England celebrates Guy Fawkes Day, commemorating Nov. 5, 1605, when
the English government foiled a plot by Guy Fawkes and other Catholics
to blow up Parliament, kill King James I, and place one of his Catholic
relatives on the throne. Americans and other free people will be
reminded of September 11, when the brave passengers of United Flight
93 foiled a plot to destroy the Capitol or the White House. Meanwhile,
Osama Awadallah, a Jordanian student attending
Grossmont College (a college in El Cajon, California, which
caters to international students),
has been indicted by a New York City grand jury for lying to
the grand jury about his relationship with September 11 terrorists
Nawaf Alhazmi and Khalid al-Midhar. While some people may urge that
Awadallah be treated leniently for his lies under oath, a closer
look at Guy Fawkes Day highlights why Awadallah and other adherents
of Islamofascism have no plausible moral justification for their
As Lady Antonia
Fraser details in her outstanding book
Faith and Treason: The Story of the Gunpowder Plot, in
the late 16th century, Anglican forces won control of the English
government. They made it a crime for England's small Catholic population
to attend Catholic Church, required everyone to participate in Church
of England services, outlawed Catholic Communion, and forbade the
entry of any Catholic priest into England, Scotland, or Ireland.
The punishment could be as severe as death by public torture.
totalitarian effort at thought control, many Catholics continued
to practice their faith secretly, and the Catholic Church continued
to send priests into England. The main smugglers were the Jesuits,
and the government's discovery of one of their training manuals
for English priests caused a sensation.
of Equivocation instructed priests going into English territory
that, even under oath, they and their flock need not condemn themselves
when interrogated by the English authorities. The treatise offered
four techniques of equivocation: ambiguity (answering "a priest
lyeth not in my house" could mean that the priest hidden in
the home did not tell lies); incomplete answers ("I went to
his house for dinner," omitting that "I also went to attend
a secret mass"); hidden gestures and pronoun references ("I
did not see anyone go that way," while pointing the other way
with one's finger hidden in a pocket); and the most sensational
technique: responding to questions both verbally and mentally.
that treatise, a Catholic could "securely in conscience"
provide answers with a "secret meaning reserved in his mind."
If an English government attorney interrogated someone suspected
of being a priest named Peter, the attorney might as, "Is your
name Peter?" A Treatise of Equivocation instructed that
the priest could speak the word "No" in response. The
priest could then continue, speaking in his own mind but not out
loud, "so as I am bound to utter it to you, since you have
no lawful jurisdiction over me."
a lay person were asked, "Did you hear Mass today?" she
might orally answer "No," while noting to herself that
she "did not hear it at St. Paul's or such like"
even though she did hear Mass in her home.
In modern America,
it's easy to see the natural rightness of religious dissidents misleading
(but in a sense, not lying to) the minions of an unjust and tyrannical
government. Hardly anyone would deny the moral right of a Jew in
Nazi Germany or a Hindu in Afghanistan to give equivocal answers
to questions from a government interrogator.
Do the equivocations
of the Anglo-Catholics have any lessons for Americans nearly four
centuries later? I think so.
First of all,
A Treatise of Equivocation never aimed to erase the general
moral rule against untruth. Equivocation was for "very limited"
circumstances, allowed only in response to government interrogators.
Civil society depends on trust, and nothing in A Treatise of
Equivocation justifies any type of misleading answers to the
many people with whom one voluntarily associates.
the treatise, a speaker must "answer directly" if the
government interrogator meets five conditions:
He is a lawful
agent of the sovereign.
He has personal jurisdiction over the person being questioned.
He limits his questions to topics over which he has legal authority.
He is enforcing a just law (since "a judge in the execution
of an unjust law is no judge").
He has probable cause for his questions.
posed by the grand jury to Osama Awadallah plainly meet each these
conditions. The grand jury is a lawful agent of the sovereign, the
People of the United States, acting through their federal government.
The grand jury had personal jurisdiction of over Awadallah because
Awadallah was in the United States voluntarily, and thus implicitly
submitted to the same type of grand jury jurisdiction which exists
over all Americans.
We have no
reason to believe that grand jury's questions exceeded its legal
authority to investigate the September 11 crimes. The indictment
against Awadallah involves only questions about his relationship
with the criminals, a legitimate subject of grand jury inquiry.
The laws against
hijacking and mass murder are just laws.
is probable cause for the questions, since the car left at Dulles
Airport by one of the hijackers contained a slip of paper with Awadallah's
One of the
two cases in which A Treatise on Equivocation achieved its
greatest notoriety was the "Gunpowder Plot" trial, following
the failure of the Guy Fawkes scheme.
The other sensational
equivocation case was the 1613 prosecution of Irish Catholic grand
jurors in Dublin. The grand jurors had refused to indict Catholic
defendants accused of being "recusants" for failure to
attend the Anglican Church. When the grand jurors took their oaths,
they made mental reservations about their conscience and religion.
When prosecuted for perjury, one juror insisted he made his equivocations
"to defend my self against the captious and injurious demands
of an unlawful judge." The Irish jurors and the gunpowder plotters
were, of course, convicted, and A Treatise of Equivocation
was introduced as evidence against them by the prosecution.
people called to jury service in the United States face a moral
dilemma similar to that faced by the Irish grand jurors. According
to a study by the National Law Journal, 76 percent of Americans
agree that "whatever a judge says the law is, jurors should
do what they believe is the right thing." Thus, if a juror
feels that a person is being unjustly prosecuted for acting in self-defense,
or for committing a victimless crime, the juror should vote to acquit
As a matter
of legal history, the modern American 76 percent, like their Irish
predecessors, are plainly correct. The jury is intended to interpose
the conscience of the community between the government and the defendant.
America's first Supreme Court Justice, John Jay, and America's second
president, attorney John Adams, recognized and applauded the jury's
right and duty to vote its conscience.
for many decades judges who are unfaithful to America's history
of jury rights have been falsely telling jurors that they are mere
fact-finders, and must accept unequivocally the judge's instructions
about the law. As the
Fully Informed Jury Association continues to spread the word
about jurors' rights, many judges are working harder than ever to
exclude informed jurors from hearing cases. During the voir dire
process, some judges demand that potential jurors disclose whether
they have ever read anything about jurors' rights; any potential
juror who does know his rights is automatically "excused."
The state of
Colorado recently witnessed a type of prosecution not seen in the
United States since 1776. Juror Laura Kriho was criminally prosecuted
because she allegedly voted to acquit a drug defendant based on
her conscience. (Technically, she was prosecuted because she did
not, during voir dire, tell the judge about her own prior
drug conviction, which had been expunged from her record. She says
she didn't disclose it because no one asked. The real reason for
her prosecution was that after she hung the jury, one of her fellow
jurors complained to the prosecutor that she had compared drug laws
to witch hunts.)
Given the data
from the National Law Journal, it appears that many jurors
equivocate during voir dire. Asked if they know about jurors'
rights, they answer "No," and mentally add "I know
of no jurors' rights contrary to the Constitution." Asked if
they will rigidly follow the judge's instructions on the law, they
answer "Yes," and mentally add, "insofar as your
instructions are consistent with my rights and duties as a juror."
to Osama Awadallah, potential jurors who intend to vote their consciences
clearly pass the test of A Treatise of Equivocation. There
is a great moral difference between lying in an investigation of
the mass murder of thousands of innocents, and equivocating as part
of jury service in order to protect someone from abuse of governmental