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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 Catho . lic 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 pe.. destal 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 Rev. erend 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
have considered it in a restricted shape, let us now look at it upon more elevated ground; upon the ground of the constitution, of the social compact, and of civil and religious liberty.
Religion is an affair between God and man, and not between man and man. The laws which regulate it must emanate from the Supreme Being, not from human institutions. Established religons, deriving their authority from many oppressing other denominations, pre. scribing creeds of orthodoxy, and punishing non-conformity, are repugnant to the first principles of civil and political liberty, and in direct collision with the divine spirit of christianity. Although no human legislator has a right to meddle with religion, yet the history of the world, is a history of oppression and tyranny over the consciences of men. And the sages who formed X our constitution, with this instructive lesson before their eyes, perceived the indispensable necessity of applying a preventitive, that would forever exclude the introduction of calamities, that have deluged the world with tears and with blood, and the following section was aceordingly engrafted in our state constitution :
“ And whereas we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance, wherewith the bigotry and ambi. tion of weak and wicked princes have scourged mankind, This convention doth further in the name, and by the authority of the good people of this state, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimi nation or preference, shall forever hereafter be allowed
within this state, to all mankind. Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.”
Considering that we had just emerged from a colonial state, and were infected with the narrow views and bigotted feelings, which prevailed at that time so strong. ly against the Roman Catholics, that a priest was liable to the punishment of death if he came into the colony, this declaration of religious freedom, is a wonderful monument of the wisdom, liberality, and philanthropy of its authors. Next to William Penn, the framers of our constitution were the first legislators who had just views of the nature of religious liberty, and who established it upon the broad and imperishable basis of justice, truth, and charity: While we are compelled to remark that this excellent provision was adopted by a
majority of one, it is but proper to say, that the colonial X statute against Roman Catholic Priests, originated more
from political than religious considerations. The influence which the French had over the six nations, the Iroquois, and which was exercised to the great detriment of the British colonies, was ascribed to the arts and man. agement of the Jesuits, and it was therefore, in violation of all respect for the rights of conscience, deemed of essential importance to interpose the penalty of deatha against their migration into the colony.
A provision conceived in a spirit of the most profound wisdom, and the most exalted charity, ought to receive the most liberal construction. Although by the constitution of the United States, the powers of congress do
not extend beyond certain enumerated objects; yet to prevent the danger of constructive assumptions, the following amendment was adopted: “Congress sball make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In this country there is no alliance between church and state ; nó established religion ; no tolerated religion-for toleration results from establishment—but religious freedom guaranteed by the constitution, and consecrated by the social compact.
It is essential to the free exercise of a religion, that its ordinances should be administered that its ceremonies as well as its essentials should be protected. The sacraments of a religion are its most important elements: We have but two in the Protestant Church-Baptism and the Lord's Supper-and they are considered the seals of the covenant of grace. Suppose that a decision of this court, or a law of the state should prevent the administration of one or both of these sacraments, would not the constitution be violated, and the freedom of religion be infringed ? Every man who hears me will answer in the affirmative. Will not the same result follow, if we deprive the Roman catholic of one of his ordinances ? Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed : To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be ne penance; and this important branch of thc Roman catholic religion would be thus annihilated.
It has been contended that the provision of the consti. tgtion wbich speaks of practices inconsistent with the