Priest-penitent privilege in France
Encyclopedia
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.
, the first capitulary of the year 813
demands:
The "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 Parliament
s laying down the sacredness of the seal of confession. Among others, they cite a decree of the Parliament 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:
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 Parliament of Toulouse
of 16 Feb., 1679, deciding that the cognizance of the offence belonged to the ecclesiastical judge.
, 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:
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.
in his learned and comprehensive work on jurisprudence, in which the whole of French law is compiled and commented on under the numerous subjects affected by it, says that as the laws of France (his work was published in 1853, when he was an advocate practising at the imperial Court of Paris
) protect the rules of ecclesiastical discipline, they could not exact from the clergyman, in breach of these rules, the disclosure of secrets revealed to him in the exercise of his ministry. Citing the canon of the Fourth Lateran Council enjoining the secrecy of the seal, which, he tells us, only reproduces an older rule going back to the year 600
, he observes that the inviolability declared by it is absolute and without distinction.
The decision of the Court of Cassation
in Laveine's Case (30 Nov., 1810, Recueil général des lois et des arrêts, XI, i, 49) affords support, not by the actual decision, but by certain words used in it, to the contention for the exception of high treason, while the actual decision is commonly cited as one of the leading judicial authorities for the general principle of the immunity of the confessor. It was a case in which restitution had been made by a thief through a priest outside confession, the thief, however, stating at the time that he regarded the conversation as being to his confessor and as made under the seal of confession, to which the priest assented. The court of first instance held that only a communication received in sacramental confession would be privileged and that, therefore, the priest was bound in this case to disclose the name of the thief. The Court of Cassation reversed this decision. Its judgment commences with a reference to the existence of the Concordat of 1801
and to the result that the Catholic religion is placed under the protection of the State, and it goes on to say that a confessor may not be ordered to disclose secret communications made to him in the exercise of his calling, "excepting those cases which appertain directly to the safety of the State" [hors les cas qui tiennent immédiatement à la sûreté de l'état]. Commenting on these words, Dalloz says that the jurist, Jean Marie Emmanuel Legraverend (1776–1827), admits the exception. Dalloz appears not to agree with it:
The exception, mentioned in the article, of persons obliged by law to be informers, as pointed out by Dalloz, became obsolete because Arts 103–107, which dealt with the obligation of informing, were repealed by the law of 28 April 1832. Dr. H. F. Rivière, counsellor to the Court of Cassation, in his edition of the French Codes (Code Pénal, p. 68) has a note to that effect. Armand Dalloz, the brother and collaborator of the author of the Jurisprudence générale, says in another work:
The same writer says that the exception of the confessor is deduced from the principle of Art. 378, from the needs of the soul
and, above all, from the laws which have recognized the Catholic religion. He continues:
In Fay's Case [(Dec. 4, 1891), Receuil général des lois et des arrêts, 1892, 1, 473] the Court of Cassation held that the ministers of religions legally recognized are obliged to keep secret communications made to them by reason of their functions; and that with regard to priests no distinction is made as to whether the secret is made known in confession or outside it, and the obligation of secrecy is absolute and is a matter of public policy. The annotator of the report begins his notes by saying that it is a universally admitted point that the exemption from giving evidence is necessarily extended to priests with regard to the matters confided to them in confession. He cites, among other cases, one of the Court of Cassation in Belgium
declaring that there has never been any doubt that priests are not bound to disclose confessions in the witness box
. The Concordat of 1801 was abrogated by the 1905 French law on the separation of Church and State
. However, some terms of the Concordat are still in effect in the Alsace-Moselle
region, as it was controlled by the German Empire
at the time of the law's passage and today maintains a specific local law. The Catholic religion being no longer established in France under the auspices of the State, part of the grounds adduced for some of the decisions cited above cease to hold good. The 1810 Penal Code was superseded by a new Penal Code in 1994.
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and the western portion of Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
received public recognition at a very early date owing to the perceived sacredness of the Seal of the Confessional.
Early writings
Among the Capitularies of CharlemagneCharlemagne
Charlemagne was King of the Franks from 768 and Emperor of the Romans from 800 to his death in 814. He expanded the Frankish kingdom into an empire that incorporated much of Western and Central Europe. During his reign, he conquered Italy and was crowned by Pope Leo III on 25 December 800...
