who have fallen into mortal sin to say Mass without first going to confession and warning them against imagining, as some believers erroneously do, that mortal sins are forgiven by the general confession made in the recitation of the Confiteor. It continues as follows: "Also let no priest dare from anger, hatred or fear, even of death, to disclose in any manner whatsoever, whether by sign, gesture or word, in general or in particular, anybody's confession. And if he shall be convicted of this he shall be deservedly, degraded, without hope of reconciliation".

Upon this constitution we have the following commentary by Lyndwood, occurring upon the word "Confession": "Supply ' Sacramental '. For in a Confession which is not sacramental, when, for instance, anyone in secret counsel reveals to some one else something which is not in the nature of sin, thus, suppose he reveals to a priest what he owes or what is owing to him, the priest is not to receive such a secret under the seal of Confession. And although through indiscretion he may have so received it, he is not to conceal it unless as a matter of counsel or secret. Wherefore, if the priest were ordered (compulsus) by a judge to tell the truth about such a debt, whenever a judge rightly inquires about the matter in order that he may know the truth, he is bound to do so, notwithstanding that he may have received the secret under the seal of Confession. And though he may have sworn to keep the matter secret, yet if afterwards that debt should be forfeited and the judge makes inquiry thereinto, if the priest is examined, he is bound to tell the truth, notwithstanding his sworn promise. For that oath is not binding on him, being an unlawful one and, thus, one not to be kept to the prejudice of another's right "; -- he cites in support, St. Thomas Aquinas and Hostiensis -- "but if some such debt is unjustly demanded by some tyrant, then though he is aware of the debt he ought to keep silence about it, or to change the subject or to reply sophistically ('respondere sophistice')" -- he cites in support a commentary on Raymond de Pennaforte. -- "But", Lyndwood continues, "what if the priest should know that matter by any other means than by Confession before the spiritual tribunal (in foro animæ)? It may be said that in as far as he knows it by any other means and he is ordered (compulsus) by a judge he may tell it, but not, of course, so as he heard it in confession: but let him say, as follows: 'I heard it thus or I saw it thus'. But let him always refrain as far as possible from speaking about the person so as to avoid scandal unless there be immediate necessity "; -- he cites in support, Innocent IV, the glossary on Raymond de Pennaforte and Astisanus, a Friar Minor and writer of the fourteenth century.

Dealing with the priest's being found guilty of revealing a confession, he says: "But what if the person confessing consents to its being revealed, because, perchance, he calls the Confessor as a witness ?" His answer is: "The doctors say that he may reveal it. But understand this in such way that the priest shall on no account reveal that which he knows only through confession (hoc tamen sic intellige quod sacerdos illud, quod scit solum per confessionem, nullo modo debet revelare). But the person who has confessed can intimate the matter to him in some other way which gives him leave to reveal it: and then he can tell, but, none the less, he ought to avoid scandal as much as possible. For he is bound to conceal the confession for two reasons, viz., on account of the sacrament, because it is almost of the essence of the sacrament to conceal the confession (quia quasi de essentia Sacramenti est celare Confessionem): likewise for reason of the scandal. The first is removed by the permission of the person confessing, but the second remains none the less: and, therefore, where scandal is to be feared, he ought not to make use of such permission. These are the pronouncement of Thomas and of Peter, according to what is noted by John in 'Summa Confessionis Rubrica de Confessione celanda, quæstio, 100', and with this pronouncement Johannes Andræus seems to agree. But I ask -- what if confession is made of some sin about to be committed, but not yet committed? For instance, some one confesses that he wants to kill a man or to commit some other misdeed and he says that he is unable to resist the temptation. May the priest reveal it? Some say that he may reveal it to such a person as can be beneficial and not detrimental (tali qui potest prodesse et non obesse), but the doctors of theology in this case say in general (communiter) that he must not reveal it, but must keep it entirely secret (omnino celare). Henry de Segusio says, however, that whatever he can properly (bono modo) do for the prevention of the sin, he ought to do, but without mention of person and without betrayal of him who makes the confession. Others say that where the confession is one of a sin about to be committed it is not a real confession, and that to the person making it, a penance cannot be given (neo tali dari potest p nitentia) and for these reasons it may be revealed to those who can be beneficial and not detrimental as I have said before"; -- he quotes Rudovicus and Guido of Baysio.

