THE MARQUESS OF WESTMEATH
, who had given notice of his intention to inquire if the public report of the proceedings in the magistrates' court at Trowbridge, as held on Thursday, the 4th of May, were authentic, from which re- 178 port it would appear that the Rev. A. D. Wagner, described as perpetual curate of St. Paul's, Brighton, was as a witness before that Court when a prisoner was under examination on a charge of murder, and that the said A. D. Wagner declined answering a question pertinent to the case, alleging that what he knew was under the Seal of Confession; and to ask the Lord Chancellor whether such an outrage to the Court, unknown to the laws of England, should have been passed over; and also whether the said A. D. Wagner should not be made amenable for the same, and whether the said magistrates should not have thereupon committed him? The noble Marquess said, that although the facts were well known he thought it right to inquire from the highest legal authority in the realm whether any witness, clergyman or other, was justified in refusing to answer a legal question judicially put to him on the ground that he had received his information in confession? At the present moment the public mind was occupied with this matter, and, having been acting as a magistrate for more than half a century, he confessed that it appeared to him incomprehensible that the Rev. Mr. Wagner should have been allowed to decline answering the question put to him by a legally constituted Board of Magistrates. In the observations he had to make he would be cautious not to raise any question involving the unfortuate position of the young woman who was now so much the object of public solicitude. The matter was important enough in itself. He would anticipate the answer that might be given to him by the noble and learned Lord on the Woolsack, so far as his knowledge of the law enabled him, and would say that there was nothing in laws of England in the Canons of the Church which would justify a witness in refusing to answer a legal question. All he knew was, that if in the course of his experience as a magistrate such a case had arisen, he should have known how to deal with it on the spot by committing the witness who obstinately refused to answer. He would now state how the matter arose. It appeared that the Rev. Mr. Wagner was examined at Trowbridge as a witness in the case of Miss Kent, charged on her own confession with murder, and it appeared by the newspapers that the rev. gentleman declared that he would decline to answer any question revealing any- 179 thing which had passed at the confessional. The Chairman of the Board of Magistrates reminded him that he had sworn before God to speak the truth; upon which the rev. gentleman replied that his duty to God forbade him to divulge anything which had been said in the confessional, and under the seal of confession. Under these circumstances, the refusal of the Rev. Mr. Wagner to answer certain questions suggested an inquiry as to what the law of England was on the subject, and he would quote two cases bearing on the subject. One was the case of a Roman Catholic priest in Scotland who, on refusing to give evidence, was committed for contempt of court. An application was made to the Home Secretary for his release before his term of imprisonment had expired, and Sir George Grey replied by Mr. Waddington, the Under Secretary of State, that if he were to remit the sentence without an admission of error on the part of the Catholic priest, and without an assurance that he would not again adopt in a similar case the same course, he (Sir George Grey) would be giving a sanction to the assumption of a privilege by ministers of every denomination which, he was advised, they could not claim, and which would tend, even in the most serious cases, to defeat the ends of justice. Another case was that of the Rev. John Kelly, a Roman Catholic priest, who at the trial of a prisoner at Durham for robbery in March, 1860, refused to reveal the name of the person who had given him a watch which had been stolen, for the purpose of restoring it to the owner, the reason assigned for his refusal to give evidence being that he had received the information in confession. The Judge, thereupon, committed him. A Question was then asked in the House of Commons by Mr., now Sir George Bowyer, when the late Sir George Lewis, then Secretary of State, said, that no privilege existed in this country with respect to the clergy of any denomination enabling them to decline answering a question on the ground that they would thereby disclose something confided to them in confession; and Sir George Lewis added that, in his opinion, the Judge in this case had acted with perfect legality and had no option but to commit the witness. The law had also been laid down by high legal authorities that confession to a priest, whether a Roman Catholic or Protestant, 180 was not privileged. In an address issued in 1862 by the Rev. J. Going, incumbent to the parishioners and congregation of St. Paul's, Lorrimore Square, Walworth, and signed also by his two curates, Mr. Helder and Mr. Abbot, these gentlemen recommended confession, one of the inducements being that "your clergy are bound by a most solemn oath never to betray your confidence." He should like to know from the highest authority whether such an oath was authorized by the Church of England or allowed by law. In judicial proceedings in England, whether a question was a pertinent one or not, was it possible that a witness could be allowed to turn round and say, "I will not answer it because what I know was disclosed to me under the seal of confession?" Such a reply made one doubt whether one was living in Rome or in England; and he should, therefore, be glad of an answer to the questions he had asked upon this subject.
