I Received your Letter concerning the Portugalls outragious action in the New Exchange; and by that Em­pire you have over me, you may challenge my private opinion con­cerning it, how our State may justly vindicate the blood of our Natives, shed by the traine and followers of an Embassadour; Although the Judges having already acted by their im­prisonment in the Common-goal, may seem to have decided the Controversie, by subjecting their persons to the Common-Lawes, not allowing them priviledges as Comites Legati ought to have. But I finde Sir Edward Cook himself censured, by a most learned Civilian, to be, Juris quod cum exteris obtinet non adeò peritus; And therefore the present Judges may allow themselves not infallible in a point not deduced from Littleton or Magna Charta, (and so bounded within the Narrow Seas) but referring wholly to the Lawes and practice of Nations.

Sir Edward Cook in the Iurisdiction of Courts trea­teth but incidently of Embassadours, Cap. 26. as it were Confes­sing them exempt from the Jurisdiction of the Common Law. In the same Chapter he delivers it for Law, that if a man banished for any heinous offence be sent Em­bassadour to that place whence he was proscribed, he [Page 4]ought not to be deteined or punished: and the same Le­gantine office may in reason aswell protect him that offends Durante offic [...]o, as exempt that person from pu­nishment, in that place where he is Employed Legat, after a Crime committed.

The most worthy Selden tells us, Ad Fletam. dissert. cap. 8. § 4. that Renatus Chop­pinus and other learned men are deceived, that rashly affirme, the English reteine no use of the Caesarian Lawes; and declares that all Leagues and transactions between this Nation and other Princes and States, and the rights of Legation, are Governed and expounded by those Lawes, and the interpreters of them: and therefore the use of these Lawes is admitted in the Con­sistories of both our Universities, and in the Court of Admiraltie, that Forainers that come to study and mer­chandise may be regulated by those Lawes that are well known to themselves.

The Legate brings with him the Lawes and rules of Nations; Kirckner. l. 2. c. 1. n. 126. according to which he squares his procee­dings; and his actions are onely examined by these, and not by the municipall Statutes of particular nations: the Interdict in some Citties in Italy, that no man shall under a great penaltie weare a sword in publique, can­not extend to a Legate (thither sent) who according to the custome of his nation, Aeinacem & telum gerit.

Ferdinand the Emperour shut up a Grove neere to his palace in Vienna for his privacy and delight, and prohibited all persons under an heavy mulct to enter or cut down any trees there: the King of Poland's Am­bassadour's Coachman rudely entred the place, and car­ried away a Cartfull of the forbidden trees, and though the Emperour frowned hereat, yet Legationis tutamini impunè res illa cessit, quod aliis fraudifuisset.

An Embassadour, Dd. in leg. quoties ff. ad Leg. Jul. Maj. that Conspireth the destruction of that Prince to whom he is sent, cannot be accused of Treason, for non subditus non potest peccare in majesta­tem; and though he be punishable, yet not by the mu­nicipall Lawes of that place where he offends, which usually punish affectum pro effectu, Leg. post. Div. God [...]eod.suasum & Consilium sceleris pro consummato, but naturall reason, and the Law of nations, make a difference between Intentions, and Facts, Gentilis de legat. lib. 2. Cap. 17.

The Venetian Embassadour resident in England a­bout the yeare 1628. was deprehended by the hus­band (if not [...] yet) in bed with his wife; the husband consulting the learned in the Laws for revenge upon the Embassadour, found, that (inanis erat actio quae exceptione repellitur) the Legate was Priviledged; and therefore was content only to sue a divorce adni­terium a mensa & thero: though adulterie be held natu­ra probrum ac turpe, and (by the Law of the God) styled faedissima nequitia. leg. 20. cad. ad leg. Jul de adult.

Cicero saith, Orac. 3 [...] verrem. that the name of Embassadour ought to be so holy and inviolable, quod non modò inter sociorum Jura, sed etiam hostium tela incolume versetur, id (que) non tam humano quam divino scito sancitum: They were as sacred as Mercury sent from Jupiter, and thereupon Cato Oraculously saith, Caduceatori nemo nocet: And there­fore the Romans esteeming Embassie the only Umpire and preparative of Peace and Warre, and that Legats in their employments do put off the nature of Enemies, did set up a Colledge of twenty Feciales or Heraulds, that if any Embassadour was violated by a Roman, they might deliver up the offender without any respect had to the honour and dignity of his person: for to that He­roick nation, Legati nomen gravius erat, quam ullius [Page 6]Injuriae aestimatio. Alber Gent. H. Grotius. &c. The most eminent Civilians hold, that if an Embassadour offend (even through Treason or sedition) he is to be remitted to his owne Prince to be punished, or yeilded up by him, unlesse the danger from the Embassadour be imminent and sudden, in which case he may be justly killed, yet non per modum poenae, sed per modum naturalis defensionis. And though Em­bassadours have sometimes been more roughly dealt with upon their committing offences, yet the sacred priviledges of Embassadours (as the Bishop of Rosse Em­bassadour for the Queen of Scots answered the Lord Burleigh (upon the same pretences against him) were never violated, Camd. Eliz. anno 1571. viâ Juris, sed viâ Facti; and that by barbarous or ignominious per­sons.

