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CHAPTER VIII.
THE GOVERNMENT'S CASE

We have hitherto confined our attention to sources of information other than those with which the authors of the official narrative have supplied us, and upon which they based the same. It remains to inquire how far the evidence presented by them can avail to substantiate the traditional history, and to rebut the various arguments against its authenticity which have been adduced.

For brevity and clearness' sake it will be advisable to divide this investigation under several heads.

i. The Trial of the Conspirators

On the threshold of our inquiry we are met by a most singular and startling fact. As to what passed on the trial of the conspirators, what evidence was produced against them, how it was supported, – nay, even how the tale of their enterprise was told – we have no information upon which any reliance can be placed. One version alone has come down to us of the proceedings upon this occasion – that published "by authority" – and of this we can be sure only that it is utterly untrustworthy. It was issued under the title of the True and Perfect Relation, but, as Mr. Jardine has already told us, is certainly not deserving of the character which its title imports. "It is not true, because many occurrences on the trial are wilfully misrepresented; and it is not perfect, because the whole evidence, and many facts and circumstances which must have happened, are omitted, and incidents are inserted which could not by possibility have taken place on the occasion. It is obviously a false and imperfect relation of the proceedings; a tale artfully garbled and misrepresented … to serve a State purpose, and intended and calculated to mislead the judgment of the world upon the facts of the case."³³² Again the same author remarks,³³³ "that every line of the published trial was rigidly weighed and considered, not with reference to its accuracy, but its effect on the minds of those who might read it, is manifest."

Moreover, the narrative thus obviously dishonest, was admittedly issued in contradiction of divers others already passing "from hand to hand," which were at variance with itself in points of importance, and which it stigmatized as "uncertain, untrue, and incoherent;" it justified its appearance on the ground that it was supremely important for the public to be rightly informed in such a case:³³⁴ and so successful were the efforts made to secure for it a monopoly, that no single document has come down to us by which its statements might be checked. In consequence, to quote Mr. Jardine once more,³³⁵ there is no trial since the time of Henry VIII. in regard of which we are so ignorant as to what actually occurred.³³⁶

The employment of methods such as these would in any circumstances forfeit all credit on behalf of the story thus presented. In the present instance the presumption raised against it is even stronger than it would commonly be. If the Gunpowder Plot were in reality what was represented, why was it deemed necessary, in Cecil's own phrase, to pervert and disguise its history in order to produce the desired effect? A project so singular and diabolical in its atrocity, prepared for on so large a scale, and so nearly successful, should, it would appear, have needed no fictitious adjuncts to enhance its enormity; and for the conviction of miscreants caught red-handed in such an enterprise no evidence should have been so effectual as that furnished by the facts of the case, which of their nature should have been patent and unquestionable. When we find, on the contrary, a web of falsehood and mystery woven with elaborate care over the whole history of the transaction, it is not unnatural to infer that to have told the simple truth would not have suited the purpose of those who had the telling of the tale; and it is obviously necessary that the evidence whereby their story was supported should be rigorously sifted.

What has been said, though in great measure true of the trial of Father Garnet, at the end of March, is especially applicable to that of the conspirators, two months earlier, for in regard of this we have absolutely no information beyond that officially supplied. The execution of Faukes and his companions following close upon their arraignment,³³⁷ all that had been elicited, or was said to have been elicited, at their trial, became henceforth evidence which could not be contradicted, the prosecution thus having a free hand in dealing with their subsequent victim.³³⁸ In view of this circumstance it has been noted as remarkable that whereas the conspirators had been kept alive and untried for nearly three months, they were thus summarily dealt with at the moment when it was known that the capture of Father Garnet was imminent, and, as a matter of fact, he was taken on the very day on which the first company were executed.³³⁹ It would appear that nothing should have seemed more desirable than to confront the Jesuit superior with those whom he was declared to have instigated to their crime, instead of putting them out of the way at the very moment when there was a prospect of doing so.

ii. The Fundamental Evidence

Amongst all the confessions and "voluntary declarations" extracted from the conspirators, there are two of exceptional importance, as having furnished the basis of the story told by the government, and ever since generally accepted. These are a long declaration made by Thomas Winter, and another by Guy Faukes, which alone were made public, being printed in the "King's Book," and from which are gathered the essential particulars of the story as we are accustomed to hear it.

