[A note comparing the Gunpowder Plot to the 2001 attacks on the US appears in four parts.]

8 The priest and the confessions

Father Garnet was a distinguished scholar, and he comes down to us now as a decent man trapped in a vice put together by a haughty hierarchy and a rogue flock.  He showed astonishing composure and compassion during the trial  – and on the scaffold when the agents of the government were still pursuing him and trying to break him down morally before cutting him up physically.  Some would even later regard his conduct as saintly.

In the course of the trial, the leading government minister, Salisbury, had put it to the priest that he could not have absolved Catesby ‘because he professed no penitency, and therefore you could not absolve him.’  (We hear echoes of that discussion now on the issue of abuse by clerics.)  Father Garnet had maintained that he was obliged to respect the confessional and not report the confessor.

It looks likely that Father Garnet may have accepted that the law of England would go hard on him in carrying out what he saw was his duty as a priest.  When on trial for his life, Father Garnet was directly asked by Salisbury whether Catesby had told him of ‘the Powder Treason’, he calmly responded: ‘That my lord I may not answer.’  But he also said this:

But I allow that the laws made against such concealing are just and necessary, for it is not fit that the safety of the state should depend upon any man’s particular conscience.

It may be that such a concession related only to the knowledge that he had acquired outside of the confessional.  That would appear to have been the view of G M Trevelyan who said that Garnet had obtained ‘a general knowledge of Mr Catesby’s intention’ not in confession and that he saw himself as ‘highly guilty and to have offended God’ in not revealing it; Trevelyan also said that Garnet got the same knowledge from another source outside confession.

The depth of Garnet’s knowledge of the plot itself, and the source of such knowledge, are very controversial.  It is not easy to come to a conclusion even when you go back to State Trials – which is as close as we will get to a primary source.  (And the account there is as incomplete as it is evidently loaded against the accused.)

Garnet had said at first that Catesby had told him that ‘he had some great thing in hand for the good of Catholics.  I much disliked it and dissuaded him.’  On the scaffold, the Recorder challenged Garnet’s assertion that he only had general knowledge from Catesby.  He alleged that Garnet admitted getting ‘particulars of the Powder Plot’ from Tesimond at a meeting in Essex.  It was then said that Garnet acknowledged this to be true and said that ‘inasmuch as he had not declared the knowledge of the plot which had been generally imported to him, he owned himself to be justly condemned, and he asked pardon of the king.’  But Garnet had contended throughout that everything Tesimond said to him was said in confession.  That in itself was controversial – the discussion constituting the alleged confession took place in a walk in an Essex garden.

The great German historian Ranke said that Garnet had been asked to advise on a scheme to blow up parliament and the queen in the previous reign, and that he had said that such a scheme was ‘lawful’ – he cannot have been referring to the laws of England.  He said that the conspirators would have had a duty to spare as many of the ‘innocent’ as possible.  (By what criteria were the victims to be denied their ‘innocence’?)

The scheme which had been started under Elizabeth was resumed under King James, when men saw that his accession to the throne did not produce the hoped-for change.  On this occasion also scruples were felt on the ground that many a Catholic would perish at the same time.  To a question on the subject submitted to him without closer description of the case, Garnet answered in the spirit of a mufti delivering his fettah [fatwa?] that if an end were indubitably a good one, and could be accomplished in no other way, it was lawful to destroy even some of the innocent with the guilty.  Catesby had no compassion even for the innocent: he regarded the lords generally as only poltroons and atheists, whose place would be better filled by vigorous men.

If this assessment is well founded, it is frightening.  This discussion shows how alarmingly inhuman we can get if we allow religious schism to guide our moral judgment.  Here is a man of God contemplating indiscriminate slaughter on the footing that members of one sect are somehow ‘innocent’ in a way that members of another sect are not.  Kant was plainly right.  Heresy is a killer.  Offending God is far worse than offending man.  As Kant said, a heretic is like a rebel.  Heresy was religion’s version of rebellion – at least in those propagating the affront to authority.  Both involve a challenge to the existing order.

At least, as Ranke implies, this learned priest should have followed the maxim of seasoned lawyers – never give advice in the round, or on broad hypotheticals.  That way, two people can fall right off a cliff.  Father Garnet on any view was playing with fire – during his trial, it was alleged that Catesby had also sought to fish from Garnet some abstract ground of ‘lawfulness’ in respect of the deaths of innocent people.

When Father Garnet was pursued on the scaffold to confess to treason, he maintained his innocence in a manner that is for me persuasive.

I consider the late treason and conspiracy against the state to be cruel and detestable; and for my part all designs and endeavours against our king were ever disliked by me.  If this attempt had been perfected as it was designed, I think it would have been altogether damnable, and I pray for all prosperity to the king, the queen, and the royal family.

That was, after all, the teaching of his church and the inevitable consequence of the mission of its founder.  When, still on the scaffold, Father Garnet was asked if he sought pardon from the king, he responded:

I do so as far as I have sinned against him; namely, in that I did not reveal that whereof I had a general knowledge from Mr Catesby – but not otherwise.

There, then, was a decent man in dreadful plight.  The evidence is not complete, but doing the best I can, the finding of treason against Father Garnet looks to me to be about as sound as the same finding against Jesus of Nazareth nearly sixteen centuries beforehand.  Garnet would I think have been fairly convicted and executed on the misprision charge on its own, but in my view, he did not deserve the verdict or mode of death that he got.

