The Catholic Thing
Protecting “Auricular Confession” and Religious Freedom Print E-mail
By Brad Miner   
Monday, 24 March 2014

This story begins during an interregnum.

The very first man appointed in 1808 to serve as bishop in the newly created diocese of New York never set foot in America. Somewhat in a rush, Pius VII chose R. Luke Concanen, shortly before Napoleon’s army captured the pope and sent him into exile. (It was from this same pope that Napoleon had snatched the proffered imperial crown to place upon his own head.)

Upon Concanen’s death, his sometime friend and antagonist, John Connolly, like Concanen an Irish Dominican long living in Rome, was designated for New York, but – the Napoleonic Wars having just ended – he did not arrive in Manhattan until 1815.

Archbishop John Carroll of Baltimore was unhappy about the pope’s decision to name two men for New York who had no practical experience in the United States, but in this he had no one to blame but himself. He had suggested the establishment of four new American dioceses and had provided candidates (all approved by the pope) for Boston, Philadelphia, and Bardstown, but he knew no one up to the task in New York. So he thought it best – for the time being – that New York diocese be governed from Boston.

Carroll’s hesitance is perplexing. In order to begin to prepare New York for it’s first bishop, he sent a delegation of his brother Jesuits to New York led by a man who may well have been the best episcopal candidate in America: Fr. Anthony Kohlmann. Kohlmann, Alsatian by birth, would go on to become president of Georgetown College and then a professor at the Gregorian University in Rome, where his prize pupil was Gioacchino Pecci, the future Pope Leo XIII.

But in 1813, while still in New York (and still awaiting a bishop), Kohlmann was involved in a celebrated case in American law, one epochal for Catholics, and an early demonstration of the nation’s commitment to religious freedom.

Catholics in New York, almost all immigrants, were rising in numbers and esteem, but suspicion remained about “papist” practices. So when a Catholic man, Daniel Philips, came to the confessional at St. Peter’s, New York’s first Catholic church, and told Fr. Kohlmann that he had received some stolen jewels – he even brought the booty with him – and after Fr. Kohlmann took those jewels and returned them to the victim (another St. Peter’s parishioner, James Keating), the stage was set for a dramatic confrontation between Church and State.

Having been made whole by Fr. Kohlmann’s restitution, Keating went to the police to let them know they could drop the case. But restitution does not erase the crime and the police demanded that Keating identify the person who returned his property. And Keating admitted it was his church’s rector.

Now official attention fell upon Kohlmann – first in police interrogation, then in a grand jury proceeding, and finally in Manhattan’s Court of General Sessions.

But before the criminal trial began, testimony from others revealed the names of two men who had actually stolen the jewels, and, from their confessions, the name of Philips, so the prosecutor was willing separate Fr. Kohlmann from the case.

Mr. William Sampson, Esq.

The good priest was relieved – until, that is, he met with the trustees of St. Peter’s, some of whom were lawyers. They saw an opportunity in People v. Philips to establish a legal precedent and convinced Kohlmann to give testimony that enabled him to refuse in court to reveal the name of Philips. There was a charade concerning contempt of court, but what the judges, prosecutor, defense attorneys, and church trustees – everyone really except the thieves and poor Mr. Philips – were after was a decision about the inviolability of words heard by a priest in the Sacrament of Penance.

A defense counsel in the case was a Protestant lawyer named William Sampson, who immediately after the conclusion of the trial wrote an account of the case under the splendid title, The Catholic Question in America: Whether a Roman Catholic Clergyman be in any case compellable to disclose the secrets of Auricular Confession. Mr. Sampson was an Irish immigrant with a remarkable history of his own that included imprisonment and exile from England and Ireland for having defended Irish Catholics against persecution and discrimination.

The presiding member of the court was then-mayor De Witt Clinton, who had served in the U.S. Senate and would later become New York’s sixth governor.

Mr. Sampson successfully argued that if the tenets of a religion cannot be freely and wholly practiced, then the religion cannot be practiced, period. “The people of whose will [the Constitution] speaks,” he told the court, “were not of any one church but of many and various sects all of whom had suffered more or less in Europe for their religious tenets, and many. . .had unrelentingly persecuted each other.” He continued:

The Catholics, it is true, bore the hardest burden of all, but the others would be very sorry, I believe, to put aside our Constitution and resume their ancient condition. And God forbid it should be so.

In the court’s unanimous decision, Mayor Clinton wrote:

It is essential to the free exercise of a religion, that its ordinances should be administered – that its ceremonies as well as its essentials should be protected. 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 . . .
This was the first legal affirmation of confessional privilege in American history.

In a later case, People v. Smith (1817), a Staten Island court found that the right to such privileged communication did not extend to Protestant clergy, since no actual sacrament of penance exists in Protestantism.

But the Smith case led to a New York law protecting all communication of a spiritual nature between clergy and penitents.

Let’s hope that this past will be prolog to a recommitment to religious liberty in our time.

Brad Miner is senior editor of The Catholic Thing, senior fellow of the Faith & Reason Institute, and a board member of Aid to the Church In Need USA. He is the author of six books and is a former Literary Editor of National Review. His book, The Compleat Gentleman, read by Christopher Lane, is available on audio.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (12)Add Comment
written by Myshkin, March 24, 2014
Alas, Mr. Miner the "past is prologue" comes from the scoundrel Antonio's lips as part of a diabolical plot to get the weak Sebastien to murder his brother and liege. In the Tempest, it is part of the "big lie" the play's villain tells.

Nowadays we are faced with a different "big lie": that of a federal judiciary that believes it can redefine the past to fabricate privacy rights, same-sex rights, even animal rights, all of which threaten to trump the right to free exercise of religion. We have no wise Prospero whose magic will defang the lie, instead we are at best Gonzalos, mocked and threatened for seeking good.

