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ter, replaced in the condition of a Layman, and forever disabled from exercising any of the Ecclesiastical functions. *
* 3dly. Conformably to the same canons, I should deserve to be lodged in close confinement, shut up between four walls to do penance during the remainder of my life.t
“ 4thly. Agreeably to the dictates of my conscience, I should render myself guilty, by such a disclosure, of everlasting punishment in the life to come.
Having thus briefly stated to this honorable Court, my reasons for not answering the questions of the Attorney General, in the present instance, I trust they will not be found trivial and unsatisfactory.”
Mr. Gardinier, then put some leading questions to the witness, amongst others, whether he ever had the goods in his possession. Both the Mayor and Record. er stopped the examination, saying that the law either allowed him the exemption he claimed or it did not, but the Court would not permit that privilege to be frittered away, nor a discovery to be extorted by indirect means, which could not be directly enforced.
Mr. Sampson then said, that Mr. Riker and he stood ready as the Counsel for the witness, to argue the point, and the Court, with consent of parties, adjourned the jury till the following Monday, June 14, that the Court might have time not only to hear the argument, but to give an advised judgment.
* Vid. St. Greg. Cap. Sacerdos de Penit d. 6. Concil. Lateran. 4. in Canone mox citato.
N.B. Mr. Riker, from the examination he had given to the cause, had become convinced that the exemption was legal, and now offered his services to maintain that opi. nion. Mr. Wilson was prevented from appearing by a domestic misfortune, the loss of a child, and Mr. Em. met, who would have taken a part in the argument, was prevented by indispensable engagements in another Court.
The day being already far spent, the cause was adjourned till the following day, Tuesday, June the 8the when Mr. Riker opened the argument as follows:May it please the Court,
If in the discussion of the present question, I should discover more than ordinary solicitude, a sufficient apology, I trust, will be found in the novelty and in the magnitude of the cause. On the one hand, the exemption claimed by the Reverend Pastor, is now, for the first time, in this country, brought judicially under examination ; and on the other, every enlightened and pious Catholic considers, the free toleration of his religion, involved in the decision that shall be made in this case.
Under these considerations, we respectfully ask of the Court, a patient and a dispassionate hearing: and, we confidently expect to satisfy your Honors, that the law and the constitution are on our side.
To render the argument definite and perspicuous, we shall advance, and endeavour to maintain, two proposi-, tions, either of which sustains the witness in the privilege which he claims.
Proposition 1st. That, under the explanation made by Dr. Kohlmann, the 38th Article of the Constitution
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 gener 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. 141.
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 tes. tifying 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.
Upon the Lord High Stewart (the Earl of Bathurst then Lord Chancellor) stating the question proposed, Lord Mansfield observed, “I suppose Mr. Hawking
means to demurto the question upon the ground that it 6 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 6 that account to excuse himself from giving the answer, 6 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 $6 will understand, that it is your judgment and opinion, « that a surgeon has no privilege, where it is a material
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 6 came to the knowledge of it. I take it for granted, 66 that if Mr. Hawkins understands that, it is a satisfacc tion 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, 6 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