Of Winter's declaration, which is in the form of a letter to the Lords Commissioners, there is found in the State Paper Office only a copy, bearing date November 23rd, 1605, in the handwriting of Levinus Munck, Cecil's private secretary. This copy has been shown to the King, who in a marginal note objects to a certain "uncleare phrase," which has accordingly been altered in accordance with the royal criticism: and from it has evidently been taken the printed version, which agrees with it in every respect, including the above-mentioned emendation of the phraseology.

It must strike the reader as remarkable that, whereas, as has been said, the body of the letter is in the handwriting of the secretary, Munck, the names of the witnesses who attest it³⁴⁰ are added in that of his master, Cecil himself.

The "original" document, in Winter's own hand, is at Hatfield, and agrees in general so exactly with the copy, as to demonstrate the identity of their origin.³⁴¹ But while, as we have seen, the "copy" is dated November 23rd, the "original" is dated on the 25th.³⁴² On a circumstance so singular, light is possibly thrown by a letter from Waad, the Lieutenant of the Tower, to Cecil, on the 21st of the same month.³⁴³ "Thomas Winter," he wrote, "doth find his hand so strong, as after dinner he will settle himself to write that he hath verbally declared to your Lordship, adding what he shall remember." The inference is certainly suggested that torture had been used until the prisoner's spirit was sufficiently broken to be ready to tell the story required of him, and that the details were furnished by those who demanded it. It must, moreover, be remarked that although Winter's "original" declaration is witnessed only by Sir E. Coke, the Attorney General, it appears in print attested by all those whom Cecil had selected for the purpose two days before the declaration was made.³⁴⁴ It may be said that the inference drawn above is violent and unfair, and, perhaps, were there no other case to go upon but that of Winter, so grave a charge as it implies should not be made. There remains, however, the companion case of Faukes, which is yet more extraordinary.

His declaration first makes its appearance as "The examination of Guy Fawkes, taken the 8th of November."³⁴⁵ The document thus described is manifestly a draft, and not a copy of a deposition actually taken. It is unsigned: the list of witnesses is in the same handwriting as the rest, and in no instance is a witness indicated by such a title as he would employ for his signature.³⁴⁶ Throughout this paper Faukes is made to speak in the third person, and the names of accomplices to whom he refers are not given.

What, however, is most remarkable is the frank manner in which this document is treated as a draft. Several passages are cancelled and others substituted, sometimes in quite a contrary sense, so that the same deponent cannot possibly have made the statements contained in both versions. Other paragraphs are "ticked off," as the event proves, for omission.

Nine days later, November 17th,³⁴⁷ Faukes was induced to put his name to the substance of the matter contained in the draft.³⁴⁸ The document is headed "The declaration³⁴⁹ of Guy Fawkes, prisoner in the Tower of London." Faukes speaks throughout in the first person, and supplies the names previously omitted.³⁵⁰ Most noteworthy is the manner in which this version is adapted to the emendations of the draft. The passages ticked off have disappeared entirely, amongst them the remarkable statements that "they [the confederates] meant also to have sent for the prisoners in the Tower, of whom particularly they had some consultation," – that "they had consultation for the taking of the Lady Mary [the infant daughter of King James] into their possession" – and that "provision was made by some of the conspiracy of armour of proof this last summer, for this action." Where an alteration has been made in the draft, great skill is shown in combining what is important in both versions.³⁵¹

As to the means which were employed to compel Faukes to sign the declaration there can be no doubt; his signature bearing evidence that he had been tortured with extreme severity. The witnesses are but two, Coke, the Attorney General, and Waad, the Lieutenant of the Tower. When, however, the document came to be printed, as in the other case, a fuller list was appended, but not exactly that previously indicated, for to Faukes were assigned the same witnesses as to Winter, including the Earls of Worcester and Dunbar over and above his own list.³⁵²

