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having traiterously, and upon prepense malice, killed Anthony Ascham, ambassador, or resident of the parliament ofEngland, who came and enter d into this court by virtue of the safe conduct of the King our Lord, whom God preserve, and John Baptista Riva, a Genoese, being interpreter, or secretary of the said resident. The immunity of the church, which they pretend, cannot avail them, nor ought the plea of that immunity hinder the imposing and executing upon the said delinquents the punishment that corresponds with theii offences, as will be proved in the ensuing charge.
The accusation or charge.
l.f I "HE disaster and death of Charles Stuart, King of England, hap.*. pened the ninth of February, N. S. 1649. The parliament of England, governing the kingdom afterwards, sent an ambassage to the King our Lord, whom God guard; and Besoldus saith, that quid belli Ducibus Gubernatoribusque provinciarum. liberis mittuntur, sunt Legatu Those, who from generals of war and free governors of provinces are sent any where, are ambassadors. I could produce a cloud of authors upon this argument, who treat of, and declare, who have capacity to send ambassadors, as the Earl of Fontanar, Don Christoval de Benevente, in his Advertencies to Princes and Ambassadors; the Dissertations of Don John Vella, Conrado Bruno, and the Count Don Juan Antonio de Vera in his book, called, The Ambassador, do amply aver: but whether the person sent lately by the parliament of England was an ambassador or agent, or resident, as the delinquents tetm him, or most properly an orator, for he came to deprecate peace; whether he was all these, or any of these, it matters not; for any of these may stile him a legate, and make him deserve that title; and the same security is due to all those titles, as Hotoman upon his theme resolves the point, with others.
2. This ambassador, or resident, sent by the parliament of England, called Anthony Ascham, arrived at the Bay of Calais the twentyfourth of March, 1650, with an interpreter, and three or four servants; and not meeting there with the Duke of Medina Celi, he went in quest of him to the port Santa Maria, and did let him know that he was sent by the parliament of England, in quality of an agent to the court of Spain, 'lhe duke lodged him thereupon, and according to his accustomed attention and prudence, by which he always operates, sent to tell him, that in regard it was the first negotiation between Spain and the parliament of England, he could do nothing in the business, till he had first given an account to his Majesty, as he did the twentyseventh of March, which came to Madrid, the second of April, and the same day the King referred the letter to his council; and the fourth of April, there was order sent to the duke, to treat him as resident, and see him conveighed to the court accordingly in safety. The twentieth of April, the resident, having been sick before, began his journey, being accompanied by the camp-master, Don Diego de Moreda, and the second of June they came to Toledo, whence the camp-master sent to the court for further order; and order was sent that he should pursue his journey, and that the resident might take a house where he pleased in the court. So they arrived at court the Sunday following at five in the evening; and Monday next after, at six in the morning, John Baptista Riva, who was, he said, a Genoese, went in company of a servant of the camp-master, to Hieronymo de la Torre, knight of the order ofCalatrava, and secretary of state; the said liiva complained of the illness and incommodity of the lodging: but when the resident and his train lighted at their lodging, it was observed there passed by some that went muffled, thereabouts, who were over-heard to say, essns son, these are they; so Riva delivered the secretary two letters from the parliament, saying that the resident came under the protection of his Majesty. The secretary answered, that they had done ill, not to have given account at the very point of their arrival; the resident being the person he was, and being in the catholick court he was secure enough; and he would advertise his Majesty of his coming accordingly, which he did within a quarter of an hour, charging the camp master's servant, that he should tell his master, to continue in assisting the resident; but an hour and half before this, the fore-mentioned delinquents did proditoriously, out of prepense malice, murther the said resident, and the said John Baptista Riva, according to the circumstances, which shall follow. Now these men well knew, that the said resident came to treat of peace, and they spontaneously confess they knew it, and that he entered into this court, by order from his Majesty, and with his passport; so that, besides the treachery and malice of the act, they committed capital treason, crimen Icesa Majestatis in primo capite. Now for every offence there is a corresponding punishment, and for this certainly there is undoubted pain of death; therefore they have made themselves unworthy of the immunity of the church, which they pretend.
The business briefly doth branch itself into two articles: First, The grievousness of the delict is to be considered, and the quality of the person upon whom it was committed, one, who had a safe conduct from his Majesty; therefore it is crimen lasac Majestatis, and perpetrated in a most treacherous and malicious manner.
Secondly, The church cannot give them sanctuary, therefore the pain of death is to be executed upon them according to the merit of the delict; in declaring the circumstances whereof I will leave all curiosities, and go to the pinch of the business, without extending myself to any extravagant impertinencies.
