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COMMUNICATIONS TO SPIRITUAL ADVISERS - WHETHER PRIVILEGED.

(From the American Law Review.)

FTER a somewhat laborious search, we have been surprised at the paucity of cases involving the admissibility of communications made to religious advisers or other persons clothed with ecclesiastical authority — and to whom is permitted, or upon whom is enjoined, the obligations of receiving confessions, and the correlative duty of administering consolation, or granting absolution. In England at common law, the question remained ever in a nebulous state: it being decided at one time that such communications were privileged, at another that they were not so, and again, a middle ground being adopted, it was said that. though they were acceptable as evidence if purely voluntary, yet they were highly improper if coercion were employed.

And so, having been a mooted question for many years, it remained for the legislative power to step in and settle the matter by statute.

So far as our research has enabled us to deter mine, the question first received adjudication in an old Irish case, where the point was squarely met. and it was held that the spiritual person (in this instance a Roman Catholic priest) was bound to testify, the court saying:

"It is an undoubted legal constitutional right of every subject of the realm, who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery unless especially exempted and protected by law."

This rule was adhered to in Rex v. Sparks. where the prisoner, being a Papist, had made a confession to a Protestant clergyman of the crime for which he was indicted, and that confession was permitted by Mr. Justice Buller to be given in evidence at the trial, and by its means conviction and subsequent execution were had.

The same view was taken in Rex v. Gillam. In that case the prisoner had been tried and convicted for murder, chiefly upon the evidence of his own confessions to the mayor and jailer. It appeared that he had been induced to make these confessions by reason of the previous religious persuasion brought to bear upon him by the chaplain of the jail, wherein the latter strongly set forth the Christian necessity of, and spiritual benefit accruing from, such a confession. It was held that the confessions were not privileged and had been properly received. This decision was arrived at principally upon the hypothesis that, no hopes of temporal benefit or forgiveness were held out, and that such expectations, if referable merely to a future condition of existence, are not rightly within the principle upon which the rule for the exclusion

of confessions obtained by the exertion of improper influence is based.

But in a later case it would appear that the communications of the confessional were intended to be regarded as sacred from temporal interference, though the result obtained seems to us rather illogical, inasmuch as it had the effect of practically disclosing what had occurred therein. The prisoner had been indicted for stealing a watch, which article had been found in the possession of a Roman Catholic priest. The latter, upon being cited by the prosecution, declined to reveal the name of the person from whom he had the watch. saying that he "had received it in connection with the confessional." But the court held him bound to answer, inasmuch as he was not asked to tel what had been actually confided to him there.

But this doctrine of compulsory process for the obtention of confessions made to spiritual persons received a decided check in the nature of a dictum by Chief Justice Best, in Broad v. Pitt, where that learned jurist said: "I for one will never compel a clergyman to disclose communications made to him by a prisoner; but if he chooses to disclose them I shall receive them in evidence."

This view was adopted in a subsequent case in the Court of Exchequer. The case is very defectively reported and the result of the trial left in doubt. Baron Alderson, in speaking of a certain confession made by the prisoner, while in the workhouse, to her spiritual adviser, says: I do not lay this down as an absolute rule, but I think such evidence ought not to be given."

Thus it will be perceived, as was said at the beginning, that the question never received precise adjudication in England, and for many years was left involved in doubt, and subject to the whim or caprice of each particular judge before whom it

chanced to arise.

here.

In the United States our courts have variously followed the English dicta and decisions, and as there the question has at last been rescued by definitive legislation. In one of the earliest cases which we have been able to discover, the question. though not directly presented, yet bears a sufficiently strong analogy to justify some mention There the defendant had been tried and convicted for an act of open and gross lewdness. and after the verdict motion for a new trial was made upon the ground that evidence had been admitted of certain confessions of the defendant. which had been made by him to the witnesses, as communicants of the same church. It was contended upon his behalf that, to make use of such confessions, was not only to set at naught the ecclesiastical discipline of our churches, but in a measure to infringe the rights of conscience: that the confession of faults to each other was incumbent upon the members of the same church, pro salute animarum, and that for a temporal court to disturb the church in her wholesome exercise of

Happily for our jurisprudence, this mooted question has been, in many of the States, regulated by statute, and it only remains for the courts to apply the law as they find it. D. M. CLOUD.

I

DEFENSE OF PRISONERS.