The printed version exhibits other points of interest. There was in the Archduke's service, in Flanders, an English soldier, Hugh Owen,³⁵³ whom the government were for some reason, excessively desirous to incriminate, and get into their hands. For this purpose, a passage was artfully interpolated in the statement of Faukes, whereof no trace is found in the original. In the "King's Book," the passage in question stands thus, the words italicised being those fraudulently introduced:

"About Easter, the parliament being prorogued till October next, we dispersed ourselves, and I retired into the Low-countries, by advice and direction of the rest; as well to acquaint Owen with the particulars of the plot, as also, lest, by my longer stay, I might have grown suspicious." But of Owen we shall see more in particular. It must not be forgotten that on several other days besides those named above, Faukes made declarations, still extant, viz., November 5th, 6th, 7th, 9th, and 16th, and January 9th and 20th. The most important items of information furnished by that selected for publication were not even hinted at in any of these.

Farther light appears to be thrown on the manner in which this important declaration was prepared by another document found amongst the State Papers. This is an "interrogatory" drawn up by Sir E. Coke on November 8th, the very day of the "draft," expressly for the benefit of Faukes.³⁵⁴ That the "draft" was composed from this appears to be shown by a curious piece of evidence. We have already noticed the strange phraseology of one of the passages attributed to Faukes: "He confesseth that the same day that this detestable act should have been performed the same day should other of their confederacy have surprised the person of the Lady Elizabeth," etc. Precisely the same repetition occurs in the sixth of Mr. Attorney's suggested questions. "Item, was it not agreed that the same day that the act should have been done, the same day or soon after the person of the Lady Elizabeth should have been surprised," etc.?

Moreover, it is apparent that this interrogatory is not founded on information already obtained, but is, in fact, what is known as a "fishing" document, intended to elicit evidence of some kind. In the first place, some of its suggestions are mutually incompatible. Thus in another place it implies that not Elizabeth but her infant sister Mary was the choice of the queen-makers: – "Who should have been protector of the Lady Mary, who, being born in England, they meant to prefer to the crown. With whom should she have married?" (She was then seven months old.) Again it asks: "What should have become of the Prince?" as though he might after all be the sovereign intended.

Besides this, many points are raised which are evidently purely imaginary, inasmuch as no more was ever heard of them though if substantiated, they would have been supremely important.³⁵⁵

The above details will not appear superfluous if the importance of these documents be fully understood. It is upon these narratives, stamped with features so incompatible with their trustworthiness, that we entirely depend for much of prime importance in the history of the conspiracy, in particular for the notable episode of the mine, which they alone relate, and which is not even mentioned, either in the other numerous confessions of Faukes and Winter themselves, or by any of the other confederates. Save for an incidental remark of Keyes, that he helped to work in the mine, we hear nothing else of it; while not only is this confession quite as strange a document as the two others, but, to complicate the matter still more, Keyes is expressly described by Cecil³⁵⁶ himself as one of those that "wrought not in the mine."

It is hard to understand how so remarkable an operation should have been totally ignored in all the other confessions and declarations, numerous and various as they are; while, on the other hand, should this striking feature of the Plot prove to be a fabrication, what is there of which to be certain?

iii. The Confession of Thomas Bates (December 4th, 1605)

There is another piece of evidence to which exceptional prominence has been given, the confession of Thomas Bates, Catesby's servant, dated December 4th, 1605. This is the only one of the conspirators' confessions specifically mentioned in the government account of their trial, and it is mentioned twice over – a circumstance not unsuspicious in view of the nature of that account as already described.³⁵⁷

It is not necessary at present to enter upon the large question of the attitude of the Jesuits towards the Plot, nor to discuss their guilt or innocence. This is, however, beyond dispute, that the government were above all things anxious to prove them guilty,³⁵⁸ and no document ever produced was so effective for this purpose as the said confession, for, if it were true, there could be no question as to the guilt of one Jesuit, at least, Father Greenway alias Tesimond. The substance of Bates' declaration was as follows:

That being introduced and sworn into the conspiracy by his master, Catesby, he was then told that, as a pledge of fidelity, he must receive the sacrament upon his oath, and accordingly he went to confession to Greenway, the Jesuit.