The First Article.
Touching the necessity and utility of ambassies, BesoIHus prosecutes this subject at large, together with Pascalio Benavente and Marsellaert, in their learned dissertations. But Pedro jErodo may be said to comprehend all, in these elegant words: 'Legatorum munus perquam utile est, ac perquam necessarium, nam sine iis neefcedera iniri possunt, nee belli leges pacisq; dici; inimicitice essent immortales, itisidias, cedes, vbiq; essent.' The function of ambassadors is both profitable and neefcesary, fox without them there can no confederation be made, nor any laws of peace or war enacted; enmities would prove immortal, slaughterings, perfidiousness; deceit and combustions would be every where. This so necessary and profitable a ministry was justly called, Santo officio y ministeriv delos Angelas, the holy office and ministry of angels; and the persons of those, who did exercise it, were held for sacred in all men's opinions. Sa/wti habebantur legati, eorumq; corpora sancta sunt: Ambassadors were held holy, and their bodies holy, saith Marcus Varro; therefore they should be protected from all human injury. Cicero also saith, ' Sentio jus legatorum tum hominum prcesidio munitum esse, turn etiam divino jure vallatum:' I hold the right of ambassadors not only to be fortified with human safe-guard, but intrenched with divine safety; I could muster up a whole squadron of authors, both modern and ancient, upon this subject, especially King Don Alonso, who makes this security of ambassadors his own, and defends it so; and this security is due to any ambassador, though he be suspected and false, as friar Don Goncalez resolves the point in his History of China; and Uesoldus also; and although the said ambassador come to deceive and collude, or that he be an enemy, yet having a safe conduct, he is to be protected, as the Count de la Roca saith, 'Fides enim% quando promittitur, etiam hosti servanda est contra quem bellum geritur, quanto magis amico pro quo pugnatur.' And if this security be due to an ambassador, that comes to intrap, yea, to an enemy, how much more to an English friend, in whose country the ambassador of Spain hath, and always hath had the pre-eminence of the ambassadors of all other princes?
Now that England should still be our friend, in statu quo nunc, and that peace should be continued with her, proceeds from right; for peace is not only made with the King, but with the kingdom also, and, although the first expires, the last remains. For,-put the case that a peace be concluded with a country, without including the King, either by carelessness, or some other accident, yet the peace stands good; for so the Polish magistrates answered the Emperor'Ferdinand the Second, Faltando el Rey, se conservan con el reyno: the King failing, yet peace is to be conserved with the kingdom. So Bodin holds, and urgeth a pregnant example to this purpose, Lib. de Repub. cap. rr.fol. 63. where he alledgeth the answer which the ambassadors of France made to Edward the Fourth, King of England, desiring aid from France against some rising subjects of his, by virtue of the league between them; which answer was, ' That the King of France could not help him: for confederations betwixt France and England were made betwixt the Kings and Kingdoms; so that, though King Edward was dispossessed thereof, yet the league and amity remained still with the kingdom, and with the king regnant.' Just so the peace betwixt the Kings and kingdoms of Spain with England, though Charles Stuart, the King, be wanting, yet it may be kept intire with the kingdom: and his Majesty himself insinuates so much unto us, continuing still his ambassador in England; for, when a peace is established betwixt Kings and kingdom, people, persons, and vassals, though the King fail, and the kingdom receive a differing form of government, yet the peace holds good still, because it aimed principally at the people and persons of both nations;
and upon these terms the peace was renewed betwixt Spain and England, l630, as the French Mercury relates.
Therefore these delinquents failed much in the foresaid reverence due to the sacred persons of ambassadors, as also to the safe conduct of his Majesty, by laying violent hands upon his person, much more by murdering him. Joab did treacherously kill Abner, who came with David's safe conduct; whereupon David said to all the people that were with him, Scindite vestimenta vestra, and, reinforcing his sorrow, Letavit David vocem mam, et fleoit super tumulum Abner, Jlevit autem et omnis populus; David lifted up his voice upon Abner's tomb, and wept, yea, all the people wept: moreover, David erected a tomb for Abner, being so treacherously killed, notwithstanding that he had his safe conduct, and the privilege of an ambassador. The Romans raised statues to ambassadors that were killed. Interfecto legato statua debetur, saith Besoldus, through all his Chapter of Legations.