The Embassadours of the Tarquins being sent into Rome to demand their goods, Liv. although they had con­spired with some Roman Youths, and taken a resoluti­on to let in the Kings clancularly by night: yet the Con­suls (to whom this Treason was discovered by a slave, deprehending all the Conspiratours, & casting them into Prison) dismissed the Legats as inviolable by the lawes of Nations, whose very persons are Asyla, pro­tecting both themselves, and others.

Scipio African, having taken a ship filled with many Carthaginians, remitted them all untouched, because they averred themselves to be Legates, although it was manifest to him, that they falsely assumed the name of Embassadors to avoid the present danger. And the lear­ned Gentilis (though Advocate in England for the Spa­niard) hath these words, De legat. l. 2. c. 18. Justissimè actum his diebus in Angliâ cum legato Hispanico, qui in vitam Principis & regnum ejus conjuratus, dimissus est dimittendum Legatum [Page 7]exist imamus optimis docti rationibus, & exemplis. We read of Sacra lagationum, & Sanctimoniam legatorum. Pomponius: l. si quis: ff: de legationibus: Sancta corpora Legatorum: Varro lib. 3. de ling. lat. ab omni injuriâ tectis jure Gentium, Servius ad 10 Aeneid: tuti (que) regres­sus legato. Papinius. lib. 2.

I shall not deny but that some learned men do hold that the law of nations is reciprocall, and may be vio­lated by the Legate as upon the Legate: and that tis one thing to violate the Embassadour, and another thing to punish him, this supposing a Crime, that an In­jury, & hoc juris illud facti nomen est: and though a Legat is esteemed holy and inviolable by the lawes, ff. l. 8. de rer: divis. yet Mar­cianus in his elegant definition of the word Sanctum, delivers that to be so, quod ab injuriâ hominum (non au­tem a jure magistratus) defensum at (que) munitum est, and therefore if an Embassadour, Jure gentium sanctus ha­betur, Jure-gentium etiam delinquens obligatur ad pae­nam: like as a sanctuary will save a mans life from man-slaughter, but not when man-slaughter is comit­ted within the Sanctuary. Cap. in audi­entia. ex. de sent excom. Frustra siquidem Ecclesiae im­plorant auxilium qui in eam committunt.

To this it may be replyed, that by Remission of an offending Embassadour to his own Prince, the offence is not pardoned, but the tribunall changed; his Mer­curiall rod doth not free but reprieve him: he may be interrogated, and his examinations transmitted to his Prince to punish him: And if an Embassadour ought to be remitted for offences against Princes and Com­mon-wealths, which are Crimes, contra Jus inter Gen­tes (quod Jus inter Principes & populos diversarum Gen­tium communiter intercedit) how much more for offen­ces against private persons that are Crimina solùm Jure [Page 8]Gentium, such as are Homicide, Felony, and Lying, &c.

Now whether that security given to the Legates themselves may be extended to their followers, comes home to the Portugalls Case. It is a received rule, that privilegium concessum personae singulari extenditur ad personas accessorias sine quibus privilegium exerceri non potest. Rebuffus de privilegiis, &c. privileg. 166. cap. licet. Plut. de privileg. in 6. [...]. And we see it granted at home and abroad to Embassadours, their followers being comprehended to use divine service af­ter their owne Countrey Rites, Argum. le [...]. 16 ff. d [...]ffio. pr [...]s. 12 q. 2. cap. ecclesiar. and Religion: eadem (que) Privilegia prudentum interpretatione derivantur & ex­tenduntur ad Comites, cum aequissimum sit oneris & pe­riculi socios quinimo muneris vicarios, & morum testes, honoris quo (que) & favoris esse participes. And therefore they are equally guilty by the Julian Law who have injur'd either the Embassadors or their Comites. ff. ad leg. Ju [...]. de repub. l. Julia lege. De Jure Bel. & pac. l. 2. c. 18. §. 8 And the most excellent Grotius saith, Comites sancti sunt accessoriè, and therefore if they doe transgresse, the Le­gat may be demanded to yeild them up, but they are not to be taken away by force, which being once done by the Achaeans upon the Lacedaemonians (who were in company with the Roman Embassadours) the Romans exclaim'd The Lawes of Nations were broken. Paus. lib. 7.

And if the Embassadours refuse to deliver up the of­fendours, satisfaction may be required of that Prince or State, that commission'd the Legat.

