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:
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 Parliaments 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 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: