Priest–penitent privilege in France and the western portion of Europe received public recognition at a very early date owing to the perceived sacredness of the Seal of the Confessional.
History
Early writings Among the Capitularies of Charlemagne, the first capitulary of the year 813 demands:
... that inquiry shall be made whether what is reported from Austrasia (Austria) [de partibus Austriæ] is true or not, viz., that priests, for reward received, make known thieves from their confessions [quod presbyteri de confessionibus accepto pretio manifestent latrones]. The "Austrasia - Austria" here referred to is the eastern part of the old Western Empire, then called Austria. In France it was an established principle not only that a confessor could not be examined in a court of justice as to matters revealed to him in confession, but that admissions made in confession, if disclosed, might not be received or acted upon by the court and would not be evidence. Merlin(see Talk:Priest-penitent privilege in France#Merlin) and Guyot(see Talk:Priest-penitent privilege in France#Guyot), distinguished writers on French jurisprudence, cite a decree of the Parliament of Normandy deciding the principle and laying down that a person charged upon the evidence of a confession cannot be convicted and must be discharged. They cite decrees of other Parliaments laying down the sacredness of the seal of confession. Among others, they cite a decree of the Parlement of Paris in 1580, that a confessor could not be compelled to disclose the accomplices of a certain criminal, whose names the criminal had confessed to him when going to the scaffold. These decrees were judicial. The appellant's counsel in the Quebec case of Gill v. Bouchard, yields much valuable information on the French law upon the subject. In that argument there is cited a decree by the Parliament of Flanders in 1776 declaring that the evidence of a witness who repeated a confession which he had overheard was not admissible, and reversing the judgment which had been passed on the admission of such evidence. Charles Muteau, another distinguished French jurist, speaks in clear and emphatic terms of the sacredness of the seal, citing, also, various instances in proof. He tells us in a foot-note of a certain Marquise de Brinvilliers, among whose papers, after she had been arrested, was found a general confession (apparently made in pursuance of religious discipline) accusing herself of an attempt to murder various members of her family. The court trying her, he says, absolutely ignored this confession: Muteau gives us a quotation from rodius in Pandect f.73, in which rodius says:
The man who has confessed to a priest is not held to have confessed. In Bonino's Case, which is cited in the course of the appellant's argument in Gill v. Bouchard as having been decided by the Court of Cassation of Turin (at that time part of the French Empire) in February 1810, and as being reported in the Journal du Palais périodique, VIII, 667, the court is reported to have decided that an open avowal made by a penitent in consequence of his being counselled in confession to make such avowal ought not to be received in evidence against him. Merlin and Muteau tell us that formerly the breach of the seal by a priest was punishable with death. Guyot says that canonists are not agreed as to whether the breach is an offence recognizable by the civil courts [si c'est un délit commun ou un cas royal], but that several canonists maintain that the civil judges ought to have cognizance of it. This appears to be his own view because the breach is a grave crime against religion and society, a public scandal, and a sacrilege. He cites, however, a decree of the Parlement of Toulouse of 16 February 1679, deciding that the cognizance of the offence belonged to the ecclesiastical judge.
High treason All these three writers except from the general inviolability of the seal the single case of high treason, that is, an offence against the person of the king or against the safety of the State. Merlin and Guyot, appear to base their authority for this exception on a statement by Laurent Bouchel (1559–1629), a distinguished French advocate who practised before the French Parliament. He was also an expert in canon law and he wrote a work on the Decrees of the Gallican Church. They cite Bouchel as stating that:
...on account of the gravity and importance of the crime of high treason the confessor is excused if he reveals it that he [Bouchel] does not know if one ought to go further and say that the priest who may have kept such a matter secret and not have denounced it to the magistrate would be guilty and would be an accomplice; that one cannot doubt that a person who is informed of a conspiracy against the person and estate of the prince would be excommunicated and anathematized if he did not denounce it to the magistrate to have it punished. It is to be noticed that this statement by Bouchel, as cited by Merlin and Guyot, does not mention any decree or decision or any other authority supporting it. Muteau, in excepting high treason, appears to base the exception mainly upon a decree of Louis XI, of 22 December 1477, enjoining "upon all persons whatsoever" to denounce certain crimes against the safety of the State and the person of the king which might come to their knowledge. He says that the theologians have invariably maintained that confessors were not included among persons bound to reveal high treason. Muteau points out, also, that the Inquisition itself uniformly laid down that "never, in no interest," should the seal of confession be violated.
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