Priest-penitent privilege in the UK
Encyclopedia
The doctrine of priest–penitent privilege does not appear to apply in English law. The orthodox view is that under the law of England and Wales privileged communication exists only in the context of legal advice obtained from a professional adviser. A statement of the law on priest–penitent privilege is contained in the nineteenth century case of Wheeler v. Le Marchant:
, Lord Chancellor
, in an exhaustive judgment on the subject in the case of Greenough v. Gaskell (1833) 1 Mylne & Keen 103, to be the necessity of having the aid of men skilled in jurisprudence
for the purpose of the administration of justice. It was not, he said, on account of any particular importance which the law attributed to the business of people in the legal profession or of any particular disposition to afford them protection, though it was not easy to see why a like privilege was refused to others, especially to medical advisers.
A similar opinion was expressed by Sir George James Turner, Vice-Chancellor in the case of Russell v. Jackson (1851) 9 Hare 391, in the following words:
Moreover, in the relationship of lawyer
and client the privilege was confined to communications between them made in respect of the particular litigation and it did not extend to communications generally passing between a client and his lawyer professionally. But the principle has developed so as now to include all professional communications passing in a professional capacity, and to the information and belief founded thereon, see: Minet v. Morgan (1873) 8 Chancery Appeals, 366; Lyell v. Kennedy (1883) 9 AC 90. In the former case Roundell Palmer, 1st Earl of Selborne
, Lord Chancellor, said:
Various commissions on law reform
have opposed any extension to the current scope of professional privilege.
, England was a Roman Catholic country and the Canon law
was the law of England. Thus the Seal of the Confessional
had great import in the civil courts.
was established when King Henry VIII
broke from the Roman Catholic Church. The respect of the courts for the Seal of the Confessional was less compelling during this period. During the trial of Fr. Henry Garnet
, for conspiracy
in the Gunpowder Plot
, the defence that the plot had been communicated to him by Robert Catesby
under the Seal of the Confessional was not rejected out of hand by the court, perhaps a surprising decision given the political climate.
, legislation would be 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 Church of England
, from where it may be possible to argue its extension to other creeds.
in the case of Middleton v. Croft that the Canons of 1603, though binding on the clergy, do not bind the laity. The reason for this is that though canons, in order to be valid must, as these did, receive the royal sanction, they are made in convocation, and, thus, without representation of the laity. Accordingly, if this canon infringed a right enjoyed by the lay subjects of the realm it would, seemingly, in as far as it did so, not be valid against them. Thus, a canon purporting to forbid clergymen from appearing as witnesses in any action which a subject might lawfully bring in the King's courts would, seemingly, be void as against the subject.
The fundamental principle is that a witness shall give in evidence the whole truth that he knows concerning the matter in dispute and that the parties to the dispute are entitled to have that evidence given. The rules which regulate and which, in certain exceptional cases, restrict the giving of evidence are the growth of practice and of the rulings of judges, occurring mainly within the last two to three centuries (see the judgment of Parke B in the case of The Queen v. Ryle, 9 M. & W., 244). The rule of Public Interest Immunity
which excludes evidence, the requiring of which would be contrary to public policy
, as may occur in relation to the conduct of the business of a state department, is an instance. In view of the absolute repudiation by the state of the jurisdiction of the Catholic Church and in view of the abandonment of the sacrament of confession as practised before the Reformation, one may fairly presume that, from the date of that event, confession would no longer have been regarded as a ground from motives of public policy, entitling to an exemption from the principle of the disclosure of all the truth known about the cause, were it to be civil or criminal.
again held that the privilege would extend so as to preclude an interpreter between a solicitor and a foreign client from giving evidence of what had passed.
