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law, thereby it would be the last time that he should ever hear of such a question, being brought forward in a court of jus* tice.
Mr. Gardinier, the District Attorney, began by say. ing, 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 searcely 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 discloscall his knowledge concerning matters connected
with the public good. On this point there can be no dise pute. There is however, an exception to this principles 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 ebtained by a priest in the course of confession, kas also been established, as an exception, the genera! 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 re. cognized; but that in all the cases cited, a contrary doc, trine 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 nea 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
it. At eommon law, therefore, the priest has no priveleje.
It remains to enquire therefore,
Secondly. Does the constitution of the state give ☆ this privilege in this case.
It would not be disputed he said, that the people of the state of New-York, were at the time of making their constitution, a Christian, Protestant People. But aware of the injustice and evils of religious intolerance, they wisely and magnanimously resolved, that not only every section of the great protestant church should be equal with every other, but that persons of other religions should also be equal to them—but it was never intended that any one should ever be superior to any other. To tolerate religious profession and worship is one thing ; to allow any person whatever, to conceal matters upon the knowledge of which the public safety may depend, is another, for said he, it iš palpable that the pretention here set up, is inconsistent with the safety, and he should say of course therefore, with the rights of society : If the priest remains silent, crime remains unpunishedand therefore the dilemma is this, shall the priest of a particular sect, or the society which is composed of all the sects, prevail ?
Mr. Attorney then proceeded to prove that the punishment of crimes is essential to the public safety. That punishment cannot take place, if witnesses are excused from testifying to their knowledge of crimes. And by consequence that a tenet, which makes it a religious duty to conceal this knowledge, thus necessary to the public safety, however it may be seriously believed in, by its professors, comes within the spirit of the constitu
tional próviso ; which is in these words, “ Provided " that the liberty of conscience hereby granted, shall o not be so construed as to excuse acts of licentiousness, “ or justify practices, inconsistent with the peace or safe“ ty of this state." The liberty of conscience is granted let it be remarked, and by a protestant people to all others—but these cannot be entitled to do things, inconsis: tent with the peace and safety of the grantors. Yet if the priests of the Roman church are excused from answering, they are permitted to hold the safety of their benefactors in their hands---nay they are bound to disregard it. A protestant must answer all questions, and by those answers protect all the society, and the Roman with the rest. But the latter, according to the pretension set up, is to be indulged in endangering all the rest. And this is called liberty of conscience! This, the equality in religious freedom, to which they aspire ! If it were merely claimed that they might be silent, when they should honestly deem it expedient-we should never be induced to yield the claim, because society can never acknowledge the expediency of concealing crime. But the pretension far exceeds this. They actually claim the liberty of unqualified and inviolable subjection to si lence! The liberty of not being permitted to speakthe liberty of being compelled to be silent--and that in cases, when it may concern the safety of the whole state, that a "disclosure should be made. Can society endanger its safety, by yielding to such a claim ? Can it be supposed that the representatives of a protestant people, intented to be so very tolerating, as to deny to Roman Catholic priests, even the right of saving the state ? It would have been a suicidal act. Suppose a religious
sect should sincerely believe it a duty to sacrifice the first born of every family, belonging to that sect-would it be permitted ? Soppose a Roman Catholic priest knows the actors in a treasonable conspiracy, to deliver our city to the enemy, and if the persons can be known the plot may be defeated : Shall he be permitted to say, my religion forbids me from preventing the horrible effusion of blood, which must follow, for my knowledge is gained in confession !
Upon what principle is it, that quakers refusing to bear arms, are compelled to pay a fine or commutation ! Fine is punishment ; for what ? For an offence. What is the quakers offence ? that he refuses to yield his personal services, for the protection of the Commonwealth. Why does he refuse ? because the word of God, does in his judgement, forbid man to shed man's blood. The excuse is not received ! his personal services, are indeed dispensed with—but he is made to pay. The liberty of conscience is, in express terms, secured by the constitution of almost all the states. Yet in every one, is the quaker made to pay for his liberty of conscience. And why? because political lawyers can never acknowledge a principal in society, which exeuses any individual from the duty of giving his aid, for the protection and safety of the society. In this state, our constitution has indeed specially provided for them. But in the other states not. They are every where compelled to pay, for omitting to do military duty-and just so is every other citizen. Where is the quakers liberty, of conscience then? Lost in the superior duty he owes society. Whether the quakers have been justly dealt with ; whether their li. berty of conscience has not been trifled with, is not now