THE LORD CHANCELLOR
If I understand the notice of the noble Marquess, the first Question he desires me to answer is, whether the newspaper report of the proceedings before the magistrates is correct. That is quite beyond my power to answer, for I have very little time to read the newspapers. With regard to the remaining Questions—for whether they are one or more than one I cannot very well discover—I must congratulate the noble Marquess on the industry and success with which he has accomplished the understanding of the law of England upon this subject; an understanding so complete that it was quite supererogatory to put any question to the Lord Chancellor. The noble Marquess has very correctly stated the law, and with a much greater profusion of authorities than it would have been in the power of the Lord Chancellor to furnish. There can be no doubt that in a suit or criminal proceeding a clergyman of the Church of England is not privileged so as to decline to answer a question which is put to him for the purposes of justice, on the ground that his answer would reveal something that has been made known to him in confession. A witness is compelled to answer every such question, and the law of England does not extend the privilege of refusing to answer to Roman Catholic clergymen who have obtained the information in confession from a person of their own religious persuasion. There can be no doubt, therefore, that Mr. Wagner 181 was under an obligation to answer the question put to him if it had been insisted on. I think it is a matter of regret that the magistrates did not insist upon an answer to the question, because an evil precedent may be set by the refusal to answer in such a case. It is quite clear, however, that in a matter so well settled as this is, the refusal by the witness to answer the question must have been known to be really a refusal on his part to submit himself to the law. Fortunately, the magistrates appear to have had ample material without the information which Mr. Wagner declined to give, and, therefore, I must assume that they acted upon good grounds in not visiting him with the consequences with which he might have been visited. An order seems to have been made for the commitment of the prisoner, and therefore there has been no failure of justice. It is unnecessary, then, to take any notice of what has taken place, because I am confident if it had been necessary for the purposes of justice the magistrates would not have failed to insist that this gentleman should answer the question put to him.
§ LORD CHELMSFORD
I do not know whether the law on this subject is quite clear to your Lordships. Mr. Wagner had no privilege at all to withhold facts which came under his knowledge in confession; but the question is, what power the magistrates have to deal with witnesses who are before them and who withhold evidence under similar circumstances. Now Mr. Wagner, as I understand, appeared voluntarily with Miss Kent before a magistrate; and it is rather extraordinary that, under these circumstances, Mr. Wagner should have refused to answer the question. But Mr. Wagner having refused to answer a question, it appeared to him (Lord Chelmsford) the magistrates had no power to make him answer it. We may, perhaps, find a reason for this in what is called the Justices' Act, 11 & 12 Vict., where it is provided that if the magistrate has reason to believe that a person will not voluntarily attend before him to give evidence, he may issue a summons, and if the witness still absents himself, a warrant may be issued to compel his attendance. But the words of the Act in the case of a witness refusing to answer are extraordinary. The Act goes on to say that if a witness so summoned or brought before the magistrates upon a warrant refuses to be sworn, or to affirm, or to answer any question that may be put 182 to him, then the magistrate may commit him to prison for seven days, there to remain unless in the meantime he shall proceed to answer the question. But Mr. Wagner voluntarily attended before the magistrates, and so the magistrates had no power to commit him when he refused to answer the question; they had no power to act as I think they ought to have acted supposing Mr. Wagner had come before them on a summons or a warrant.
THE LORD CHANCELLOR
I have been told that in one of the morning papers there is a letter from Mr. Wagner, who, in answer to some complaint of his conduct, is made to say, or says, that he had received a subpoena to appear.
