People v. Phillips (N.Y. Ct. of Gen’l Sessions 1813) (reprinted in 1 Western L. J. 109 (1843) and 1 Cath. Law. 199 (1955)

New-York, Court of General Sessions,

The People,
vs.
Daniel Phillips and wife.
)
)
)
On an indictment for receiving stolen goods.

[Sampson, the Catholic Question in America(*1) (1813)]

      THIS CASE, like many others of importance, had its origin in a trivial occasion: One Philips, together with his wife, was indicted for a misdemeanor in receiving stolen goods, the property of James Cating. The vigilant justices of the police discovered that after lodging his information before them he had received restitution, and thereupon had him brought up and interrogated him with a view to further discovery. He shewed so much unwillingness to answer, that suspicions fell upon him and he was threatened with a commitment to bridewell. He was admonished that it was his duty on his oath to reveal the whole truth and the duty of magistrates to enquire into it, and to enforce obedience to the law. He then mentioned that he had received the restitution of his effects from the hands of his pastor, the Reverend Mr. Kohlmann, Rector of Saint Peter’s. Thereupon, a summons was issued to that gentleman to appear at the police office, with which he instantly complied. But upon being questioned touching the persons from whom he received the restitution, he excused himself from making such disclosure, upon the grounds that will be fully stated in the sequel. He was then asked some questions of a less direct tendency, as to the sex or colour of the person who delivered the goods into his hands, and answered in like manner. Upon the case being sent to the Grand Jury he was subpoenaed to attend before them, and appeared in obedience to the process, but, in respectful terms, declined answering. Bills of indictment were found, upon other testimony, against Charles Bradley and Benjamin Brinkerhoff, both coloured men, as principals, and against Philips and wife as receivers. . . .

Among the witnesses returned on the back of the indictment was the Reverend Anthony Kohlmann, who being called and sworn, was asked some questions touching the restitution of the goods. He in a very becoming manner entreated that he might be excused, and offered his reasons to the Court, which are here omitted to avoid repetition, but will be found at length in the sequel.

Mr. George Wilson objected also on behalf of his clients. The case was novel and without precedent, and Mr. Sampson, an amicus curiae, interposed, and observed that in no country where he had been, whether Protestant or Catholic, not even in Ireland, where the Roman Catholic religion was under the ban of proscription, had he ever heard of an instance where the clergyman was called upon to reveal the solemn and inviolable secrecy of sacramental confession, and with the ready asset of Mr. Riker, obtained an adjournment of the trial until Counsel could be heard in deliberate argument. . . .

Clinton, Mayor. In order to criminate the defendants, the Reverend Anthony Kohlmann, a minister of the Roman catholic church of this city, has been called upon as a witness, to declare what he knows on the subject of this prosecution. To this question he has declined answering, and has stated in the most respectful manner the reasons which govern his conduct. That all his knowledge respecting this investigation, is derived from his functions as a minister of the Roman catholic church, in the administration of penance, one of their seven sacraments; and that he is bound by the canons of his church, and by the obligations of his clerical office, to the most inviolable secrecy – which he cannot infringe, without exposing himself to degradation from office – to the violation of his own conscience, and to the contempt of the catholic world.

In corroboration of this statement, a book entitled “The Catholic Christian instructed in the sacraments, sacrifices, ceremonies, and observances of the church, by the late right reverend R. Chalhoun, D.D.” has been quoted, which declares, “That by the law of God and his church, whatever is declared in confession, can never be discovered, directly or indirectly, to any one, upon any account whatsoever, but remain an eternal secret between God and the Penitent soul – of which the confessor cannot, even to save his own life, make any use at all to the penitent’s discredit, disadvantage, or any other grievance whatsoever.” Vide Decretum Innocentie XI. die 18 November. Anno. 1682 (page 120) and the same book also says, that penance is a sacrament, and consists, on the part of the penitent, of three things, to wit – contrition, confession, and satisfaction on the part of the minister in the absolution pronounced by the authority of Jesus Christ.

The question then is, whether a Roman catholic priest shall be compelled to disclose what he has received in confession – in violation of his conscience, of his clerical engagements, and of the canons of his church, and with a certainty of being stripped of his sacred functions, and cut off from religious communion and social intercourse with the denomination to which he belongs.

