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We have gone more particularly into this branch of ihe subject, because it has a very intimate connexion with the point in question. None of these proposi. tions--that a witness is not obliged to confess a crime, or subject himself to a penalty, or to impair or injure his civil rights by his testimony—or to proclaim his turpitude or immorality, can be considered as including within its purview, the precise case before us. They all, however, touch upon it, in a greater or less degree. With the exception of the second position, there is this strong difference, they are retrospective and refer to past conduct, whereas in the case now pending, if we decide that the witness shall testify, we prescribe a course of conduct by which he will violate his spiritual duties, subject himself to temporal loss, and perpetrate a deed of infamy. If he commits an offence against religion ; if he is deprived of his office and of his bread, and thrown forlorn and naked upon the wide world, an object for the hand of scorn, to point its slow and moving finger at, we must consider that this can. not be done without our participation and coercion.
There can be no doubt but that the witness does consider, that his answering on this occasion, would be such a high handed offence against religion, that it would expose bim to punishment in a future state—and it must be conceded by all, that it would subjeet him to privations and disgrace in this world. It is true, that he would not be obnoxious to criminal punishment, but the reason why he is excused where he would be liable to such punishment, applies with greater force to this case, where his sufferings would be aggravated by the compunctious visitings of a wounded conscience;
and the gloomy perspective of a dreadful hereafter; y although he would not lose an estate, or compromit å civil right, yet he would be deprived of his only means ! of support and subsistence--and although he would not confess a crime, or acknowledge his infamy, yet he would act an offence against high heaven, and seal his disgrace in the presence of his assembled friends, and to the affliction of a bereaved church‘and a weeping congregation.
It cannot therefore, for a moment be believed, that the mild and just principles of the common Law would place the witness in such a dreadful predicament; in such a horrible dilemma, between perjury and false swearing: If he tells the truth he violates his ecclesiasti. X cal oath-If he prevaricates he violates his judicial oatha -Whether he lies, or whether he testiffes the truth he is wicked, and it is impossible for him to act without acting against the laws of rectitude and the light of conscience.
The only course is, for the court to declare that he shall not testify or act at all. And a court prescribing a different course must be governed by feelings and views very different from those which enter into the composition of a just and enlightened tribunal, that looks with a propitious eye upon the religious feelings of mankind, and which dispenses with an equal hand the universal and immutable elements of justice.
There are no express adjudications in the British courts applied to similar or analogous cases, which contradict the inferences to be drawn from the general principles which have been discussed and establisbed in the course of this investigation : Two only have been poin
ted out as in any respect analogous, which we shall now proceed to consider.
In the case of Du Barre &c. (Peake's eases at nisi prius 77) the following question was agitated, whether as the Defendant was a Frenchman who did not understand the English language and his attorney not understanding French was obliged to communicate with him by an interpreter, the interpreter ought to be permitted to give evidence, the Defendant's Counsel contending that this was a confidence which ought not to be broken, Lord Kenyon decided that the interpreter should only reveal such conversation as he had with the Defendant in the absence of the attorney. Garrow for the Plaintiff, said that a case much stronger than this had been lately determined by Mr. Justice Buller, on the Northern Circuit. That was a case in which the life of the prisoner was at stake. The name of it was, The King, vs. Sparkes. There the prisoner being a Papist bad made a confession before a Protestant Clergyman of the crime, for which he was indicted and that confession was permitted to be given in evidence on the trial, and he was convicted and executed. Lord Kenyon upon this remarked, “ I should have paused before I admitted the evidence here admitted.”
The case referred to by Garrow, is liable to several criticisms and objections. In the first place it was stated by a Counsel in the cause, and is therefore liable to those errors and perversions which grow out of that situation. Secondly, it is the determination of a single Judge, in the hurry of a circuit, when a decision must be made promptly, without time for deliberation, or consultation, and without an opportunity for recurrence to books.
Thirdly, it is virtually overturned by Lord Kenyok, who certainly censures it with às much explicitness as one Judge can impeach the decision of his colleague, without departing from judicial decorum. Fourthly; the depositary of the secret was a Protestant Clergyman, who did not receive it under the seal of a sacrament, and under religious obligations of secrecy, and would not, therefore, be exposed to ecclesiastical degradation and universal obloquy by promulgating it.-And lastly, the decision of Mr. Justice Buller, was, to say the least, er roneous; for when a man under the agonies of an affficted' conscience and the disquietudes of a perturbed mind, ap. plies to a minister of the Almighty, lays bare his bosom filled with guilt, and opens his heart black with crime, and solicits from him advice and consolation, in this hour of penitence and remorse, and when this confession and disclosure may be followed by the most salutary effects upon the religious principles and future conduct of the penitent, and may open to him prospects which may bless the remnant of his life, with the soul's calm sunshine and the heart-felt joy, without interfering with the interests of sociéty, surely the establishment of a rale throwing all these pleasing prospects into shade, and prostrating the relation between the penitent and the comforter, between the votary and the minister of religion, must be pronounced a heresy in our legal code.
The other case was decided by Sir Michael Smith, Mas, ter of the Rolls of Ireland. On the 24th Febuary. 1802, (2 M Nally, 153) a bill was filed praying to be decreed the estates of the late Lord Dunboyne, by the heir at law, who alleged that the will, under which the Defendant claimed, was a nullity, as Lord Dunhoyne hav.
ing been a Popish Priest, and having conformed and rev. lapsed to Popery, had no power to make a will. Issue was joined, and the Plaintiff produced the Reverend Mr. Gahan, a Clergyman of the church of Rome, to be examined, and interrogatories to the following effect, were among others, exhibited to him : 66 What Religion did the late Lord Dunboyne profess from the year 1783 to the year 1792? What Religion did he profess at the time of his death, and a short time before his death ?". The witness answered to the first part, viz. that "Lord, Dunboyne professed the Protestant religion during the time, &c. but demurred to the latter part in this way, “ That his knowledge of the matter enquired of (if any he had) arose from a confidential communication to him, in the exercise of his clerical functions, and which the, principles of his religion forbid him to disclose, nor was he bound by the laws of the land to answer.”
The Master of the Rolls determined against the demurrer; the reasons be assigns are loose and general, and very unsatisfactory, and the only authority cited by him in support of his decision, was that of Vaillant vs. Dod. ermead, reported in 2 Atkyns 524, which I shall now consider with a view of showing that there is no point of resemblance or analogy between that and the adjudicaion of the Master of the Rolls.
The Defendant in this case having examined Mr. Bristow, his Clerk in the Court, the Plaintiff exhibited interrogatories for cross-examining him, to which he de. murred, for that he knew nothing of the several matters enquired of in the interrogatories, besides what came to his knowledge as clerk in court, or agent for the Defendant in relation to the matters in question in this cause.. The