§ LORD CHELMSFORD
The words of the Act are—If on the appearance of such person so summoned either in obedience to such summons, or on being brought before him by virtue of a warrant, such person shall refuse to be sworn, or having been sworn shall refuse to answer such questions concerning the premisses as shall be then put to him, the justices of the peace may commit him to gaol for any time not exceeding seven days, unless he shall, in the meantime, proceed to answer the question which has been put to him.So that the Act only applies to cases in which the witness appears on a summons or a warrant. If the fact was as stated by his noble and learned Friend, he regretted that the magistrates did not act upon the law and commit Mr. Wagner.
THE MARQUESS OF WESTMEATH
congratulated himself on the fact that the law could no longer be misunderstood. It had been explained very clearly by the highest authority, and he hoped that all those who had been meditating how to trade on the delusions they had been promoting in the country would be disappointed in the result. He would now proceed to ask another question, which was simply this—whether Her Majesty's Government, assuming that they knew, as they ought to have known, what had been lately going on in many parish churches of the metropolis and elsewhere—he could not say surreptitiously, for everything had been done openly; assuming that the audacious attempts which had been lately made by several ministers holding preferments in the Established Church to warp the services of the Church of England to their own Romanizing views were known to the Government, whether they intended to take any steps to prevent the continuation or recurrence of such practices? He should not be justified in bring- 183 ing the subject under the notice of the House were he not prepared to give some proof of the existence of the practices of which he complained beyond what was derived from the ordinary channels of the newspapers. He would now mention a few instances respecting which there could be no mistake. On Good Friday and Easter Sunday last, there were services and ceremonies in several churches in connection with the Church of England, altogether different from those required by the Book of Common Prayer, and in opposition to the doctrines of the Church. By the 2nd Article in the 36th of the Canons of 1603, which Article every minister of the Church had to subscribe, the minister declared, with reference to the Book of Common Prayer—That he himself will use the form in the said book prescribed, in public prayer, and administration of the sacraments, and none other.It appeared that that declaration had not been adhered to, and the following was a brief statement of what had occurred in some churches in London and elsewhere. In the church of St. Alban's, Holborn, the sermon on Good Friday was followed by the chanting of the "Reproaches," which "Reproaches" constituted, according to the Roman Missal, a leading portion of "the Mass of the Pre-sanctified," on Good Friday, in the Roman Catholic Church; not one word of which was to be found in the Book of Common Prayer, or authorized by any of the Church's formularies. At two o'clock in the afternoon, after the Litany, a ceremony entitled the "Three Hours' Agony," which lasted three hours and a half, was gone through; the order of the service being the chanting of one of our Lord's words by the choir, a short sermon on that word, then a pause, after which the playing of soft music by the choir, this proceeding being gone through seven times, the bell tolling for each service. At nine o'clock on Easter Saturday evening the choir and clergy entered the church in procession, chanting and carrying banners, one of them being the "Banner of the Resurrection." For these processions and banners there was no authority in the Book of Common Prayer. The words used in the Good Friday ceremony, as taken from the Roman Missal, were, "Behold the Cross on which hung the Salvation of the World," and then the mode of uncovering the cross was prescribed—one arm of the cross being first unveiled, and then another, the choir each 184 time chanting the Ecce lignum. Then the cross being laid down before the altar, the priests and choir, two-and-two, went on their knees to kiss the feet of the crucifix. The noble Marquess then read passages from the Roman Missal and a Tractarian Prayer Book, in order to show the similarity of the ceremonies prescribed in both, and then proceeded to say that in St. George's-in-the-East, on. Good Friday, the sermon was followed by the "Reproaches" from the "Mass of the Pre-sanctified." Later in the day the service of the "Three Hours' Agony" and "Seven Last Words" wholly unauthorized by the Church of England—was gone through. In Holy Trinity Church, Vauxhall, the evening service on Good Friday commenced with a hymn, and then "Meditations on the Stations of the Cross," an essentially Roman Catholic