That in his confession he fully informed Greenway of the design, and that Greenway bade him obey his master, because it was for a good cause, and be secret, and mention the matter to no other priest.

That he was absolved by Greenway, and afterwards received Holy Communion.

It will be observed that the second paragraph, here italicized, is of supreme importance. We have evidence that although the conspirators, during the course of their operations, frequented the sacraments, they expressly avoided all mention of their design to their confessors, Catesby having required this of them, assuring them that he had fully satisfied himself that the project, far from being sinful, was meritorious, but that the priests were likely to give trouble.³⁵⁹ We are even told by some authors that Catesby exacted of his confederates an oath of secrecy in this regard. It is clear that his authority must have had special weight with his own servant, who was, moreover, devotedly attached to his master, as he proved in the crisis of his fate. We might, therefore, naturally be prepared to learn that Bates, though confessing to Greenway, never acquainted him with the Plot; and, that in fact he never did so, there is some interesting evidence.

It cannot escape observation as a suspicious circumstance that this most important confession, upon which so much stress was laid, exists amongst the State Papers only in a copy.³⁶⁰ Moreover, this copy has been treated as though it were an original, being officially endorsed, and it has on some occasion been used in Court.³⁶¹ If, however, this version were not genuine, but prepared for a purpose, it is clear that it could not have been produced while Bates was alive to contradict it, and there appears to be no doubt that it was not heard of till after his death.

This appears, in the first place, from a manuscript account of the Plot,³⁶² written between the trial of the conspirators and that of Father Garnet, that is, within two months of the former. The author sets himself expressly to prove that the priests must have been cognizant of the design, for, he argues, Catholics, when they have anything of the kind in hand, always consult their confessors about it, and it cannot be supposed that on this occasion only did they omit to do so. In support of his assertion, he quotes the instances of Parry, Babington, and Squires, but says nothing of Bates. He mentions Greenway as undoubtedly one of the guilty priests, but only because "his Majesty's proclamation so speaks it." Had the confession of Bates, as we have it, been so prominently adduced at the trial, as the official narrative represents, it is quite impossible that such a writer should have been content with these feeble inferences.

Still more explicit is the evidence furnished by another MS. containing a report of Father Garnet's trial.³⁶³ In this the confession of Bates is cited, but precisely without the significant passage of which we have spoken, as follows: "Catesby afterwards discovered the project unto him; shortly after which discovery, Bates went to Mass to Tesimond [Greenway], and there was confessed and had absolution."

Here, again, it is impossible to suppose that the all-important point was the one omitted. It is clear, however, that the mention of a confession made to Greenway would primâ facie afford a presumption that this particular matter had been confessed, thus furnishing a foundation whereon to build; and, knowing as we do how evidence was manipulated, it is quite conceivable that the copy now extant incorporates the improved version thus suggested.

Such an explanation was unmistakably insinuated by Father Garnet, when, on his trial, this evidence was urged against him; for he significantly replied that "Bates was a dead man."³⁶⁴ Greenway himself afterwards, when beyond danger, denied on his salvation that Bates had ever on any occasion mentioned to him any word concerning the Plot. It is still more singular that Bates himself appears to have known nothing of his own declaration. He had apparently said, in some examination of which no record remains, that he thought Greenway "knew of the business." This statement he afterwards retracted as having been elicited by a vain hope of pardon, in a letter which is given in full by Father Gerard,³⁶⁵ and of which Cecil himself made mention at Garnet's trial.³⁶⁶ But of the far more serious accusation we are considering he said never a word.

There is, however, evidence still more notable. On the same day, December 4th, on which Bates made his declaration, Cecil wrote a most important letter to one Favat,³⁶⁷ who had been commissioned by King James to urge the necessity of obtaining evidence without delay against the priests. This document is valuable as furnishing explicit testimony that torture was employed with this object. "Most of the prisoners," says the secretary, "have wilfully forsworn that the priests knew anything in particular, and obstinately refuse to be accusers of them, yea, what torture soever they be put to."

