#### Commonwealth *versus*Alpheus Drake.

The confessions of a party, voluntarily made to members of the same church, may be given in evidence, on his trial, for the crime or misdemeanor so confessed by him.

The defendant was indicted, under the statute of 1784, c. 40, for an act of open and- gross lewdness; and was tried and convicted, at the last May term, in this county. After the verdict, a new trial was moved for, on the ground, among other things, that evidence had been given of the confessions of the defendant, which had been made by him, as penitential confessions, to the witnesses, as members of a church of which the defendant was also a member, and none but church members having been present at such communications. The indictment was continued to this term for the consideration of the motion ; and now

*Fessenden*and *Davis*

contended that it was against the ecclesiastical discipline of our churches, and in some shape an infringement of the rights of conscience, to make use of confessions, made under these circumstances, to produce the conviction of the offender in a temporal court. It is held to be a duty incumbent on church members to confess their faults to each other. This, it is true, may be considered as, in some measure, the voluntary act of the party; but, in a theological view, he is obliged in conscience to perform it. It is enjoined upon him *pro solute animi.*It is held to be the duty of a member of a church to answer to all inquiries of his brethren respecting any evil reports touching his character or conduct. If he refuses, he is punishable, by the ecclesiastical tribunals, for contumacy. If the church has a right to make the inquiry, the party is bound to * answer truly; and by complying with this obligation, which is binding on his conscience, he ought not to be exposed to temporal punishment. The discipline of our churches is one main support of the public morals ; and courts of law will be very cautious of interfering with it — especially in a way which tends directly to prevent what is considered by them as one of its most wholesome provisions.

*Davis*(Solicitor-General)

insisted that no legal or constitutional principle was violated by the admission of the evidence objected to. The declaration of rights has, provided that no subject shall be compelled to accuse or furnish evidence against himself. Here was no compulsion. The confession was purely voluntary. The defendant called his friends to receive it. As it was penitential, it must be believed to have been sincere, and therefore credible. Those who heard it were bound, as good citizens, to make it known to the *150appointed guardians of the public morals, and to testify to it, when legally called upon. A principal object in all criminal prosecutions is the reformation of the offender; and in this way the temporal courts come in aid of the discipline of the churches, and may be said, like them, to act *pro salute animi.*But the confession, in this case, was not to the church, nor required by any known ecclesiastical rule. It was made to his friends and neighbors, without any requisition, or even solicitation, on their parts.

*The Court*

having taken time to consider the grounds of the motion for a new trial, the chief justice observed that none of them appeared sufficient to support the motion, which was overruled, and the defendant was sentenced, *(a)*

(a)

**Confessions made to a clergyman or priest, for the sake of easing the culprit’s conscience, may be given in evidence.— *Peake, Ev.*253, *Am.*from 5th *Lond.*ed.— In the case of *Rex*vs. *Gillian,*very lately reserved for the opinion of the twelve judges, and argued before them in Easter term, 1828, the prisoner had been tried and convicted for murder, principally upon the evidence of his own confessions to the jailer and the mayor. These confessions the prisoner had been induced to make by the previous exertion of religious persuasion on the part of the chaplain of the jail, and under the influence of His representations of the Christian necessity and benefit of confessing. The judges were of opinion that the confessions had been properly received, and that the conviction was right — principally upon the ground, it is understood, that there were no temporal hopes of benefit or forgiveness held out, and that such hopes, if referable merely to a future state of existence, are not within the principle on which the rule for excluding confessions, obtained by improper influence, is founded. — 2 *Russ. on Cr.*648, 2d *Lond.*ed. — Sed vide *Smith's*case, *New York City Hall*Recorder, vol. ii. p. 77. — As to confessions generally, see 2 *Russell, 644.-Achb. Pl. & Ev. Crim. Cases,*108, 4th *Lond.*ed.— *Commonwealth*vs. *Knapp,*9 *Pick.*496.