This is an important enquiry; It is important to the church upon which it has a particular bearing. It is important to all religious denominations, because it involves a principle which may in its practical operation affect them all; we have therefore, devoted the few moments which we could spare, to an exposition of the reasons that have governed our unanimous opinion: But before we enter upon this investigation, we think it but an act of justice to all concerned in it, to state, that it has been managed with fairness, candour, and a liberal spirit, and that the counsel on both sides have displayed great learning and ability; and it is due particularly to the public prosecutors, to say, that neither in the initiation nor conducting of this prosecution, has there been manifested the least disposition to trespass upon the rights of conscience – and it is equally due to the reverend Mr. Kohlmann to mention, that the articles stolen, were delivered by him to the police, for the benefit of the owners, in consequence of the efficacy of his admonitions to the offenders, when they would otherwise, in all probability, have been retained, and that his conduct has been marked by a laudable regard for the laws of the country, and the duties of his holy office.

It is a general rule, that every man when legally called upon to testify as a witness, must relate all he knows. This is essential to the administration of civil and criminal justice.

But to this rule there are several exceptions – a husband and wife cannot testify against each other, except for personal aggressions – nor can an attorney or counsellor, be forced to reveal the communications of his client – nor is a man obliged to answer any question, the answering of which may oblige him to accuse himself of a crime, or subject him to penalties or punishment.

In the case of Lord Melville, upon a witness declining to testify, lest he might render himself liable to a civil action, the question was referred to the twelve judges; and eight, together with the lord high chancellor, against four, were of opinion, that he was bound to answer. To remove the doubt which grew out of this collision, an act of parliament was passed, declaring “that a witness cannot by law, refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to a penalty or forfeiture of any nature whatever, by reason only, or on the sole ground that the answering of such question, may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his majesty or of any other person or persons.” This statute has settled the law in Great Britain. The point in this state may be considered as res non adjudicata – but I have little doubt that when determined, the exemption from answering of a witness so circumstanced will be established.

Whether a witness is bound to answer a question, which may disgrace or degrade him, or stigmatize him by the acknowledgment of offences, which have been pardoned or punished, or by the confession of sins or vices, which may affect the purity of his character, and the respectability of his standing in society, without rendering him obnoxious to punishment, is a question involved in much obscurity, and about which there is a variety of doctrine, and a collision of adjudications.

After carefully examining this subject, we are of opinion that such a witness ought not to be compelled to answer. The benevolent and just principles of the common law, guard with the most scrupulous circumspection, against temptations to perjury, and against a violation of moral feeling; and what greater inducement can there be for the perpetration of this offence, than placing a man between Scylla and Charybdis, and in such an awful dilemma that he must either violate his oath, or proclaim his infamy in the face of day, and in the presence of a scoffing multitude? And is there not something due to the feelings of human nature, which revolt with horror at an avowal that must exclude the witness from the pale of decent society, and subject him to that degradation which is as frequently the cause as the consequence of crimes?

One of the earliest cases we meet with on this subject is that of Cooke (4 St. Tr. 748. Salkreld, 153–) who being indicted for treason, in order to found a challenge for cause, asked a juror whether he had not said he believed him guilty. The whole Court determined he was not obliged to answer the question – and Lord Chief Justice Treby said, “Men have been asked whether they have been convicted and pardoned for felony, or whether they have been whipped for petit larceny, and they have not been obliged to answer: for though their answer in the affirmative will not make them criminal nor subject to punishment, yet they are matters of infamy, and if it be an infamous thing, that’s enough to preserve a man from being bound to answer. A pardoned man is not guilty; his crime is purged; but merely for the reproach of it, it shall not be put upon him to answer a question whereupon he will be forced to forswear or disgrace him.”

In the case of Rex vs. Lewis and others (4 Espinasses nisi prius cases, 225) the witness was asked if he had not been in the house of correction, in Sussex. Lord Ellenborough, relying upon the opinion just quoted, declared, that a witness was not bound to answer any question, the object of which was to degrade or render him infamous. In the case of MacBride vs. MacBride (same book 243) Lord Alvanly, on a witness being asked whether she lived in a state of concubinage with the plaintiff, overruled the question, saying, that he thought questions as to general conduct, might be asked, but not such as went immediately to degrade the witness, and concluded by saying, “I think those questions only should not be asked, which have a direct and immediate effect to disgrace, or disparage the witness.”

In the supreme court of New-Jersey (Pennington’s Reports, the State, vs. Bailey, 415) the following question was proposed to a witness. Have you been convicted of petit larceny and punished? The Court after argument decided, that a witness could be asked no question, which in its answer might tend to disgrace or dishonor him, and therefore, in the particular case the witness was not bound to answer the question.

