SEAL
664
SEAL
plot, which is, at least, very debatable, one must,
nevertheless, maintain in private cases the obligation
of secrecy in its integrity". The same writer says
that the exception of the confessor is deduced from
the principle of Art. 37S of the Penal Code, from the
needs of the soul and, above all, from the laws which
have recognized the Catholic religion. "And it
would be repugnant, " he continues, "that one could,
in any case at all, force the religious conscience of the
confessor in constraining him to break, in defiance of
one of the most imperious duties of his office, the seal
of confession."
In Fay's case [ (Dec. 4, 1S91), Receuil general des lois et des arrets, 1S92, I, 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 re- gard 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 mat- ter of public policy: C. Penal 378. The anno ta tor of the report begins his notes by saying that it is an uni- versally admitted point that the exemption from giv- ing evidence is necessarily extended to priests with re- gard to the matters confided to them in confession. He cites, among other cases, one of the Court of Cas- sation in Belgium declaring that there has never been any doubt that priests are not bound to disclose con- fessions in the witness-box. The Concordat between France and the Holy See having been broken, and, consequenth', 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. But Art. 378 of the Penal Code endures, and, as shown, there is no longer any statutory obligation upon the classes of persons enumerated in it to give information of crime of any nature. Consequently, in virtue of that article, con- fessors are not only absolutely exempt from any obli- gation ever to di.sclo.se a confession, but they are under a statutory obligation never to do so.
Sp.\ix. — In Spain, from an indirect report given by Muteau, we get stern proof, at a comparatively early period, of the abhorrence in which a breach of the seal of confession was held. According to Muteau, Ra- viot, in his "Observations sur le receuil des arrets de Perrier", cites a Spanish writer as stating that under James I of Aragon, who reigned in the thirteenth cen- tury, if a priest were convicted of a breach of the seal of confession, his tongue was cut out. The same un- named author .says, we are told, that priests con- victed of the offence have been handed over by popes to the civil power to receive the punishment of death. In a country in which there are still to-day so many laws for maintaining respect for the Catholic religion, it is clear that the law would not demand that priests should be required to reveal in the witness-box what had been said to them in sacramental confession.
Italy. — Farinaccius, a famous sixteenth-century Italian writer on jurisprudence, perhaps the most gifted and able lawyer of his day, and almost univer- sally folioweil (his "Praxis criminalis" being for two centuries the standard for the great majority of crim- inal juri.s<]ictions in Western Continental Europe) expres.sly denies that cases of high tresison form any exception to the general and uniform rule of the invio- lability of the seal of confession. He states (Quaest. 51: nn. 99, 100 and 101) as follows: "Sacerdos non potest delicta commissa per confitentem revelare etiam quod sint atrocissima ac etiam quod continen- tur sub crimine lajsa; majestatis, imo nee etiam ad id cogipotiwtde mandato papae", i.e., " a priest may not reveal the offences committed by the person confess- ing, even though they be of the most atrocious, and even though they come under the crime of high treasfjn: and, what is more, he cannot even be com- pelled thereto by order of the pope". In modern Italy,
by the Code of Civil Procedure, Art. 288, doctors, sur-
geons, etc., and every other person to whom by reason
of his state, profession, or office a secret has been con-
fided, may not be obliged to give evidence of such
secret under pain of nullity (i. e., of his evidence),
save in the cases in which the law expressly obliges
them to give information of any matter to the public
authority. There appears to be no such express obli-
gation upon priests in the law.
German Empire. — By the Code of Civil Procedure for the German Empire of 30 Jan., 1877, book II, pirt I, title 7, par. 348, certain classes of persons are entitled to refuse to give evidence. The fourth class consists of "clergymen in respect of matters which have been confided to them in their exercise of the care of souls". It was held by a decision of the Imperial Court of 8 June, 1883, that if a clergyman should have communicated to a third person any matter so con- fided to him he would not be exempt from giving evi- dence of the communication to the third person. Dr. von Wilmowski and Justizrath Levy in their edi- tion of the German Imperial Code of Civil Procedure have a comment expressing doubt as to the correct- ness of this decision. Paragraph 350 enacts that clergymen may not refuse to give evidence when they are released from the obligation of secrecy. Dr. von Wilmowski and Levy comment as follows upon this l^aragraph: "Whether clergymen are effectually re- leased through the consent of the confident or through permission of their superiors is to be decided according to the religious conceptions {Religionsbegriffe) of the de- nomination to which the clergyman belongs. By Catholic ecclesiastical law a release from the obliga- tion to keep secret anything communicated under the seal of confession is entirely excluded (c. 12, X, de poenit. 5, 38)"
Austria. — In Austria by the Code of Criminal Pro- cedure {Straf-process-Ordnung) of 23 May, 1873, par. 151, certain classes of pensons may not be examined as witnesses and if they should be so examined their evidence shall be null and void (bet sonstiger Nichtig- keil ihrer Aussage). The first class consists of clergy- men in respect of what has been confided to them in confession or otherwise under the seal of clerical pro- fessional secrecy.
Egypt. — In Egypt there is in the Penal Code (Art. 274) a provision to the same effect as that of Art. 378 of the French Penal Code.
Mexico. — By the Penal Code of Mexico, promul- gated 20 December, 1891, Art. 768, confessors, doc- tors, surgeons etc. are not to be compelled by the authorities to reveal secrets which have been confided to them by reason of their state or in the exercise of their profession, nor are they to be compelled to give notice of offences of which they have become cog- nizant in this way.
Brazil. — By the Penal Code of the United States of Brazil, Art. 192, it is a penal offence to reveal any person or secret of whom or which notice or cognizance is had by reason of office, employment, or profession (see Confession ; Secret) .
Mascakdus, De probationibus (Frankfort, 1703); Wilkins, Concilia MaoncE Britanniae et Ilibernice, I (London, 1737), 577, 59.5; Spelman, Conct7ta, II (London, 1664), 357; Lyndwood, Pro- vincirUe (hcu ConstitutioneH Anglicr) cui adjiciuntur Constitutionei legatintB D. Othonis et D. Olhobonis, cum annolationibux Johannit de Athona (Oxford. 1679); Statutes of the Realm (London, 1810); StatuleK at Large, od. Pickering (CambridRe, 1762); Holinshed, Chronirles (London, 15H7); Stow, Chronicle of England (London, 1631 2); The Two Books of the Ifomilies, ed. Griffiths (Oxford, 1859); GiBBOs. Codex juris eccl. anglic. {Oxford, 1761); Atliffe, Comment, by Way of Suppl. to the Canons and Constitutions of the Church of England (London, 1726); Hi.ackhtone, Comment, on the Laws of England, 111 C2]Hte(i.,ljOTuion, \H44), xxiii; Peake, Imw of Evidence (5th ed., London, 1822), 175; Cokbett, Com- plete Colled, of the Slate Trials. II (London, 1809); Bentham, Rationale of Judicial Evidence, ed. .Mill, IV (London, 1827), 586; Carijwell, Documentary Annals of the Reformed Church of Eng- land (Oxford, 1854); Badelet, Prvilege of Religious Confessions in English Courts of Justice (London, 1865); Phillimore, Ec- rle^iaslicnl Law of the Church of England, I (2nd ed., Lon- don, 1895), vi; Pollock and Maitland, Hist, of English Law be-
