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 had 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 Kenyon, who certainly censures it with as 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, erroneous; for when a man under the agonies of an afflicted conscience and the disquietudes of a perturbed mind, applies 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 society, surely the establishment of a rule 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, Master 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 Dunboyne hay

L

ing been a Popish Priest, and having conformed and re 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: "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 he 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 demurred, 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

Lord High Chancellor overruled the demurrer, and compelled him to answer for the following irresistible reasons. Because the matters enquired of were antecedent transactions to the commencement of the suit, the knowledge whereof, could not come to Bristow as clerk in court, or solicitor: because this was a cross-examination, and whenever a party calls upon his own attorney to testify, the other side may examine him and because he states that he knew nothing but as clerk or agent. Now the word agent includes non-privileged as well as privileged persons. The only privileged persons are Counsellors, Solicitors and Attorneys; an agent may be a Steward or Servant.

What analogy can be traced between the cases? Did the Catholic Priest cloak himself under any generality or indefiniteness, of expression? Did he obtain any information from Lord Dunboyne previous to his acting as his confessor, or in any other capacity than as confessor? Was he called upon by the Defendant to testify, and in consequence thereof exposed to the cross-examination of the Plaintiff? Surely not. The case then relied upon, does in no respect, in no similitude of principle or resemblance of fact quadrate with the case adjudicated, or in any degree, or to any extent support it.

With those who have turned their attention to the his. tory of Ireland, the decisions of Irish courts, respecting Roman Catholics, can have little or no weight.

That unfortunate country has been divided into two great parties, the oppressors and oppressed. The Catholic has been disfranchised of his civil rights, deprived of his inheritance, and excluded from the common rights of man; statute has been passed upon statute, and ad

judication has been piled upon adjudication in prejudice of his religious freedom. The benign spirit of toleration, and the maxims of an enlightened policy, have recently ameliorated his condition, and will undoubtedly, in process of time, place him on the same footing with his Protestant brethren; but until he stands upon the broad pedestal of equal rights, emancipated from the most unjust thraldom, we cannot but look with a jealous eye upon all decisions which fetter him or rivet his chains.

But there is a very marked distinction between that case, and the case now under consideration. The Reverend Mr. Gahan did not pretend that he derived his information from Lord Dunboyne, in the way of a sacrament, but only as a confidential communication: he would not therefore be exposed by a promulgation, to degrada tion, breach of oaths, and a violation of his clerical duties. But the only imputation would be on his personal honor as a gentleman.

Penance implies contrition for a sin, confession of a sin, and satisfaction or reformation for a sin. Now can conversion to the church of Rome, in the eye of a Roman Catholic Layman, or a Roman Catholic Priest, require contrition, or confession, or reformation? And if it does not, a declaration of such conversion cannot be the sacrament of penance. In Gahan's case there was no sacrament, or religious obligation of secrecy. In the case of Mr. Kohlmann there is the strongest that religion can impose, involving every thing sacred in this world and precious in that to come.

But this is a great constitutional question, which must not be solely decided by the maxims of the common law, but by the principles of our government: We