He states that Henry de Bohic "seems to adhere to the opinion of those theologians who say that even where future danger threatens, as, for instance, in the case of a heretic who proposes to corrupt the faith, or of a murder or of some other future temporal injury, the confessor ought to furnish a remedy (adhibere remedium) as far as he can without the revelation of the Confession, as, for instance, by moving those confessing to desist and otherwise using diligence to prevent the purpose of the person confessing. He may, too, tell the prelate to look rather diligently (diligentius) after his flock: provided that he does not say anything through which by word or gesture he might betray the person confessing. And this opinion I hold to be more correct and more in keeping with the law, which speaks plainly. But the other opinion which sanctions the revelation of the Confession to those who can be beneficial and not detrimental might hold good when the person confessing consents to it according to what I have said above".

Lyndwood then continues as follows: "One may deduce from the premises that if a judge maliciously presses and inquires of a priest whether he knows anything of such a fact, which he has, perhaps, heard in confession, if he cannot, by changing the subject or by some other means, turn aside the unjust judge, he can answer that he knows nothing thenceforth (inde), because it is secretly understood (subintelligitur) 'as man ': or he can say simply 'I know nothing through confession' because it is secretly understood 'nothing to be revealed to you'." Upon the word "generaliter" there is the following comment: "And so truly, not at all (i.e. the confession is not to be in any way revealed) when the confession has been made to the priest not as judge but as the minister of God. For if anything have been revealed to him as judge he is not bound to conceal it"; -- he cites Hostiensis in support. It is to be observed that there is nowhere an exception in respect of the crime of treason. His commentary on the duty of not disclosing the confession of a crime proposed to be committed tends to show that he would not have recognized any such exception.

A manual, called "Pupilla oculi" (see Gasquet, "Pre-Reformation Essays"), which appears to have been mainly designed for practical use among the clergy, was compiled towards the end of the fourteenth century by John de Burgh, a professor of theology and Chancellor of the University of Cambridge . According to Mr. Edward Badeley who wrote in 1865 a most able pamphlet on the privilege of the seal of confession entitled "The Privilege of Religious Confessions in English Courts of Justice", this manual, to which Professor Maitland also refers, enjoyed great popularity. Its counsels to confessors who may happen to be witnesses in a court of justice are sufficiently like those already cited from Lyndwood's "Provinciale" to render it unnecessary to quote them.

Lyndwood thus affords us, as Professor Maitland points out, even by the fact of citing these various authorities, very strong evidence that the general canon law was the law of the English ecclesiastical courts also. It may be remarked here that before the Reformation ecclesiastical canons were made by the authority of the synod with the sanction of the metropolitan. No crown sanction was required for their validity as canons. But the particular law in question was not one demanding observance in ecclesiastical courts merely, but in the civil and criminal courts of the land and on all occasions. It is an established principle of English law that no such rule or law could have become legally binding in England without being allowed and accepted there. The accuracy of the principle itself seems unquestionable and probably the only difference of opinion will arise as to the causes which might lead to the allowance and acceptance in England of rules of canon law. Adopting merely the basis that only such decrees and such rules of canon law as had been in fact received and accepted in England were binding there, we have evidence that the aforesaid Fourth Lateran Council , as to, at least, two of its decrees, viz., as to pluralities and as to clandestine marriages , was received and accepted in England. The judgments of the Courts in the case of Evans v. Ascuithe, tried in the third year of Charles I and reported in Palmer's "Reports", is based upon the validity of the former decree in England and it cites two cases, decided in the reign of Edward III, showing that the law declared by that decree had been acted upon by the civil courts of the land in that reign. The judgment of the Court of King's Bench delivered by Lord Hardwicke, in the case of Middleton v. Croft [(1736) cases temp. Ld. Hardwicke, 326], though not expressly saying that the second decree was accepted and allowed in England, by its reasoning shows us that such was the case.

Remarkable evidence of the acceptance of the decrees of the Council of Lateran in England is brought to our notice by Professor Maitland in his introduction to his edition of "Pleas of the Crown for the County of Gloucester for the year 1221". Speaking of trial by ordeal he says: "In 1215 the Lateran Council condemned the ordeal and at the beginning of Henry's (the Third) reign the relation of England to Rome was such that this decree of the Church was at once, and of course, obeyed. As already said, the next eyre (i.e. Circuit of judges for trials in the various counties), and a very general eyre it was, took place in the winter of 1218-9. The judges had already started on their journeys when an order of the king in council was sent round to them. It was dated 26th January, 1219, and is of such great moment in the history of our law, and, seemingly, so little known, that its substance shall be stated -- 'When you started on your eyre it was as yet undetermined what should be done with persons accused of crime, the Church having forbidden the ordeal '." The order, thereupon, proceeds to suggest certain rules for the judges to follow.