N an interesting article in the Journal of Comparative Law, Mr. Bridgwater points out how far England is behind both Scotland and her colonies and many foreign countries in providing for the defense of accused persons. All accused persons in England, as he points out, can, if they have sufficient means, but not otherwise, be defended by counsel, and no expenses are allowed to persons accused, even when it turns out that they have been wrongfully accused, except the costs of witnesses bound over by recognizance to appear at the trial.

There should be some arrangement for the gratuitous defense by counsel of such prisoners as have not the means to afford even the fee for what is known as a dock brief. It seems to us that this is more necessary than ever in view of the Criminal Evidence Act, 1898. As the provisions of this act become more and more widely known throughout the country, it becomes more and more hopeless for a prisoner to expect an acquittal unless he puts himself in the box. The consequences of his giving false evidence ought to be strongly pointed out to him by some professional adviser before he gives his evidence, and by some person whom he may feel gives that advice purely in his own interest and not to frighten him out of really disputing the case for the prosecution. He ought to have it pointed out to him what evidence on his part will be material to the charge, and he ought to have the advantage of having his own evidence elicited from him by an advocate in the same way that the evidence for the prosecution is elicited. An undefended prisoner giving his own evidence almost always tells a rambling story, in which the facts really in his own favor are often merely hinted at or are altogether omitted, and many facts tending to create a prejudice against himself and really immaterial are emphasized and repeated. Even an educated and intelligent man may commit these errors. Take the case of Sir Francis Burdett in 1 St. Tr. N. S. 1. He defended himself, but Denman, afterwards lord chief justice, acted for him at the trial in suggesting questions and answering points of law. He made a long speech in his own defense and was found guilty, and this was Lord Denman's comment upon the trial: "I have never had a doubt that the conviction was against law; that if I had acted for him as counsel in the usual manner he would have been acquitted; and that the information itself was erroneous for uncertainty. He himself addressed the jury less ably than could have been expected, and without knowing how to avail himself, as any

lawyer would, of the technical defects in the proof."

Of course, nowadaws, no judge fails to see that a prisoner charged before him with a capital offense has counsel assigned to him. But this does not go far enough. There is no reason why even in cases other than capital a person accused should not, in Erskine's fine phrase, be covered all over with the armour of the law" (Trial of Hadfield, Erskine's Speeches, vol. V, p. 6), nor why he should not be provided always with counsel by the king's judges not of their choice but of his own. It would not tend to the increase of the length of trials. Few stronger proofs are to be found," says Sir James Stephen, "of the simplicity of the English taste in the matter of making speeches than the exceedingly prosaic character of speeches in defense of prisoners. Even when the circumstances of crime are pathetic or terrible in the highest degree, the counsel on both sides are usually as quiet as if the case was an action on a bill of exchange. This way of doing business is greatly to be commended. It is impossible to be eloquent in the sense of appealing to the feelings without more or less falsehood, and an unsuccessful attempt at passionate eloquence is of all things the most contemptible and ludicrous, besides being usually vulgar. The critical temper of the age has exercised an excellent influence on speaking in the courts. Most barristers are justly afraid of being laughed at and looking silly if they aim at eloquence, and generally avoid it by keeping quiet" (Hist. Crim. Law, vol. I, p. 454). Besides, there is always the judge to be reckoned with. A slight but caustic interpolation from the bench generally brings the advocate back to strict business if he goes too far astray in search of flowers of speech. Even in Erskine, whom Sir James Stephen admits to have been "by far the most popular and effective advocate who ever appeared at the English bar," extreme simplicity was marked characteristic.

a

The practical question is by what machinery should the defense of poor prisoners by counsel be secured. Mr. Bridgwater suggests that it may best be left to such separate organizations of the bar as circuits and sessions. We think the solicitors ought to have a hand in it, unless it is to be done purely gratuitously by the bar. There ought to be a small consultative committee of the circuit or sessions bar and the solicitors practicing at the assizes or sessions. They should ascertain beforehand what prisoners are or are not defended, and whether the undefended ones can contribute or not toward their own defense. Prisoners to be defended otherwise than entirely at their own expense should be allotted a solicitor and counse according to a rota. Expenses of defense beyond the expenses of witnesses bound over by recognizance should be payable to a certain limited amount on the certificate of the consultative committee

formality than prevail at this day, and the bearing of lawyers toward one another contained more of the punctilio generally imputed to the days of dueling. Two of the learned judges then on the bench in this city had been wounded in duels. Three members of the bar of that time recur to me who had killed their adversaries, and others who had been engaged in such affairs.

