custom, which almost always prevails against reason, would have the offences of ecclesiastics and monks against civil orders, which are very frequent, called privileged offences; and those offences common which regard only ecclesiastical discipline, cases that are abandoned to the sacerdotal hierarchy, and with which the civil power does not interfere.
the church having no jurisdiction but that which sovereigns have granted it, and the judges of the church being thus only judges privileged by the sovereign, those cases should be called privileged which it is their province to judge, and those common offences which are punishable by the prince’s officers. but the canonists, who are very rarely exact in their expressions, particularly when treating of regal jurisprudence, having regarded a priest called the official, as being of right the sole judge of the clergy, they have entitled that privilege, which in common law belongs to lay tribunals, and the ordinances of the monarch have adopted this expression in france.
to conform himself to this custom, the judge of the church takes cognizance only of common crime; in respect to privileged cases he can act only concurrently with the regal judge, who repairs to the episcopal court, where, however, he is but the assessor of the judge of the church. both are assisted by their register; each separately, but in one another’s presence, takes notes of the course of the proceedings. the official who presides alone interrogates the accused; and if the royal judge has questions to put to him, he must have permission of the ecclesiastical judge to propose them.
this procedure is composed of formalities, and produces delays which should not be admitted in criminal jurisprudence. judges of the church who have not made a study of laws and formalities are seldom able to conduct criminal proceedings without giving place to appeals, which ruin the accused in expense, make him languish in chains, or retard his punishment if he is guilty.
besides, the french have no precise law to determine which are privileged cases. a criminal often groans in a dungeon for a whole year, without knowing what tribunal will judge him. priests and monks are in the state and subjects of it. it is very strange that when they trouble society they are not to be judged, like other citizens, by the officers of the sovereign.
among the jews, even the high priest had not the privilege which our laws grant to simple parish priests. solomon deposed the high priest abiathar, without referring him to the synagogue to take his trial. jesus christ, accused before a secular and pagan judge, challenged not his jurisdiction. st. paul, translated to the tribunal of felix and festus, declined not their judgment. the emperor constantine first granted this privilege to bishops. honorius and theodosius the younger extended it to all the clergy, and justinian confirmed it.
in digesting the criminal code of 1670, the counsellor of state, pussort, and the president of novion, wished to abolish the conjoint proceeding, and to give to royal judges alone the right of judging the clergy accused of privileged cases; but this so reasonable desire was combated by the first president de lamoignon, and the advocate-general talon, and a law which was made to reform our abuses confirmed the most ridiculous of them.
a declaration of the king on april 26, 1657, forbids the parliament of paris to continue the proceeding commenced against cardinal retz, accused of high treason. the same declaration desires that the suits of cardinals, archbishops, and bishops of the kingdom, accused of the crime of high treason, are to be conducted and judged by ecclesiastical judges, as ordered by the canons.
but this declaration, contrary to the customs of the kingdoms, has not been registered in any parliament, and would not be followed. our books relate several sentences which have doomed cardinals, archbishops, and bishops to imprisonment, deposition, confiscation, and other punishments. these punishments were pronounced against the bishop of nantes, by sentence of june 25, 1455; against jean de la balue, cardinal and bishop of angers, by sentence dated july 29, 1469; jean hebert, bishop of constance, in 1480; louis de rochechouart, bishop of nantes, in 1481; geoffroi de pompadour, bishop of périgueux, and george d’amboise, bishop of montauban, in 1488; geoffroi dintiville, bishop of auxerre, in 1531; bernard lordat, bishop of pumiers, in 1537; cardinal de chatillon, bishop of beauvais, the 19th of march, 1569; geoffroi de la martonie, bishop of amiens, the 9th of july, 1594; gilbert génébrard, archbishop of aix, the 26th of january, 1596; william rose, bishop of senlis, september 5, 1598; cardinal de sourdis, archbishop of bordeaux, november 17, 1615.
the parliament sentenced cardinal de bouillon to be imprisoned, and seized his property on june 20, 1710.
cardinal de mailly, archbishop of rheims, in 1717, made a law tending to destroy the ecclesiastical peace established by the government. the hangman publicly burned the law by sentence of parliament.
the sieur languet, bishop of soissons, having maintained that he could not be judged by the justice of the king even for the crime of high treason, was condemned to pay a fine of ten thousand livres.
in the shameful troubles excited by the refusal of sacraments, the simple presidial of nantes condemned the bishop of that city to pay a fine of six thousand francs for having refused the communion to those who demanded it.
in 1764, the archbishop of auch, of the name of montillet, was fined, and his command, regarded as a defamatory libel, was burned by the executioner at bordeaux.
these examples have been very frequent. the maxim, that ecclesiastics are entirely amenable to the justice of the king, like other citizens, has prevailed throughout the kingdom. there is no express law which commands it; but the opinion of all lawyers, the unanimous cry of the nation, and the good of the state, are in themselves a law.