9 Abuse of process

One source says that on the discovery of the plot, ‘the government seems to have fallen into a wild state of terror.’  That is just what the terrorists had sought, and we know what happened in the U S in 2001.  The USA Patriot Act of 2001 does not lack colour or warmth.

Possibly as a result of this ‘wild state of terror’, the trials did not reflect well on the English legal system.  Most of what Coke said or tendered in evidence would not be permitted in court today.  In his introduction to Volume I of the Folio Society Notable Historical Trials, the late John Mortimer, the creator of Rumpole, said of the conduct of Coke toward Ralegh that that was ‘the sort of cross-examination which demotes an attorney-general from an advocate to an accomplice in murder.’  Mr Mortimer concluded his Introduction:

So, reading these trials is as good a way as any of understanding history.  Sometimes the best people are in the dock, the most corrupt on the prosecutors and judges’ benches. Our Western civilisation is, after all, the product of a religion founded by someone who was tried, sentenced and executed as a criminal, in a trial of which a focus group of the citizens of Jerusalem thoroughly approved.

We can see aspects of a show trial.  For example, during the hearing, Salisbury (Cecil) had rather given the game away.

Alas, Mr Garnet.  Why should we be troubled all this day with you, were it not to make the cause appear as it deserveth?

Most lawyers know that feeling.  Sometimes when the train leaves the station, you are in no doubt about where your journey is going to end – why then are we here?

10 Punishment

Death, then, was the inevitable penalty.  The only question was how degrading and painful that death would be.  That meant that the English then were less exposed to the problems that come when you lock up religious fanatics together.  The Catholics who refused to toe the line were called recusants.  Elizabethan prisons were full of recusants.  Among other things, they could more easily attend mass in a place loaded with priests.

One of these slammers was named ‘the Clink’ – what else? – in Southwark.  It was always loaded with recusants and was seen as a ‘propaganda cell for the whole capital.’  This mirrors the experience in France and other jurisdictions where they now know that putting Muslim fanatics together unsurprisingly makes them worse.  No one appears to have the faintest idea of an answer.

11 The evil that zealots do – to priests

So, even in its hell-raising and mind-numbing scope, there was nothing new in the attack on the twin towers in 2001.  These attempts to raise hell on earth are meant to destabilise us by terrifying us.  They are especially evil when driven by what is said to be faith, because the fanaticism goes up a notch, and the stakes go up by far more than a notch – they go up to eternity.  One of the conspirators with a nice sense of understatement confessed that their object had been to ‘breed a confusion fit to beget new alterations.’

These zealots are also evil because they involve a prostitution, perversion and betrayal of the faith that they claim to represent while doing evil.  And by doing that, they are laying up trouble on earth for those that we may call the true believers.

To the extent that we disintegrate and drop our guard, we are handing the prize to the terrorists.  In my view, we do that by rashly abandoning long held rights, such as the ban on torture.  In that I think that we should follow the teaching of the military and police people who, as I understand it, follow the advice of the King of Spain and the Holy Roman Emperor – don’t poke your enemy in the eye if he may come back and poke both of yours.

12 Protecting criminals

On the other hand, the time must be long past when adherents to one faith can allow their dogma to stand in the way of their saving the lives of others.  You may have thought that the claim of the clergy to be above the law had been put to bed more than 800 years ago after that unfortunate misunderstanding in the cathedral with Thomas Becket.  The effort to resuscitate it now shows not merely what Americans refer to as a tin ear, but a worryingly heartless preference for dogma over human life.  Whatever Father Garnet had in mind, he was plainly right when he said that ‘it is not fit that the safety of the state should depend upon any man’s particular conscience’.  It is revolting to think that the life or welfare of one man, woman or child might depend wholly on how the conscience of another man requires him to perform some part of a religious rite.

We read at times of priests claiming the protection of the seal of confession, and of some even offering to go to jail rather than adhere to the law, if law it be.  If such priests think that such a course might be a form of martyrdom, we might hope that they are deluded.  It is hard to think of anyone in our community, and certainly not anyone who has brought up children, who would accept such a view.  And before any cleric seeks to go down that path, he should carefully consider the hell that Father Garnet brought down upon himself and others.  The truest words that Father Garnet ever spoke may have been this response to Salisbury: ‘My lord, I would to God I had never known of the Powder Treason.’  Any priest who wants to allow any chance of being put in the life or death quandary of Father Garnet will look at best a brick shy of a full load.

It is sufficient here to refer to two subsidiary arguments of Coke that would have held attraction then and which could embarrass a cleric now.  Coke urged that Garnet could have revealed the identities of those who were not ‘confitents.’  His alternative submission may have had more attraction – Garnet ‘might and ought to have discovered the mischief for the preservation of the state though he had concealed the persons.’  These points are arguable but we do not provide our courts to settle disputes about religious dogma or rites.  Whose back would rise higher – that of the judge, or that of the jury?

And while we are talking about clerics giving succour to members of their flock who are contemplating doing evil to others, they may want to get some mature legal advice about the crimes of aiding and abetting.  In the humour of our time now, they need not expect warm sympathy from a jury.  And certainly any cleric offering a comforting view to a would be criminal about the ‘lawfulness’ of a proposed crime might look to receive full retribution at the hands of the law.  Preserving the peace is after all the law’s prime reason for existence.

As it happens, Guy Fawkes had correctly identified the nature and extent of the evil of the Gunpowder Plot in two answers that he gave directly to the king when he was arrested (with a watch, slow matches and touchwood on his person).

Why would you have killed me?

Because you are excommunicated by the pope.

How could you conspire against my children and so many innocent souls?

Dangerous diseases require a desperate remedy.