Saturday, 25 October 2014

The Life Of Fr John Gerard S.J. (A Hunted Priest) Part 27.

NOTE TO CHAPTER XX.

It seems desirable to treat at greater length than would be possible in a simple footnote the question of the equivocation which was practised under certain circumstances by Father Gerard, as he has himself related in various parts of his Narrative. On examination we shall see that his practice was not merely in accordance with the rules of morality, but was absolutely inevitable if he would avoid a great wrong to others, and that so far from leading us to distrust his veracity, on the contrary, it is a proof to us of the clearness with which he kept before his mind the obligations of the law of truthfulness between man and man, and the fidelity of his practice to that law.

It is quite true that he, and many others, considered themselves justified, when their own lives or those of innocent persons were at stake, in the use of assertions that were simple falsehoods in the ordinary sense of the terms employed. These they called equivocations; and we find no trace in the period of which we are writing of the modern sense of the word, that is, of a true expression which is really beside the point, though it is so employed that it is very unlikely to be seen to be so by the person to whom it is addressed, who thus is said rather to be suffered to deceive himself than to be deceived. Practically the distinction is hard to draw, and it has the disadvantage of seeming to make the morality of the expression depend on the quickness and readiness of the person in danger, who may be able to think of phrases containing a real ambiguity but which yet would throw the hearers off the right scent.

According to modern feeling, Father Gerard would have been quite justified in examining the trees and hedges in search of a falcon he had not lost, and inquiring of all he met whether they had heard the tinkling of the bird's bells, although it was to make them think that he had lost a falcon, 1 or in other words, to deceive them; but by the same modern feeling he would be held to be guilty of a lie when he said that he was the servant of a lord in a neighbouring county, although he might have worn that lord's livery as a disguise if he could have obtained it, which would have been a more effectual deception than any words.

Again, according to modern judgment, John Lilly would be held guilty of a lie when he said 2 of Gerard's books and manuscripts, " They are mine ;" but quite guiltless when, with the same intention of making the magistrates believe him to be a priest when he was not, he said, "I do not say I am a priest, that is for you to prove." Yet the latter expression was far more likely to deceive than the former. It was more like what a priest, under the circumstances, would have said. Present feeling would condemn him of a lie for saying simply that the books were his, when it would acquit him if he had thought of using far more deceptive expressions, such as, "I am not bound to compromise myself by saying whose they are."

The only difference between modern morality and that on which Father Gerard acted was that now-a-days men say, " Have recourse to evasions." Then men said, "Say what you like, it is their fault if they think it true." It is evident that of the two courses of proceeding, the plain-spoken old way is the least open to abuse. No one certainly would have recourse to it excepting from a well-weighed plea of a sorrowful necessity. Whereas, on the other hand, evasions are not startling, and the conscience may lay but little stress on the presence or absence of justifying circumstances. For it is most necessary to bear seriously in mind that all Catholic divines then held, and now hold, that to make use of equivocation, excepting under those peculiar circumstances that make it lawful, is in itself a sin, and thus no escape from the sin of lying. So Father Garnet plainly said when on his trial, 3 "As I say it is never lawful to equivocate in matters of faith, so also in matters of human conversation, it may not be used promiscually or at our pleasure, as in matters of contract, in matters of testimony, or before a competent judge, or to the prejudice of any third person; in which case we judge it altogether unlawful."

It is but fair that, in reading the narrative of times when many lives hung on successful disguise and concealment, we should remember that the modern sense of equivocation was then unknown. Protestant moralists have spoken out their minds plainly enough on this subject.

