sed ut homo, et tanquam homo ignorat illud super quo producitur.”1 In Scotland, where a prisoner in custody and preparing for his trial has confessed his crimes to a clergyman, in order to obtain spiritual advice and comfort, such confession is privileged; but this privilege is not carried so far as to include communications made confidentially to clergymen in the ordinary course of their duty. Though the law of England encourages the penitent to confess his sins "for the unburthening of his conscience, and to receive spiritual consolation and ease of mind;" yet the minister, to whom the confession is made, is merely excused from presenting the offender to the civil magistrate, and enjoined not to reveal the matter confessed, "under pain of irregularity." In all other respects he is left to the full operation of the rules of the common law, which recognise no distinction between clergymen and laymen, but provide that all confessions and other matters, not confided to legal counsel, must be disclosed when required for the purposes of justice. Neither peni. tential confessions made to the minister or to members of the party's own Church, nor even secrets confided to a Roman Catholic priest in the course of confession, are regarded as privileged communications."

1 1 Mas. de Prob., Quæst. v. n. 51; id. Concl. 377. Vide Farin. Op., Tit. 8, Quæst. 78, n. 73.

2 Tait, Ev. 386, 387; Alison, Pract. of Cr. L. 586; 2 Dickson, Ev. 937939.

3 Const. & Can. 1 J. 1, Can. cxiii.; 2 Gibson, Cod. p. 963.

4 R. v. Gilham, 1 Moo. C. C. 186.

5 Butler v. Moore, M'Nally, Ev. 253-255; Anon., Skin. 404, per Holt. C. J.; Du Barré v. Livette, Pea. R. 77; Com. v. Drake, 15 Mass. 161. By the N. York Civ. Code, 1710, r. 3, "A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline enjoined by the Church to which he belongs." A somewhat similar statute exists in Missouri; Rev. St. of 1835, p. 623, 16. In Broad v. Pitt, 3 C. & P. 519; M. & M. 234, S. C., Best, C. J., said, that he, for one, would never compel a clergyman to disclose communications made to him by a prisoner; but that if he chose to disclose them, he would receive them in evidence. In R. v. Griffin, 6 Cox, 219, Alderson, B., is reported to have gone further, and to have expressed an opinion that communications made by a prisoner to a clergyman ought not to be disclosed. See, also, R. v. Hay, 2 Fost. & Fin. 4; Joy on Conf. 49-58; Jer. Taylor's Sermon on the Anniversary of Gunpowder Treason, 6 vol. of his Works, pp. 614-622, ed. 1828; and a very learned pamphlet by the late Mr. Badeley on the Privilege of Religious Confessions in English Courts of Justice, publ. in 1865.

§ 918. Although the privilege, in its full extent, applies only to 839 the communications which pass between a client and his legal adviser, yet, with respect to the production of title-deeds, the protection has been held applicable to the case of trustees and mortgagees, who cannot be compelled either to produce the deeds of the cestuis que trust, or mortgagors, or to give parol evidence of their contents. It may here be laid down as a general proposition, that, whenever a party is justified in refusing to produce an instrument, he cannot be forced to disclose its contents; and although some few dicta, or even decisions, to the contrary may be found, the rule as above stated may now be considered as established. To adopt an observation of Mr. Baron Alderson," "It would be perfectly illusory for the law to say that a party is justified in not producing a deed, but that he is compellable to give parol evidence of its contents; that would give him, or rather his client through him, merely an illusory protection, if he happens to know the contents of the deed, and would be only a roundabout way of getting from every man an opportunity of knowing the defects there may be in the deeds and titles of his estate."

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§ 919. The protection afforded to professional confidence applies 840 with equal force, though the client be in no shape before the court; and although the rule which excludes hearsay prevents this question from often arising with respect to mere oral communications, it has often been discussed on occasions when a solicitor has been called upon, either by subpoena duces tecum or otherwise, to produce a document with which he has been confidentially intrusted by some stranger to the suit. In such a case, if the solicitor claims the privilege of the client, he will be protected not

1 Thomas v. Rawlings, 27 Beav. 140.

2 Davies v. Waters, 9 M. & W. 608; R. v. Upper Boddington, 8 D. & R. 726; Chichester v. M. of Donegal, 39 L. J., Ch. 694, per Giffard, L. J. See Few v. Guppy, 10 Beav. 281, n. b; 13 Beav. 457, S. C. Also, ante, & 458.

