The sacredness of the confessional is at issue in a case now being tried in a Minneapolis court. On February 27th the Rev. Emil Swenson, Lutheran minister, was fined $100 for contempt of court by District Judge Paul W. Guilford because he refused to testify to a "confession" made to him by the defendant in a divorce suit. The pastor was cited for contempt when he refused to divulge details of a confidential conversation he had with Arnold C. Sundseth, a divorce defendant, on the ground that the "confession" was made to him in his official capacity as a minister by a man seeking advice and help in his troubles.
The case raised the question whether a minister is ever compelled to reveal what he is told under the seal of confession. If Judge Guilford is quoted correctly in the press, he holds that the Lutheran Church does not countenance the confessional and that therefore the pastor was not bound by church law to keep the confidence and was guilty of contempt of court. Certainly it will be a surprise to Lutherans to know that their practise on this point is not known to the general public. In the Catechism used by Lutherans throughout the world there is a separate section devoted to confession and absolution, which absolution, pronounced by his pastor, whenever a sin rests heavily upon his heart. In accordance with this instruction and as a result of the general confidence which a parishioner has in his minister it is one of the commonest experiences in the Lutheran clergyman's life to hear confessions of sins and then to apply the Law and the Gospel, as the case may demand.
As for the obligation of the clergyman to keep inviolate under all circumstances what has been thus entrusted to him, — that, too, is commonly accepted among Lutherans. The attitude of our Church is that pronounced by Martin Luther in the following well-known words: "Since it is confessed, not to me, but to Christ, and since Christ keeps it secret, then I must also keep it secret and answer that I have heard nothing. What Christ has heard He can tell." Our text-books in pastoral theology take precisely the same stand. Walther's text-book goes so far as to say: "Under all circumstances a pastor who reveals confessions should be deposed." Professor Schaller's Pastorale, used in the Wisconsin Synod, contains the following: "The confessional seal covers the announcement for Holy Communion, private confession and, in fact, all official activity of the pastor. The things he hears in confession or that are in any other manner confidentially told him as the pastor, must not by him be revealed to any creature; for as pastor he stands in the place of God and hears only for God (Luther, St. Louis Ed. 21, 2514a; 22, 559, § 4). The one making a confession must have the fullest assurance that his confession will be kept secret; but he should be instructed that he on his part must not reveal to others what his pastor said to him."
Commenting on the decision of Judge Guilford, a Minneapolis clergyman is quoted as saying: "Common law always is regarded by courts unless a statute is found which supersedes it. It is the common law of the Church, even if it is not one of the rules, that a pastor who receives information in confidence must not reveal it." If by "common law" in this quotation the "common law" prevailing in the United States is referred to, the clergyman is in error. Mr. Carl Zollmann, in his treatise on American Civil Church Law, says, p. 333: "By common law, confessions made to a priest or minister were not regarded as privileged." However, he continues: "A clergyman was therefore continually in danger of being called upon to divulge such confessions in court. To remedy this condition, statutes have been passed putting such confessions on an equality with statements made to an attorney. They must, however, be made to the clergyman in his professional character. The mere fact that a person who hears a confession is a clergyman will not exclude it from the consideration of court or jury."
The Northwestern Lutheran quotes the Wisconsin law in the matter as follows: "325. 20. A clergyman or other minister of any religion shall not be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rule or practise of the religious body to which he belongs, without consent thereto by the party confessing."
The same paper quotes Attorney Ernst von Briesen to the effect that there have been two cases in Wisconsin. In one of these the court held that it was not an error to allow a clergyman to testify against a defendant when there was no confession, and it was apparent that he was not acting in a professional character at the time. It is self-evident that other communications to a minister, as, for instance, when a minister acts as a business adviser, etc., are not privileged, but it seems clear that under Wisconsin law the confessions of a person to his pastor are privileged.
The Swenson case is the first of its kind in the State of Minnesota. An appeal to the State Supreme Court was taken. Whether the point in which we are all interested will be settled through that court appears doubtful. If press dispatches are studied carefully, it seems that what was revealed to Rev. Swenson for the purpose of reconciliation he had already told the wronged party and the attorney, hence it was no longer secret and would in that case no longer be in the sense of our Church a matter resting under seal of private confession.
—Theodore Graebner, The Lutheran Witness, Vol. L., no. 7 (March 31, 1931), p. 121.
Respect for the Confessional. — The Supreme Court of Minnesota has now handed down its decision in the case of the Rev. Emil Swenson of Bethlehem Ev. Lutheran Church who was sentenced by a lower court to pay a fine of $100 and serve thirty days in jail because he refused to tell what a troubled soul had revealed to him. At that time Rev. Swenson declared that the information was in the nature of a confession and therefore sacred. The judge of the lower court, however, insisted that, since there is no obligatory private confession in the Lutheran Church, such a confession was not to be considered confidential. The higher court has now reversed the judgment and discharged Pastor Swenson, declaring that confidential confessions to a clergyman are privileged.
The case attracted nation-wide attention. Some legislatures were even moved to enact legislation to make a recurrence of such a conviction impossible.
To us Lutherans it seems incomprehensible that a judge should decide as Judge Paul Guilford of the lower court did. Our children in school and in instruction for confirmation are taught that no court dare call upon a pastor to reveal what has been confided to him in private confession. We had not the least doubt that as soon as a more intelligent judge took hold of the matter, the proper decision would be returned. But even if a Government official would insist on sentencing a pastor for refusal to reveal a confession, the pastor must then suffer fine or jail sentence, as the case may be, rather than reveal anything that has been told him in private confession; for whatever is told a pastor in private confession is told not him, but God, just as he is at that time not speaking his own word or absolution, but pronouncing God's Word and absolution.
—Theodore Graebner, The Lutheran Witness, Vol. L., no. 14 (July 7, 1931), p. 233.
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