petty jurors is not receivable to prove their own mis- 2. Petty jurors. haviour, or that a verdict which they have delivered was given through mistake (g). In order to guard against misconception as to the nature of verdicts, it is the established practice not to receive a verdict unless all the jurors by whom it is given are present and within hearing; and, after it is recorded, the officer of the court rehearses it to them as recorded, asking them if that is the verdict of them all. The allowing a juryman to prove the real, or pretended, misbehaviour of himself or his companions would open a wide door to fraud and malpractice where it is sought to set aside verdicts. Communica § 586. 3°. Professional. At the head of these stand 3°. Professional. communications made by a party to his legal advisers, tions to legal i. e. counsel, attorney, &c. (h): and this includes all advisers. media of communication between them, such as clerks (i), interpreters (k), or agents (1). But the privilege does not extend to matters of fact which the attorney, &c., knows by any other means than confidential communication with his client, though if he had not been employed as attorney he probably would not have known them (m). And the privilege is not the privilege of the professional man, but of the client, who may waive it if (g) Goodman v. Cotherington, 1 Sid. 235; Norman v. Beamont, Willes, 487, note; Palmer v. Crowle, Andr. 382; Vaise v. Delaval, 1 T. R. 11; Straker v. Graham, 4 M. & W. 721. The competency of jurymen as witnesses in a cause which they are trying is a wholly different question; for which see Part 2, ch. 1, sect. 2, § 181. (h) Waldron v. Ward, Styl. 449; Wilson v. Rastall, 4 T. R. 753; Foote v. Hayne, Ry. & M. 165; Taylor v. Foster, 2 C. & P. 195; Du Barré v. Livette, (i) Taylor v. Foster, 2 C. & (k) Du Barré v. Livette, 1 Peake, 77. (1) Parkins v. Hawkshaw, 2 Stark. 239. (m) Dwyer v. Collins, 7 Exch. 639, and the cases there referred to. Y Y Communica tions to medical leged. he pleases (n). Communications to a medical man, even men not privi- in the strictest professional confidence, have been held not protected from disclosure (o),-a rule harsh in itself, of very questionable policy, and at variance with the practice in France (p), and some of the United States of America (q). Communica men. § 587. Whether communications made to clergymen tions to clergy by persons applying for spiritual advice are, or should be, protected from disclosure in courts of justice presents a question of some difficulty. It is commonly thought that the decisions of the judges in the cases of R. v. Gilham (r) and R. v. Wild (s), added to some others that will be cited presently, have determined it in the negative, and the practice is in accordance with that notion. But the former of these cases only shews that a confession of guilt made by a prisoner to the world or a magistrate, in consequence of the spiritual exhortations of a clergyman that it will be for his soul's health to do so, is receivable in evidence against him-a decision perfectly well founded, because such exhortations cannot possibly be considered illegal "inducements to confess." By this expression, as shewn in a former chapter (t), the law means language calculated to convey to the mind of a person suspected of an offence, that by confessing he will better his position with reference to the temporal consequences of that offence. And the ground on which a confession made after such an inducement to confess is rejected is, the reasonable apprehension that in consequence of it the party may have made a false (n) Tayl. Ev. § 673, and the cases there cited. (0) Duchess of Kingston's case, 20 Ho. St. Tr. 572 et seq.; R. v. Gibbons, 1 C. & P. 97. (p) Bonnier, Traité des Preuves, § 179. (9) 1 Greenl. Ev. § 248, note (3), 4th Ed. (r) 1 Moo. C. C. 186. (s) Id. 452. (t) Supra, ch. 6, sect. 3, subsect. 2, § 532. acknowledgment of guilt,—an argument wholly inapplicable where he is only told that a spiritual benefit is to be derived from telling the truth. The case of R. v. Wild is even less to the purpose; as the party who used the exhortation there neither was, nor professed to be a clergyman, and, wholly unsolicited, thrust it on the prisoner. The other cases to which allusion has been made are an anonymous one in Skinner (u), R. v. Sparkes (x), Butler v. Moore (y), and Wilson v. Rastall (z). In the first the question was respecting a confidential communication to a man of law, which Lord Chief Justice Holt, as might have been expected, held privileged from disclosure, adding obiter that "it was otherwise in the case of a gentleman, parson, &c." The second and third are decisions, one by Buller, J., on circuit, and the other