“And how far the common law bindeth in cases that are not treason a man to confess of himself, I know not. In the civil law, it is sufficient to have semiplenam probationem, that is, unum testem omni exceptione majorem, or manifesta indicia.
“Our law I take to be more mild, and that a man may put all to witnesses without confessing, except in cases of treason. For, according to our law, non pervertitur judicium tacendo vel negando, as in the civil law, where is required reus confitens. But generally, when a man is bound to confess, there is no place of equivocation. And when he is not bound to confess according to the laws of each country, then may he equivocate.”
In the last paper Father Garnett is not speaking of equivocation used in defence of an innocent person, but of what we may call the persistent plea of “Not guilty,” and he there draws an interesting distinction between the Roman civil law and our own, which he calls “more mild,” in that it professed to regard a prisoner as innocent till he is proved to be guilty. Happily this is our practice now, as well as our profession, and our quotations are needed to enable us to form judgments of conduct in times that have happily passed away.
But with regard to the trustworthiness of Father John Gerard's evidence, as we have it before us in his Narrative of the Gunpowder Plot, even if the lawfulness of his proceedings were not admitted, all that we are concerned to show is, that untrue statements, made by a man under circumstances which, rightly or wrongly, he considers to justify him in making them, furnish no presumption whatever that, under other circumstances, affording to his conscience no such justification, his word cannot be trusted. It is an evident instance of the maxim that the exception proves the rule. Restraining himself carefully within the limits of what he held to be lawful under circumstances of extreme difficulty and great personal danger, are we not rather to conclude that, under far less pressure, he will as carefully confine himself to the laws imposed by his conscience? Clearly there is nothing in Father Gerard's practice under examination to cause us to hesitate in placing implicit trust in his word when he speaks as an historian; and, in addition, we are sure that no one will rise [pg ccxxiii] from the perusal of the exculpatory letters which we propose to subjoin, without a full conviction of his innocence and truthfulness.
XXXI.
But before we close this subject by producing these letters, we think it desirable to answer in detail two particular accusations that have been brought against Father Gerard's veracity by a modern writer. Canon Tierney says:[197] “To show how very little reliance can be placed on the asseverations of Gerard when employed in his own vindication, it is only right to observe that, referring to this transaction” [the Communion of the conspirators after their oath of secresy] “in his manuscript narrative, he first boldly and very properly asserts, on the authority of Winter's confession, that the Priest who administered the Sacrament was not privy to the designs of the conspirators; and then ignorant of Faukes' declaration which had not been published, and supposing that his name had not transpired, as that of the Clergyman who had officiated upon the occasion, he returns at once to the artifice which I have elsewhere noticed, of substituting a third person as the narrator, and solemnly protests on his salvation that he knows not the Priest from whom Catesby and his associates received the Communion!”
Dr. Lingard also says simply that the Communion was received by the conspirators “from the hand of the Jesuit missionary Father Gerard,”[198] apparently unconscious that he had ever denied it.
We have little doubt that the house in which the oath of secrecy was taken and holy Communion received, was really Father Gerard's house. The “house in the fields behind St. Clement's Inn,” as Faulks calls it; “behind St. Clement's,” as it appears in Winter's confession, seems to be the house described by Father Gerard as that which he occupied up to the time of the Powder Plot, “nearer the principal street in London, called the Strand,”[199] in which street most of his friends lived. But he was not the only Priest who lived in that house. At least two other [pg ccxxiv] Priests[200] resided habitually with him. One was Father Strange, who was in the Tower when the Autobiography was written; the other, whose name he does not give, “was thrown into Bridewell, and was afterwards banished, together with other Priests.” Then there was also Thomas Laithwaite,[201] who afterwards became a Jesuit, who frequented the house if he did not live there. Father Gerard says, “There I should long have remained, free from all peril or even suspicion, if some friends of mine, while I was absent from London, had not availed themselves of the house rather rashly.” What meaning can this have but that Catholics were allowed, in Father Gerard's absence, to come to the house too freely to receive the Sacraments, so that it became too widely known that it was his house?
Immediately after binding themselves by oath to secrecy, the minds of the conspirators must have been preoccupied with the thoughts of the tremendous undertaking to which they had just pledged themselves; and it is very unlikely that mention should be made, in subsequent conversation among them, of the name of the Priest, whom they had only seen at the altar, especially as he “was not acquainted with their purpose.”[202] The only two conspirators who mention Father Gerard's name are Faulks and Thomas Winter. Faulks was a stranger, who had “spent most of his time in the wars of Flanders, which is the cause that he was less known here in England.”[203] We have no trace of any personal intercourse between Thomas Winter and Father Gerard. What can have been more natural than that they should have been told to meet at Father Gerard's house, and that those who did not know him by sight should have concluded that it was Father Gerard's Mass that they heard? It surely is more probable that they should have been mistaken in a name than that Father Gerard should have been guilty of perjury in contradicting, from a place of safety, that which was no accusation against him, but a harmless statement that, in ignorance of the oath taken, he had given Communion to certain Catholics.
Faulks' confession was extorted by torture. King James had given orders, “The gentler tortours are to be first usid unto him, et sic per gradus ad ima tenditur, and so God speede your goode work.”[204] Faulks was under none of the “gentler tortures” when in a tremulous hand he wrote “Guido” on that declaration. “The prisoner is supposed to have fainted before completing”[205] the signature. Before the words exculpating Father Gerard from all knowledge of the conspirators' purpose, the word Hucusque appears in the handwriting of Sir Edward Coke, who has underlined the sentence in red. The ideas of justice of this great lawyer permitted him to publish the mention there made of Father Gerard's name, and to suppress the statement of his innocence. There is also a red line drawn beneath the following words in Thomas Winter's examination: “But Gerard knew not of the provision of the powder, to his knowledge.”[206]