service, not a word of which was in the Book of Common Prayer. In St Paul's Church, Walworth, on Good Friday, the "Reproaches" were gone through, the congregation being on their knees. In St. Mary Magdalene's, Munster Square, on Easter Monday, it was stated that a procession entered the church, chanting, in the following order:—Churchwardens with staves, Banner of the Cross, two thurifers in scarlet and lawn cottas, acolyte with navicula (incense boat), banner of the Purification of the Blessed Virgin Mary, choirmen, banner of our Lord, deacon and subdeacon, celebrant, vested in alb and chasuble. Incense was used in the church. In St. Matthias' Church, Stoke Newington, there was a service of six hours' duration, consisting of "Meditations on the Passion," on Good Friday, including the "Reproaches." On Easter Sunday incense was used. Ceremonies and services of a similar kind took place in Christ's Church, Clapham; the Church of St. Mary Magdalene, Paddington; St. Michael's, Brighton; and St. Raphael's, Bedminster, in the diocese of Gloucester and Bristol. In St. Lawrence's Church, Norwich, the sermon was preached from what is called the altar, and the large bell was tolled from nine a.m. till three p.m. On Easter Saturday evening there was a procession with a brass processional cross, incense boat, and thurifers. On Easter Sunday the rector celebrated in cloth of gold vestments, and in an arch of the church a gridiron was suspended, which was said to be the emblem of the patron saint. At St. Barnabas Church, Leeds, 185 the so-called altar was vested in black, and contained a large engraving of the crucifixion. There were fourteen services, one being held every hour. At the church of St James' the Less, Liverpool, the "Three Hours' Agony service" was gone through on Good Friday. On Easter Saturday there was a procession, headed by a cross-bearer, and incense was used. On Palm Sunday there had been a procession headed by the cross, which was veiled, boys and men carrying palm branches, which were elevated during the reading of the Gospel. At the church of Saviour and Cross, St. George's Mission (St. George's-in-the-East), there was, on Thursday, April 27, a procession with cross and banners, and the hymn Tantum Ergo (the Transubstantiation hymn of the Roman Catholic Missal) was sung. He wished to ask Her Majesty's Ministers whether they thought this was a state of things which ought to be allowed to go on in the Kingdom of a Protestant Sovereign? They could not pretend to be ignorant of these abominable proceedings. Considering that they could not be acceptable to the Prelates of the Established Church, he should be glad to know whether Her Majesty's Government were prepared to put a stop to them. He knew what was the power of the Ecclesiastical Courts. They only existed since the reign of Henry VIII. until a better state of things could be devised. As for the power which they had formerly exercised over probate and divorce cases, the Legislature had abolished their jurisdiction. The right rev. Bench knew that if they took proceedings they would be in the position of a person attacked by a nest of hornets, and would be stung to death. He very well knew that from this quarter they would meet with no redress. But the right rev. Prelates ought not to be called upon to put their hands in their pockets to put an end to such proceedings. He thought that Her Majesty's Government, if they were a Government at all, ought either to deny this state of things, or knowing them, devise some remedy to assist the right rev. Bench to redress these evils. He claimed for the Church of England that protection which he was sure that the head of the Church would extend to it. He hoped the noble Earl (Earl Granville) understood his question.
§ EARL GRANVILLE
I certainly do not quite understand the question of the noble Marquess as it appears upon the 186 Notices, and I should like to know whether the question the noble Marquess wishes me to answer is the question he has put upon the Notices or the question he has just asked. The Government are not prepared to deny the existence of certain innovations in the mode of conducting Divine worship by certain clergymen. The noble Marquess asks whether I am prepared to state that such things ought to be; and next, whether Her Majesty's Government are prepared to take any measures to put an end to such proceedings. Now, I am not in a condition to affirm, and certainly I am not in a condition to deny, the truth of the statements he has made, still less can I say that, in my opinion, these innovations are such as ought to be made. Neither am I prepared to deny the statement that the right rev. Prelates have no remedy except by putting their hands in their pockets. With regard to the question of the noble Marquess as to the intentions of the Government, I have to inform him that no measure on the subject is under the consideration of Her Majesty's Ministers.
