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of our state, fully protects him in the exemption which he claims, independent of every other consideration.

Proposition 2d. That the exemption is supported by the known principles of the common law, which will not compel any man, to answer a question, that subjects him to a penalty or forfeiture, impairs his civil rights, or may degrade-disgrace-or disparage him.

Before, however, I proceed to a vindication of those two propositions, it is proper, and may conduce to a more perfect understanding of the subject, to state some general and leading principles which must be conceded on both sides, and notice some British decisions, which may be supposed to have a bearing upon the case now under examination.

It will not be denied on our part, that the gene ral rule is, that every person is bound, when called upon in a court of justice, to testify whatever he may know touching the matter in issue; nor will it be disputed by the Attorney General, that there are exceptions. to this general rule, some of which are coeval with the rule itself. As for example-That no man is bound to accuse himself. That a husband and wife cannot be witnesses against each other, except for personal inju ries. That a Counsel or Attorney can never testify against his client. And in this country, the exception has been recognized, as applicable to the Secretary of the United States in certain cases.*

It is obvious, that these exceptions, are founded either upon the positive rights of the party claiming them, upon the maxims of policy, or the general fitness of things.

* Marbury, v. Madison. I. Cranch. 144..

They have been extended, or rather called forth, as the occasion has required, and a wise tribunal will always engraft them upon the rule, whenever it shall be demanded by the suggestions of reason and good sense.

But, it is contended that no professional character, other than a Counsel or Attorney, is exempted from testifying in a court of justice; and that therefore a Physician, a Surgeon, or a Priest, is bound to disclose all that has been entrusted to him, no matter under what circumstances it may have been confided.

It is, a little remarkable, that the modern elementary writers on the law of evidence* seem to take it for granted that a physician or a surgeon, is in all cases whatsoever bound to testify. They lay down the rule in the most unqualified terms, as if no doubt could exist on the subject, yet, when they refer the reader to authority for what they thus state, they rely solely upon the case of the Dutchess of Kingston.

It is proper to mention the facts in that cause, that we may duly appreciate its weight. The Dutchess of Kingston was tried in April 1776, in the house of Lords, for bigamy. She was indicted for marrying Evelyn Pierrepont, Duke of Kingston, in the life time of Augustus John Hervey, her former husband.

Mr. Cæsar Hawkins (a surgeon) was asked, "do you know from the parties of any marriage between them ?" (referring to the first marriage) :-To which he observed "I do not know how far any thing that has come before me in a confidential trust in my profession should be disclosed, consistent with my professional honor."+

* Peake 180-M Mally 247.-Swift 95.

† 11 State Trials 243. Fol. 6.

Upon the Lord High Stewart (the Earl of Bathurst then Lord Chancellor) stating the question proposed, Lord Mansfield observed, "I suppose Mr. Hawkins "means to demur to the question upon the ground,that it "came to his knowledge some way from his being em❝ployed as a surgeon for one or both of the parties; I ❝take it for granted if Mr. Hawkins understands that it "is your Lordships opinion that he has no privilege on ❝ that account to excuse himself from giving the answer, "that then, under the authority of your Lordships judg ❝ment, he will submit to answer it: therefore, to save "your Lordships the trouble of an adjournment, if no "Lord differs in opinion, but thinks that a surgeon has "no privilege to avoid giving evidence in a court of "justice; but is bound by the laws of the land to "do it; (if any of your lordships think he has such a "privilege, it will be matter to be debated elsewhere, "but) if all your Lordships acquiesce, Mr. Hawkins

will understand, that it is your judgment and opinion, "that a surgeon has no privilege, where it is a material 66 question in a civil or a criminal cause, to know wheth❝er the parties were married, or whether a child was "born, to say, that his introduction to the parties was "in the course of his profession, and in that way he "came to the knowledge of it. I take it for granted, "that if Mr. Hawkins understands that, it is a satisfaction to him and a clear justification to all the world. "If a surgeon was voluntarily to reveal these secrets,

to be sure he would be guilty of a breach of honor, "and of great indiscretion; but, to give that information "in a court of justice, which by the law of the land he "is bound to do, will never be imputed to him as any

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indiscretion whatever."

put and answered.*

The question was then

Upon this single decision, made on the spur of the occasion-without discussion, has the whole body of legal authority, on that point, been erected.

If however, the principle in the case referred to, be true, it by no means follows that a clergyman is boundto reveal what a penitent hath confessed to him in the exercise of a religious rite. The one is under no restraint but that which is imposed by the sentiments of honor the other may be controlled by the pious convictions of duty, or by the imperious mandates of his religious faith.

Yet, it must be admitted, that the same elementary writers to which I have referred the Court, seem to consider the law as equally applicable to a Priest† as to a Physician or Surgeon, and that a clergyman is bound to disclose a confession, though made to relieve an agonized conscience, or for the holy and all important purpose of seeking pardon of the Almighty!

And now may it please the court, to bear with me while I examine the decisions upon which this rule is attempted to be supported. At the outset I boldly affirm, without fear of contradiction, that the Attorney General can produce but two cases, in which the question has ever been raised in relation to a clergyman; neither of which can be of authority in the United States, both having been decided since our revolution.-I go farther-I say the cases would not be binding in Great Britain.

11 State Trials 243. Fol. 6.

† Peake 190. McNally 253, Swift 95.

The first instance to be found in the books, in which a minister of the gospel, has been called upon, to testify what had been communicated to him by a penitent, was in the case of one Sparkes, who was tried before Mr. Justice Buller. It is not reported, but is cited in a subsequent case, where an interpreter between a client. and counsel was not permitted to testify, and which was decided by Lord Kenyon, July 17, 1791. It is stated as follows by Mr.Garrow: "a case much stronger than this, "he said, 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, v. Sparkes. There the pri"soner being a Papist had made a confession before a "Protestant clergyman of the crime for which he was “indicted, and the confession was permitted to be given "in evidence on the trial, and he was convicted and ex"ecuted. The reason (urged Mr. Garrow) against ad"mitting that evidence was much stronger than in the 66 present case; there the prisoner came to the Priest for "ghostly comfort and to ease his conscience oppressed "with guilt."*

On this decision of Mr. Justice Buller, Lord Kenyon makes the following observation "I should have paus❝ed before I admitted the evidence there admitted."+

Thus we have the chief justice of England, express-ing strongly his dissent, to the adjudication as stated to have been made by judge Buller. This alone, is suf ficient to shake its authority.

* The Case of Du Barre. Peakes Cases. 78.

+ Ibid. 79.

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