SEAL
663
SEAL
criminal, whose names the criminal had confessed to
hini when going to the scaffold. These decrees were
judicial. From the able and comprehensive argu-
ment of the appellant's counsel in the Quebec case of
Gill V. Bouchard, which has been mentioned above,
much valuable information on the French law upon
the subject is to be obtained. In that argument there
is cited a decree by the Parhament of Flanders in 1776
declaring that the evidence of a witness who repeated
a confession which he had overheard was not admis-
sible, and reversing the judgment which had been
passed on the admission of .such evidence.
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, ab.so- lutely ignored this confession. Muteau gives us a quotation from ffirodius in Pandect f. 73, in which (Erodius says: "He who has confessed to a priest is not held to have confessed ". In Bonino's case, which is (;ited in the cour.se of the appellant's argument in Gill V. Bouchard as having been decided by the Court of Ca.ssation of Turin (at that time i)art of the French Empire) in February, 1810, and as being reported in the "Journal du Palais periodique", VIII, 667, the court is reported to have decided that an open avowal made by a penitent in consequence of his being coun- selled 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 puni.shable with death. Guyot says that canonists are not agreed as to whether the breach is an offence cognizable by the civil courts (si c'est un delit 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 Parlia- ment of Toulouse of 16 Feb., 1679, deciding that the cognizance of the offence belonged to the ecclesiasti- cal judge.
All these three writers except from the general in- violability 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, a distinguished French advocate (1559-1629). He practised before the French Parliament; he was also an expert in canon law and he wrote a work on the Decrees of the Galil- ean 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 i)riest who may have kept such a matter secret and not have denounced it to the magistrate would be guilty and would be an accom- plice; that one cannot doubt that a person who is in- formed of a conspiracy against the person and estate of the prince would be excommunicated and anathem- atized if he did not denounce it to the magistrate to have it punished " . It is to be noticed that this state- ment by Bouchel, as cited by Merlin and Guyot, does not mention any decree or decision or any other au- thority supporting it. Muteau, in excepting high treason, appears to base the exception mainly uj)on 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 main-
tained that confessors were not included among per-
sons 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.
Dalloz (aine) in his learned and comprehensive work on jurisprudence, in which the whole of French law is compiled and commented on under the numer- ous 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 m the exercise of his ministry. Citing the canon of the Council of Lateran 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 distmction.
The decision of the Court of Cassation in Laveine's case (30 Nov., 1810, Receuil general desloisetdes arrets, XI, i, 49) aiTords support, not by the actual decision, but by certain words u.sed in it, to the contention for the exception of high treason, while the actual decision is commonly cited as one of the leading judicial author- ities for the general principle of the immunity of the con- fessor. 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 re- garded 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 con- fession would be privileged and that, therefore, the priest was bound in this case to di-sclose the name of the thief. The Court of Cassation reversed this de- cision. Its judgment commences with a reference to the existence of the Concordat and to the result that the Catholic religion is placed uniler the protection of the State, and it go(;s 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 immcdiatement k la sdretd de I'etat). Commenting on these words, Dalloz (aine) says that the jurist, Legraverend, admits the exception. Dalloz appears not to agree with it. "The oath," he says, "prescribed by the Concordat and the Organic Articles is no longer used : even if it were, the obligation which would result from it to dis- close to the Government what was being plotted to its prejudice in the diocese or elsewhere could not apply to confession. The duty of informing having been, moreover, struck out from our laws, at the time of the revision of the penal code in 1832, it could not subsist in such a case."
By Art. 378 of the French Penal Code "doctors, surgeons, and other officers of health as well as apothe- caries, mid-wives, and all other persons who, by their status (etat.) or profession are the depositaries of se- crets confided to them, revealing such secrets, except in cases in which the law obliges them to inform (hors les cas oh la loi les oblige a se porter denonciateurs) shall be punished with imprisonment from one to six months, and with a fine of from 100 to 500 francs." The ex- ception, mentioned in the article, of persons obliged by law to be informers, as pointed out by M. Dalloz, has become obsolete owing to the fact that Articles 103-107, which dealt with the obligation of inform- ing, were repealed by the law of 28 April, 1832. Dr. H. F. Riviere, counsellor to the Court of Cassation, in his edition of the French Corles (Code Penal, p. t)8) has a note to that effect . M. Armand Dalloz, the .son and collaborator of the author of the "Jurisprudence g6nerale, " .says in another work : " Supposing that one may admit a derogation from this principle in favour of the interests of the State compromised by some
