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peace or safety of the state, excludes this case from the protection of the constitution, and authorizes the interference of this tribunal to coerce the witness. In order to sustain this position, it must be clearly made out that the concealment observed in the sacrament of penance, is a practice inconsistent with the peace or safety of the state.
The Roman catholic religion has existed from an early period of christianity-at one time it embraced almost all Christendom, and it now covers the greater part. The objections which have been made to penance, have been theological, not political. The apprehensions which have been entertained of this religion, have reference to the supremacy, and dispensing power, attributed to the bishop of Rome, as head of the catholic church-but we are yet to learn, that the confession of sins has ever been considered as of pernicious tendency, in any other res. pect than its being a theological error-or its having been sometimes in the hands of bad men, perverted to the purposes of peculation, an abuse inseperable from all human agencies.
The doctirine contended for, by putting hypothetical cases, in which the concealment of a crime communicated in penance, might have a pernicious effect, is foanded on false reasoning, if not on false assumptions : To attempt to establish a general rule, or to lay down a general proposition from accidential circumstances, which occur but rarely, or from, extreme cases, which may sometimes happen in the infinite variety of human actions, is totally repugnant to the rules of logic and the maxims of law. The question is not, whether penance may sometimes communicate the existence of an offence
to a priest, which he is bound by his religion to conceal, and the concealment of which, may be a public ij ry, but whether the natural tendency of it is to produce practices incousistent with the public safety or tranquilliiy. There is in fact, no secret known to the priest, which would be communicated otherwise, than by confessionand no evil results from this communication on the contrary, it may be made the instrument of great good. The sinner may be admonished and converted from the evil of his ways: Whereas if his offence was locked up in his own bosom, there would be no friendly voice to recal him from his sins, and no paternal hand, to point out to him the road to virtue.
The language of the constitution is emphatic and striking, it speaks of acts of licentiousness, of pructices inconsistent with the tranquillity and safety of the state ; it has reference to something actually, not negatively injurious. To acts ied, not to acts omitted-offences of a deep dye, and of an extensively injurious nature : It would be stretching it on the rack so say, that it can possibly contemplate the forbearance of a Roman catholic priest, to testify what he has received in confession, or that it could ever consider the safety of the community involved in this question. To assert this as the genuine meaning of the constitution, would be to mock the understanding, and to render the liberty of conscience a mere illusion. It would be to destroy the exacting clause of the proviso—and to render the exception broader than the rule, to subyert all the prig. ciples of sound reasoning, and overthrow all the convictions of common sense.
If a religious sect should rise up and violate the decencies of life, by practicing their religious rites, in a
state of nakedness; by following incest, and a community of wives. If the Hindoo should attempt to introduce the burning of widows on the funeral piles of their deceased husbands, or the Mahometan his plurality of wives, or the Pagan his bacchanalian orgies or human sacrifices. If a fanatical sect should spring up, as formerly in the city of Munster, and pull up the pillars of society, or if any attempt should be made to establish the inquisition, then the licentious acts and dangerous practices, contemplated by the constitution, would exist, and the hand of the magistrate would be rightfully raised to chastise the guilty agents.
But until men under pretence of religion, act counter to the fundamental principles of morality, and endanger the well being of the state, they are to be protected in the free exercise of their religion. If they are in error, or if they are wicked, they are to answer to the Supreme Being, not to the unhallowed intrusion of frail fallible mortals.
We speak of this question, not in a theological sense, but in its legal and constitutional bearings. Although we differ from the witness and his brethren, in our religious ereed, yet we have no reason to question the purity of their motives, or to impeach their good conduct as citizens. They are protected by the laws and constitution of this country, in the full and free exercise of their reli. gion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences.
There being no evidence against the Defendants, they were acquitted,
THESE were the words of the English Attorney-General, to James I in his celebrated discourse, wherein, without any favour to the Irish, he lays open to his master the atrocious courses of their oppressors, To pursue a tragedy of seven centuries, is not the purpose of this pub. lication ; but it is due to the cause, to the court, and above all, to that magistrate who manfully assumed the responsibility of the reasons aga, companying its unanimous decision, to shew how malignant the system was, upon which he passed a wise and deliberate animadversion. The massacres, robberies, and perfidies, practised by the English upon the Irish, are no longer buried in doubt, or darkness; they stand upon authorities past all contradiction ; records rescued from obre liviou, state papers, official reports, charters and title deeds. The historian who recites them, runs no risk; but if there be still surer, ground it is that of transcribing from the statute book; for when the malice is so settled and confirmed as to become the characteristic ge. dius of the law for an uninterrupted series of ages, then it may truly be said that “ the law best discovers the enormities.”
Whatever were the ancient glories of the Irish nation, they were faded and fallen when the invader found footing on their shores. The Fancorous hostilities and petty Warfares of numerous little Kings and tyrants, had merged all national pride; and Ireland was subdued by the vice of Irishmen. It happened to them as to every nation which exposes disupion to a drafty, jealous, and vigilant enemy.
The yoke once put on, is not easily shaken off, and ineffectual struggles, but draw the bonds the tighter. Seven centuries of miseries have not yet'expiated the first fault of the Irish people; but their history is unlike that of Greeks, Romans, or other great people, subdaed and fallen to brutal apathy. Too generous to acquiesce in slavery, and yet too disunited to join in any great effort for death or victory, they had wasted their strength in desultory struggles, and the same race who in all foreign countries have individually borne off the palm of constancy and courage, equal to every task, and faithful
to every trust, have been and still are treated as aliens in their native land.
To give a succinct and intelligible view of the statutory code of Ireland, it may be well to divide it chronologically.
From the English invasion to the reformation.
The Irish though far excelling their cotemporaries in refinement and education, were never known to invade the territory of other nations; but their country was still the seat of hospitality to strangers, who resorted there for learning or improvement. Let this short observation serve as a preface to the following English statutes, the earliest that are extant in print.
Stat. of Kilkenny, 40. Ed. 3. A. D. 1367, makes all alliance by marriage, nurture of infants, or gossipřed with the Irish, high treason : and if any man of English -race, shall use an Irish name: Irish language, or Irish apparel, or any other guise or fashion of the Irish, if he has lands or tenements, the same shall be seized till he has given security to the chancellor, to conform in all points to the English manner of living, and if he has no lands his body to be taken and imprisoned till he find sureties as aforesaid.
Stat. of Trim: 25. Hen. 6. A. D. 1447, enacts, that if any be found. with their upper lips unshaven for the space of a fortnight; it shall be lawful for any man to take them and their goods, and rausom them and their goods as Irish enemies.
These statutes were levelled not more against the Irish, than the English settlers, who, won from their native ferocity by the social qualities of the Irish, or attracted by the charms of the sex, were treated as “ degenerate English," and punished by that title, as the Irish were by the more whimsical title of aliens.
28. Hen. 6. c. 3. A. D. 1450. Commits the punishment of every offender, to every private liege man of the King.
This is the frankest charter of murder ever granted.
Stat. Ed. 4. c. 2. A. D. 1465. enacts, “ that it shall be lawful for all manner of men, that find any theives robbing by day or by night, going or coming, to rob or to steal, in or out, going or coming, having an faithful man of good name or fame in their company, in English appa rel, upon any of the liege people of the king, to take and kill those,