In the case of Bell, an insolvent debtor, which occurred in the Court of Common Pleas, for the first Judicial District of Pennsylvania (Browne’s Reports, 376) a question was asked the father of the insolvent, which question the Court overruled. Rush, the President, saying, “I have always overruled a question that would affect a witness civilly, or subject him to a criminal prosecution; I have gone farther, and where the answer to a question would cover the witness withinfamy or shame, I have refused to compel him to answer it.”

In the case of Jackson ex dem Wyckoff, vs. Humphrey (1 Johnson’s Reports 498) a deed was attempted to be invalidated at the circuit, by the testimony of the judge, taking the proof on the ground that the proof it was taken in Canada, and also, that the subscribing witness could not have known the facts respecting the identify of the grantor, as testified by him before the judge who took the proof, and also to impeach the general character of the witness. The testimony was overruled by the judge, and a verdict found for the plaintiff, and a motion for a new trial prevailed. The Court declaring, that “The judge, before whom the proof of the deed was made, was a competent witness to prove that it was done in Canada, and if that fact be established, the proof was illegal and void. Though the judge was a competent witness, he would not have been bound to answer any questions impeaching the integrity of his conduct as a public officer;” and we believe it to be the general if not established practice of our Courts to excuse a witness from answering questions which relate to sexual intercourse, in actions brought for a breach of promise of marriage, or by parents for seduction.

We have gone more particularly into this branch of the subject, because it has a very intimate connexion with the point in question. None of these propositions – that a witness is not obliged to confess a crime, or subject himself to a penalty, or to impair or injure his civil rights by his testimony – or to proclaim his turpitude or immorality, can be considered as including within its purview, the precise case before us. They all, however, touch upon it, in a greater or less degree. With the exception of the second position, there is this strong difference, they are retrospective and refer to past conduct, whereas in the case now pending, if we decide that the witness shall testify, we prescribe a course of conduct by which he will violate his spiritual duties, subject himself to temporal loss, and perpetrate a deed of infamy. If he commits an offence against religion; if he is deprived of his office and of his bread, and thrown forlorn and naked upon the wide world, an object for the hand of scorn, to point its slow and moving finger at, we must consider that this cannot be done without our participation and coercion.

There can be no doubt but that the witness does consider, that his answering on this occasion, would be such a high handed offence against religion, that it would expose him to punishment in a future state – and it must be conceded by all, that it would subject him to privations and disgrace in this world. It is true, that he would not be obnoxious to criminal punishment, but the reason why he is excused where he would be liable to such punishment, applies with greater force to this case, where his sufferings would be aggravated by the compunctious visitings of a wounded conscience, and the gloomy perspective of a dreadfulhereafter; although he would not lose an estate, or compromit a civil right, yet he would be deprived of his only means of support and subsistence – and although he would not confess a crime, or acknowledge his infamy, yet he would act an offence against high heaven, and seal his disgrace in the presence of his assembled friends, and to the affliction of a bereaved church and a weeping congregation.

It cannot therefore, for a moment be believed, that the mild and just principles of the common Law would place the witness in such a dreadful predicament; in such a horrible dilemma, between perjury and false swearing: If he tells the truth he violates his ecclesiastical oath – If he prevaricates he violates his judicial oath – Whether he lies, or whether he testiffes the truth he is wicked, and its impossible for him to act without acting against the laws of rectitude and the light of conscience.

The only course is, for the court to declare that he shall not testify or act at all. And a court prescribing a different course must be governed by feelings and views very different from those which enter into the composition of a just and enlightened tribunal, that looks with a propitious eye upon the religious feelings of mankind, and which dispenses with an equal hand the universal and immutable elements of justice.

There are no express adjudications in the British courts applied to similar or analogous cases, which contradict the inferences to be drawn from the general principles which have been discussed and established in the course of this investigation: Two only have been pointed out as in any respect analogous, which we shall now proceed to consider.