by the Irish Master of the Rolls, in 1802, that confessions to a Protestant and Roman Catholic clergyman respectively are not privileged; and in the fourth the judges in banc say obiter that the privilege is confined to the cases of counsel, solicitor, and attorney. How far a particular form of religious belief being disfavoured by law at the period affected the latter of those decisions, is not easy to say; but both of them leave the general question untouched; and on R. v. Sparkes being cited to Lord Kenyon, in Du Barré v. Livette (a), he said, "I should have paused before I admitted the evidence there admitted." He however decided that case on the ground that confidential communications to a legal adviser were distinguishable from others. It is also to be observed, that the subject coming incidentally before Best, C. J., in Broad v. Pitt (b), very shortly after R. v. Gilham, he referred to that case as deciding that the privilege in question did not apply to a clergyman; but added, “ I, (u) Skinn. 404. (r) Cited in Du Barré v. Li velle, 1 Peake, 77. (y) Mac Nally's Evid. 253. (z) 4 T. R. 753. (b) 3 C. & P. 519. 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." § 588. There cannot, we apprehend, be much doubt, that previous to the Reformation statements made to a priest under the seal of confession were privileged from disclosure, except perhaps when the matter thus communicated amounted to high treason. In the old laws of Hen. I. (c) is this passage, "Caveat sacerdos ne de hiis qui ei confitentur peccata sua alicui recitet quod ei confessus est, non propinquis nec extraneis; quod si fecerit, deponatur, et omnibus diebus vite sue ignominiosus peregrinando poeniteat." The laws of Hen. I. are of course not binding per se, and are only valuable as guides to the common law: but it is otherwise with the statute Articuli Cleri (9 Edw. II.), c. 10, which is as follows (d): Quandoque aliqui confugientes ad ecclesiam . . . . . dum sunt in ecclesiâ custodiuntur per armatos infrà cimiterium, et quandoque infrà ecclesiam, ita arte quod non possunt exire locum sacrum causâ superflui ponderis deponendi, nec permittitur eis necessaria victui ministrari. Responsio : ....dum sunt in ecclesiâ, custodes eorum non debent morari infrà cimiterium, nisi necessitas vel evasionis periculum hoc requirat. Nec arcentur confugi dum sunt in ecclesia, quin possint habere vite necessaria, et exire libere pro obsceno pondere deponendo. Placet etiam Domino Regi ut latrones appellatores, quandocumque voluerint, (c) Leges Hen. I. c. 5, § 17. (d) The above version of the statute is taken from the valuable work entitled "Statutes of the Realm, printed by command of his Majesty, King George the Third, in pursuance of an Ad dress of the House of Commons: From original Records and authentic Manuscripts." A.D. 1810, et seq., and differs in several respects from that given by Sir E. Coke in the 2nd Institute. possint sacerdotibus sua facinora confiteri; set caveant confessores ne erronee hujusmodi appellatores informent." In commenting on this statute, Sir Edward Coke, writing, be it remembered, after the Reformation, expresses himself as follows (e):- "Latrones vel appellatores. This branch extendeth only to thieves and approvers indicted of felony, but extended 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 realm; therefore this branch declareth the common law, that the privilege of confession extendeth only to felonies: And albeit, if a man indicted of felony becometh an approver, he is sworn to discover all felonies and treasons, yet is he not in degree of an approver in law, but only of the offence whereof he is indicted; and for the rest, it is for the benefit of the king, to move him to mercy: So as this branch beginneth with thieves, extendeth only to approvers of thievery or felony, and not to appeals of treason; for by the common law, a man indicted of high treason could not have the benefit of clergy (as it was holden in the king's time, when this act was made), nor any clergyman privilege of confession to conceal high treason: And so it was resolved in 7 Hen. V. (Rot. Parl. anno 7 Hen. V. nu. 13), whereupon friar John Randolph, the Queen Dowager's confessor, accused her of treason, for compassing of the death of the king: And so was it resolved in the case of Henry Garnet (Hil. 3 Jac.), superiour of the Jesuits in England, who would have shadowed his treason under the privilege of confession, &c.; and albeit this act extendeth to felonies only, as hath been said, yet the caveat given to the confessors is observable, ne erronice informent." This passage has been cited to prove the common law on this subject; but we much doubt whether the caveat at the (e) 2 Inst. 629. |