Butler v. Moore
Encyclopedia
Butler v. Moore reported in MacNally's Rules of Evidence, [1802], 253, was an Irish
case decided by Master of the Rolls in Ireland
Sir Michael Smith
. It is an important precedent
in the issue of priest-penitent privilege in the UK
. The case concerned the will
of John Butler, 12th Baron Dunboyne
, who had converted from Catholicism
to Protestantism
. He was alleged, however, to have returned to Catholicism and, thereby, to have come within a penal law which deprived "lapsed papists" of the power to make a will.
for a dispensation from his vow of celibacy. It was refused him, and, thereupon, he became a Protestant and married, but had no issue. It is said that one day while he was driving along a country road a woman rushed out of a cottage, calling for a priest for some one who lay dangerously ill inside. Lord Dunboyne answered her "I am a priest", and, entering the cottage, he heard the dying person's confession. From a certain moment, said to have been this, till the end of his life he conformed again, at least, privately, to the Catholic faith.
to Father Gahan, a priest who had attended Lord Dunboyne shortly before his death, to the following effect: What religion did Lord Dunboyne profess, first, from 1783 to 1792? and, second, at the time of his death, and a short time before? As to the first question, Fr. Gahan answered that Lord Dunboyne professed the Protestant religion. To the second question he demurred on the ground that his knowledge (if any) arose from a confidential communication made to him in the exercise of his clerical functions, which the principles of his religion forbade him to disclose, nor was he bound by the law of the land to answer. The Master of the Rolls held, after argument by counsel, that there was no privilege, and he overruled the demurrer. Fr. Gahan adhered to his refusal to answer and he was adjudged guilty of contempt of court
and was imprisoned.
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
case decided by Master of the Rolls in Ireland
Master of the Rolls in Ireland
The office of Master of the Rolls in Ireland originated in the office of the keeper of the Rolls in the Irish Chancery and became an office granted by letters patent in 1333. It was abolished in 1924....
Sir Michael Smith
Michael Smith (judge)
Michael Smith was an Irish judge and founder of a judicial dynasty whose members were noted for eccentricity.He was born at Newtown, County Offaly, son of William Smith and his wife Hester Lynch. He graduated from the University of Dublin,and was called to the Bar in 1769...
. It is an important precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
in the issue of priest-penitent privilege in the UK
Priest-penitent privilege in the UK
The doctrine of priest–penitent privilege does not appear to apply in English law. The orthodox view is that under the law of England and Wales privileged communication exists only in the context of legal advice obtained from a professional adviser. A statement of the law on priest–penitent...
. The case concerned the will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
of John Butler, 12th Baron Dunboyne
John Butler, 12th Baron Dunboyne
John Butler, 12th Baron Dunboyne was an Irish clergyman and aristocrat, Roman Catholic Bishop of Cork. In order to advance his temporal title, he became, , the only authenticated apostate in the Catholic hierarchy in Ireland.-Early life:...
, who had converted from Catholicism
Catholicism
Catholicism is a broad term for the body of the Catholic faith, its theologies and doctrines, its liturgical, ethical, spiritual, and behavioral characteristics, as well as a religious people as a whole....
to Protestantism
Protestantism
Protestantism is one of the three major groupings within Christianity. It is a movement that began in Germany in the early 16th century as a reaction against medieval Roman Catholic doctrines and practices, especially in regards to salvation, justification, and ecclesiology.The doctrines of the...
. He was alleged, however, to have returned to Catholicism and, thereby, to have come within a penal law which deprived "lapsed papists" of the power to make a will.
Facts
Butler was Roman Catholic Bishop of Cork at the time of the death of the previous peer. Anxious to be able to transmit in a direct line the peerage and the headship of an ancient house, the new Lord Dunboyne appealed to the PopePope
The Pope is the Bishop of Rome, a position that makes him the leader of the worldwide Catholic Church . In the Catholic Church, the Pope is regarded as the successor of Saint Peter, the Apostle...
for a dispensation from his vow of celibacy. It was refused him, and, thereupon, he became a Protestant and married, but had no issue. It is said that one day while he was driving along a country road a woman rushed out of a cottage, calling for a priest for some one who lay dangerously ill inside. Lord Dunboyne answered her "I am a priest", and, entering the cottage, he heard the dying person's confession. From a certain moment, said to have been this, till the end of his life he conformed again, at least, privately, to the Catholic faith.
Disputed will
His will was disputed by his sister, Mrs. Catherine O'Brien Butler, on the ground that, having reconformed to Catholicism, he was incapable of making one. In order to prove that fact she administered interrogatoriesInterrogatories
In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
to Father Gahan, a priest who had attended Lord Dunboyne shortly before his death, to the following effect: What religion did Lord Dunboyne profess, first, from 1783 to 1792? and, second, at the time of his death, and a short time before? As to the first question, Fr. Gahan answered that Lord Dunboyne professed the Protestant religion. To the second question he demurred on the ground that his knowledge (if any) arose from a confidential communication made to him in the exercise of his clerical functions, which the principles of his religion forbade him to disclose, nor was he bound by the law of the land to answer. The Master of the Rolls held, after argument by counsel, that there was no privilege, and he overruled the demurrer. Fr. Gahan adhered to his refusal to answer and he was adjudged guilty of contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
and was imprisoned.