Privilege's End

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, I cannot find any legal cases specifically about priest-penitent privilege, but the cases dealing the final deathblow to priest-penitent privilege in England ironically emerge during the early nineteenth century period of Catholic emancipation, most notably _R. v. Gilham_(1828). This line of cases came to stand for the proposition that confession had never been protected in English common law, and to the extent it was privileged, had only been privileged by canon law. Some detractors fought valiantly to argue this was a misinterpretation, notably Jeremy Bentham in his 1827 discussion of proper rules of evidence in English law.(6). While some Catholic and Mormon sources continue to maintain to this day that this line of cases is misconstrued(7), from the early 20th century onwards legal texts summarize that there is no priest-penitent privilege in the English common law at all.

Part Three: Jeremy Bentham's Body Lies A-Mouldering On A Chair

The motivation for the prior two parts of history is the present. A new box is emerging. It contains not only our regrets and fears, but also our hopes and dreams.(8) The scope of the priest in confession is prescribing a particular penance, one specific behavior that can lead to absolution. The tracking search engine, on the other hand, plumbs the psyche and aims to produce desired results that lead to a never-ending loop of behavior and consumption. On the other hand, the search engine has positive effects; Exposing as much of the knowledge in the world as possible to everyone is a a re-enactment of Wycliffe's translation of the Bible into English on a secular and astronomical scale. Consequently, the first demand in the context of the search engine may parallel the first demand relating to confession in English law: if a man desire it, may it not be denied to him. Already, the Indian state of Kerala has declared that internet access must be denied to no one, and free WiFi? must be available across the land in the same way parishes open to hear confessions were made available.(9) Perhaps, to recognize the sacredness and inviolability of the box, the first step is always to recognize it is so indispensable for our certain form of life and character that access must be granted to everyone. We may even recognize doing generally expected research via search engine to fall under a duty of due care.

Notes

6 : Rationale of Judicial Evidence, Bentham, 1827, Chapter 6 in its entirety

7 : See, e.g., The Catholic Encyclopedia on Law of the Seal of Confession in England, or Thompson, introduction

8 : Freedom of Thought Requires Free Media, Eben Moglen

9 : https://www.independent.co.uk/news/world/asia/kerala-free-wifi-india-state-citizens-basic-human-right-internet-a7631461.html