" Great English authors, Jeremy Taylor, Milton, Paley, Johnson, men of very distinct schools of thought, distinctly say that under certain extreme circumstances it is allowable to tell a lie. Taylor says : ' To tell a lie for charity, to save a man's life, the life of a friend, of a husband, of a prince, of a useful and a public person, hath not only been done at all times, but commended by great and wise and good men. Who would not save his father's life, at the charge of a harmless lie, from persecutors or tyrants?' Again, Milton says : ' What man in his senses would deny that there are those whom we have the best ground for considering that we ought to deceive, as boys, madmen, the sick, the intoxicated, enemies, men in error, thieves? I would ask, by which of the Commandments is lying forbidden ? You will say, by the ninth. If then my lie does not injure my neighbour, certainly it is not forbidden by this Commandment.' Paley says: ' There are falsehoods which are not lies, that is, which are not criminal.' Johnson: ' The general rule is, that truth should never be violated; there must, however, be some exceptions. If, for instance, a murderer should ask you which way a man is gone.'" 4

This language would not have been used by Catholics. With them the word " lie " signified a simple falsehood; and an " equivocation " was a false expression used under such circumstances that if they to whom it was addressed were deceived by it, it was their own fault. They had then no right to the truth, and even in some cases it would have been a sin to tell them the truth. In substance, however, though not in form, the doctrine of Gerard, Southwell, and Garnet, was the same as that of Taylor, Milton, and Johnson.

But to confine ourselves to the practice of Father Gerard, this doctrine is not necessary for his defence, and if his conduct be fairly examined, he will be held, even from the modern point of view, to have done no wrong. Protestant moralists, as we have seen, permit men under certain circumstances to tell a lie with intent to deceive. And Catholic moralists permit under such circumstances assertions which would lead the hearers to deceive themselves by neglecting to advert to the limit of the speaker's obligation to tell the truth. But with regard to Father Gerard's legal interrogations, we may waive the question whether they are right or wrong in their morality, for we see clearly that he so expressed himself as to show that his words were not intended to be believed.

The first instance that occurs in Father Gerard's Life, is that when, after his apprehension, on being questioned he declared that he was quite unacquainted with the family of the Wisemans, and those who were examining him betrayed their informer by crying out, "What lies you tell! Did you not say so-and-so before such a lady as you read your servant's letter?" Then he adds, "But I still denied it, giving them good reasons however why, even if it had been true, I could and ought to have denied it." 5

Another time 6 he was confronted with three servants of Lord Henry Seymour, who avouched that he had dined with their mistress and her sister, the Lady Mary Percy, that it was in Lent, and they told how their mistress ate meat, while Lady Mary and Father Gerard ate nothing but fish. " Young flung this charge in my teeth with an air of triumph, as though I could not help acknowledging it, and thereby disclosing some of my acquaintances. I answered that I did not know the men whom he had brought up.


" ' But we know you,' said they, ' to be the same that was at such a place on such a day.'

"'You wrong your mistress,' said I, 'in saying so. I, however, will not so wrong her.'

"' What a barefaced fellow you are !' exclaimed Young. "' Doubtless,' I answered, ' were these men's statements true. As for me, I cannot in conscience speak positively in the matter, for reasons that I have often alleged; let them look to the truth and justice of what they say. ' "

A third instance is the interview 7 between Father Gerard and the widow Wiseman, in the presence of the Dean of Westminster, Topcliffe, and others. "They wanted to see if she recognized me. So when I came into the room where they brought me, I found her already there. When she saw me coming in with the gaolers, she almost jumped for joy; but she controlled herself, and said to them : ' Is that the person you spoke of ? I do not know him; but he looks like a priest.'

" Upon this she made me a very low reverence, and I bowed in return. Then they asked me if I did not recognize her ?

" I answered: ' I do not recognize her. At the same time, you know this is my usual way of answering, and I will never mention any places, or give the names of any persons that are known to me (which this lady, however, is not); because to do so, as I have told you before, would be contrary both to justice and charity.'"

Lastly, when examined by the Attorney-General as to what Catholics he knew : " Did I know such and such ? I answered: ' I do not know them.' And I added the usual reasons why I should still make the same answer even if I did know them," 8 showing that this was not telling a falsehood.' "

In every one of these instances words are carefully introduced to show that the denials in question were uttered not with the intent of deceiving the hearers (though even that, according to the grave Protestant authorities recently quoted, would have been lawful), nor of allowing them to deceive themselves if they did not choose to advert to the circumstances in which the denials were made (as Catholic divines would have permitted); 9 but avowedly in order that they might not be available as legal evidence against the speaker or his friends.