, the first capitulary of the year 813
813
Year 813 was a common year starting on Saturday of the Julian calendar."813" may also refer to a duology of novels by Maurice Leblanc, starring his gentleman thief Arsène Lupin.- Byzantine Empire :...
demands:
The "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
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, 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 Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
s laying down the sacredness of the seal of confession. Among others, they cite a decree of the Parliament 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
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
various members of her family. The court trying her, he says, absolutely ignored this confession: Muteau gives us a quotation from rodius in Pandect
Pandects
The Digest, also known as the Pandects , is a name given to a compendium or digest of Roman law compiled by order of the emperor Justinian I in the 6th century .The Digest was one part of the Corpus Juris Civilis, the body of civil law issued under Justinian I...
f.73, in which rodius says:
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
Court of Cassation (France)
The French Supreme Court of Judicature is France's court of last resort having jurisdiction over all matters triable in the judicial stream but only scope of review to determine a miscarriage of justice or certify a question of law based solely on points of law...
of Turin
Turin
Turin is a city and major business and cultural centre in northern Italy, capital of the Piedmont region, located mainly on the left bank of the Po River and surrounded by the Alpine arch. The population of the city proper is 909,193 while the population of the urban area is estimated by Eurostat...
(at that time part of the French Empire
First French Empire
The First French Empire , also known as the Greater French Empire or Napoleonic Empire, was the empire of Napoleon I of France...
) 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 Parliament of Toulouse
Parliament of Toulouse
The Parlement of Toulouse was one of the parlements of ancien regime France, modeled on the Parlement of Paris. It was first created in 1420, but definitely established by edicts in 1437 and 1443 by Charles VII as an appellate court of justice on civil, criminal and ecclesiastic affairs for the...
of 16 Feb., 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 treasonHigh treason
High treason is criminal disloyalty to one's government. Participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state are perhaps...
, 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
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
and he wrote a work on the Decrees of the Gallican Church
Gallican Church
The Gallican Church was the Catholic Church in France from the time of the Declaration of the Clergy of France to that of the Civil Constitution of the Clergy during the French Revolution....
. They cite Bouchel as stating that:
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
Louis XI of France
Louis XI , called the Prudent , was the King of France from 1461 to 1483. He was the son of Charles VII of France and Mary of Anjou, a member of the House of Valois....
, 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
Inquisition
The Inquisition, Inquisitio Haereticae Pravitatis , was the "fight against heretics" by several institutions within the justice-system of the Roman Catholic Church. It started in the 12th century, with the introduction of torture in the persecution of heresy...
itself uniformly laid down that "never, in no interest," should the seal of confession be violated.
Dalloz
Désiré DallozDésiré Dalloz
Désiré Dalloz was a French jurist, politician and publisher.Born in Septmoncel, Jura, he pursued the profession of an advocate. He was admitted to the bar of the Cour royale in 1817, and practiced law before the French high courts from 1823 to 1836. His oral arguments were reproduced in legal...
in his learned and comprehensive work on jurisprudence, in which the whole of French law is compiled and commented on under the numerous subjects affected by it, says that as the laws of France (his work was published in 1853, when he was an advocate practising at the imperial Court of Paris
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...
) protect the rules of ecclesiastical discipline, they could not exact from the clergyman, in breach of these rules, the disclosure of secrets revealed to him in the exercise of his ministry. Citing the canon of the Fourth Lateran Council enjoining the secrecy of the seal, which, he tells us, only reproduces an older rule going back to the year 600
600
Year 600 was a leap year starting on Friday of the Julian calendar. The denomination 600 for this year has been used since the early medieval period, when the Anno Domini calendar era became the prevalent method in Europe for naming years.- Europe :* Smallpox arrives in Europe for the first...
, he observes that the inviolability declared by it is absolute and without distinction.