Will these petty-tyrant federal judges have regard for the legal precedents you narrate, or will they, like Antonio, continue to tell the big lie?
written by Michael Paterson-Seymour, March 24, 2014
Here in Scotland, confessions to a clergyman have always been privileged from disclosure. However, Fr. Kohlmann’s case would appear to go to the very limit of that privilege, if not beyond, by his actually taking possession of the stolen goods. I believe that here, whilst he could not be asked about the confession itself, he could certainly be asked who gave them to him and what he did with them.
The decision in People v Philips is a very generous one indeed.
written by Jack,CT, March 24, 2014
A very enjoyable piece and a good reminder
of how "The persecuted Church" has had to
claw our way to our current freedoms.

Thank the Lord at the time The Sacrament
(Importance) was considered so heavily.

written by Dennis Larkin, March 24, 2014
When one confesses anonymously, this threat to priests should be nullified. A priest cannot identify someone whose identity is not known.
written by Thomas A. Szyszkiewicz, March 24, 2014
Dennis Larkin, while the confessional may make the penitent unseen to the priest, that does not mean that the penitent is unknown to the priest. Hence, assuming Mr. Philips was a parishioner of St. Peter's and a regular attendant there, one can safely assume that Father Kohlmann knew who it was by recognizing his voice. And also presumably, he saw his face as he handed him the jewels.
written by Michael, Illinois, March 24, 2014
The violation of American's religous freedom is only the clearest and most obvious assault on the U.S. Constitution by government at all levels and all branches. Unless the American people don't soon wake up and restore the Nation to what the founders clearly envisioned, we will have no Constitution to whuch to turn nor freedoms to protect.

We must remember that we are only as far from a dictatorship as the honesty and integrity of those in power. And the current administration more than adequately proves this point.

Yet, if we look at the bigger picture, what we see happening in Anerica (and around the world) since the 1960s is obviously an offensive by the minions of satan to destroy our morals, values and the relugions that adhere to them. I am reading a very well researched book, "The Marketing of Evil" that exposes the very successful tactic being used to undermine the America of the "greatest generation" and before by appealing to our sense of justice and fair play (and distorting what tgey really mean). I highly recommend the book to everyone, especially those concerned with the directionAmerica is heading.
written by Deacon Ed Peitler, March 24, 2014
I cannot see how Mr Philips was absolved from his sin since he did not execute the restitution of the jewels. Giving the jewels to Fr Kohlmann to return did not satisfy what was required of him since Fr Kohlmann was not the one who stole them in the first place. Suppose Fr. Kohlmann was a thief and kept the jewels for himself and then denied ever having received them, explaining that he could never divulge anything that was revealed to him in confession? If Mr Philips as the agent of the theft had made the required restitution himself, the entire issue would not even have reached the level of judicial inquiry.

I also think about the issue that arose among the clergy over the past 25 years - that of child sexual abuse. If bishops, when allegations surfaced of an incident that was potentially a criminal offense, immediately had referred that matter to civil officials, we would all have been spared much of what ensued.

It's a matter of doing what's proper to one's role. Receiving stolen goods is not proper to the role of a confessor. Adjudicating potential crimes committed by the clergy is not the purview of bishops.
written by Ted Seeber, March 24, 2014
Not a chance. I don't see any possibility of a democracy consisting of 20% atheists addicted to using government to promote "Good without God" and "religion should be private" continuing to allow anything close to religious liberty.
written by Layman Tom, March 24, 2014

Great story! Thank you for the history lesson.

Not sure whose words are these: "If the tenets of a religion cannot be freely and wholly practiced, then the religion cannot be practiced, period."

If they be yours, well done sir. If they belong to Mr. Sampson, he was a prescient individual. Either way, that one powerful, concise sentence just about sums up the battle ahead. Wouldn't you say?

It seems that gentlemen of that age were gifted with extraordinary powers to frame arguments in clear and stark language. Would that the above sentence be placed alongside another beginning “When in the course of human events…” I don’t believe it would suffer greatly by the comparison.

written by Athanasius, March 24, 2014
Here is the struggle I have with Freedom of Religion as an absolute. It works beautifully for a religion that is based on natural law, but it breaks down with religions that do not. For example, Islam will abuse religious freedom to do bad things, such as oppress women. America was founded by a Christian mindset that presumes people know natural law. But should we allow actions that counter natural law if the actor claims it is his religious belief? I can't accept that, not when I see some of the horrific things that Muslims do to women and girls.
written by Seanachie, March 24, 2014
Fr. Bramwell's article yesterday and yours today, Brad, are clear warnings regarding the fragility of religious freedom in the U.S. today. Cardinal Raymond Burke, former archbishop of St. Louis, MO and current Vatican chief justice, commented in a recent interview with Polonia Christiana that Obama “promotes anti-life and anti-family policies” and "wants to restrict the exercise of the freedom of religion to freedom of worship." What is truly regrettable is that Obama is joined in these efforts by a cast of politically prominent nominal Catholics including Biden, Pelosi, Sebelius, Durbin, the Cuomo's, et al. To your hope that the past will be prolog to recommitment, Cardinal Burke said, "It is my hope that more and more of my fellow citizens, as they realize what is happening, will insist on electing leaders who respect the truth of the moral law as it is respected in the founding principles of our nation.” It will be interesting to read about Obama and Pope Francis' discussion during their upcoming visit.
written by rewinn, March 24, 2014
At the Founding of our Republic, corporations had no religion. Indeed there were few corporations at all. The most noteworthy cases likely to go to our Supreme Court concern the religious rights of corporations, which quite properly should be laughed out of court, unless of course some religious should agree to baptize them.

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