Moreover, it is observable that David did not only weep, but he burst out into this deprecation, Si ante occasum solis gustavero panem vel aliud quidquam; If, before the setting of the sun, 1 taste bread, or any thing else, &c. Now, this sorrow of David did much please the people, Populus audknt, et placuerunt iis cuncta qucefecerat rex in conspectu totius populi; as the holy text hath it, The people heard, and were pleased with every thing that David did.
Here it is to be observed, that the people were to be satisfied herein j nor was a bare sorrow only satisfactory for this murder, but a due punishment must expiate the offence, which, in regard that David himself could not do it in his life-time, he left it in his charge to his son Solomon, in these words: Fades ergo juxta sapientiam tuam, et effudit san* guinem belli in puce; Thou shalt do according to thy own wisdom (exaggerating his speech with a reason) and he shed the blood of war in peace.
So his Catholick Majesty (God guard him) hath done out of a resentment he had of this treacherous murder, by recommending the business to so great a tribunal: Facietis ergo juxta sapientiam vestram, effudit sanguinem belli inpace; proceed according to your own high prudence, by punishing these delinquents, who have murdered the ambassador of the parliament of England, though he came with a royal passport, and so shed the blood of war in time of peace.
Moreover, this death of the ambassador, by hindering the procedure of bis ambassy, is no single offence, but it reflects upon many. As the great civilian saith, Si quis autem legationem impedit, non unius, sed multorum profectum averlit, et sicut mullis nocet, d multis arguendus est. Whosoever shall impede an ambassy, he averts not the benefit of one man, but of many, and, as he hurts many, so he is to be argued by many. Now, many are the accusers of these men; many are interested in the business, and most especially the King, our liege lord, who gave a passport, and allowed of the ambassador, and of the parliament of England that sent him: therefore these men had need to have many lives to lose, for to satisfy so many whom the business concerns; so Magalotti hath it, that the punishment is to be double, in regard,.of the per* 'tons concerned.
vol. vi, <t
But hence may result a question, whether the punishment be to be inflicted where the delict was perpetrated, and the King's security violated, or whether the murderers be to be sent to the ambassador's master, whom he represents? This was an old difference betwixt Romulus and Tacius, who reigned together, as Pedro ;Erodo relates the business briefly, yet elegantly. Romulus was of opinion, that the offenders were to be sent to the ambassador's master. But this transfering of the offender to the party offended was always held to proceed rather from urbanity than justice, as it appears in the case of Rincon and Fregoso, which is amply related in the annals of the Emperor Charles the Fifth; it was a loud clamorous business, whereof all the corners of Christendom do ring, and every chronicler hath it, therefore I will not molest you with so trite a thing.
Tacius was of a differing sentiment; for he would have the delict to be punished where it was perpetrated; and the reasons, which the doctors give, are, because the lord of the territory is the more interested, and obliged to punish the offence on the party, to vindicate his own wrongs, as in this cause hisCatholick Majesty is most injured, because his royal passport is violated; and why should he have recourse to a foreign power to desire justice, when, by the law of nations, he may avenge the affront at home by his own? And, it is most fitting, they should receive punishment in this court rather than any where else, where, in regard of the greatness of our King, there are continually so many ambassadors residing, whose security maybe much confirmed by the exemplary punishment of these delinquents, and, in particular, the very ambassadors of England themselves, who are sojourning here now, though opposites to the dead ambassador, in regard of the dissensions now in England; all which must be done by a just infliction of punishment.
But the delinquents think to escape, by the immunities of the church where they fled, and sheltered themselves from so grievous and atrocious a crime, aggravated by so many circumstances, by so many accusers and interested persons; nor, according to their defence, do they confess to have committed any offence or sin at all, but they vaunt to have performed an heroick act. Now, it is a rule, that Jactanlia aggravat peccatum; boasting of mischief makes the sin the worse. St. Augustin, in defining sin, saith, that it is Dictum, factum, vel coucupitum contra legem ceternam; a thing spoken, done, or wished against the eternal law. Him followed Thomas Aquinas; and, citing Grogorio de Valentia, Father Granados pursueth the opinion, and Vasquez. Sin also is defined Transgressio legis, a transgression of the law: now the delict of murder is opposite to all laws, both divine and human; as also to violate the security of an ambassador, much more to murder, is condemned by all laws of heaven and earth; therefore this can be no other than a delict, and much more precisely a sin, and a sin non nominandum, an infandous sin, much less an heroick action, or exploit of gallantry.
The second article. That these delinquents cannot make themselves capable of the protection of any sanctuary, will be justified by two mediums, in form of a syllogising argument.