It must be recollected too, that it is the decision of a single judge, at the Circuit, which is never considered as binding.

There are other considerations which go far to destroy its influence, if those that have already been urged were not sufficient. The confession was made by a Papist to a Protestant Priest. It does not appear that the elergyman had any scruples to reveal what had been confessed to him, or that he made any objection thereto. On the contrary, it is expressly stated, that the evidence was permitted to be given; and Lord Kenyon remarks, that he should have hesitated before he should have admitted it to be given.

I may here appeal to every candid mind, and ask whether, the fact, of a clergyman never having before been called upon to testify in a court of justice, what had been thus communicated to him, for spiritual purposes, is not irresistible evidence that the law is otherwise? İf the law had not been opposed to such examinations, would not the religious feuds which have agitated and afflicted Great Britain, have led long before to such inquiries? But allow me to call the attention of the Court to the only remaining case. It was decided in Ireland, in 1802, before Sir Michael Smith, bart. the master of the rolls.

In that case" a bill was filed praying to be decreed "the estates of the late Lord Dunboyne; the plaintiff "claimed the same as heir at law, and alledging the "will under which the defendant claimed as a nullity, "Lord Dunboyne having been a popish priest, and hav"ing conformed and relapsed to popery, which de46 prived him of power to make a will."

"Issue was joined; and the plaintiff produced the "Reverend Mr. Gahan, a clergyman of the church of "Rome, to be examined, and interrogatories to the fol"lowing effect were amongst others exhibited to him : "What religion did the late Lord Dunboyne profess "from the year 1783 to the year 1792? What religion "did he profess at the time of his death and a short "time before his death? The witness answered to the "first part, viz.-That Lord Dunboyne professed the "Protestant religion during the time &c. but demurred "to the latter part in this way, that his knowledge of "the matter enquired of (if any he had) arose from a "confidential communication made to him in the exercise "of his clerical functions, and which the principles of "his religion forbid him to disclose nor was he bound "by the law of the land to answer."

:

"Master of the Rolls (Sir Michael Smith bart.) "thought there was no difficulty in the case, though it "had run into a great length of discussion, which he in"dulged as being most likely to give satisfaction upon a "question which seemed to involve something of a pub"lic feeling. But he was bound to overrule the de66 murrer. It was the undoubted legal constitutional ❝right of every subject of the realm, who has a cause "depending, to call upon a fellow subject, to testify "what he may know of the matters in issue; and every "man is bound to make the discovery unless specially "exempted and protected by law. It was candidly ad"mitted that no special exemption could be shewn in "the present instance, and analogous cases and princi"ples alone were relied upon and, there was no "doubt, that analogous cases and principles were suf

"ficient for judicial determination. But the principle "must be clear as light, and the analogy irresistibly 66 strong. That clearness of principle and strength of "analogy did not appear in this case and demurrers of "this nature being held strictly he was obliged to over"rule it." He cited a case which is evidently inapplicable to the one before him.†

Upon this adjudication of the Master of the Rolls, I need only to observe, that it is unsupported by the authority to which he refers. It is a decision of a single magistrate. It is made in a country more remarkable for nothing, than the religious intolerance and biggotry of its laws. Precedents in such a country, and in such cases ought to be admitted, by us, with the most scrupulous caution; and finally, the fact enquired into of Mr. Gahan, had not been communicated to him in the administration of a sacrament of his Church, which in its nature is to be kept inviolably secret. I can see no reason to conceal, nor in our country would any Catholic Clergyman conceal, the fact that an American citizen had died in the Catholic faith. Mr. Gahan may have supposed, that it was his duty, as a pious man, to refuse to disclose, where the disclosure would defeat a person's Will, and work a flagrant injustice, as it obviously would have done in that case.

It may now be demanded, whether the two decisions to which I have referred-the latter before the Master of the Rolls-the former impeached by the Lord Chief Justice of England, would be binding, even in Great

* 1 M Nally 254, 255.

t Vaillant, v. Dodemead Atk. 521.

Britain. They clearly would not be binding. They have not the force of authority. Whoever has read their books of reports, knows, that the English judges do not feel themselves concluded by decisions much more solemn and imposing than those.

It may not be unapt, or time mispent, to recur to a few cases to shew the Court, the liberties which English judges have taken with each other, and how easily they overturn the law, which they themselves, after grave advisement have established! They cannot expect that we should shew them more deference or courtesy, than they shew to themselves.

In a cause before Lord Mansfield* a rule of law was urged. His Lordship said, "The law was certainly "understood to be so, and there are an hundred cases so determined," but they struck him as "absurd and wrong," and he overturned them. Lord Kenyon was pleased to say, "I think that decision did him great honor."+

And we shortly afterwards find Lord Kenyon praetising the example which had been set him, and actually overturning a decision of Lord Mansfield. The opinion of that great man, formed after full argument, and sanctioned by the concurrence of all the other judg es of the Court of King's Bench, yielded to the influence of Lord Kenyon. In this country, we have, in that instance, persevered in maintaining the law as settled by Lord Mansfield.

* Harrison, v. Beecles, cited 3 Term Rep. 688.

+ Ibid. 3 Term. 689.

Jourdaine, v. Lashbrook. 7 Term Rep. 601. In which the case of Walton, v. Shelly, 1 Term Rep. 296, is overruled,

Lord Loughborough pronounces a decision of Lord Chancellor Parker, to have been long exploded.*

Mr. Justice Ashurst says, "if there be several cases ❝which are not reconcilable with reason on one side,

and one sensible case to the contrary, we ought to de❝cide according to the latter."+ Lord Mansfield and other distinguished judges of that country, have not hesitated to make the case.

But we all recollect what our own Courts have done---and done wisely.

It is only necessary to notice two prominent cases, in which our courts have unshackled themselves of former decisions, and put the law upon the footing of justice and sound sense.

The sentences of foreign Courts of Admiralty were long held as conclusive evidence of the facts decided by them, and are in Great Britain to this day, though now grievously complained of by some of its ablest judges. We had adopted the English rule in its full vigour.†

In 1802, however, this principle was brought under review in the highest court in this state. It was upon that occasion, that one of the judges, whom I have now the honor of addressing,§ pursuing in his senatorial character the dictates of his own mind, overthrew, by the force of argument, the conclusiveness of foreign

* Sumner, v. Brady. 1 Hen. Blac. 655-referying to the case of Lewis, v. Chase. 1 Pierre Williams 620.

t2 Term 574.

Ludlow & Ludlow, v. Dale, 1799, 1 Johns. Cas. 16.

Gorix,

. Low, 1800. Ibid, 341. Vandenheuval, v. United Insurance Company, 2 Joh. Cas, 452.

De Witt Clinton.