3 See Cocks v. Nash, 6 C. & P. 154, per Gurney, B.; Marston v. Downes, 1 A. & E. 31; 3 N. & M. 861, S. C., observed upon by Rolfe, B., in 9 M. & W. 613, 614.

Davies v. Waters, 9 M. & W. 612.

5 R. v. Withers, 2 Camp. 578, per Ld. Ellenborough.

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only from producing the deed or other paper, but from answering any question with respect to its nature;' and although on several occasions the court has inspected the document, and pronounced upon its admissibility, according as its production has appeared to be prejudicial or not to the client,' it seems to be now settled, that, in strict law, the judge ought not to look at the writing to see whether it is a document which may properly be withheld. The same rule applies where the documents called for are in the hands of solicitors for the trustees of bankrupts, though it was at one time thought that their production was a matter of public duty. In all these cases, if the client or principal would have been entitled, had he been called as a witness, to withhold the document, the solicitor, agent, or steward cannot be compelled, though he will be permitted, to produce it; but if both the client and the solicitor, or the principal and the agent, concur in refusing to produce the document, the party calling for it may, in such an event, give secondary evidence of its contents.'

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§ 920. This protection, though confined to communications between a client and his legal adviser, extends to all the necessary organs by which such communications are effected; and therefore an interpreter,1o or an intermediate agent," is under the

1 Volant v. Soyer, 13 Com. B. 231.

21 Ph. Ev. 175; Doe v. Langdon, 12 Q. B. 711; Copeland v. Watts, 1 Stark. R. 95; Harris v. Hill, D. & R., N. P. R. 17, 3 Stark, R. 140, S. C.; Ditcher v. Kenrick, 1 C. & P. 161; Doe v. Thomas, 9 B. & C. 288; 4 M. & R. 218, S. C. 3 Volant v. Soyer, 13 Com. B. 231.

Laing v. Barclay, 3 Stark. R. 42; Bateson v. Hartsink, 4 Esp. 43; Cohen v. Templar, 2 Stark. R. 260; Hawkins v. Howard, Ry. & M. 64; 1 C. & P. 222, S. C.; Corsen v. Dubois, Holt, N. P. R. 239; Bull v. Loveland, 10 Pick. 9, 14.

5 Pearson v. Fletcher, 5 Esp. 80, per Ld. Ellenborough.

Hibberd v. Knight, 2 Ex. R. 11. See ante,

458.

1 Ditcher v. Kenrick, 1 C. & P. 161; R. v. Hunter, 3 C. & P. 591. As to the cases where a witness may refuse to produce his deeds, or to disclose their contents, see ante, ?? 457-460.

Gr. Ev. 239, in part.

9 Thomas v. Rawlings, 27 Beav. 140.

10 Du Barré v. Livette, Pea. R. 77, explained in 4 T. R. 756; Jackson v. French, 3 Wend. 337; Andrews v. Solomon, 1 Pet. C. C. R. 356; Parker v. Carter, 4 Munf. 273.

11 Bustros v. White, L. R., 1 Q. B. D. 423, 427, per Jessel, M. R.; Bunbury

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same obligation as the legal adviser himself; and if the legal adviser has communicated with such person, he will be as much bound to silence, as if he had communicated directly with his client.1 The rule also extends to a solicitor's town or local agent (who is considered as standing in precisely the same situation as the solicitor), to a Scotch solicitor, and to a Scotch law agent practising in England; and it has been held applicable to a case submitted, after the institution of the suit, to a foreign counsel, and to his opinion thereon. Formerly it was thought that a barrister's or a solicitor's clerk was not within the reason and exigency of the rule; but as the principals, being unable to transact all their business in person, are under the necessity of employing clerks, it has since been held, that such clerks cannot be permitted to disclose facts coming to their knowledge in the course of employment, unless the barrister or solicitor himself might have been interrogated respecting them. So, where a plaintiff, at the instance of his solicitors, sent out a gentleman to India, for the express purpose of acting as the solicitor's agent in the collection of evidence respecting a pending suit, letters written by the agent either to the plaintiff himself or to his solicitors on the subject of the evidence, have been regarded by the court as confidential communications."

v. Bunbury, 2 Beav. 173; Walker v. Wildman, 6 Madd. 47; Hooper v. Gumm, 2 Johns. & Hem. 602; Churton v. Frewen, 2 Drew. & Sm. 390; Jenkins v. Bushby, 35 L. J., Ch. 820; Reid v. Langlois, 1 M. & Gord. 627, 638, 639, per Ld. Cottenham; 2 Hall & T. 59, 73, 74, S. C. See Doe v. Jauncey, 8 C. & P. 101.