To Father Gerard's defence of himself it may be as well to add that of Father Southwell, 10 who was assailed by Sir Edward Coke.

" The Father would have spoken further on this point [obedience to the laws] had they not attacked him on another, objecting to him a statement of Anne Bellamy's, who deposed that Father Robert had instructed her, that if asked by searchers or persecutors if there was a priest in the house, she could say ' No,' though she knew there was one: nay, that if asked on oath, she could swear there was not. No sooner was this brought out than the judges and officers of the court showed themselves highly scandalized, and were for stopping their ears: 11 as if, forsooth, the seeking for Catholic priests to put them to a traitor's death, or force them to apostatize, were a proceeding so clearly and so indubitably just, as to make it as clearly and indubitably unjust to hide them from such an ordeal, or to deny them to their pursuers: nor, indeed, would the harm be confined to the cruel execution of the priest, but with him the whole of the family in whose house he was found would be liable to the same death of traitors. Coke, therefore, the Attorney-General, made the most he could of this matter, insisting that such a pernicious doctrine tended to destroy all truth, and all reliance of men in each other's veracity, and if allowed to prevail, would upset all good government. Topcliffe also inveighed against it so exorbitantly, that Judge Popham silenced him. Father Robert then, as soon as he was allowed to reply, explained briefly what he had said to the witness, whose statement was not altogether exact, and addressing the Judge, said:

"' If you will have the patience to listen to me, I shall be able to prove to you from the Holy Scriptures, from the Fathers, from theologians, and from reason, that in case a demand is made against justice and with the view of doing grievous harm to an innocent person, to give an answer not according to the intent of the questioner is no offence against either the divine law or the natural law. Nay, I will prove that this doctrine in no wise threatens the good government of states and kingdoms: and that, where the other necessary conditions of an oath are present, there is nothing wrong in confirming such an answer in that manner. Now I ask you, Mr. Attorney, Supposing the King of France (which God forbid) were to invade this country successfully, and having obtained full possession of this city, were to make search for her Majesty the Queen, whom you knew to be hidden in a secret apartment of the palace: supposing, moreover, that you were seized in the palace and brought before the King, and that he asked you where the Queen was, and would receive no profession of ignorance from you except on oath : what would you do ? To palter or hesitate is to show that she is there: to refuse to swear is equivalent to a betrayal. What would you answer ? I suppose, forsooth, you would point out the place ! Yet who of all who now hear me would not cry out upon you for a traitor? You would then, if you had any sense, swear at once, either that you knew not where she was, or that you knew she was not in the palace, in order that your knowledge might not become instrumental to her harm. Of this kind, in fact, was the answer of Christ in the Gospel, when He said that concerning the Day of Judgment no one had any knowledge, neither the angels in Heaven, nor the Son : that is, according to the interpretation of the Fathers, such knowledge that He could communicate to others. Now this is the condition of Catholics in England : they are in peril of their liberty, their fortunes, and their lives, if they should have a priest in their houses. How can it be forbidden them to escape these evils by an equivocal answer, and to confirm this answer, if necessary, by an oath ? For in such a case, three things must be remembered : first, that a wrong is done unless you swear; secondly, that no one is obliged to answer everybody's questions about everything; thirdly, that an oath is always lawful, if made with truth, with judgment, and with justice, all which are found in this case.' 12

" He went on to exemplify his position by supposed queries of robbers and highwaymen; but he was interrupted by abuse."

Father Garnet has defended himself at sufficient length in his speech on his trial; 13 but as he there refers to his previous answers, we have thought it best to give insertion here to an autograph paper of his preserved in the Public Record Office. 14

"Concerning equivocation, which I seemed to condemn in moral things, my meaning was in moral and human conversation, in which the virtue of verity is required among friends, for otherwise it were injurious to all humanity. Neither is equivocation at all to be justified, but in case of necessary defence from injustice or wrong, or the obtaining some good of great importance, when there is no danger of harm to others, as in the case of Cowetry, 15 wherein I suppose it is a great advantage to me for to be admitted, and no harm can ensue to the city. For the city seeketh nothing but to be free from the sickness, and if it were possible that the city knew me to be free of certainty, they would admit me presently, which is confirmed by the custom of places beyond [sea], where, though they know a man to come from a place infected, yet after they have kept him in some several place, with convenient diet, for forty days, they admit him.

