CONFIDENTIALITY, in law. The most common instance of C. is in the case of those communications between a client and his legal adviser, which neither of them can be called on to produce in a suit, and upon which no action of damages can be founded. The privilege extends to letters written by the lawyer to his client, relating to a suit which is either pending or contemplated; but to what extent it covers other business communications, is a question on which there are conflicting authorities in Scotland. In England, the rule has received a liberal interpretation (Dickson on Evidence, p. 930). The same privilege is extended to the communications of several parties, or of their coun sel and agents engaged on the same side of a cause, and made with a view to their joint prosecution or defense. Where a party, placed in such circumstances, is examined as a witness, he will be entitled to decline answering questions as to such communings, and even bound to do so, unless the privilege is waived by the other party interested (Dickson, p. 924). The principle on which this privilege rests, as stated by Stephen (Com. iii. 466), is that these communications are made " on such lawful occasions as tend to rebut the prima facie inference of malice, which otherwise arises from a state ment derogatory to private character." It is on the same principle that a master is pro tected who, when called upon for the character of a servant; charges him with a theft. In such cases, in order to support an action, there must be proof of malice beyond the littering of the words. With a view to preserving the freedom of domestic intercourse, and from a belief that the testimony of near relatives in favor of each other was worth less, and that the only effect of examining them against each other was to tempt them to commit perjury, it was formerly the habit to reject them as witnesses. The practice in England, for a long time, however, has been to admit, and even to exact their evi dence, making allowance, in appreciating its value, for the circumstances in which they are placed. The same principle has latterly been followed in Scotland; and the only exceptions which have been retained by the law of evidence acts, 15 and 16 Vict. c. 27, 16 and 17 Vict. c. 20, to the now almost universal admissibility of witnesses, are, that neither the parties themselves, nor their husbands or wives, shall be competent or com pellable to give evidence in criminal proceedings in which they are accused, nor to answer questions in a civil suit tending to criminate themselves or each other, or to reveal matters which they have communicated to each other during marriage. The C.
of such communications remains although the marriage has been dissolved lay death or divorce (Dickson, p. 92).
From very early times, so early, it is said, as the 4th and 5th centuries, the "seal of confession" (sigillum confesxioni,N) was held to be inviolable, and no priest could be called upon, under any circumstances, to reveal facts which had been confided to him under its sanction. To this the case of treason was an exception, in England, even in Roman Catholic times (Best's Law of Evidence, p. 737). In Roman Catholic countries, the priv ileges of the cenfessional remain unaltered; and several of the Protestant churches of Germany having sanctioned the practice of confession, the privilege of secrecy has been extended to it, as a necessary consequence, by the civil power. In these states, how ever, in addition to imposing far lighter penalties upon those clergymen who shall break the seal, the duty of doing so is enforced in all cases in which the confession has refer ence to a future crime. In England, no special privilege 'whatever is extended to the Roman Catholic confessional; and the question as to how far a confession made to a clergyman for the purpose of obtaining spiritual comfort and consolation is protected, was long considered doubtful. The rule has, however, been settled for some time that no clergymen of any religious persuasion are entitled to the same privilege as legal advisers; though it has often been advocated us advisable to extend the rule to clergy. men, including Roman Catholic priests. In Scotland, however, the point has never been directly or solemnly" decided, evidence of the kind lu, question, when not india.
pensable for the ends of justice, being generally either withheld or withdrawn (Dickson, u. p. 93S). By a statute of the state of New York, U. S., ministers of the gospel, and priests of every denomination, are forbidden to disclose confessions made to them in their professional character; and a similar statute exists in Missouri. It has been decided in England, that communications to a medical man, even in the strictest professional confidence. arc not protected from disclosure (Best, 734); and the same is the case in Scotland (Dickson, ii. p. 940); but a contrary rule has been adopted in several of the states of America (1 Greenl., § 248, note).