He goes on, however, to assure his Majesty that the desired object is now in sight, particularly referring to a confession which can be none other than that of Bates, but likewise cannot be that afterwards given to the world; for it is spoken of as affording promise, but not yet satisfactory in its performance.

"You may tell his Majesty that if he please to read privately what this day we have drawn from a voluntary and penitent examination, the point I am persuaded (but I am no undertaker) shall be so well cleared, if he forbear to speak much of this but few days, as we shall see all fall out to the end whereat his Majesty shooteth."

It seems clear, therefore, that the famous declaration of Bates, like those of Faukes and Winter, tends to discredit the story which in particulars so important rests upon such evidence.

It may be farther observed that if the confession of Bates, as officially preserved, were of any worth, it would have helped to raise other issues of supreme importance. Thus its concluding paragraph runs as follows:

"He confesseth that he heard his master, Thomas Winter, and Guy Fawkes say (presently upon the coming over of Fawkes) that they should have the sum of five-and-twenty thousand pounds out of Spain."

This clearly means that the King of Spain was privy to the design, for a sum equivalent to a quarter of a million of our money could not have been furnished by private persons. The government, however, constantly assured the English ambassadors abroad of the great satisfaction with which they found that no suspicion whatever rested upon any foreign prince.

iv. Robert Winter

There are various traces of foul play in regard of this conspirator in particular, which serve to shake our confidence as to the treatment of all. Robert Winter was the eldest brother of Thomas, and held the family property, which was considerable. Whether this motive, as Mr. Jardine suggests, or some other, prompted the step, certain it is that the government in their published history falsified the documents in order to incriminate him more deeply. Faukes, in the confession of Nov. 17th, mentioned Robert Keyes as amongst the first seven of the conspirators who worked in the mine, and Robert Winter as one of the five introduced at a later period. The names of these two were deliberately interchanged in the published version, Robert Winter appearing as a worker in the mine, and Keyes, who was an obscure man of no substance, among the gentlemen of property whose resources were to have supported the subsequent rebellion. Moreover, in the account of the same confession sent to Edmondes by Cecil three days before Faukes signed it (i. e., Nov. 14th), the same transposition occurs, Keyes being explicitly described as one of those "who wrought not in the mine," although, as we have seen, he is one of the three who alone make any mention of it.

Still more singular is another circumstance. About November 28th, Sir Edward Coke, the attorney-general, drew up certain farther notes of questions to be put to various prisoners.³⁶⁸ Amongst these we read: "Winter to be examined of his brother. For no man else can accuse him." But a fortnight or so before this time the Secretary of State had officially informed the ambassador in the Low Countries that Robert Winter was one of those deepest in the treason, and, to say nothing of other evidence, a proclamation for his apprehension had been issued on November 18th. Yet Coke's interrogatory seems to imply that nothing had yet been established against him, and that he was not known to the general body of the traitors as a fellow-conspirator.

v. Captain Hugh Owen, Father William Baldwin, and others

We have seen something of the extreme anxiety evinced by the English government to incriminate a certain Hugh Owen, a Welsh soldier of fortune serving in Flanders under the archduke.³⁶⁹ With him were joined Father Baldwin, the Jesuit, and Sir William Stanley, who, like Owen, was in the archduke's service. The measures taken in regard of them are exceedingly instructive if we would understand upon what sort of evidence the guilt of obnoxious individuals was proclaimed as incontrovertible.

No time was lost in commencing operations. On November 14th, three days before Faukes signed the celebrated declaration which we have examined, and in which Owen was not mentioned, the Earl of Salisbury wrote to Edmondes, ambassador at Brussels,³⁷⁰ that Faukes had now directly accused Owen, whose extradition must therefore be demanded. In proof of this assertion he inclosed a copy of the declaration, in which, however, curiously enough, no mention of Owen's name occurs.³⁷¹

Edmondes on his side was equally prompt. He at once laid the matter before the archduke and his ministers, and on November 19th was able to write to Salisbury that Owen and his secretary were apprehended and their papers and ciphers seized, and that, "If there shall fall out matter to charge Owen with partaking in the treason, the archduke will not refuse the king to yield him to be answerable to justice,"³⁷² though venturing to hope that he would be able to clear himself of so terrible an accusation.

