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Again there is no doubt that the convention intended to secure the liberty of conscience.--Now, where is the liberty of conscience to the Catholic, if the priest and the penitent, be thus exposed ? Has the priest, the liberty of conscience, if he be thus coerced ? +Has the penitent the liberty of conscience, if he is to be dragged into a court of justice, to answer for what has passed in confession ? Have either the privilege of auricular confession? Do they freely enjoy the sacrament of penance? If this be the religious liberty, which the constitution intended to secure—it is as perplexing as the liberty which, in former times, a man had of being tried by the water ordeal, where, if he floated he was guilty
-if he sunk he was innocent. * Your Honors,
I can find but one case which bears any analogy to the present. It is an English case. It is that of Sir Thomas Harrison against Allen Evans. Mr Evans was a Protestant Dissenter, and a freeman of the city of London. He had been elected one of the sheriffs of that city, but by law could not take upon himself the office, because, he had not within one year before, received the sacrament of the Lords supper, according to the rites of the Church of England.t By a by-law of the corporation a penalty of 6001 was imposed on all such as should refuse to serve. A prosecution was commenced by the Chamberlain of London against Mr. Evans for the penalty. He relied upon the toleration act.[ He pleaded that he was a dissenter within the toleration act;
* 4 Black. Com. 343.
Passed 1 Feb. 1 year of Wm. and Mary.
that he had not taken the sacrament in the church of England within one year preceding the time of his supposed election, nor ever in his whole life, and that he could not in conscience take it. It was conceded on all hands, that if he took upon himself the office, without having previously received the sacrament according to law, he was punishable.
Though it was obvious to every ingenuous mind that Mr. Evans was, by necessary implication, within the spirit and protected by the true meaning of the toleration act, yet, judgment for the penalty was rendered against him in the sheriff's court ; and afterwards affirmed by the Court of Hustings in the city of London. To the honor however, of the house of Lords this affirmance was reversed nemine contradicente, notwithstanding the opinion of Mr. Baron Perrot.*
The observations of Lord Mansfield upon this case, before the British Peers, are too fine to be omitted by me. He exposed, in a masterly manner, that uncandid --Jesuitical-sophisticated attempt to defeat the toleration act. And here let me observe that our constitu. tion is our great toleration act, made by the people themselves, in their sovereign capacity ; and as the end intended to be secured was religious toleration, every thing, essential to that end, not leading to licentiousness, nor to practices inconsistent with the peace or safety of the state, is by necessary implication guaranteed by the constitution.
* 3 Brown Parl. cas. 465. 31 vol. jours. House of Lords p. 438, 470, 475.
When, says Lord Mansfield in the case of Mr. Evans, the Jesuits in France meditated the oppression, and the distruction of the protestants “ there was no oC“ casion to revoke the edict of Nantz; the Jesuits* need$ed only to have advised a plan similar to what is con« tended for in the present case.
Make a law to ren66 der them incapable of office ; make another to punish “ them for not serving. If they accept, punish them ; * if they refuse, punish them; if they say yes, punish “them ; if they say no, punish them. My Lords this “ is a most exquisite dilemma, from which there is no “ escaping ; it is a trap a man cannot get out of; it is
bad persecution as that of Procrustes. If they are 66 too short, stretch them ; if they are too long, lop them. 6. Small would have been their consolation to have been
gravely told—the edict of Nantz is kept inviolable ; you have the full benefit of that act of toleration, you may take the sacrament in your own way with im
* This religious order has been traduced both by ill informed Catholics and Protestants. The Jesuits have been proseribed throughout all Europe, except in Russia. It would be doing the highest injustice to the United States of America, to allow it to go abroad to the world that they have participated in the abuse which has been heaped upon that order. It cannot be doubted by any intelligent or well informed man, that policy and prejudice, have conspired more than any thing else, to pourtray that learned body in an odious light, and to hold them forth as faithless-designing and subtle. The fact is, that no class of men have manifested zreater zeal for the Christian religion-none have taken more pains to diffuse its benefits to mavkind-none have laboured more to carry it to the distant regions of the earth than the Jesuits. In learning they have been surpassed by none.-We beg leave to refer the reader to a note on this subject in the appendix.
“punity ; you are not compelled to go to mass. < this case but told in the city of London as of a pro“ ceeding in France, how would they exclaim against « the Jesuitical distinction ! and yet in truth it comes - from themselves ; the Jesuits never thought of it;“ when they meant to persecute, their act of toleration, “ the edict of Nantz, was repealed.”*
Apply this to the case now before the Court. We tell the Catholics-yes, you shall have the full benefit of the constitution ; you shall have the “ free exercise 66 and enjoyment of religious profession and worship ;" you shall have your seven sacraments; your Priest shall freely administer the sacrament of penance; you shall all enjoy the consolation of auricular confession ; and as we know that your Priest cannot according to his religious faith, reveal to any person in the world, what
passes in confession ;-we will not compel himwe will only consign him to prison, and peradventure superadd a fine which he can never pay :-or, if your Priest should violate the seal of confession, and reveal what the penitent hath disclosed-far be it from us to violate the constitution; the penitent shall freely enjoy 6 his religious profession and worship.”-He has the full benefit of it. We only shut him up in the State
* See Lord Mansfield's opinion 41 vol. Gentlemans Magazine 65.
N. B. The Edict of Nantz, was in fact repealed by Lewis the 14th, and not by the Jesuits.-It could not be repealed by that order. Whether the revocation of the Edict of Nantz proceeded from a spirit of persecution on the part of the French government, or from a necessity of securing the throne against the incessant attemps made by the Hugenots, to subvert it, is a point of historical fact that cannot be rightly decided bat by perusing, the historians of both parties of that time.
Prison, or otherwise punish him according to law. Is there, in the republie, a man who does not see in this the most scandalous sophistry? Is there, on earth, a man who would not abhor it?
The decision of the Peers in the case of the dissenter is important as a rule of construction. The toleration bill 66 left the dissenters to act as their consciences shall “ direct them, in matters of religious worship.”* It secured nothing more. Yet the Lords rightly held, that by necessary implication, it extended to the exemption claimed by Mr. Evans. Our constitution is much more broad and explicit. The object was to secure, “ to all “ mankind the free exercise and enjoyment of religious “profession and worship, without distinction or pre« ference." Every thing essential to that object, is by necessary implication, secured by the constitution ; unless it leads to acts of licentiousness, or to practiees inconsistent with the peace or safety of the State.
We have no statutory regulation upon the subject now under consideration, and the principles of the common law are accurately and strongly laid down by Lord Mansfield. His words are these, “ My Lords, there “ never was a single instance, from the Saxon times “ down to our own, in which a man was ever punished “ for erroneous opinions concerning rites or modes of “ worship, but upon some Positive Law.”
Thus it is clear, in every possible view which we have taken of the question, that the exemption claimed by Dr. Kohlmann, is fully supported by the enacting clause of the Constitution. It only remains to be seen, whe
* 4 Blac, Com. 54.