Protecting “Auricular Confession” and Religious Freedom

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 the Senior Editor of The Catholic Thing and a Senior Fellow of the Faith & Reason Institute. He is a former Literary Editor of National Review. His most recent book, Sons of St. Patrick, written with George J. Marlin, is now on sale. His The Compleat Gentleman is now available in a third, revised edition from Regnery Gateway and is also available in an Audible audio edition (read by Bob Souer). Mr. Miner has served as a board member of Aid to the Church In Need USA and also on the Selective Service System draft board in Westchester County, NY.