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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 catholie penitent, in this case, then, is not, that he may ease bis 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? 66 The free exercise and enjoyment of religious profes“sion and worship, without discrimination or prefer66 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
But, by the constitution, there shall be neither 6 dis66 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 dan, gerous 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 it. self. 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 .
under any circumstances, against any person in society. If I do testify, says the priest, in such a case, I lose my salary. In one way or other every one might be excused from testifying. Suppose a witness declines to testify, because he belongs to a society, which is í bound, under oath, to take the life of any member who shall in any case testify against a fellow member, and he' verily believes his life will be taken if he does would he be excused ? Nay, would the law permit the priest to lose his salary, because he had displeased them by obeying the law ? Or his office? Would not a man. damus restore him? But he would have no hearers-he would be “ infamous.” How infamous ? In whose estimation? His infamy would consist in obeying the laws, X and in the estimation of those who deem such obedience a crime. To be hated, to be despised is not infamy. To do wrong, is infamy. To disobey the public law, is infamy. Obedience to authority is the first of virtues, / and among the highest of the christian duties.
The right of exemption, on the score of infamy or interest, rests on this principle, giving it the broadest basis. That a witness shall be excused, where the facts he discloses, convict him of moral turpitude, or prove
him unintitled to life, liberty, or property. But, to say that a society to which he belongs will deprive him of support, if he becomes a witness at all, and to appeal to the law to say, that this society may be indulgéd in preventing him from being a witness, by such means, would be, to make the law establish a power superior to itself. It is very evident, that a society of mere laymen, adopting such an article in their constitution, so far from finding protection ander it, would, and
justly too, be considered as guilty of an original eonspiracy against society. Is the case altered because a reli. gious society has done this same thing? The true principle, it is apprehended, in our happy state of religious equality is this : every man shall be allowed to reconcile himself to his maker in the way he may think most effectual; and seeing that none can preiend to greater certainty than his neighbour, so, to no one of the various sects shall be given the privilege of dictating to others. their course of religious worship. Thus, all stand equal; no one pretending to the right of dictating to the others. But whenever any one shall claim to do what may justly offend the others, he claims an unequal, and so an unconstitutional “ preference.” Thus, the jew may keep his own sabbath, but he shall not violate that of the christian. Under a religious tenet, no sect would be permitted to indulge in what society deems cruelty, dishonesty, or public indecency, for it would offend the rest, though the worshippers might deem themselves. engaged in a holy rite. Nor ought any be allowed to conceal, when called upon in courts of justice, matters pertaining to the safety of the rest--for if they are so, allowed, they make for themselves a rule of evidence, contrary to a pre-existing principle of law, involving the safety of the whole community. If they say, our religion teaches us this, society replies all religions are equal-tone shall be disturbed each one may seek heaven as seems fit to its votaries, this is the toleration society has a granted” to all—but still society is supe . rior to them all, and not, nor ever could be supposed to have granted to any, the right of silence, when its own, interest and safety may be jeopardized by that silence..
The common safety, is the common right and any pretension, whether of a religious or social institution, which claims the right to withhold from society the knowledge of matters, relating to its safety, soars above the level of the common equality, and demands such an unreasonable " preference,” as society would be false te itself to allow.
Finally the constitution has granted, religious "profession and worship,” to all denominations, “ without discrimination or preferance :” but it has not granted exemption from previous legal duties. It has expelled the demon of persecution from our land : but it has not weakened the arm of public justice. Its equal and steai dy impartiality has soothed all the contending sects into the most harmonious equality, but to none of them has it yielded any of the rights of a well organized government.
When Mr. Gardenier closed it was near the usual Hour of adjournment, and the Court assigned the follow. ing morning to hear the reply.