In the Anglican Church

In the "Codex Juris Ecclesiastici Anglicani" (London, 1761) by Dr. Edmund Gibson, chaplain to the Archbishop of Canterbury and afterwards Bishop of London, is found a compilation of the various canons and constitutions which had been made for the Church in England at different times. In his introduction to that work, in which he cites the statute 25 Hen. VIII, c. 21, concerning Peterspence and the exercise of papal jurisdiction in England, the author, in touching upon canon law, says as follows: "This is another branch of the Laws of the Church of England and is partly Foreign and partly Domestick. The Foreign is what we commonly call the Body of Canon Law consisting of the Councils, Decrees of Popes and the like: which obtained in England by virtue of their own Authority (in like manner as they did in other parts of the Western Church ) till the time of the Reformation : and from that time have continued upon the foot of Consent, Usage, and Custom". He cites 25 Hen. VIII, c. 21.

He goes on to say that before the Reformation, their not being repugnant to the laws of the land was the condition of these laws being received here. But he also cites commentaries of John de Athon on certain constitutions of Otho and Othobon, which the commentator says were not received here. Dr. Gibson cites a constitution of Simon Sudbury, Archbishop of Canterbury (1378), ordering confessions to be heard three times a year, and that whoever would not confess at least once a year should be prevented from entering a church while living and should not receive Christian burial when dead: and this order was to be published frequently in the churches.

That the particular decree as to the secrecy of the seal of confession was locally re-enacted by English councils and synods has already been shown. Its importance, whether as enacted by the Universal Council of the Lateran or re-enacted by the English councils, seems to have been only confirmatory of something already well established in the Church or, at most, as definitely declaring the punishment for the violation of the secrecy. That the decree was allowed and accepted by the civil courts of England can only be a matter for deduction. There is no direct proof of it, as there is, for instance, in the cases of these two other decrees, which are cited only as some evidence of the probability of the acceptance of this particular decree. Before enumerating other and chief grounds of this probability it is well to remember that if the law of the secrecy of confession was already well established in the Church it would be very unlikely that we should find evidence of any direct notice of the decree as in the cases of the two others.

But there seems to be absolutely no evidence which could cause one to doubt that a rule declared by the Church as to a matter essentially bound up with a sacrament, which formed part of the necessary religious practice of the nation, would have been unhesitatingly accepted by the nation by reason of the mere fact that the universal Church had declared it. As there are such strong grounds for holding that the rule only solemnly declares an obligation upon priests which the nation had always believed to lie upon them, one would not expect to find any overt acceptance of the rule. Again, it is important to remember that the rule itself concerned priests mainly and that, undoubtedly, they were bound by it, and we see from the English canons re-enacting it the severe penalties to which they became liable in the ecclesiastical courts in England for any breach of it. Therefore, the disregard of it by the civil courts would have caused a perpetual conflict between these two tribunals even where the former was only exercising the jurisdiction which rightfully belonged to it, besides the fact that it would have so sharply conflicted with the religion practised by the nation.

The question of jurisdiction over clerks transgressing ecclesiastical law was entirely in the hands of the Church. The "Report of the Ecclesiastical Courts Commission, 1883", to which we have already alluded, tells us that " ecclesiastical jurisdiction in its widest sense covered all the ground of ecclesiastical relations, persons, properties, rights and remedies: clergymen in all their relations". But the jurisdiction of the ecclesiastical courts extended even much further, including as it did the province of marriage, and that of probate coupled with the devolution of movable property in cases of intestacy. Within this latter province there would have been, perhaps, more than in any other province within the jurisdiction of any court, occasion for desiring to know something that might have transpired under the seal of confession. Pollock and Maitland's "History of the Laws of England " tells us that intestacy was regarded with an abhorrence somewhat akin to that with which a death without sacramental confession was regarded. This may probably be a considerable overstatement, but it serves to show that this province was, at least, as much calculated as any other to raise the question of the seal of confession.