In the case of Du Barre &c. (Peake’s cases at nisi prius 77) the following question was agitated, whether as the Defendant was a Frenchman who did not understand the English language and his attorney not understanding French was obliged to communicate with him by an interpreter, the interpreter ought to be permitted to give evidence, the Defendant’s Counsel contending that this was a confidence which ought not to be broken, Lord Kenyon decided that the interpreter should only reveal such conversation as he had with the Defendant in the absence of the attorney. Garrow for the Plaintiff, said that a case much stronger than this had been lately determined by Mr. Justice Buller, on the Northern Circuit. That was a case in which the life of the prisoner was at stake. The name of it was, The King, vs. Sparkes. There the prisoner being a Papist had made a confession before a Protestant Clergyman of the crime, for which he was indicted and that confession was permitted to be given in evidence on the trial, and he was convicted and executed. Lord Kenyon upon this remarked, “I should have paused before I admitted the evidence here admitted.”

The case referred to by Garrow, is liable to several criticisms and objections. In the first place it was stated by a Counsel in the cause, and is therefore liable to those errors and perversions which grow out of that situation. Secondly, it is the determination of a single Judge, in the hurry of a circuit, when a decision must be made promptly, without time for deliberation, or consultation, and without an opportunity for recurrence to books. Thirdly, it is virtually overturned by Lord Kenyon, who certainly censures it with as much explicitness as one Judge can impeach the decision of his colleague, without departing from judicial decorum. Fourthly, the depositary of the secret was a Protestant Clergyman, who did not receive it under the seal of a sacrament, and under religious obligations of secrecy, and would not, therefore, be exposed to ecclesiastical degradation and universal obloquy by promulgating it. – And lastly, the decision of Mr. Justice Buller, was, to say the least, erroneous; for when a man under the agonies of an afflicted conscience and the disquietudes of a perturbed mind, applies to a minister of the Almighty, lays bare his bosom filled with guilt, and opens his heart black with crime, and solicits from him advice and consolation, in this hour of penitence and remorse, and when this confession and disclosure may be followed by the most salutary effects upon the religious principles and future conduct of the penitent, and may open to him prospects which may bless the remnant of his life, with the soul’s calm sunshine and the heart-felt joy, without interfering with the interests of society, surely the establishment of a rule throwing all these pleasing prospects into shade, and prostrating the relation between the penitent and the comforter, between the votary and the minister of religion, must be pronounced a heresy in our legal code.

The other case was decided by Sir Michael Smith, Master of the Rolls of Ireland. On the 24th February, 1802, (2 M’Nally, 153) a bill was filed praying to be decreed the estates of the late Lord Dunboyce, by the heir at law, who alleged that the will, under which the Defendant claimed, was a nullity, as Lord Dunboyne having been a Popish Priest, and having conformed and relapsed to Popery, had no 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 following effect, were among 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 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 laws of the land to answer.

The Master of the Rolls determined against the demurrer; the reasons he assigns are loose and general, and very unsatisfactory, and the only authority cited by him in support of his decision, was that of Vaillant vs. Dodermead, reported in 2 Atkyns 524, which I shall now consider with a view of showing that there is no point of resemblance or analogy between that and the adjudication of the Master of the Rolls.

The Defendant in this case having examined Mr. Bristow, his Clerk in the Court, the Plaintiff exhibited interrogatories for cross-examining him, to which he demurred, for that he knew nothing of the several matters enquired of in the interrogatories, besides what came to his knowledge as clerk in court, or agent for the Defendant in relation to the matters in question in this cause. The Lord High Chancellor overruled the demurrer, and compelled him to answer for the following irresistible reasons. Because the matters enquired of were antecedent transactions to the commencement of the suit, the knowledge whereof, could not come to Bristow as clerk in court, or solicitor: because this was a cross-examination, and whenever a party calls upon his own attorney to testify, the other side may examine him: and because he states that he knew nothing but as clerk or agent. Now the word agent includes non-privileged as well as privileged persons. The only privileged persons are Counsellors, Solicitors and Attorneys;an agent may be a Steward or Servant.

What analogy can be traced between the cases? Did the Catholic Priest cloak himself under any generality or indefiniteness, or expression? Did he obtain any information from Lord Dunboyne previous to his acting as his confessor, or in any other capacity than as confessor? Was he called upon by the Defendant to testify, and in consequence thereof exposed to the cross-examination of the Plaintiff? Surely not. The case then relied upon, does in no respect, in no similitude of principle or resemblance of fact quadrate with the case adjudicated, or in any degree, or to any extent support it.

With those who have turned their attention to the history of Ireland, the decisions of Irish courts, respecting Roman Catholics, can have little or no weight.