"I think of all the men at the bar of olden time, Aaron Burr made the most impression on me. When I was admitted he was the only eminent lawyer of the time. His appearance was remarkable. He was small in stature, slender, yet very formal and reserved in bearing. His eyes were keen and penetrating, his hair straight and stroked back, tied in a queue behind, and whether in the court room, on the street or elsewhere, he always appealed to me as a man who was isolated and alone.

"Once I called on Aaron Burr with Dr. Hosack, who was the surgeon in his duel with Alexander Hamilton. His grace and elegance of manner and the ease and interest of his conversation, though tainted with a touch of cynicism, impressed me deeply.

"Chancellor Kent, with whom I had the honor and happiness to pass my clerkship as a student, was one of the grandest men the profession has ever known. When he ceased to be his memory remained with me as an example, and I have striven always to emulate his splendid character.

"Chancellor Kent was a perfect type of the man of the old-time bar, and charmed everyone with his polished wit, his beautiful diction, and the kindness of his presence." - Exchange.

Legal Notes.

The sentencing of a juror in Chicago to six months' imprisonment for soliciting a bribe constitutes a healthy sign, but we fear that many more object lessons of this sort will be necessary in order to effectually stamp out the practice in the Illinois metropolis. The case referred to was that of James McGrath, a juror in Judge Garver's court, who solicited a bribe from William White, adjuster of the Chicago City Railway Company, during the trial of a case against the company last December.

The risks assumed both in selling and buying rare old books are pointed out in a lawsuit by Mr. Brayton Ives against Gilbert I. Ellis and Robert V. Elvey (50 App. Div. 399). It seems that Columbus, upon his return to Spain from his first voyage across the Atlantic, wrote to his patron and friend, Luis de Sant Angel, a letter describing the voyage and what he saw. This letter seems to have been printed at once for distribution, according to the methods used at that early

time. The few copies extant are of great value. Mr. Ives claimed in his suit that in 1890 the defendant sold him a book purporting to be one of these early copies. He paid £900 for the book. Subsequently he became convinced that the book was not a printed copy produced typographically by means of movable types, but that it was made by some reproductive process, and hence was worth only $2.50. He sued for the difference. His contention was that the defendants "represented and expressly warranted" that the volume was one of the genuine old copies. Mr. Ellis admitted stating that in his opinion the book was genuine, at the same time saying to Mr. Ives that his own opinion as to the genuineness of the book was not shared by other good authorities, but he denied making an express representation that the book was genuine. The jury decided in favor of the defendants. In the Appellate Court, Mr. Justice Goodrich explained the difference between a mere honest expression of opinion as to the genuineness of such old books and an express warranty. and showed that in the nature of things it wou'd be impossible to prove absolutely that the work was a typographical work, printed four centuries ago. He referred to two old English cases: Jendwine v. Slade (2 Esp. 572) and Power v. Barham (4 Ad. and El. 473). In the first case a description in a catalogue at an auction sale of a painting as a sea piece by Claud Lorraine," and of another painting as "a fair by Teniers," was decided not to be a warranty that the paintings were genuine works of Lorraine and Teniers. In the second case, a jury was permitted to determine whether a statement. Four pictures, Views of Venice. Canaletti," was a warranty as to their genuineness. The distinction was made that

Canaletti was a comparatively modern painter. of whose works it would be possible to make proof as a matter of fact, but that this would not be possible in the case of very old painters, and that, therefore, the assertion (as to them) was necessarily a matter of opinion.” . N. Y. Evening Post.

English Notes.

In the last five years that he has been in office. says the London Daily News, Lord Salisbury has created thirty-six new peers, and of these ten have been taken from the ranks of the lawyers. They are Lord James of Hereford, Viscount Llandaff (Mr. Henry Matthews), Lord Rathmore (Mr. D. R. Plunket), Lord Kinnear (a Scotch judge). Lord Ludlow (the late Lord Justice Lopes), Lord Brampton (Sir Henry Hawkins), Lord Lindley (late Master of the Rolls), Sir R. Webster, Sir P. O'Brien, and Lord Morris, an ex-Lord of Appeal, who is now made a peer of the United Kingdom.