Again, let us remember that in some districts, such as Durham and Chester, bishops exercised temporal jurisdiction. Even in the King's Courts, as Lord Coke points out, oftentimes the judges were priests, before Innocent IV prohibited priests from acting as judges. Pollock and Maitland's "History of the Laws of England " gives us as a specimen date, that of 16 July, 1195, on which there sat in the Court of King's Bench an archbishop, three bishops, and three archdeacons. The same book tells us that "it is by popish clergymen that our English common law is converted from a rude mass of customs into an articulate system, and when the 'popish clergymen' yielding at length to the pope's commands no longer sit as the principal justices of the king's court the golden age of the common law is over". It is highly improbable that at a period when systematization of the common law was proceeding at the hands of "popish clergymen " a rule compelling the disclosure of confession would have grown up. Finally, it is worthy of some observation that there is not a single reported case, textbook or commentary, during the whole pre-Reformation period which contains any suggestion that the laws of evidence did not respect the seal of confession. These grounds seem sufficient to lead to the conclusion that before the Reformation the seal was regarded as sacred by the common law of England. Sir Robert Phillimore in his work on ( Anglican ) ecclesiastical law makes a definite statement to this effect.

The only recorded statute of the English Parliament which deals with the right of confession is Statute I of the 9th year of Edward II, c. 10. The statute is called "Articuli Cleri", and the part referred to deals with the rights of offenders who abjure the realm and, fleeing to a church for refuge, claim privilege of sanctuary. After stating that such persons are to be allowed to have the necessaries of life and that they are to be at liberty to go out of the church to relieve nature, the statute continues as follows: "Placet etiam Domino Regi, ut latrones vel appellatores quandocunque voluerint possint sacerdotibus sua facinora confiteri: sed caveant confessores ne erronice hujusmodi appellatores informent". This law, long obsolete, was repealed in 1863, and is translated in the collections of the Statutes (Statutes of the Realm, I, 173), and in Pickering's edition of "Statutes at Large" (Cambridge, 1782): "And the King's Pleasure is, that Thieves or Appellors (whensoever they will) may confess their Offences unto Priests : but let the Confessors beware that they do not erroneously inform such Appellors".

Sir Edward Coke , the great common lawyer who was Chief Justice under James I, in the 2nd Institute, c. X, says: "This branch extendeth only to thieves and approvers indited of felony, but extendeth not to high treasons: for if high treason be discovered to the confessor, he ought to discover it for the danger that thereupon dependeth to the king and the whole realme: therefore the branch declareth the common law, that the privilege of confession extendeth only to felonies" . . . "for by the common law ", he states further on, "a man indited of high treason could not have the benefit of clergy nor any clergyman privilege of confession to conceale high treason ", it is not quite clear from his comment, but it seems likely, that Sir Edward Coke has interpreted the concluding caution to the confessors as a recognition of the seal of confession, and, if so, it would seem that he has wrongly interpreted it, because the translation of the word "informare" as "to inform against" would appear to be incorrect. The correct interpretation of the clause would seem to be as one of warning to the confessors not to inform these offenders, when they are admitted to hear their confessions, of what is going on outside.

Therefore, except in so far as it shows that the right of freely confessing was reserved to these offenders, the statute, in its actual words, contains no declaration of the privilege of the seal of confession. But Sir Edward Coke's comment is important as being a statement by him of the existence of the privilege at common law in respect of felonies. For the exclusion of it from cases of high treason there appears to be no foundation except Sir Edward Coke's own view as quoted, because the two cases which he cites in support of that view nowise support it.

The first of these cases is that of Friar John Randolf, cited from the Rolls of Parliament, 7 Henry V, who was the confessor of Queen Joan, widow of Henry IV. There is nothing in that record from which Sir Edward Coke's averment that the queen's conspiracy had been proved by the disclosure of her confession to Friar Randolf can be deduced. The words are "Tant p relation & confession d'une frere John Randolf de l'ordre des Freres Menours come p autres evidences creables". The word "confession is, clearly, there used in its primary sense of an admission. The reports of the matter in Holinshed's "Chronicles" and in Stow's "Chronicle of England " support this view as they state that Randolf was imprisoned, Holinshed saying that "it was reported that he had conspired with the quaene by sorcerie and necromancie to destroie the King", while Stow says that he had counselled the queen to her crime. Thus, evidently, when he was imprisoned on the charge of the conspiracy with the queen he confessed it.