The decision of the Court of Cassation
Court of Cassation (France)
The French Supreme Court of Judicature is France's court of last resort having jurisdiction over all matters triable in the judicial stream but only scope of review to determine a miscarriage of justice or certify a question of law based solely on points of law...
in Laveine's Case (30 Nov., 1810, Recueil général des lois et des arrêts, XI, i, 49) affords support, not by the actual decision, but by certain words used in it, to the contention for the exception of high treason, while the actual decision is commonly cited as one of the leading judicial authorities for the general principle of the immunity of the confessor. It was a case in which restitution had been made by a thief through a priest outside confession, the thief, however, stating at the time that he regarded the conversation as being to his confessor and as made under the seal of confession, to which the priest assented. The court of first instance held that only a communication received in sacramental confession would be privileged and that, therefore, the priest was bound in this case to disclose the name of the thief. The Court of Cassation reversed this decision. Its judgment commences with a reference to the existence of the Concordat of 1801
Concordat of 1801
The Concordat of 1801 was an agreement between Napoleon and Pope Pius VII, signed on 15 July 1801. It solidified the Roman Catholic Church as the majority church of France and brought back most of its civil status....
and to the result that the Catholic religion is placed under the protection of the State, and it goes on to say that a confessor may not be ordered to disclose secret communications made to him in the exercise of his calling, "excepting those cases which appertain directly to the safety of the State" [hors les cas qui tiennent immédiatement à la sûreté de l'état]. Commenting on these words, Dalloz says that the jurist, Jean Marie Emmanuel Legraverend (1776–1827), admits the exception. Dalloz appears not to agree with it:
Article 378
By Art. 378 of the Code pénal impérial français, the French Penal Code promulgated in 1810:The exception, mentioned in the article, of persons obliged by law to be informers, as pointed out by Dalloz, became obsolete because Arts 103–107, which dealt with the obligation of informing, were repealed by the law of 28 April 1832. Dr. H. F. Rivière, counsellor to the Court of Cassation, in his edition of the French Codes (Code Pénal, p. 68) has a note to that effect. Armand Dalloz, the brother and collaborator of the author of the Jurisprudence générale, says in another work:
The same writer says that the exception of the confessor is deduced from the principle of Art. 378, from the needs of the soul
Soul
A soul in certain spiritual, philosophical, and psychological traditions is the incorporeal essence of a person or living thing or object. Many philosophical and spiritual systems teach that humans have souls, and others teach that all living things and even inanimate objects have souls. The...
and, above all, from the laws which have recognized the Catholic religion. He continues:
In Fay's Case [(Dec. 4, 1891), Receuil général des lois et des arrêts, 1892, 1, 473] the Court of Cassation held that the ministers of religions legally recognized are obliged to keep secret communications made to them by reason of their functions; and that with regard to priests no distinction is made as to whether the secret is made known in confession or outside it, and the obligation of secrecy is absolute and is a matter of public policy. The annotator of the report begins his notes by saying that it is a universally admitted point that the exemption from giving evidence is necessarily extended to priests with regard to the matters confided to them in confession. He cites, among other cases, one of the Court of Cassation in Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
declaring that there has never been any doubt that priests are not bound to disclose confessions in the witness box
Witness box
A witness box is part of a courtroom. It is the section of the room set aside for witnesses to stand or sit in while giving their testimony or presenting evidence. In U.S. English, it is known as the witness stand or merely the stand....
. The Concordat of 1801 was abrogated by the 1905 French law on the separation of Church and State
1905 French law on the separation of Church and State
The 1905 French law on the Separation of the Churches and State was passed by the Chamber of Deputies on 9 December 1905. Enacted during the Third Republic, it established state secularism in France...
. However, some terms of the Concordat are still in effect in the Alsace-Moselle
Alsace-Moselle
The territory of the former Alsace-Lorraine, commonly known as Alsace-Moselle, is a region in the eastern part of France, bordering with Germany. Its principal cities are Metz and Strassburg. Alsace-Moselle was part of the German Empire from 1871 to 1918, and again from 1940 until its liberation by...
region, as it was controlled by the German Empire
German Empire
The German Empire refers to Germany during the "Second Reich" period from the unification of Germany and proclamation of Wilhelm I as German Emperor on 18 January 1871, to 1918, when it became a federal republic after defeat in World War I and the abdication of the Emperor, Wilhelm II.The German...
at the time of the law's passage and today maintains a specific local law. The Catholic religion being no longer established in France under the auspices of the State, part of the grounds adduced for some of the decisions cited above cease to hold good. The 1810 Penal Code was superseded by a new Penal Code in 1994.