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66 indiscretion whatever." The question was then put and answered. *
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 bound to 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 Priestt 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 180. M Nally 253. Swift 25.
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 ag follows by Mr.Garrow: "a case much stronger than this, « he said, had been lately determined by Mr. Justice 66 Buller on the northern circuit. That was a case in 6 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 “present case; there the prisoner came to the Priest for “ ghostly comfort and to ease his conscience oppressed 6 with guilt."*
On this decision of Mr. Justice Buller, Lord Kenyon makes the following observation “I should have paus. 66 ed before I admitted the evidence there admitted.”+
Thus we have the chief justice of England, expressar ing strongly his dissent, to the adjudication as stated to have been made by judge Buller. This alone, is sufficient to shake its authority.
* The Case of Du Barre. Peakes Cases. 78.
It must be recollected too, that it is the decision of a single judge, at the Circuit, which is never considered as binding.
There are other considerations which go far to destroy its influence, if those that have already been urged were rot sufficient. The confession was made by a Papist to a Protestant Priest. It does not appear that the elergyman had any scruples to reveal what had been confessed to him, or that he made any objection thereto. On the contrary, it is expressly stated, that the evidence was permitted to be given ; and Lord Kenyon remarks, that he should have hesitated before he should have admitted it to be given.
I may here appeal to every candid mind, and ask whether, the fact, of a clergyman never having before been called upon to testify in a court of justice, what had been thus communicated to him, for spiritual purposes, is not irresistible evidence that the law is otherwise? If the law had not been opposed to such examinations, would not the religious feuds which have agitated and afflicted Great Britain, have led long before to such inquiries? But allow me to call the attention of the Court to the only remaining case. It was decided in Ireland, in 1802, before Sir Michael Smith, bart. the master of the rolls.
In that case “ a bill was filed praying to be decreed * the estates of the late Lord Dunboyne ; the plaintiff 6 claimed the same as heir at law, and alledging the 46 will under which the defendant claimed as a nullity, “ Lord Dunboyne having been a popish priest, and hav“ing conformed and relapsed to popery, which de* prived him of 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 fol* lowing effect were amongst others exbibited to him : “ What religion did the late Lord Dunboyne profess “ from the year 1783 to the year 1792 ? What religion 6 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 made to him in the exercise 66 of his clerical functions, and which the principles of 6 his religion forbid him to disclose : nor was he bound " by the law of the land to answer."
6 Master of the Rolls (Sir Michael Smith bart.) 6 thought there was no difficulty in the case, though it 66 had run into a great length of discussion, which he in6 dulged as being most likely to give satisfaction upon a
question which seemed to involve something of a pub4 lic feeling. But he was bound to overrule the de.
murrer. It was the undoubted legal constitutional 66 right of every subject of the realm, who has a cause “ depending, to call upon a fellow subject, to testify “ what he may know of the matters in issue; and every
man is bound to make the discovery unless specially “ exempted and protected by law. It was candidly ad
mitted that no special exemption could be shewn in “ the present instance, and analogous cases and princi< ples alone were relied upon : and, there was " doubt, that analogous cases and principles were suf
* ficient for jadicial determination. But the principle “ must be clear as light, and the analogy irresistibly
strong. That clearness of principle and strength of 5 analogy did not appear in this case and demurrers of 66 this nature being held strictly he was obliged to over6 rule it."* He cited a case which is evidently inapplicable to the one before him.t
Upon this adjudication of the Master of the Rolls, I need only to observe, that it is unsupported by the authority to which he refers. It is a decision of a single magistrate. It is made in a country more remarkable for nothing, than the religious intolerance and biggotry of its laws. Precedents in such a country, and in such cases ought to be admitted, by us, with the most scrupulous caution; and finally, the fact enquired into of Mr. Gahan, had not been communicated to him in the administration of a sacrament of his Church, which in its nature is to be kept inviolably secret. I can see no reason to conceal, nor in your country would any Catholic Clergyman conceal, the fact that an American citizen had died in the Catholic faith. Mr. Gahan may have supposed, that it was his duty, as a pious man, to refuse to disclose, where the disclosure would defeat a person's Will, and work a flagrant injustice, as it obviously would have done in that case.
It may now be demanded, whether the two decisions to which I have referred the latter before the Master of the Rolls--the former impeached by the Lord Chief Justice of England, would be binding, even in Great
* 1 M Nally 254, 255.