The second case is one which occurred after the Reformation. It is the trial of the Jesuit, Fr. Garnet, on the charge of conspiracy in the Gunpowder Plot. It is reported in the records of the state trials. There is not only no mention of any decision by the court that the privilege of confession did not extend to the concealment of high treason, but there is not even the faintest indication of any opinion to that effect by any member of the court. There was no question of the giving of evidence by a witness before a court of justice of matter revealed to him in confession. The issue being whether Fr. Garnet was a party to the conspiracy, the question of his cognizance and, if cognizant, of his non-disclosure of it was essential. It was not disputed that he had heard the particulars of the plot from Greenwell, one of the conspirators, but the defence was that he had heard them only in confession, though he had previously received a general indication of the plot from another of the conspirators, Catesby. Not only was the defence not rejected at once by the court as being had in law, but, to infer from the arguments put to the prisoner upon it by certain members of the court, it was treated with a seriousness which seems surprising in a post-Reformation period, and, especially, at a moment of such strong anti-Catholic feeling.

Lord Salisbury, a member of the court, asked Fr. Garnet if there must not be confession and contrition before the absolution, and, having received an affirmative answer, he observed to him that Greenwell had shown no penitence, or intention to desist. "Hereby", he said, "it appears that either Greenwell told you out of confession, and then there would be no secrecy: or, if it were in confession, he professed no penitency, and therefore you could not absolve him." He further said to him that after Greenwell had told him in particular what Catesby meant, and he then called to mind what Catesby had previously told him (Fr. Garnet) in general, he might have disclosed it out of his general knowledge from Catesby. He further asked him why, after Greenwell's confession, when Catesby wished to tell him the particulars, he had refused to hear him, to which Fr. Garnet answered that he was loth to hear any more. Sir Edward Coke, for the prosecution, addressed to the court six arguments on the subject, the first being that this particular confession was not sacramental, the fifth being that Fr. Garnet had learned of the conspiracy from Catesby extra confessionem , and the last being that "by the common law, howsoever it (the confession) were, it being a crimen lés majestatis , he ought to have disclosed it". There is no indication of any adoption by the court of this last proposition. The confession in question was only an item in the evidence brought forward. One infers from the report that the court were not satisfied with the defence, as a fact, of the confession, and, also, that they considered the charge to be proved from the other evidence.

In a paper on the law relating to confession in criminal cases by Mr. Charles H. Hopwood, the writer admits the probability of the recognition of the seal before the Reformation. He says that Garnet's case even as cited by Lord Coke could hardly be in point, inasmuch as Garnet was not called as a witness in the Gunpowder treason trial, and that the obligation of the seal of confession, if put forward by Garnet at all, was only done so by way of his own defence that he was not a conspirator, but merely knew whatever he knew through hearing the confession of the others, and that Sir E. Coke appears almost to confess and avoid this plea by retorting that the confession was one of crime not yet executed. Sir Edward Coke in his commentary on the "Articuli Cleri", c. 10, interpreting the wording of it as he does, says that it declares the common law. His supporting this statement by the citation of a then recent case, together with his own argument, already mentioned, in that case, affords strong evidence that this great common lawyer was of opinion that even in his post-Reformation period the common law of England recognized the privilege of confession, except in the case of treason. If that is his view, as seems, at least, highly probable, it is profoundly interesting as the opinion of a very distinguished lawyer and a fierce champion of Protestantism.

It is important, however, to bear in mind that by the penal laws Catholicism was a proscribed religion. The practice of it was subjected to severe penal statutes and priests performing its rites were rigorously penalized. Statute law displaces the common law if the latter is inconsistent with the provisions of the statute. It is true that there is no statute which expressly declares that religious confession shall not be privileged from disclosure in the witness-box. But so many statutes were passed against the practice of the Catholic religion that it would seem inconsistent with them to hold that such a privilege still prevailed at common law.

Confession and the Boo of Common Prayer

In the first half of the nineteenth century nearly all these laws were repealed, most of them having been for some time inoperative. There has never been any legislation one way or the other about the disclosure in evidence of religious confession. If the privilege had ceased to be part of the common law legislation would he necessary to re-establish it. If it survived in the common law it can only have done so through the allowance of it in the case of the Protestant Church of England. If there was any such allowance it might be argued that by the sanction now given by the State to the practice by Catholics of their religion the same allowance to them, too, is to be implied. In order to consider whether any allowance of the privilege of religious confession endured in the Protestant Church of England , it is necessary to consider whether confession itself endured there and, if so, to what extent.