That unfortunate country has been divided into two great parties, the oppressors and oppressed. The Catholic has been disfranchised of his civil rights, deprived of his inheritance, and excluded from the common rights of man; statute has been passed upon statute, and adjudication has been piled upon adjudication in prejudice of his religious freedom. The benign spirit of toleration, and the maxims of an enlightened policy, have recently ameliorated his condition, and will undoubtedly, in process of time, place him on the same footing with his Protestant brethren; but until he stands upon the broad pedestal of equal rights, emancipated from the most unjust thraldom, we cannot but look with a jealous eye upon all decisions which fetter him or rivet his chains.

But there is a very marked distinction between that case, and the case now under consideration. The Reverend Mr. Gahan did not pretend that he derived his information from Lord Dunboyne, in the way of a sacrament, but only as a confidential communication: he would not therefore be exposed by a promulgation, to degradation, breach of oaths, and a violation of his clerical duties. But the only imputation would be on his personal honor as a gentleman.

Penance implies contrition for a sin, confession of a sin, and satisfaction or reformation for a sin. Now can conversion to the church of Rome, in the eye of a Roman Catholic Layman, or a Roman Catholic Priest, require contrition, or confession, or reformation? And if it does not, a declaration of such conversion cannot be the sacrament of penance. In Gahan’s case there was no sacrament, or religious obligation of secrecy. In the case of Mr. Kohlmann there is the strongest that religion can impose, involving every thing sacred in this world and precious in that to come.

But this is a great constitutional question, which must not be solely decided by the maxims of the common law, but by the principles of our government: We have considered it in a restricted shape, let us now look at it upon more elevated ground; upon the ground of the constitution, of the social compact, and of civil and religious liberty.

Religion is an affair between God and man, and not between man and man. The laws which regulate it must emanate from the Supreme Being, not from human institutions. Established religions, deriving their authority from man, oppressing other denominations, prescribing creeds of orthodoxy, and punishing non-conformity, are repugnant to the first principles of civil and political liberty, and in direct collision with the divine spirit of christianity. Although no human legislator has a right to meddle with religion, yet the history of the world, is a history of oppression and tyranny over the consciences of men. And the sages who formed our constitution, with this instructive lesson before their eyes, perceived the indispensable necessity of applying a preventitive, that would forever exclude the introduction of calamities, that have deluged the world with tears and with blood, and the following section was accordingly engrafted in our state constitution:

“And whereas we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance, wherewith the bigotry and ambition of weak and wicked princes(*2) have scourged mankind, This convention doth further in the name, and by the authority of the good people of this state, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this state, to all mankind. Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.”

Considering that we had just emerged from a colonial state, and were infected with the narrow views and bigotted feelings, which prevailed at that time so strongly against the Roman Catholics, that a priest was liable to the punishment of death if he came into the colony, this declaration of religious freedom, is a wonderful monument of the wisdom, liberality, and philanthropy of its authors. Next to William Penn, the framers of our constitution were the first legislators who had just views of the nature of religious liberty, and who established it upon the broad and imperishable basis of justice, truth, and charity: While we are compelled to remark that this excellent provision was adopted by a majority of one, it is but proper to say, that the colonial statute against Roman Catholic Priests, originated more from political than religious considerations. The influence which the French had over the six nations, the Iroquois, and which was exercised to the great detriment of the British colonies, was ascribed to the arts and management of the Jesuits, and it was therefore, in violation of all respect for the rights of conscience, deemed of essential importance to interpose the penalty of death against their migration into the colony.

A provision conceived in a spirit of the most profound wisdom, and the most exalted charity, ought to receive the most liberal construction. Although by the constitution of the United States, the powers of congress do not extend beyond certain enumerated objects; yet to prevent the danger of constructive assumptions, the following amendment was adopted: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In this country there is no alliance between church and state; no established religion; no tolerated religion – for toleration results from establishment – but religious freedom guaranteed by the constitution, and consecrated by the social compact.

It is essential to the free exercise of a religion, that its ordinance should be administered – that its ceremonies as well as its essentials should be protected. The sacraments of a religion are its most important elements. We have but two in the Protestant Church – Baptism and the Lord’s Supper – and they are considered the seals of the covenant of grace. Suppose that a decision of this court, or a law of the sate should prevent the administration of one or both of these sacraments, would not the constitution be violated? Every man who hears me will answer in the affirmative. Will not the same result follow, if we deprive the Roman catholic of one of his ordinances? Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance; and this important branch of the Roman catholic religion would be thus annihilated.

