If the witness be asked what the deceased stated touching her apprehension of death during the administration of the sacrament of penance, it necessarily raises the question of privilege which was so fully discussed before I adjourned the Court on Saturday; and as the Counsel has announced his purpose to propound the question when the witness is recalled, and has asked me to pass upon its competency, I will briefly assign the reasons which have led to the decision I have formed on an examination of the subject.
It is a tenet of the Roman Catholic Church that Jesus Christ, the divine author of Christianity, has instituted seven sacraments, that the sacrament of penance, of which the sacramental confession is a component part, is one of these seven sacraments; and it is a doctrine of that Church, that the same divine author of these sacraments has laid the obligation of a pérpetual and inviolable secrecy on the minister of that sacrament, and this obligation is enforced by an oath administered at the time of ordination.
Should the witness make the disclosure required of him, he would subject himself to the most serious penalties known to his church. 1. He would forever degrade himself in the eye of the Catholic Church. 2. According to the canons of that Church he would be divested of his sacerdotal character, replaced in the condition of a layman, and be forever disabled from exercising any of the ecclesiastical functions. 3. That if he lived in a country where the canon law prevailed, he would be liable to be lodged in close confinement to do penance for the rest of his life. 4. According to the dictates of his own conscience he would render himself guilty, by such a disclosure, of everlasting punishment in the life to come. Such would be the consequences to the witness according to the recognized rules of his Church.
I shall consider this question in two aspects. 1. Upon authority, so far as adjudications in this country and England are to be found. 2. Upon principles of public policy, in connection with the guarantees furnished by our constitution in favor of religious liberty.
I. It is true as a general proposition, that every person is bound, when called upon in a Court of Justice, to testify whatever he may know touching the matter in issue. This is essential to the proper administration of civil and criminal justice; but it does not follow that a priest is bound to disclose what a penitent confessed to him in the exercise of a religious rite, which forms a fundamental tenet in the Church to which he belongs, and without which the Church would lose its distinctive features in the
The only case cited by the elementary writers which seems to furnish authority for the proposition that clergymen of no religious persuasion, whether Protestant or Catholic, are exempt from disclosing confessions made to them, is a case reported in McNally, p. 253-255. In that case a bill was filed to recover the estates of the late Lord Dunboyne. The plaintiff claimed the same as heir at law, and alleged that the will under which the defendant claimed was a nullity, Lord Dunboyne having been a popish priest and having conformed and relapsed to popery, which deprived him of the power . to make a will. Issue was joined, and the plaintiff called the Rev. Mr. Gahan, a clergyman of the Church of Rome, to be examined, and interrogatories to the following effects were, amongst others, propounded to him. "What religion did the late Lord Dunboyne profess from the year 1783 to 1792? What religion did he profess at the time of his death and a short time before?" The witness answered to the first part, but objected to the second, and assigned as a reason for his refusal that, his knowledge of the
Sir Michael Smith, the master of the Rolls, determined against the objection and required the witness to answer. This case is relied on as a direct authority on the point, but a careful examination of it will show that the question does not arise and was not decided. It will be observed that 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. The information was not obtained in the confessional. It was a confidential communication and the knowledge may have been derived by him from the ordinary sources of information, which daily association afforded.
He would not therefore be exposed by disclosing it, to degradation, breach of oaths, and a violation of clerical duties. It only affected his personal honor as a gentleman.
The point did not arise in this case, and the principle, which it is cited as authority to sustain, was not decided.
There are other cases cited in the elementary books, but an examination of them will show that they contain the mere loose dicta of judges upon the general question of exemption, when the precise point was not before them. Some of them in favor, and others against extending the privilege to all clergymen.
In the case of Broad v. Pitt, 3 C. and P. 518, Best, Chief Justice, said that "he, for one, would never compel a clergyman to disclose communications made to him by a prisoner. But that, if he chose to disclose them he would receive them." In the Case of Du Barre, Peake's nisi prius cases, p. 77, Lord Kenyon, on being informed that Mr. Justice Butler had required
So far then as the English authorities, are concerned, the question has never. been decided, and comes before ' me untrammelled by any English adjudication.
In the United States the question has been twice decided in favor of exempting a Roman Catholic priest from disclosing confessions made to him in this sacred relation.
The first case was an indictment for larceny. It was tried in the Court of General Sessions for the City of New York before De Witt Clinton, Mayor, J. Ogden, Hoffman, Recorder, and J. S. Douglass and R. Cunningham, sitting aldermen. The commonwealth to sustain the prosecution introduced as a witness the Rev. Mr. Kohlman, the Catholic priest, to whom the prisoner had confessed his guilt and delivered the goods to be returned to the owner. The witness upon being interrogated as to his knowledge of the transaction and the connection of the prisoner with it, objected to answering upon the ground, that all his information was obtained in the confessional, and claimed to be exempt from making the disclosure. The question on his privilege of exemption was elaborately argued, and after having taken time to consider of their opinion, the court unanimously decided that the witness should not be compelled to answer the question, and that the priest was not bound to disclose what was confided to him in the confessional.
