MORE than 20 participants in Robert Emmet’s abortive rising on July 23rd, 1803 were executed during the following weeks.
As customary, they were allowed to address spectators from the gallows and the lord lieutenant, Earl Hardwicke, learned that some who had access to a priest had claimed to be innocent.
He wondered if they had believed themselves free of guilt because they had confessed their offences to a clergyman and received his absolution. More practically, he decided that death cell confessions would be a useful source of information and he asked the chief secretary, William Wickham, to speak to the titular archbishop of Dublin, John Troy.
Wickham duly reported that he had put a number of questions to Dr Troy and received responses: Could a third person be present at a confession? No, not in any case.
Could a priest disclose anything revealed to him? No, even if the confession wasn’t sufficiently full or sincere to entitle the penitent to absolution.
What obligation had the priest if a plot against the government was disclosed? He was bound to give the authorities information that a plot was in agitation but without saying anything leading to a suspicion of the informant.
Was confession a full atonement entitling the penitent to absolution? No, the priest should insist on confession to the state or the police, before or subsequent to absolution.
If a priest had denied absolution, could he reveal his denial and the reason? No, not even to the pope himself.
Could a priest grant absolution if the rite couldn’t be performed in all its parts as prescribed by the Catholic Church? Yes, for example if a man was deprived of speech by a stroke of the palsy.
Hardwicke sent Wickham’s report to the home secretary, his half-brother, Charles Yorke, and a covering letter in which he suggested that Catholic bishops near London and emigrant bishops from the Continent be consulted.
A draft reply was prepared by Yorke and circulated to a number of ministers who added comments. It referred to a document setting out a conversation with Dr Douglas, one of the principal Catholic bishops in the London area, and noted that he differed from Troy in some material particulars. Douglas’s principles were “much more consistent with the dictates of genuine Christianity, sound morality and true policy than those of Troy”.
Yorke also wrote that he had received a paper from the emigrant bishop of St Pole de Léon, “an excellent and respectable prelate”, which agreed more with the tenets of Douglas than of Troy.
However, a note by another minister warned about making too much of the apparent differences between the bishops.
Yorke wrote that priests should continue to have access to prisoners, but added that it was essential that they be persons of respectability who were conscientiously convinced that no criminal should receive absolution who was not fully determined to make all atonement in his power by disclosing to the government such wicked and malignant plots as he might be privy to.
He added, however, that the presence of a third party at a confession without the prisoner’s consent was a “delicate matter”.
These papers were found by an enterprising journalist, Michael McDonagh, and published in his book, The Viceroy’s Postbag, in 1904.
We don’t have any account from Catholic sources of the bishops’ responses.
At any rate, there is no evidence that the British authorities ever tried to use confession to gather evidence.
In Durham, at Christmas 1859, Fr John Kelly insisted that a man who had stolen a watch should hand it over before he received absolution. Kelly then gave it to the police. When he was summoned as a witness at the trial of the thief he refused to identify him and would only say that he had obtained the watch “in connection with a confession”.
He was sent to prison for contempt of court but released within a day or so.
Responding to questions in parliament, the home secretary, George Lewis, said that the judge had acted correctly because counsel had pressed the question and neither clergy of any denomination nor physicians had any right to privileged communications. He added, however that, in Ireland, where such issues arose more frequently, it was the practice not to press the question.
Fr Kelly’s parishioners presented him with a watch and chain as a mark of their appreciation.
In 1881, the master of the rolls, Sir George Jessels, also noted that communications in confession were not protected but added that there was a strong feeling that the community was better served by “passing over” awkward clerical incidents than by advertising a discreditable rule of law through the castigation of a recalcitrant priest.
Six years later, during the Land War, the parish priest of Youghal, Fr Daniel Keller, was jailed for two months for refusing to reveal confidential information.
Tim Healy MP then proposed legislation to exempt lawyers and clergyman from revealing information acquired in the course of their professional duties.
The chief secretary, Arthur Balfour, argued that the invariable custom in Ireland of respecting the secrets of the confessional was a more efficient protection and Healy agreed.
In July 1945, Mr Justice Gavan Duffy, delivered a judgment in the High Court in favour of the parish priest of Ballybunion, Fr W Behan, who had been found in contempt in the Circuit Court after refusing to give information about a meeting with two parishioners.
In it he stated that there were precedents in the laws of several American states and Newfoundland and Quebec; and he argued that the priest was right in refusing to testify unless he (the judge) was to be bound by very questionable adverse pre -Treaty precedents and the absence of any precedent in the courts of Ireland. The judgment was not appealed to the Supreme Court.