"As for Mr. Tresham's equivocation, I am loth to judge; yet I think ignorance might excuse him, because he might think it lawful in that case to equivocate for the excuse of his friend, yet would I be loth to allow of it or practise it: he being not then urged, but voluntarily offering it himself, contrary to that which he had before set down, and especially being in case of manifest treason, as I will after explain. But in case a man be urged at the hour of his death, it is lawful for to equivocate, with such due circumstances as are required in his life. An example we may bring in another matter. For the divines hold that in some cases a man may be bound to conceal something in his confession, because of some great harm which may ensue of it. And as he may do so in his life, so may he at his death, if the danger of the harm continue still.

" The case being propounded, supposing that I knew Gerard acquainted with this treason, and having been often demanded thereof, I still denying it, by way of equivocation, whether at the hour of my death, either natural or by course of justice, I may by equivocation seek to clear him again.

" I answer, that in case I be not urged I may not, but I must leave the matter in case in which it stand; but if I be urged, then I may clear him by equivocation, whereas otherwise my silence would be accounted an accusation. But all this I understand when the case is such that I am bound to conceal Gerard's treason, as if I had heard it in confession. For this is a general rule, that , cases of true and manifest treason,16 a man is bound voluntarily in utter and very truth by no way to equivocate, if he know it not by way of confession, in which case also he is bound to seek all lawful ways to discover, salvo sigillo.

"29  Martii."Henry Garnett.

"All the Doctors that hold equivocation to be lawful do maintain that it is not lawful when the examinate is bound to tell the simple truth, that is, according to the civil law. when there ,s a competent judge, and the cause subject to his jurisdiction, and sufficient proofs. But in case of treason a man is bound to confess of another without any witness at all, yea voluntarily to disclose it; not so of himself.

"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 exception majorem, or manifesto 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 Garnet 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.

The prisoner's usual plea of " Not guilty " is the real parallel to the denials of Father Gerard and others in similar positions. Being called on to plead " Guilty or not guilty," is the only form in which the question is now put to a person accused. But in those days the question was put over and over again, and in every variety of form. To deny was really to plead " Not guilty," and if this was lawful once, it was lawful whenever they were forced to repeat it. Not only was it a capital offence to be a priest within the realm, but it was high treason to be reconciled to the Church, or to be absolved by a priest, or to harbour or comfort one. Thus the interrogations addressed to prisoners were always intended to make them criminate themselves or others; that is, in the one case to cause them to plead guilty, so that they might be condemned to death on their own confessions; or, in the other case, to force them to become Queen's evidence, and be accessory to the infliction upon others of the extremest penalties enacted by an unjust law.

But with regard to Father Gerard's general truthfulness, and in particular with regard to the trustworthiness of his evidence respecting the Gunpowder Plot, even if the lawfulness of his denials under examination were not admitted, all that we should be 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 just.ncat.on, 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 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 from the perusal of the exculpatory letters which will be found in a later chapter without a full conviction of hs innocence and truthfulness. 

1 Supra, p. 38.

2 Infra, p. 324. 

3 Condition of Catholics, p. 244.

4 Apologia pro Vita sua y by John Henry Newman, D.D. London, 1864, p. 418. The reader's attention is earnestly called to Cardinal Newman's treatment of this subject, both at the page quoted, and in the Appendix, p. 72. To the Protestant authors quoted above may be added Mr. Froude {History of England, vol. ii. ch. vi. p. 57, note). "It seems obvious that a falsehood of this sort is different in kind from what we commonly mean by unveracity, and has no affinity with it. . . . Rahab of Jericho did the same thing which Dalaber did" [a Protestant, who gave false answers and swore to them, to save Garret, his fellow] " and on that very ground was placed in the catalogue of saints."

