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If, however, it be necessary for me to add any thing further, to repel this objection to auricular confession; I will do it by reading the sentiments of an elegant writer and an able lawyer; and if it gives weight to the argument, it may be observed that he was not friendly (at least in his writings) to Catholics or Protestant Dissenters. I mean Sir William Blackstone.

After speaking of Protestant Dissenters, and remarking, that the experience of their "turbulent dispositions" in former times, occasioned several disabilities to be laid upon them, he proceeds to notice the Catholics. He says, "as to the papists, what has been said "of the protestant dissenters, would hold equally strong ! "for a general toleration of them; provided their "separation was founded only upon difference of opi"nion in religion, and their principles did not also ex❝ tend to a subversion of the civil government. If once "they could be brought to renounce the supremacy of "the Pope, they might quietly enjoy their seven sacra"ments, their purgatory, and AURICULAR CONFESSION; "their worship of relics and images; nay, even their

transubstantiation. But while they acknowledge a 66 foreign power, superior to the sovereignty of the "kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good "subjects."*

Here then, we have the explicit admission of Mr. Justice Blackstone, that auricular confession is innocent, that it, with all the other rites and ceremonies of the

4 Black. Com. 58, 54, 55.

Catholics, might be quietly enjoyed by them; and but for their maintaining the supremacy of the Pope, he sees no reason why they should not be universally tolerated. With regard to the supremacy of the Pope, we know that to be merely spiritual. They consider him the head of the church; but politically, or as connected with government, or civil society, they acknowledge no supremacy whatsoever in the pope. History shews us, that Catholic princes have oftentimes gone to war against the Pope in his character of a temporal prince.* The great body of the American people are protest.. ants. Yet our catholic brethren have never hesitated to take up the sword with us, and to stand by us in the hour of danger. The Father of his country-the illustrious conductor of the Revolution, did not hesitate in the face of the nation to do justice to their revolutionary services-to their good conduct as citizens—and to the aid which they rendered us in the establishment of our free government. His sentiments are such as were to have been expected from that exalted character. "As mankind (says he) become more liberal, they will "be more apt to allow, that all those who conduct them"selves as worthy members of the community, are "equally entitled to the protection of civil government. "I HOPE TO SEE AMERICA AMONG THE FOREMOST NA-. "TIONS IN EXAMPLES OF JUSTICE AND LIBERALITY." "He concludes with wishing them "every temporal and spiritual felicity."+

* See appendix.

+ General Washington's answer to the Congratulatory Address to him by the Catholics, in 1789.

Having said thus much upon the question as arising out of the constitution, I shall resign it to the very learned Counsel who is associated with me; in full confidence that if a doubt still exists, it will be dissipated by the force of his talents.

I now proceed to a discussion of the second proposition, that is, that the exemption claimed by Dr. Kohlmann, 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.

This is a subject of technical law. I shall treat it as such. I think I can say, with confidence, that I have fully examined all the authorities in relation to it.

I need not refer to books, to shew that a man is not bound to accuse himself of a crime. That he is not-is a maxim as old as the law itself. It is equally clear, that he is not bound to answer a question in a Court of justice, which subjects him to a penalty or forfeiture.*

It may however be contended that the other branches of the proposition, which is now under consideration are not so clear. 1st. Is a witness bound in a court of common law to impair his civil rights? I know that a doubt has lately been raised upon the question. I am aware of the case of Lord Melville in England, and of the declaratory statute which was passed in consequence

Raynes qui tam, v. Spicer. 7 Term Rep. 178. 2 Fonb. Equ. 492. 1 Atk. 539. Wallis, v. Duke of Portland. 3 Ves. Jun. 494.. Mitford's treat. 157, 158, 221. Swift's Ev. 77.

of it. But the Court will be pleased to recollect that the judges were divided amongst themselves* and the opinion of the majority is contrary to the language of the books. In the United States the decisions are all a gainst it. In a late case in Pennsylvania the principle adopted in Lord Melville is noticed and explicitely re jected. The judge saying. "I recollect the case of "Lord Melville; it never received my approbation, "and as it took place since the revolution, it is of no "authority over this court. It was a decision in viola-. "tion of the rights of man, and in opposition to the laws ❝of nature. I have always overruled a question that "would affect a witness civilly, or subject him to a "criminal prosecution; I have gone farther and where "the answer to the question would cover the witness "with infamy or shame, I have refused to compel him "to answer it."§

In Great Britain it has been decided by Lord Kenyon|| that a witness, under a subpœna duces tecum, cannot be compelled to produce a paper which constitutes part of his title, or would expose him to an action. The principle has been recognized by Lord Ellenborough in a

* 1 vol. American Law Journ. 223 232.

+ Peakes Ev. 184. 2 Raym. 1008. Hawkins, v. Perkins. 1 Stra. 406. 8 Term, 590.

Stores, v. Wetmore. Kirby 203. Starr, v. Tracy. 2 Root 528 Clairbourn, v. Parish. 2 Washington. 146. Connor, v. Brady. Smith's Ev. 77.

Anthon's N. P. Cas. 71.

§ The case of T. W. Bell. Brown's Rep. 376.

Miles, v. Dawson. 1 Esp. Cas. 405. And see also Peake

194, Swift 107, 2 Fonb. 487,

subsequent case, in which he observed that it was "proposition too clear to be doubted."*

[Here the Attorney General interrupted Mr. Riker, and stated that he did not mean to deny the law, to be as the counsel had contended it was in his argument.]

It being thus conceded by the public Prosecutor, and supported by reason and authority, that a man cannot in a Court of common law, be compelled to give testimony which shall impair his civil rights; I shall proceed to examine the remaining branch of the proposition. 2d. Can a witness, by the principles of our law be forced to degrade-disgrace, or disparage himself?

And here too, some confusion prevails in Great Britain on this point. I know that it has there in a few instances, been held that a person is bound to answer where his answer may reflect upon himself: As where a bail was asked "If he had ever stood in the pilory for perjury." I know too that a respectable writer on the law of evidence‡ declares that a witness who has been convicted of an infamous crime, and has suffered the exe. cution of the judgment, may be questioned as to the fact; and may be asked "whether he ever was tried for, or charged with a particular offence," and is bound to answer the question. I know however that another learned writer who has treated of the same subject, and in the same country, has severely questioned the propriety of such examinations, and says "the highest and most enlightened characters in the profession are much divided

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