Edward Coke's Coup

Legally, benefit of clergy was a provision which evolved out of secular courts lacking jurisdiction over ecclesiastical officials, and evolved into a sort of system for lesser sentences for literate or well-off first-time offenders. However, benefit of clergy was understood not to apply to high treason, the highest category of criminal offence in the common law of England.(2) Edward Coke argued in the second part of the Institutes that a similar exception had always held for the law of the seal of confession: such information was not confidential or privileged in instances of high treason. However, the one pre-Reformation case he cites, the case of Friar John Randolph and Joan of Navarre conspiring to murder Henry V, does not seem to prove this was an accepted rule of common law, as Randolph confessed to direct involvement in the conspiracy and a confession under the law of the seal does not appear to have been at issue in the case.(3) The actual first case creating a high treason exception to the law of the seal of confession appears to be one prosecuted by Edward Coke himself, the trial of Jesuit father Henry Garnet for hearing of a confession to the 1605 Gunpowder plot. The Gunpowder Plot and resulting trials were massive public spectacles which entranced the public and are still commemorated to this day in England(4) with illustrated manuscripts of the trials being printed and references being made to conspirators in popular plays at the time, including Macbeth. Ironically, the issue could not have arisen with an Anglican priest, as the 113th Anglican canon passed the prior year contained both a weakening of the seal of confession and an explicit treason exception to it, so religious privilege in treason cases already could not be claimed by Anglican priests(5). Ultimately, after canon law had been edited to break the seal of confessional when plots against the monarchy were at issue, Edward Coke edited the treason exception back into the common law regarding the seal of confession.

The Decline and Fall of Confession

The broader legal context for both the Gunpowder Plot itself and the waning of confession in general involves the proscription of Catholicism in the wake of the founding of the Church of England as a distinct body headed by the English Monarchy. Elizabeth's Acts of Uniformity required participation in Anglican services and following the Anglican Book of Common Prayers with penalties of fines or imprisonment by 1559(6). Two hundred years prior, John Wycliffe's most dangerous assault on the power of the Catholic church was a dispute of the truth of transubstantiation, the miracle of the Eucharist.(7). The 1559 Act of Uniformity required all churches legally operating in England to use the 1552 Book of Common Prayers, which contained a passage known as the Black Rubric explicitly denying transubstantiation. "And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here."(8) The greatest miracle of the clergy was outlawed, and the second-greatest, of confession, penance, and absolution, suffered a slower decline. While not explicitly proscribed in 1559, the 1552 Book of Common Prayer shifted confession to be a part of the collective act of the Christian Mass(9). The 1662 revision of the book created after the restoration of the Stuart Monarchy included, as compromise with Presbyterians and reformists, commentary stating that confession and absolution cannot be given at the pleasure of the priest and are not sacramental to the Church of England.(10). Essentially, the priest could judge that an individual was likely to be absolved because of their contrition and penance and say "I pronounce thee absolved", but could not grant or deny absolution at their pleasure.

Consequently, the Anglican faith did not hold confession in the same spiritual and absolute regard, and the Catholic faith which did was marginalized, and technically if not entirely illegal at times, leading to a decline in private confession as an English social practice. In the Seventeenth and Eighteenth centuries, likely due to the active persecution of Catholics, but the cases dealing the final deathblow to priest-penitent privilege in England ironically emerge during the early nineteenth century period of Catholic emancipation.

Notes

1 : Halsbury's Laws of England, vol. 31, Privilege

2 : Pollock and Maitland, p.446

3 : Religious Confession Privilege and the Common Law, A. Keith Thompson, p. 48-50

4 : see, e.g., https://www.bl.uk/collection-items/the-trial-of-henry-garnet-1606

5 : Thompson, p.77

6 : https://history.hanover.edu/texts/engref/er80.html

7 : John Wyclif, Denying Transubstantiation, Stephen E. Lahey and De Eucharistia, John Wycliffe

8 : And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here.

9 : An Introduction To The History Of The Successive Revisions of the Book of Common Prayer, James Parker, 1877, n53, https://archive.org/details/thesuccessivere00parkuoft

10 : , ibid, p. 306