On "the last of November" the subject was pursued in an epistle from the King himself to the "Archdukes,"³⁷³ in which the undoubted guilt of both Owen and Baldwin was roundly affirmed.³⁷⁴

On December 2nd, 1605, Salisbury wrote to Edmondes:³⁷⁵ "I do warrant you to deliver upon the forfeiture of my judgment in your opinion that it shall appear as evident as the sun in the clearest day, that Baldwin by means of Owen, and Owen directly by himself, have been particular conspirators."

In spite of this, the authorities in Flanders asked for proofs of the guilt of those whom they were asked to give up. Wherefore Edmondes wrote (December 27th) to secure the co-operation of Cornwallis, his fellow-ambassador, at Madrid. After declaring that Owen and Baldwin were now found to have been "principal dealers in the late execrable treason," with remarkable naïveté he thus continues:³⁷⁶

"I will not conceal from your lordship that they have been here so unrespective as to desire for their better satisfaction to have a copy of the information against the said persons to be sent over hither; which I fear will be very displeasing to his Majesty to understand."

In January (1605-6), Salisbury sending, in the King's name, instructions to Sir E. Coke as to the trial of the conspirators, concluded with this admonition:³⁷⁷ "You must remember to lay Owen as foul in this as you can," which certainly does not suggest that the case against him was overwhelmingly strong.

After the execution of the traitors, an Act of Attainder passed by Parliament included Owen amongst them.³⁷⁸

The archdukes remaining unconvinced, another and very notable argument was brought into play. On February 12th, 1605-6, Salisbury wrote to Edmondes:³⁷⁹

"As for the particular depositions against Owen and Baldwin, which the archdukes desire to have a sight of, you may let them know that it is a matter which can make but little to the purpose, considering that his Majesty already upon his royal word hath certified the archdukes of their guilt."

As to Owen's own papers which had been seized, the archduke assured the English ambassador,³⁸⁰ "that if there had been anything to have been discovered out of the said papers touching the late treason (as he was well assured of the contrary), he would not have failed to have imparted the same to his Majesty."

At a later date the Spanish minister De Grenada wrote from Valladolid³⁸¹ that men could not be delivered up on mere suspicion, which might prove groundless, but that the archduke had received orders to sift the matter to the bottom, in order that justice might be done "very fully."

About the same time President Richardot informed Edmondes³⁸² that Owen strenuously denied the charges against him, "and that there is the more probability of his innocency for that his papers having been carefully visited, there doth not appear anything in them to charge him concerning the said matter."

On April 21st Salisbury informed Edmondes of a conference on the subject between the king and the archduke's ambassador.³⁸³ The latter declared that his master was ready to prosecute the accused in his own courts if evidence was furnished him, but in reply King James explained that this was impossible, and that he "was loth to send any papers or accusations over, not knowing how they might be framed or construed there by the formalities of their laws." He added that it was useless now to talk of evidence, "seeing the wretch is already condemned by the public sentence of the whole Parliament, which sentence the archdukes might see if they would." The ambassador thereupon asked to have a copy, but was curtly told that it would presently be printed, when he could buy one for twelve pence and send it to his masters, but that the king was not disposed to make a present of it.

In these circumstances the archdukes determined to detain Owen no longer, and he was presently discharged. The news of this proceeding produced a remarkable change in the tone of his accusers. On June 18th, the secretary wrote to Edmondes³⁸⁴ that Owen's enlargement "seemed to give too much credit to his innocency;" moreover, that "though his Majesty showed no great disposition (for many considerations specified unto you) to send over the papers and accusations against him, … yet this proceeded not out of any conscience of the invalidity of the proofs, but rather in respect that his process being made here, and the caitiff condemned by the public sentence of the Parliament, it would have come all to one issue, seeing they have proceeded when his Majesty left it to themselves to do as they thought fit."