In the report of that case the plaintiff
's counsel informed the court that Mr. Justice Buller had recently tried on circuit a case (R v. Sparkes) and that the prisoner, in that case, was a "papist
" and that it came out at the trial that he had made a confession of his capital crime
to a protestant clergyman. This confession had been received in evidence by the judge and the prisoner was convicted and executed. The Catholic Encyclopedia
contends that it is "obvious" that neither of the parties could have regarded the confession as sacrament
al. Lord Kenyon said that he would have paused before admitting such evidence, adding
for refusing to answer whether John Butler, 12th Baron Dunboyne
, professed the Catholic faith at the time of his death. Statute would have nullified Lord Dunboyne's will
had such been the case. Butler v. Moore but was an Irish case (Ireland
at the time formed part of the United Kingdom
).
, Chief Justice of the Common Pleas
on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession.
The Catholic Encyclopedia contends that he appears to have made no acknowledgment of his crime to the chaplain himself and that the question of confessional privilege did not arise.
said:
, Master of the Rolls
said:
chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in a spiritual capacity. The judge, Baron of the Exchequer Sir Edward Hall Alderson
, strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, "I do not lay this down as an absolute rule: but I think such evidence ought not to be given".
reports the case Ruthven v. De Bonn, tried before Mr. Justice Ridley and a jury in 1901.
contends that the current view of the law is based on R. v. Gilham (supra) but contends that the decision has been misconstrued. The Encyclopedia goes on to identify some alternative views.
In an anonymous case reported in Skinner's Reports, 404, in 1693, Lord Chief Justice John Holt
said that the privilege would extend to a law scrivener
, because he would be counsel to a man with whom he would advise. But he is reported to have added "otherwise of a Gentleman, Parson etc." Badeley maintains that Lord Holt did not mean this last assertion to be general and exclusive. This may conceivably be so. It is recorded in another anonymous case, which we find in Lord Raymond's
"Reports", 733, that the same judge refused to admit the evidence of a person entrusted by both the parties to the cause to make and keep secret a bargain. He added that "[by him] a trustee
should not be a witness
in order to betray the trust". But the last decision cannot be said to be in agreement with the law of evidence as generally laid down.
In the case of Wilson v. Rastall, as in some other cases, the indication of a potentiality of an expansion of this side of the law of evidence. "I have always understood", Lord Kenyon said, giving judgment, "that the privilege of a client only extends to the case of the attorney for him. Though whether or not it ought to be extended farther, I am happy to think may be inquired into in this cause." He meant that the matter would not be definitely concluded as an appeal would be possible.
In William Mawdesley Best's work on The Principles of the Law of Evidence there is, not only an expression of opinion that the privilege should be accorded, but one to the effect that there is ground for holding that the right to the privilege is existent.
Justification of the rule
The foundation of the rule protecting communications to attorneys and counsel was stated by Henry Brougham, 1st Baron Brougham and VauxHenry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
, Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, in an exhaustive judgment on the subject in the case of Greenough v. Gaskell (1833) 1 Mylne & Keen 103, to be the necessity of having the aid of men skilled in jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
for the purpose of the administration of justice. It was not, he said, on account of any particular importance which the law attributed to the business of people in the legal profession or of any particular disposition to afford them protection, though it was not easy to see why a like privilege was refused to others, especially to medical advisers.
A similar opinion was expressed by Sir George James Turner, Vice-Chancellor in the case of Russell v. Jackson (1851) 9 Hare 391, in the following words:
Moreover, in the relationship of lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and client the privilege was confined to communications between them made in respect of the particular litigation and it did not extend to communications generally passing between a client and his lawyer professionally. But the principle has developed so as now to include all professional communications passing in a professional capacity, and to the information and belief founded thereon, see: Minet v. Morgan (1873) 8 Chancery Appeals, 366; Lyell v. Kennedy (1883) 9 AC 90. In the former case Roundell Palmer, 1st Earl of Selborne
Roundell Palmer, 1st Earl of Selborne
Roundell Palmer, 1st Earl of Selborne PC , was a British lawyer and politician. He served twice as Lord Chancellor of Great Britain.-Background and education:...
, Lord Chancellor, said:
Various commissions on law reform
Law reform
Law reform or Legal reform is the process of examining existing laws, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency....
have opposed any extension to the current scope of professional privilege.