THE BISHOP OF LONDON
As the noble Marquess has referred to my diocese, I ought to explain the course which I have thought it right to pursue. I can assure the noble Marquess, both for my right rev. Brethren and myself, that if we were acquainted with any distinct violation of the law we should not be deterred by the consideration of any expense, however ruinous from bringing the offenders to punishment. There is, however, very great difficulty in knowing what exactly the law is, and my rule is not to interfere unless I am sure that I have the law on my side. There is, moreover, considerable doubt in most of these cases as to the facts. The noble Marquess read a document—I do not know on what authority—of a kind which is very often sent to me—either an extract from a newspaper, or a statement sometimes anonymous, and sometimes signed by a feigned name; and although I might be induced in certain cases to make inquiry, yet it would be out of the question to take proceedings on such grounds. The answer I immediately give when I have any means of communication with the complainant is, that I should be glad to know whether the person who sends this information knows the matter to be true of his own knowledge, and, if so, whether he will be ready to come for- 187 ward and substantiate the facts. There is, I have found, a good deal of zeal in writing anonymous letters, but not so much in coming forward to bring the matter to a test; so that there is first a difficulty in ascertaining the facts, and next in knowing the exact state of the law in these cases. The noble Marquess alluded to three of my churches. He said that in one of them something that he called a Tractarian Prayer Book was used, instead of the Prayer Book of the Church of England. There can be no doubt that any clergyman who might do such a thing would be suspended by the Courts immediately, and I do not think that any expense would be incurred in proceeding against any clergyman who should violate the law, either by using a Tractarian Prayer Book, or any other Prayer Book except that recognized by Act of Parliament. I very much doubt, however, whether such a thing has been done. I remember an instance in which I was told that such a case had occurred; but I found that what really took place was that a certain hymn had been used which was used by the ancient Church, and also, no doubt, by the Church of Rome. We know that great liberty is conceded as to the hymns sung in our churches; but if any well-authenticated case came before me in which another Prayer Book had been used I should immediately put the matter in the hands of my chancellor. It is stated in another document that three clergymen, two of whom are in my diocese, have taken an oath not to reveal what they heard in confession. All I can say is that they have not made such an oath to me, or, I believe, to any bishop who has ordained or instituted them. I will further say that any person whatever who should administer such an oath would be guilty of an offence against the law, and that to administer any oath except by a notary public or under an Act of Parliament is a misdemeanor, and punishable before a magistrate; and whether that oath was taken not to divulge anything heard in confession, or for any similar purpose, would make no difference. With regard to another matter to which the noble Marquess has referred—the service at St. Alban's—I have no means of knowing at this moment whether what occurred has been accurately stated; but I believe there is no impropriety in saying that, in consequence of information given to me lately, I did request the Archdeacon 188 of London to visit that church, and his report is at present in the hands of the chancellor of the diocese. What the result of those inquiries may be I cannot, of course, say; but I am not confident that any distinct violation of the law in its present state will be proved. I trust, however, that what I have stated will be enough to show that, for my own part, and I am sure I may speak for my right rev. Brethren, we are not unaware of the dangers alluded to, and that we shall not be deterred from maintaining the law by any fear of the expense or trouble which this may involve.
THE MARQUESS OF WESTMEATH
protested against an interpretation which had been put upon his words. He never said, or intended to convey, that anything in which the right rev. Bench took part must end in a bubble. What he had said, and he repeated it, was that the jurisdiction of the Ecclesiastical Court was such that it would lead to no satisfactory results. He did not suppose that the right rev. Prelates would shrink from any necessary expense or trouble in the performance of their duty; what he meant was that the right rev. Prelates should be relieved by an amendment of the law from such contingencies. With regard to the circumstances which he had put forward, it was true, as the right rev. Prelate stated, that there was always great difficulty in proving anything; but the facts themselves were in the knowledge of the public, and he was quite content to refer the matter to their judgment.