Constance Kent - Parliamentary Comment

Parliamentary Comment

Questions were asked in both Houses of Parliament. In the House of Lords, Lord Westbury, the Lord Chancellor, in reply to the Marquess of Westmeath, stated that:

...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 he had known in confession. He is compelled to answer such a question, and the law of England does not even extend the privilege of refusing to answer to Roman Catholic clergymen in dealing with a person of their own persuasion.

He stated that it appeared that an order for committal for contempt of court had in fact been made against Mr Wagner. If that is so, it was not enforced.

On the same occasion Lord Chelmsford, a previous Lord Chancellor, stated that the law was clear that Mr Wagner had no privilege at all to withhold facts which came under his knowledge in confession. Lord Westmeath said that there had been two recent cases, one being the case of a priest in Scotland, who, on refusing to give evidence, had been committed to prison. As to this case Lord Westmeath stated that, upon an application for the priest's release being made to the Home Secretary, Sir George Grey, the latter had replied that if he were to remit the sentence without an admission of error on the part of the Catholic priest and without an assurance on his part that he would not again in a similar case adopt the same course, he (the Home Secretary) would be giving a sanction to the assumption of a privilege by ministers of every denomination which, he was advised, they could not claim. The second case was R v Hay.

Lord Westbury's statement in the House of Lords drew a protest from Henry Phillpotts, the then Bishop of Exeter, who wrote him a letter strongly maintaining the privilege which had been claimed by Mr Wagner. The bishop argued that the canon law on the subject had been accepted without gainsaying or opposition from any temporal court, that it had been confirmed by the Book of Common Prayer in the service for the visitation of the sick, and, thus, sanctioned by the Act of Uniformity. Phillpotts was supported by Edward Lowth Badeley who wrote a pamphlet on the question of priest-penitent privilege. From the bishop's reply to Lord Westbury's answer to his letter it is apparent that Lord Westbury had expressed the opinion that the 113th canon of 1603 simply meant that the "clergyman must not ex mero motu and voluntarily and without legal obligation reveal what is communicated to him in confession". He appears, also, to have expressed an opinion that the public was not at the time in a temper to bear any alteration of the rule compelling the disclosure of such evidence.