on the point." He considers the law as unsettled.* Some of the judges he observes" have laid it down as "a rule that a witness shall not be rendered, infamous, or even disgraced by his own examination."t

Lord C. J. Treby is decisive against such a mode of examination. So is Sir W. Blackstones and Lord Ellenborough has in a late case branded it with his disapprobation so too has Lord Alvanley. It is also shaken in the Kings Bench as late as the 47. Geo. 3.** The weight of authorities in Great Britain are, in my opinion unequivocally against it; and in this country the course and current of the decisions are clearly in opposition to it. So too is an American writer, on the law of evidence.†† I shall close this subject by referring the Court to a book in which all the cases are collected.‡‡

Apply then those rules to the case before us. Dr. Kohlmann informs us under the solemnity of an oath, that besides violating his religious faith and committing the greatest impiety, he should if he revealed what passed in confession, be degraded in the Church-he would forfeit his office-he would be stripped of his sacerdotal character he would lose his clerical rights-he would be disgraced in the eyes of all Catholics-in fine he would be rendered infamous, and according to his belief have to do penance for the residue of his life.

* Peake 130.

§ 3 Blac. Com. 370.

† Ibid.

Rex, v. Lewis. 4 Esp. cas. 225.

¶ McBride, v. M'Bride. 4 Esp. Cas. 242.

+ Ibid 135.

**Rex, v. Inhabitants of Castell Careinion. 8 East.

tt Swift's Evi. 52. 53.

‡‡ 2 Vol. Goulds Edit. Esp. part 2. p. 401-404.

Your Honors,

I am

I confess I feel a deep interest in this cause. anxious that the decision of the Court should be marked with liberality and wisdom. I consider this a contest between toleration and persecution. A contest involv ing the rights of conscience. A great constitutional

question, which as an American Lawyer, I might, with strict right and perfect propriety have discussed, independent of adjudged cases. To compel the Reverend Pastor to answer, or to be imprisoned, must either force his conscience or lead to persecution. I can conceive of nothing, more barbarous-more cruel-or more unjust than such an alternative. To compel him to answer, against his religious faith or to confine his person, would be the highest violation of right that I have ever witnessed. It would cast a shade upon the jurisprudence of our country. The virtuous and the wise, of all nations, would grieve that America should have so forgotten herself, as to add to the examples of religious despotism!

I cannot express my convictions on this important and delicate subject, better than in the language of that enlightened judge whose opinion I before quoted.* “Conscience is not controllable by human laws, nor "amenable to human tribunals. Persecution or at¢¢ tempts to force conscience, will never produce convic ❝tion, and are only calculated to make hypocrites, or"Martyrs."

"There is nothing, certainly, more unreasonable, more inconsistent with the rights of human nature,

* Lord Mansfield.

"more contrary to the spirit and precepts of the Chris"tian Religion, more iniquitous and unjust, more im

politic than PERSECUTION. It is against natural re"ligion, revealed religion, and sound policy."

Thus have I closed a subject of vast interest to the parties concerned. I could have wished that my argu ment had been more perfect, and more persuasive. The learned counsel however who is associated with me will more than supply its defects. It only remains for me to make my acknowledgments to the court for the very attentive hearing which it has been pleased to give me, and to express the entire confidence which my reverend client feels, in the wisdom and in the purity of those, to whose judgement he now cheerfully submits himself.

After Mr. Riker had finished, Mr. Blake, who had come into court with the clergymen and trustees of the ehurch, rose and made a few grave and impressive observations. He said that he had come unprepared to speak, and with a determination rather to be silent. For though the question must be considered of high importance to every member of the Roman Catholic Church, and to him among the rest, yet he was more willing that it should be discussed by the gentlemen into whose hands it had fallen, and from whom it could not fail to receive, every justice. He approved of the view which Mr. Riker had taken of the question, and affirmed that as well by the principles of the common law, as by the constitution; the privilege of the witness was secured. He animadverted upon the doctrines of the British, and still more on those of the Irish code, as respecting the Catholic religion, and said, as it was the first, so he hoped

勢

it would be the last time that he should ever hear of such a question, being brought forward in a court of justice.

Mr. Gardinier, the District Attorney, began by saying, that, he had with great reluctance, consented to bring up the present question for discussion; because it was not of so much public importance that the offence charged against the accused (receiving stolen goods) should be punished, as that the repose of a respectable religious sect should remain undisturbed. And he had therefore, upon hearing of the question, given out, that he should enter a nolle prosequi in this case. And should have done so, if he had not received a very earnest request from the Roman Catholic Church, urging to bring the point now before the court to a decision. That having concluded to do so, he hoped that what he had to say, would give offence to none. It was a question delicate and tender in its nature, and he foresaw, that it would be scarcely possible to touch it, even argumentatively, without giving some degree of pain. But his duty now compelled him to proceed, and to examine whether the priests of the Roman Church were indeed entitled to a privilege to which no other persons asserted the least pretention: that of concealing their knowledge of matters which it concerned the public good and the public safety to have disclosed? He proposed to examine this question on the basis of the common law and of the constitution.

First. The common law. It is a principle of that Iaw, that one of the primary duties of a citizen, is to disclose all his knowledge concerning matters connected

with the public good. On this point there can be no dis pute. There is however, an exception to this principle An attorney may not disclose his clients secrets. But then the exception only proves the rule; and unless the counsel for the defendant can shew that, the knowledge obtained by a priest in the course of confession, kas also been established, as an exception, the general rule must prevail, and the priest of course must answer. He said the counsel for the defendant had produced no case in which the privilege of such a priest had been recognized; but that in all the cases cited, a contrary doctrine had been held. The counsel had indeed endeavored to shew that these cases did not go the full length of expressly establishing the rule, that the priest should answer; with what success the court would decide. He should not press those cases, because they were not ne cessary to his argument, for the right to examine this priest in this case, grew out of the general rule that every citizen must answer; and unless it could be shewn by some adjudged case that he is privileged, it is of no use to object either to the authority or argument of the cases cited. He should not therefore (he said) follow the counsel through those cases; it was enough for the purpose of this argument-first; that under the general rule, the priest is obliged, in common with every other member of the community to answer-secondly; that there is no case in which he was ever exempted; and, thirdly; that the decision in one, and strong bearing of every case that has been decided, or agitated in relation to this point, is in support of the general rule; and in exclusion of the exception attempted to be set up against