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Wednesday, June, 9.[PRESENT AS BEFORE.]
MR. SAMPSON IN REPLY. May it Please the Court,
Before I enter on debate, let me be permitted on behalf of the Clergy and Trustees of the Roman Catholic Church, to discharge a debt due to the District Attorney for his liberal and manly conduct in this cause. That it may proceed and end, as it has began, in the spirit of peace and good will. When Mr. Gardenier, proposed to enter a nolle prosequi, his motives were no doubt highly commendable. He knew that religious discussions, often, too often, ended in bitterness, and were pernicious in their result. He did not then so fully know, in how mild a spirit this question was pressed apon him. And it was not till he was strongly solicited, by those I have the honor now to represent, that he consented to bring it forward. His right to follow the course he first proposed was not disputed. His motive for that he has pursued will best appear when I shall have laid before the Court the written request addressed to him.
Mr. Sampson then read the following paper.
On an indictment for re
ceiving stolen goods. Daniel Phillips and wife.
Whereas it has been represented to the board of Trustees of St. Peter's Church in the city of New York, that
the Reverend Dr. Kohlmann, the pastor of said church has beeen called as a witness, to testify therein, and that thereupon he declared he knew nothing touching the matter enquired of him, but what had been communicated to him in the administration of the sacrament of penance or confession, in which he avowed himself to be bound both by the law of God and the canons of the Catholic Church to a perpetual and inviolable secrecy. That the knowledge thus obtained cannot, be revealed to any person in the world, without the greatest impiety, and a violation of the tenets of his religion. That it would be his duty, according to his religious principles, to suffer death, in preference to making the disclosure, and that this hath been the uniforn faith and doctrine of the Catholic Church. That he was advised by counsel, that the enlightened and liberal provisions of the constitution of this state protected him in the silence which his faith enjoins upon him, and therefore he respectfully requested the court to protect him in the exemption which he claimed.
And whereas, for the purpose of maturely considering the question, the District Attorney consented to delay the trial of the cause, until a future sitting of the court.
And whereas the Board of Trustees, sincerely consider the free toleration of the Catholic Religion, involved in maintaining the exemption claimed by the reverend pastor, and cannot but feel the deepest solicitude that a doubt should exist upon the subject, they therefore, respectfully request the District Attorney to bring the cause to trial at the next sitting of the court, to the end that a judicial determination may be had which shall ensure
to all catholies, in common with the rest of mankind, and according to the words of the constitution, the free exercise and enjoyment of their religious profession and worship.”
The Trustees hope that the District Attorney, will be pleased to signify to them, at what time he will pro bably bring the question to a hearing. By order of the Board of Trustees of St. Peter's Church.
DENNIS MCARTHY, Sécretary. Nero-York, April 19th, 1813.
In complying with this request, the public prosecutor has done well. The gentlemen who presented it have done well. If the counsel for the witness shall have clone justice to the cause, auguring from the liberal jugdgement of the Court upon the preliminary questions of evidence, I trust, the whole community will applaud the motives and rejoice in the event.
The decorous and prepossessing manner in which the reverend witness has expressed his reasons, is a good argument that this was not a challenge given in the spirit of bravado, and that if a victory is sought it is of that blessed kind, where every virtuous citizen is to share in the triumph, and none to suffer by the defeat.
Having much of necessity to say, upon a question so novel and important, I shall avoid repeating what my learned colleague has so ably urged. We have already agreed that each should take his part, as well to share the burthen of the argument, as to spare the Court the pain of a story twice told
Mr. Riker has shewn by reason and authority, that no rigid rule of evidence can stand in the way of justice and convenience, so as to bear the exemption we lay claim to; that these rules are the handmaids, not the tyrants of a court of justice; and that when new cases occur within like reason as former ones, the same principles will govern them; and that the door of justice and propriety is never closed. The counsel did not, however rely entirely upon general reasoning, but shewed the current of authority to be so strong, that our ingenueus adversary was compelled to evade it, and driven to maneuvre with what dexterity he could, in the counter current and eddy of popular prejudices.
When this question first occurred, I humbly stated to the court, that in no country where I had been, whether Catholic or Protestant, I had ever heard of an instance of a similar kind. That in England, there was none to be produced; nor even in Ireland, where the people were catholic, and the law anti-catholic ; where the few trample upon the many, and where no concesšions were made to the feelings of the proscribed, or the dictates of humanity or piety. I spoke that with sincerity and truth, for the only case that ever has arisen, was decided since the epoch of my banishment, and not only since the independence of this country, but since the revolution that deprived Ireland of its independence and its parliament, and at a time when little good faith was observed by those whose opinions and sentiments are too apt to dictate, as conquerors do to the ranquished and subdued.
Two cases only have been cited, both adjudged since the period when they could be binding in this country
as authority, and tirese only I shall notice. That of Du -x barre is directly in point with us, as far as the opinion of the chief justice of England, can be in our favor. The case of the reverend Mr. Gahan, decided by the master of the rolls in Ireland, is not so much against us as I could wish it was. I am sorroy it is not equally in point, that by a decision directly in the teeth of it, the superiority of our constitution, our laws, and jurisprudence, might be more fully felt, understood, loved, and revered. I care not from what country precedents be drawn, if they be wise, and applicable to our exigencies, for reason and good sense is of every country; but if there be any country on the habitable globe, where we should not go to look for a pure and sound decision, upon the rights of Roman Catholics, it is surley that one from which this precedent is brought. Let us first enquire what they do and say on this, and the other side the Ganges; let us consult with canibals, but take no counsel from that Island, where for centuries
past, a code has existed, and been in full and vigorous | activity, which shames humanity. Let us first rake up
the embers of every latent evil, and cut scions from the
root of every desolating persecution, before we intro| duce the germs of that poisonous growth, so prolific in
mischief, and malignity, that nothing like it can be found in the annals of the world. For every where else, though there may be madness, superstition, or idolatry, there may be some chance of impartiality ; but in Ireland there can be none !
Abstract this Irish decision, from Irish politics, and Irish history, and mark upon what shallow reasons it was founded. What will the enlightened and unso