5 Supra, p. 163. 

6 Supra, p. 195.

7 Supra, p. 218. 

8 Ostendi non esse hoc falsum dicere. MS.

9 Sir Walter Scott's words have been often quoted, and they are fair specimens of what an honourable man considers lawful. As they were no hasty and unconsidered expressions, they are deserving of insertion in this place. Lockhart calls them " a style of equivoque which could never seriously be misunderstood." To John Murray Scott wrote: " I give you heartily joy of the success of the Tales, although I do not claim that paternal interest in them which my friends do me the credit to assign me. I assure you I have never read a volume of them until they were printed, and can only join with the rest of the world in applauding the true and striking portraits which they present of old Scottish manners. I do not expect implicit reliance to be placed on my disavowal, because I'know very well that he who is disposed not to own a work must necessarily deny it, and that otherwise his secret woud be at the mercy of all who choose to ask the question, since silence in such a case must always pass for consent, or rather assent. But I have a mode of convincing you that I am perfectly serious in my denial—pretty similar to that by which Solomon distinguished the fictitious from the real mother—and that is, by reviewing the work, which I take to be an operation equal to that of quartering the child." And, in a letter written two years later, he says : "I own I did mystify Mrs. a little about the report you mention; and I am glad to hear the finesse succeeded. She came up to me with a great overflow of gratitude for the delight and pleasure, and so forth, which she owed to me on account of these books. Now, as she knew very well that I had never owned myself the author, this was not polite politeness, and she had no right to force me up into a corner and compel me to tell her a word more than I chose, upon a subject which concerned no one but myself—and I have no notion of being pumped by any old dowager Lady of Session, male or female. So I gave in dilatory defences, under protestation to add and eik ; for I trust, in learning a new slang, you have not forgot the old. In plain words, I denied the charge, and as she insisted to know who else could write these novels, I suggested Adam Fergusson as a person having all the information and capacity necessary for that purpose. But the inference that he was the author was of her own deducing; and thus ended her attempt, notwithstanding her having primed the pump with a good dose of flattery." Lockhart's Memoirs of Sir Walter Scott, 1844, pp. 338, 389.

10 We translate partly from Bartoli, Inghilterra, lib. v. c. 9, and partly from More, Hist. Prov. lib. v. c. 29

11 Father Bartoli here asks us to contrast the pious horror expressed by the officials at Father Southwell's doctrine with the fact related by Father Gerard (supra, p. 194) of the magistrate Young swearing on the Scriptures to what he knew to be false.

12 This last consideration applies, of course, not to the general question of equivocation (for in that case it would involve a petitio principii), but to the sub-question whether supposing a simple equivocation lawful (i.e., allowing it to be no violation of veracity in some cases), it could ever be lawful to add to it the confirmation of an oath. Father Southwell maintains reasonably, that whatever it is lawful to say, it is lawful also to swear to, provided the other conditions for an oath are present.

13 Condition of Catholics, p. 244. 

14 Gunpowder Plot Book, n. 217A.

15 If this word is " Coventry," there may possibly be here a clue to the origin of our phrase "sent to Coventry."

16 "One necessary condition," says Father Garnett in another prayer (PRO., Domestic James I., vol. xx.n. 2), "required in every law is that it be just. For if this condition be wanting, that the law be unjust then it is ipso facto void and of no force, neither hath it any power to oblige any. And this is a maxim,  not only of divines, but of Aristotle and all philosophers. Hereupon ensueth that no power on earth can forbid or punish any Son which we are bound unto by the law of God, which is the true pattern of all justice. So that the laws against recusants, against receiving of priests, against confession, against mass, or other rites of Catholic religion, are to be esteemed as no laws by such as steadfastly believe these to be necessary observances of the true religion 'Likewise Almighty God hath absolute right for to send His preachers of His Gospel to any place in the world ' Euntes docete omnes gentes" 'So hat the law against priests coming into the realm sincerely to preach is no law, and those that are put to death by virtue of that decree are verily martyrs because they die for the preaching of true religion. Being asked what I meant by true treason, I Answer that that is a true treason which is made treason by any just law, and that is no treason a all which is made treason by an unjust law."