Pre-reformation
Before the ReformationEnglish Reformation
The English Reformation was the series of events in 16th-century England by which the Church of England broke away from the authority of the Pope and the Roman Catholic Church....
, England was a Roman Catholic country and the Canon law
Canon law (Catholic Church)
The canon law of the Catholic Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. It lacks the necessary binding force present in most modern day legal systems. The academic...
was the law of England. Thus the Seal of the Confessional
Seal of the Confessional
In the Roman Catholic Church, the Seal of Confession is the absolute duty of priests not to disclose anything that they learn from penitents during the course of the Sacrament of Penance.-History:...
had great import in the civil courts.
From Reformation to nineteenth century
During the Reformation, the Church of EnglandChurch of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
was established when King Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
broke from the Roman Catholic Church. The respect of the courts for the Seal of the Confessional was less compelling during this period. During the trial of Fr. Henry Garnet
Henry Garnet
Henry Garnet , sometimes Henry Garnett, was a Jesuit priest executed for his complicity in the Gunpowder Plot of 1605. Born in Derbyshire, he was educated in Nottingham and later at Winchester College, before moving to London in 1571 to work for a publisher...
, for conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
in the Gunpowder Plot
Gunpowder Plot
The Gunpowder Plot of 1605, in earlier centuries often called the Gunpowder Treason Plot or the Jesuit Treason, was a failed assassination attempt against King James I of England and VI of Scotland by a group of provincial English Catholics led by Robert Catesby.The plan was to blow up the House of...
, the defence that the plot had been communicated to him by Robert Catesby
Robert Catesby
Robert Catesby , was the leader of a group of provincial English Catholics who planned the failed Gunpowder Plot of 1605....
under the Seal of the Confessional was not rejected out of hand by the court, perhaps a surprising decision given the political climate.
Confession and the Anglican Church
There has never been any UK 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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, legislation would be necessary to re-establish it. If it survived in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
it can only have done so through the allowance of it in the case of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
, from where it may be possible to argue its extension to other creeds.
The civil courts
It was decided by the Court of King's Bench in a judgment delivered by Philip Yorke, 1st Earl of HardwickePhilip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
in the case of Middleton v. Croft that the Canons of 1603, though binding on the clergy, do not bind the laity. The reason for this is that though canons, in order to be valid must, as these did, receive the royal sanction, they are made in convocation, and, thus, without representation of the laity. Accordingly, if this canon infringed a right enjoyed by the lay subjects of the realm it would, seemingly, in as far as it did so, not be valid against them. Thus, a canon purporting to forbid clergymen from appearing as witnesses in any action which a subject might lawfully bring in the King's courts would, seemingly, be void as against the subject.
The fundamental principle is that a witness shall give in evidence the whole truth that he knows concerning the matter in dispute and that the parties to the dispute are entitled to have that evidence given. The rules which regulate and which, in certain exceptional cases, restrict the giving of evidence are the growth of practice and of the rulings of judges, occurring mainly within the last two to three centuries (see the judgment of Parke B in the case of The Queen v. Ryle, 9 M. & W., 244). The rule of Public Interest Immunity
Public Interest Immunity
Public-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...
which excludes evidence, the requiring of which would be contrary to public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
, as may occur in relation to the conduct of the business of a state department, is an instance. In view of the absolute repudiation by the state of the jurisdiction of the Catholic Church and in view of the abandonment of the sacrament of confession as practised before the Reformation, one may fairly presume that, from the date of that event, confession would no longer have been regarded as a ground from motives of public policy, entitling to an exemption from the principle of the disclosure of all the truth known about the cause, were it to be civil or criminal.
Du Barré v. Livette
In the case of Du Barré v. Livette (1791) Peake 77, Lord KenyonLloyd Kenyon, 1st Baron Kenyon
Lloyd Kenyon, 1st Baron Kenyon, PC, SL, KC was a British politician and barrister, who served as Attorney General, Master of the Rolls and Lord Chief Justice. Born to a country gentleman, he was initially educated in Hanmer before moving to Ruthin School aged 12...
again held that the privilege would extend so as to preclude an interpreter between a solicitor and a foreign client from giving evidence of what had passed.