The same point was subsequently presented in another case before the same court and decided in the same way. The question has never been adjudicated in any of the courts of last resort in the United States;
Although there are no decisions in the ^higher courts of the United States affirming the principle that Catholic priests are privileged from disclosing what is ...made known to them in the confessional, yet .they are ■ privileged by express enactment in several of the. States.. By a statute , of New. York, 2 Rev. Stat. 496, £ 7.2, it is enacted that "No minister of . the ..gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character in the course of discipline . enjoined by the rules or practice of such dehomination." A similar statute exists in Missouri, Rev. Stat. 1845, ch. 186, § 19; and in Wisconsin, Rev. Stat. 1849, ch. 98, § 75; and in Michigan, Rev. Stat. 1846, ch. 102, § 85; and in other states of the Union; and such is the law of Scotland. By a writer on Scotch Criminal Law it is remarked: "But our law utterly disowns any attempt to make a clergyman of any religious persuasion whatever divulge any confessions made to him in the course of religious visits, or for the sake of spiritual consolation, as subversive of the great object of punishment, the reformation and improvement of the offender." (Alison C.L.S.)
II. Is this privilege embraced in the guarantees furnished by our Constitution in favor of religious toleration, and does it violate any principle of public policy?
The Constitution of the United States provides that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Our Bill of Rights declares that, "religion, or the duty we owe to our Creator, and the means of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience"; and our Constitution enacts that, "no man shall be
It is impossible to conceive of more broad and comprehensive terms than are used in our Bill of Rights, and our State and Federal Constitutions. Religious toleration was the great purpose their framers had in view. They believed that it was the right of every human being to worship God according to the dictates of his own conscience. They designed to secure forever to all, the free exercise and enjoyment of religious profession and worship, and employed language commensurate with that object. At the time they adopted these constitutional provisions in favor of religious liberty, the Catholic religion was in existence and had been for centuries. Penance was one of its sacraments, and confession an essential part of that sacrament. They enacted these provisions with full knowledge of this fact, and must have intended that the Catholics should freely enjoy their religion, including auricular confession. If they had intended to restrict the Catholics in their mode of worship, to deprive them of the sacramental confession, and thus strike out a fundamental tenet in their creed, would they not have used some words of limitation on the broad and comprehensive terms they employed? By every rule of construction I am forced to conclude that they would have imposed this restraint if they had intended to do so. If, then, the common law rule of evidence, which requires a witness to disclose all he may know touching a matter in issue béfore a court of justice, infringes upon that free exercise of religious worship, which the Bill of Rights proclaims and the Constitution guarantees, no one will deny but that the rule of evidence must yield to the constitutional enactment. Being a rule of evidence in existence at the time of the adoption of the Constitu
Nor will this prohibition upon the free enjoyment of the Catholic religion by requiring its ministers to testify as to what may be disclosed to them in the confessional, be confined in its operation to cases of crime. It will extend to civil proceedings; and every suitor, whose adversary is a Catholic, and whom he suspects of having made disclosures in the confessional, touching the subject of controversy between them, will have the right to bring the priest into court to testify to matters confided to him in that sacred relation. The alarm which this practice would create among that class of our people would be intense, and to them a most extreme and afflictive grievance. And thus those who profess this faith, will be subjected to a species of apprehension, and of petty annoyance and vexation utterly inconsistent with the enlarged and enlightened toleration of our laws.
Nor will any principle of public policy be violated by extending this privilege of exemption to
It can scarcely be necessary to notice the argument which was pressed, that this exemption of Catholic clergymen would be extending to them a privilege not enjoyed by clergymen of the protestant persuasion. No Protestant claims any such exemption, and they cannot be said to be denied that which they lay no claim to. Penance and the confessional form no part of their religious creed. They repudiate both. When this rule of evidence, or any other principle
This privilege of withholding what is made known in the confessional is not without analogy in the law to sustain it. It belongs to every attorney or counsellor at law. All professional communications made to attorneys by clients are privileged, and no human power can compel the attorney to disclose them. Whether he be called as a witness, or be made a defendant and a discovery sought from him as such, by bill in Chancery, whatever he has learned as counsel or attorney, he is not obliged, nor permitted to discover; and by the attorney's withholding such knowledge the innocent may suffer the extreme penalties of the law and the guilty go unwhipt of justice. "The foundation of this rule," said Lord Chancellor Brougham, in the case of Greenhough v. Gaskell, 1 My. and K. 102, "is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts and in those matters affecting rights and obligations, which form the subject of all judicial proceedings." If such communications were not protected, no man, as the same learned judge remarked in another case, would dare to consult a professional adviser, with a view to his defense, or to the enforcement of his rights; and no man could safely come into Court, either to obtain redress, or to defend himself. With how much more force does such reasoning apply to those who seek the aid of
It will be observed that I have not discussed this as a theological question. Whether it be, as alleged, of divine origin or not; whether repentance and consequent abstinence from future misdeeds of the like nature, followed by satisfaction more or less adequate for the past, are temporal advantages quite as extensive as the good effects to be derived from the disclosure as an aid to the administration of justice, are views which I shall not enlarge upon. But assuming penance and confession to be a sacrament in the Catholic Church, and a tenet of faith essential to the maintenance of that religion, I have considered it in its legal and constitutional bearings. And in every aspect in which I have been able to view it; looking at it as analogous to the rule which exempts attorneys from disclosing the professional communications of their clients entrusted to their confidence; to the fact, that in England during centuries whilst the Catholic religion prevailed there no case can be found in which the disclosure was coerced; that it is the law of Scotland, as it is the law in several states of this union by express statutes to exempt the priest from disclosing information obtained in the confessional; that no principle of public policy will be invaded; and above all, that the great constitutional boon of religious toleration, which secures to all the "free exercise of religion according to the dictates of conscience," cannot be enjoyed by this class of our people if the secrets of the confessional are to be disclosed, I shall hold the priest exempt from testifying as to what was confessed to him by the deceased in the administration of the sacrament of penance.