It is material to recollect that the whole system of spiritual jurisdiction and the administration of canon law in England received a paralyzing blow with the advent of the Reformation. The Submission of the Clergy Act in 1533 (25 Henry VIII, c. 19) deprived the laws of the universal Church, under the headship of the pope, of all the validity in England which was based on the mere ground of their being Decrees of the universal Church. That statute appointed a commission of thirty-two persons, sixteen lay and sixteen ecclesiastical, to inquire into the various ecclesiastical constitutions and canons, and it enacted that such of them as, in the opinion of the commissioners or the majority of them, ought to be abolished, should be abolished, and such of them as, in their opinion, ought to stand, should stand, the king's assent being first obtained; but until they should have so determined, any canons, or constitutions which were not contrariant to the laws statutes, or customs of the realm or were not to the damage of the king's prerogative, were still to be used and executed as before. The statute was repealed in the reign of Queen Mary, but revived in that of Elizabeth; however, the commission never completed its labours and never arrived at any determination. The same direction is further pursued by other statutes in the same reign. Thus the preamble to 25 Henry VIII, c. 21, states that the realm of England is subject only to such laws as have been made within the kingdom or such as, by the sufferance of the sovereign, the people of the realm have taken by their own consent to be used among them, and to the observance of which they have bound themselves by long use and custom, which sufferance, consent, and custom are the basis of the force thereof.

In an Act of the same reign relating to marriage, the prelude runs thus: "Whereas the usurped power of the bishop of Rome hath always intangled and troubled the meer jurisdiction and regal power of this realm of England ". There is, also, the Act 37 Henry VIII, c. 17, which declares that "by the word of God " the king is "supreme head in earth of the church of England ", having power and authority to exercise all manner of ecclesiastical jurisdiction. Thus, in the reign of Henry VIII, the whole basis of canon law -- the jurisdiction of the universal Church with the pope for its head -- was removed, and for such canon law and ecclesiastical jurisdiction as remained a new basis was constructed, viz, that of the consent of the English nation and the royal sufferance. Professor Maitland observes that these various statutes impose upon the ecclesiastical courts "not merely new law, but a new theory about the old law ". "Their decisions", he says, "were dictated to them by acts of Parliament -- and that is a very new phenomenon." "In this reign", he says, "we come upon a sudden catastrophe in the history of the spiritual courts."

This reign is the introduction of the Protestant Reformation into England inasmuch as it nationalizes the Church, makes it dependent upon the State, separates it from the authority of the pope, and constitutes the king supreme head. Still we find the king sternly checking the growth of Protestant doctrine and by the Statute of the Six Articles, passed in the thirty-first year of his reign, we find it declared that "auricular confession is expedient and necessary to be retained and continued, used and frequented in the Church of God ", and it was thereby made a felony to assert a contrary opinion. Therefore, with the exception, conceivably, of its exclusion in cases deemed to offend against the king's prerogative which was then carried to great lengths, there is no reason to think that the privilege of the seal would not have been observed in that reign. But under Edward VI and his Calvinistic uncle, the Lord Protector Somerset, the Church of the State rapidly became Protestant in its doctrine also, and in matters other than that of its headship. In the first year of his reign (1547), we find a mention of confession in a royal injunction issued to all his subjects, clergy and laity. The ninth of the royal injunctions issued that year runs as follows: "That they (i.e. parsons, vicars and other curates ) shall in confessions every Lent examine every person that cometh to confession to them, whether they can recite the articles of their faith, and the Ten Commandments in English, and hear them say the same particularly".

In the First Prayer Book of Edward VI, published by parliamentary authority (1548), the Communion service prescribes a general confession. The service for the visitation of the sick contains a mention of confession and a form of absolution in the following words: "Here shall the sick person make a special confession, if he feel his conscience troubled with any weighty matter: After which confession the Priest shall absolve him after this sorte: Our Lord Jesus Christ who hath left power to his Church to absolve all sinners which truly repent and believe in him, of his great mercy forgive thee thine offences; and by his authority committed to me, I absolve thee from all thy sins, in the name of the father and of the son and of the holy ghost". This Prayer Book goes on immediately to say: "and the same form of absolution shall be used in all private confessions.

The Second Prayer Book, which was published in 1552, contains the same form as the First Prayer Book in the service for the visitation of the sick, but it omits all mention of private confession. It also prescribes the general confession in the service before the Communion, as to which last named, however, it expressly denies transubstantiation or consubstantiation. This denial was omitted in the Third Prayer Book and is omitted from the Prayer Book as finally settled in 1662. The service for the visitation of the sick remains the same in that final version with the exception that, instead of saying "Here the sick person shall make a special confession", it says: "shall be moved to make a special confession of his sins, and that, after the direction to absolve him, there are the words "(if he humbly and h