It has been contended that the provision of the constitution which speaks of practices inconsistent with the peace or safety of the state, excludes this case from the protection of the constitution, and authorizes the interference of this tribunal to coerce the witness. In order to sustain this position, it must be clearly made out that the concealment observed in the sacrament of penance, is a practice inconsistent with the peace or safety of the state.

The Roman catholic religion has existed from an early period of christianity – at one time it embraced almost all Christendom, and it now covers the greater part. The objections which have been made to penance, have been theological, not political. The apprehensions which have been entertained of this religion, have reference to the supremacy, and dispensing power, attributed to the bishop of Rome, as head of the catholic church – but we are yet to learn, that the confession of sins has ever been considered as of pernicious tendency, in any other respect than it being a theological error – or its having been sometimes in the hands of bad men, perverted to the purposes of peculation, an abuse inseparable from all human agencies.

The doctrine contended for, by putting hypothetical cases, in which the concealment of a crime communicated in penance, might have a pernicious effect, is founded on false reasoning, if not on false assumptions: To attempt to establish a general rule, or to lay down a general proposition from accidential circumstances which occur but rarely, or from extreme cases, which may sometimes happen in the infinite variety of human actions, is totally repugnant to the rules of logic and the maxims of law. The question is not, whether penance may sometimes communicate the existence of an offence to a priest, which he is bound by his religion to conceal, and the concealment of which, may be a public injury, but whether the natural tendency of it is to produce practices inconsistent with the public safety or tranquillity. There is in fact, no secret known to the priest, which would be communicated otherwise, than by confession – and no evil results from this communication – on the contrary, it may be made the instrument of great good. The sinner may be admonished and converted from the evil of his ways: Whereas if his offence was locked up in his own bosom, there would be no friendly voice to recall him from his sins, and no paternal hand to point out to him the road to virtue.

The language of the constitution is emphatic and striking, it speaks of acts of licentiousness, of practices inconsistent with the tranquillity and safety of the state; it has reference to something actually, not negatively injurious. To acts committed, not to acts omitted – offences of a deep dye, and of an extensively injurious nature: It would be stretching it on the rack so [to] say, that it can possibly contemplate the forbearance of a Roman catholic priest, to testify what he has received in confession, or that it could ever consider the safety of the community involved in this question. To assert this as the genuine meaning of the constitution, would be to mock the understanding, and to render the liberty of conscience a mere illusion. It would be to destroy the enacting clause of the proviso – and to render the exception broader than the rule, to subvert all the principles of sound reasoning, and overthrow all the convictions of common sense.

If a religious sect should rise up and violate the decencies of life, by practicing their religious rites, in a state of nakedness; by following incest, and a community of wives. If the Hindoo should attempt to introduce the burning of widows on the funeral piles of their deceased husbands, or the Mahometan his plurality of wives, or the Pagan his bacchanalian orgies or human sacrifices. If a fanatical sect should spring up, as formerly in the city of Munster, and pull up the pillars of society, or if any attempt should be made to establish the inquisition, then the licentious acts and dangerous practices, contemplated by the constitution, would exist, and the hand of the magistrate would be rightfully raised to chastise the guilty agents.

But until men under pretence of religion, act counter to the fundamental principles of morality, and endanger the well being of the state, they are to be protected in the free exercise of their religion. If they are in error, or if they are wicked, they are to answer to the Supreme Being, not to the unhallowed intrusion of frail fallible mortals.

We speak of this question, not in a theological sense, but in its legal and constitutional bearings. Although we differ from the witness and his brethren, in our religious creed, yet we have no reason to question the purity of their motives, or to impeach their good conduct as citizens. They are protected by the laws and constitution of this country, in the full and free exercise of their religion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences.

There being no evidence against the Defendants, they were acquitted.

Hoffman (Recorder), Douglass and Cunningham (Aldermen), concur.

Both the Mayor and the Recorder were members of the Court trying Daniel and Mary Phillips although Chapter 10 of the Laws of 1787, required that only one of them need be present. The reporter noted that this unusual procedure was followed “on account of the importance of the case.”

 


(*1) Not officially reported, but set forth by the attorney who participated in the case as amicus curiae, and later reprinted in 1 Western Law Journal 109 (1843). The original records of the case are on display in the library of the Court of General Sessions of the County of New York.

(*2) The constitutional provision is incomplete as set forth herein and should read: “wherewith the bigotry and ambition of weak and wicked priests and princes . . . .” N.Y. Const., Art. XXXVIII (1777) (emphasis suppled).