1 Carpmael v. Powis, 9 Beav. 16, 20, 21, per Ld. Langdale; S. C. 1 Phill. 692, 693, per Ld. Lyndhurst, recognising Walker v. Wildman, 6 Madd. 47.

2 Parkins v. Hawkshaw, 2 Stark. R. 239, per Holroyd, J.; Tait, Ev. 385; Goodall v. Little, 20 L. J., Ch. 132; 1 Sim. N. S. 155, S. C.

3 Lawrence v. Campbell, 4 Drew. 485.

4 Bunbury v. Bunbury, 2 Beav. 173.

5 Taylor v. Forster, 2 C. & P. 195, per Best, C. J., cited with approbation in 12 Pick. 93; Foote v. Hayne, 1 C. & P. 545; Ry. & M. 165, S. C., per Abbott, C. J.; Chant v. Brown, 9 Hare, 790; Bowman v. Norton, 5 C. & P. 177, per Tindal C. J.; R. v. Upper Boddington, 8 D. & R. 726, per Bayley, J.; Mills v. Oddy, 6 C. & P. 731; Jackson v. French, 3 Wend. 337.

6 Steele v. Stewart, 1 Phill. 471; Cossey Lond. Bright. &c. Ry. Co., 5 Law Rep., C. P. 146; 39 L. J., C. P. 174, S. C.; Lafone v. Falkland Islands Co., 27 L. J., Ch. 25, per Wood, V.-C.; 4 K. & J. 34, S. C.; Hooper v.

§ 921. The rule of protection, however, will not be carried to ? 842 any further extent; and therefore, where the directors of a jointstock company sent agents abroad to assist in winding up the affairs of the company, a correspondence between the directors and the agents relative to legal proceedings, which had been commenced against the directors by certain creditors of the company, was held not to be privileged, though many of the letters had been written for the purpose of aiding the directors in their defence, and of being submitted to their solicitors. Indeed, it may be laid down generally, in the language of Lord Cranworth, that "there is no protection as to letters between parties themselves, or from a stranger to a party, merely because such letters may have been written in order to enable the person to whom they were addressed to communicate them in professional confidence to his solicitor.2

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§ 922. As the privilege is established, not for the benefit of the 843 solicitor, but for the protection of the client, it would seem to extend to an executor in regard to papers coming to his hands as the personal representative of the solicitor." If, however, a solicitor, in violation of his duty, should voluntarily communicate to a stranger the contents of an instrument with which he was confidentially intrusted, or should permit him to take a copy, the secondary evidence so obtained would, it seems, be admissible,

Gumm, 2 Johns. & Hem. 602; Walsham v. Stainton, 2 Hem. & M. 1; Ross v. Gibbs, 8 Law Rep., Eq. 522; 39 L. J., Ch. 61, S. C.; Bullock v. Corry, L. R., 3 Q. B. D. 356; 47 L. J., Q. B. 352, S. C., nom. Bullock v. Corrie.

1 Glyn v. Caulfield, 3 M. & Gord. 463, 473-475, per Ld. Truro; Anderson v. British Bk. of Columbia, 45 L. J., Ch. 449; L. R., 2 Ch. D. 644, S. C. See Baker v. Lond. & S.-W. Ry. Co., 37 L. J., Q. B. 53; 3 Law Rep., Q. B. 91: 8 B. & S. 645, S. C. See post, & 1795.

2 Goodall v. Little, 1 Sim. N. S. 155; recognised by Ld. Truro in Glyn v. Caulfield, 3 M. & Gord. 474; and in Betts v. Menzies, 26 L. J., Ch. 528, per Wood, V.-C. See also Smith v. Daniell, 44 L. J., Ch. 189, where an opinion, which had been given confidentially and as a friend by Ld. Westbury on a case submitted to him, was ordered to be produced. But see Jenkins v. Bushby, 35 L. J., Ch. 820; and Hamilton v. Nott, 42 L. J., Ch. 512, per Malins, V.-C.; 16 Law Rep., Eq. 112, S. C.

3 Herring v. Clobery, 1 Phill. 96, per Ld. Lyndhurst; B. N. P. 284, a. 4 Fenwick v. Reed, 1 Meriv. 114, 120, arg.