2 Pen. & W. 412
Pa.
1831

The opinion of the court was delivered by

Gibson, C. J.

The religious scruples of persons concerned with the administration of justice, will receive all the indulgence that is compatible with the business of government; and had circumstances permitted it, this cause would not have been ordered for trial on the Jewish Sabbath. But when a continuance for conscience3 sake, is claimed as a right, and at the expense of a term’s delay, the matter assumes a different aspect.

It never has been held except in a single instance, that the course of justice may be obstructed by any scruple or obligation whatever. The sacrifice that ensues from an opposition of conscientious *417(objection to the performance of a civil duty, ought, one would think, to be on. the part of him whose moral or religious idiosin-erasy, makes it necessary; else a denial of the lawfulness of capital punishment would exempt a witness from testifying to facts that might serve to convict a prisoner pf murder, or to say nothing of the- other functionaries'of the law, excuse the sheriff, for refusing to execute one capitally convicted. That is an exemption which none would pretend to claim; yet it would inevitably follow from the principle insisted on here. Indeed a more apposite instance of conflict betwixt religious obligation and social duty, can hardly.be imagined. Rightly considered, there are no duties half so sacred as those which the citizen owes to the laws. In the judicial investigation of facts, the secrets of no man will be wantonly exposed, nor will his principles be wantonly violated; but a respect for these must not be suffered to interfere with the operations of that organ of the government which has more immediately to'do with the protebtion of person and property: the safety of the citizen, and- the very existence of society require that it should not. That every other obligation shall yield to that of the laws, as to a superior moral force, is a tacit condition of membership in every society, whether lay or'secular, temporal or spiritual, because no citizen can lawfully hold communion with those who have associated on any other terms; and this ought, in all cases of collision, to be accounted a.sufficient dispensation to the conscience. I therefore entirely dissent from the opinion of the Mayor’s Court of Neto Yorle, in the case which has been cited. No one is more sensible ■ than I, of the benefit dei’ived by society from the offices of the Catholic clergy, or of the policy of protecting the secrets of auricular confession. But considerations of policy address themselves with .propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established. On this subject, I expressed my sentiments somewhat more at large in Lesher. v. The Commonwealth, 17 Serg. & Rawle, 160, and I am for setting aside this non-suit, certainly not for any supposed interference with the rights of conscience.

As regards the remaining points, it is unnecessary to determine whether papers in the actual custody of a jury, retired to consider of its verdict, are sufficiently in the power of the party to enable him to go to trial safely in another action, because it seems clear, that tlje plaintiff was not bound to go before the jurors returned on the tales. Our act of assembly requires tales-men to be taken from the by-standers; and in this respect it is more explicit than the English statute, which directs them to be taken from the persons ^attending at the assizes. Yet the construction of the one, and the other, has never been so liberal as to include any but those *418actually present in court; arid hence perhaps it is, that a writ for a tales, which would seem necessary, were the delegated powers of the court to be exercised out of its immediate presence, is in fact never issued; and it is not easy to say how the sheriff could compel the attendance of persons picked up in the streets, without it. The practice of selection by the sheriff, except in this particular emergency, has been abolished by the legislature; but the old abuses, if any there were, would soon recur, were the power by a tales to be exercised in any other way than under the immediate supervision of the judges. Difficulties may sometimes occur, for want of by-standers;but it is safer to abide by a settled construction even at the expense of convenience, than to introduce a remedy at the expense of uniformity of practice. The cause is therefore to be restored to the trial list.

Rogbks, J. — Having been of counsel in the case, and Ross, J. not having heard the argument, took no part in the decision.

Non-suit set aside,,and the case remitted to the Circuit Court.