In the report of that case the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
's counsel informed the court that Mr. Justice Buller had recently tried on circuit a case (R v. Sparkes) and that the prisoner, in that case, was a "papist
Papist
Papist is a term or an anti-Catholic slur, referring to the Roman Catholic Church, its teachings, practices, or adherents. The term was coined during the English Reformation to denote a person whose loyalties were to the Pope, rather than to the Church of England...
" and that it came out at the trial that he had made a confession of his capital crime
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
to a protestant clergyman. This confession had been received in evidence by the judge and the prisoner was convicted and executed. The Catholic Encyclopedia
Catholic Encyclopedia
The Catholic Encyclopedia, also referred to as the Old Catholic Encyclopedia and the Original Catholic Encyclopedia, is an English-language encyclopedia published in the United States. The first volume appeared in March 1907 and the last three volumes appeared in 1912, followed by a master index...
contends that it is "obvious" that neither of the parties could have regarded the confession as sacrament
Sacrament
A sacrament is a sacred rite recognized as of particular importance and significance. There are various views on the existence and meaning of such rites.-General definitions and terms:...
al. Lord Kenyon said that he would have paused before admitting such evidence, adding
Butler v. Moore
In this case a priest was imprisoned for contempt of courtContempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
for refusing to answer whether John Butler, 12th Baron Dunboyne
John Butler, 12th Baron Dunboyne
John Butler, 12th Baron Dunboyne was an Irish clergyman and aristocrat, Roman Catholic Bishop of Cork. In order to advance his temporal title, he became, , the only authenticated apostate in the Catholic hierarchy in Ireland.-Early life:...
, professed the Catholic faith at the time of his death. Statute would have nullified Lord Dunboyne's will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
had such been the case. Butler v. Moore but was an Irish case (Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
at the time formed part of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
).
R v. Redford
In 1823, in the case of the R v. Redford, which was tried before William Draper Best, 1st Baron WynfordWilliam Draper Best, 1st Baron Wynford
William Draper Best, 1st Baron Wynford, PC , was a British politician and judge. He served as Chief Justice of the Common Pleas from 1824 to 1829.-Background and education:...
, Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession.
R v. Gilham
The case of R v Gilham (1828) 1 Mood CC 186, CCR, concerned the admission of evidence against a prisoner of an acknowledgment of his guilt which had been induced by the ministrations and words of the Protestant prison chaplain. The acknowledgment of the murder with which he was charged was made by the prisoner to the jailer and, subsequently, to the authorities.The Catholic Encyclopedia contends that he appears to have made no acknowledgment of his crime to the chaplain himself and that the question of confessional privilege did not arise.
Broad v. Pitt
In 1828, the case of Broad v. Pitt 3 C&P 518, where the privilege of communications to an attorney was under discussion, Best CJChief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
said:
R v. Shaw
In R v. Shaw (1834) 6 C& P 392, a witness who had taken an oath not to reveal a statement which had been made to him by the prisoner, was ordered to reveal it. "Everybody", said Mr. Justice Patteson, who tried the case, "except counsel and attorneys, is compellable to reveal what they may have heard."Greenlaw v. King
In the case of Greenlaw v. King (1838) 1 Beav 145, Henry Bickersteth, 1st Baron LangdaleHenry Bickersteth, 1st Baron Langdale
Henry Bickersteth, 1st Baron Langdale KC, PC was an English law reformer and Master of the Rolls.He was born on 18 June 1783 at Kirkby Lonsdale, three years before his brother Edward Bickersteth...
, Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
said:
R v. Griffin
In R v. Griffin (1853) 6 Cox CC 219, a Church of England workhouseWorkhouse
In England and Wales a workhouse, colloquially known as a spike, was a place where those unable to support themselves were offered accommodation and employment...
chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in a spiritual capacity. The judge, Baron of the Exchequer Sir Edward Hall Alderson
Edward Hall Alderson
Sir Edward Hall Alderson was an English lawyer and judge whose many judgments on commercial law helped to shape the emerging British capitalism of the Victorian era....
, strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, "I do not lay this down as an absolute rule: but I think such evidence ought not to be given".
The Constance Kent Case
In 1865, the murder trial of Constance Kent aroused a number of parliamentary questions whose answers reaffirmed the limited scope of professional privilege in England.R v. Hay
In this case, a Catholic priest was committed for contempt of court for failing to give evidence as to how he came by an allegedly stolen watch on the grounds that it came into his possession by way of the confessional. The court insisted that he was asked a plain matter of fact and not to breach the seal of the confessional. The Catholic Encyclopedia suggests that this case supports the view that the confessional is privileged.Ruthven v. De Bonn
The Catholic EncyclopediaCatholic Encyclopedia
The Catholic Encyclopedia, also referred to as the Old Catholic Encyclopedia and the Original Catholic Encyclopedia, is an English-language encyclopedia published in the United States. The first volume appeared in March 1907 and the last three volumes appeared in 1912, followed by a master index...
reports the case Ruthven v. De Bonn, tried before Mr. Justice Ridley and a jury in 1901.
Alternative views of the law
The Catholic EncyclopediaCatholic Encyclopedia
The Catholic Encyclopedia, also referred to as the Old Catholic Encyclopedia and the Original Catholic Encyclopedia, is an English-language encyclopedia published in the United States. The first volume appeared in March 1907 and the last three volumes appeared in 1912, followed by a master index...
contends that the current view of the law is based on R. v. Gilham (supra) but contends that the decision has been misconstrued. The Encyclopedia goes on to identify some alternative views.
In an anonymous case reported in Skinner's Reports, 404, in 1693, Lord Chief Justice John Holt
John Holt (judge)
Sir John Holt was an English lawyer and served as Lord Chief Justice of England from 17 April 1689 to his death.-Biography:...
said that the privilege would extend to a law scrivener
Scrivener
A scrivener was traditionally a person who could read and write. This usually indicated secretarial and administrative duties such as dictation and keeping business, judicial, and history records for kings, nobles, temples, and cities...
, because he would be counsel to a man with whom he would advise. But he is reported to have added "otherwise of a Gentleman, Parson etc." Badeley maintains that Lord Holt did not mean this last assertion to be general and exclusive. This may conceivably be so. It is recorded in another anonymous case, which we find in Lord Raymond's
Robert Raymond, 1st Baron Raymond
Robert Raymond, 1st Baron Raymond PC was a British judge.Robert Raymond was the son of the judge Thomas Raymond. He was educated at Eton and Christ's College, Cambridge. Said to have been admitted to Gray's Inn aged nine, he became a barrister in 1697 and was admitted at Lincoln's Inn in 1710...
"Reports", 733, that the same judge refused to admit the evidence of a person entrusted by both the parties to the cause to make and keep secret a bargain. He added that "[by him] a trustee
Trustee
Trustee is a legal term which, in its broadest sense, can refer to any person who holds property, authority, or a position of trust or responsibility for the benefit of another...
should not be a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
in order to betray the trust". But the last decision cannot be said to be in agreement with the law of evidence as generally laid down.
In the case of Wilson v. Rastall, as in some other cases, the indication of a potentiality of an expansion of this side of the law of evidence. "I have always understood", Lord Kenyon said, giving judgment, "that the privilege of a client only extends to the case of the attorney for him. Though whether or not it ought to be extended farther, I am happy to think may be inquired into in this cause." He meant that the matter would not be definitely concluded as an appeal would be possible.
In William Mawdesley Best's work on The Principles of the Law of Evidence there is, not only an expression of opinion that the privilege should be accorded, but one to the effect that there is ground for holding that the right to the privilege is existent.