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it. At common law, therefore, the priest has no prive

lege.

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 is 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

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tional proviso; which is in these words, "Provided "that the liberty of conscience hereby granted, shall

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

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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 excuses 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 liberty of conscience has not been trifled with, is not now

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to be discussed. The pratice of every state, has estab lished the principle that, the safety of the state being the first duty, the quaker shall pay a fine as a punishment, for omitting to do what his religion forbids.

Why then, shall the Roman priest be excused from the same great duty? why shall society allow him to omit doing that which is essential to its safety?

But confession is a sacrament. How can secrecy be a part of that sacrament? The penitent has a right to confess. Let him confess; he is not punished for that, but for his crime. If it be his duty to confess, then that duty exists whether the confession be secret or not. And if he be a true worshipper he will confess at every hazard. If he be not, it matters little, whether

he confess or not. Let confession be a duty-a sacrament. Let the texts of scripture speaking of it be considered decisive in its support. It is not from scripture that the right of secrecy is claimed to be derived. It is a compact or engagement of the priest with his church; and if you will, with the penitent, Secrecy is not of the essence of the sacrament; it is a privilege claimed because of its being reasonable-and of course is to be decided on the ground of reason and law, and those alone. The privilege claimed by the catholic penitent, in this case, then, is not, that he may ease his conscience by confession-but that such confession shall never rise up against him; the privilege claimed by the priest, is not, that he shall be allowed to hear, but that he shall be forbidden to tell. What has the constitution secured? "The free exercise and enjoyment of religious profes"sion and worship, without discrimination or prefer❝ence." Now the priest discloses the confession.

How is the "profession or worship" of the catholic less

free than if it were secret? Or how can it be maintained, that silence on the part of the priest, is part of the religious "profession or worship" of the catholic lay

man.

But, by the constitution, there shall be neither "dis"crimination nor preference." Now, what a protestant layman should confess to a protestant minister, that minister would be compelled to disclose. The catholic not. Is not here, then, a "discrimination,” a “prefer"ence," not only forbidden by the constitution, but dangerous to all the sects that compose the society.

Not only where life and limb, but where property is in controversy, the attorney is privileged from disclosing the secrets of his clients. This is not upon the mere ground that an attorney is necessary to the party-but because the law itself, has instituted this office, and made this privilege one of its inherent properties; and therefore is this privilege as immemorial as the law itself. If the principle were not as laid down, then would. a physician, employed in the cure of a disreputable disease, be excused from answering, on the ground that the disease works a speedy dissolution, and the physician is necessary to prevent death. Yet in our own state the physician has been made to testify in such cases.

It has been insisted by the opposite counsel, that, as the Roman catholic church, might, and probably would take away this priest's office and salary, should he testify in this case, he ought therefore to be excused. But this reasoning is utterly fallacious. If the principle advanced be a sound one, then they might have made his office depend upon refusing to testify in any case, and

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