The meer Law of Nature exacts punishments in the place where the Crime is committed, L [...]g. 2. God. ubi crim. God ubi sen. leg. 1. ff. l g [...] eo fa cto. de vulg. Subs. and by the Civill Law, quisque conveniendus est ubi deliquit, vel ubi repe­ritur, it seeming to be reason that reatus omnem hono­rem excluderet, and that immunitas desineret cum incipit esse damnosa, Yet the Law of Nations exempts those [Page 9]that come upon publick Faith, by which Law many things are forbidden that are allowed by the Law of Nature. Also by the Canon Law Clerico delinquenti datur praescriptio fori, And the Civill Law speaks De subditis, who are to be tried where they have offended.

If Embassadours and their Comites should be onely secur'd from outrages and injustice (other men being so farre protected) they enjoy no speciall favour, or privi­ledge. Besides, the security and remission of an Em­bassadour and his Comites, is of more concernment than their punishments, for punishments ought and may be had from that Prince and State, which sent the Embassadour. And if they refuse (justè interpella­ti) warre may be denounced in vindication. And there­fore those Lawes which subject Stangers to the Lawes of those Territories where the Strangers are found, suffer an exception in the persons of Legats because they represent their Princes. The Civilities and Viola­tions done to their Embassadours being esteem'd by Princes as done to themselves.

We finde him in the Civill Law to be guilty of Trea­son, ff. leg. 6ta. ad leg. Jul. Ma­jest. 19. Obs. qui statuas aut imagines Imperatoris jam consecratas conflaverit, aliudve quid simile admiserit: and Cujacius (like our owne Law) affirmes him guilty of the penalty in the Law Cornelia: qui monetam vultu Principis signa­tam conflaverit.7. Variar.Cassiodorus brings in King Theodorick speaking, Monetae debet integritas quaeri, ubi & vultus noster imprimitur; quoduam erit tutum, si in nostrâ pec­cetur effigies, &c. Dio. Ap. in Mithr. And Philip did therefore overthrow Athens, because the Athenians had but bespattered his Image with Urine. And if the Abusers of the Statues and Pictures of Princes, have been so severely handled, how may they be dealt with, that shall violate the vo­call [Page 10]and animate Images of Princes (prope dixerim animum & Linguam) the Legates themselves.

Idiaco Secretary to Philip the second, King of Spaine, told Waad the Embassadour of Queen Elizabeth, Camd. Eliz. that the affronts and injuries the Queene had done to Mendoza (anno 1584) as formerly to Despesi, the Spa­nyards Embassadours (anno 1569.) were offered to the Catholick King himselfe.

An Embassadour therefore representing his Prince, enjoyes the same priviledge his Prince should do, were he in another Nation. And there is a notable Presi­dent cited out of Fleta, Lib. 2. cap. 3. that Kings carry an exempt Ju­risdiction being in another Nation, where treating of the Jurisdiction of the Court of Marshalsey, it is said, And these things they may lawfully doe by Office, (that is to say) the Steward of the Kings houshold, not­withstanding the liberty of any other, although in ano­ther Kingdome, where the offendour may be found in the Kings house; according to that which happened at Paris, held in the 14. year of Edw. 1. of one Ingelram of Nogent, taken in the houshold of the King of En­gland, (the King himselfe being then at Paris) with sil­ver dishes lately stoln, at which deed the King of France being present; and whereupon the Court of the King of France did claim Cognizance of the Plea con­cerning that Theft, by Jurisdiction of the Court at Pa­ris, the matter being diversly debated in the Councell of the King of France; at length it was ordered that the King of England should use and enjoy that his King­ly Prerogative of his houshold; where being convicted (by Sir Robert Fitz-John Knight, Steward of the Kings houshold) of the Theft, by consideration of the same Court he was hanged on the Gallows in St. German's fields.

It may be objected that by this Remission of the of­fendors to their own Masters, the like attempts may be encouraged, the Traine and followers of Embassadours being not stinted by the Lawes of Nations, and then, not legatio sed Legio mittatur, Proc. lib. 2. whereupon Georgius Ro­manus, Governour of the Citie Dara under Justinian the Emperour, refused to admit the Embassadours of Cosrhois the Persian King into the City, being foure hundred Persons, lest they might prevaile upon the City.

It is replyed, No man can justly object his feare of the multitude of Embassadours; for my right is not ta­ken away by another mans seare, and so much the lesse, because there be many wayes of Caution and preventi­on of danger.

It is true, that Embassies of Congratulation carry more pomp usually than businesse, and the Attendants are many; In these Embassies of businesse, fewer, be­cause transactions are more expeditious (and more se­cret) that are managed by few; And therefore that little beast the Naturalist cals Millepeda, omnium repti­lium tardissimum est animalculum: And though De­metrius taking it heynously from the Lacedaemonians that had sent onely one person in Embassie to him, sic exclamasse fertur, unum ad me Lacedaemonij? to whom the Legate replyed scitè & breviter, sed non ad Legati­onis pompam ac decorem, [...], And Isidor. lib. 4. speakes of Belus rex Babyloniae (who first introduced Commerce by Embassadours) that he was content with two: Like old Cato that had one or two Boyes onely in his company when he was Embassadour. Plutarch. Yet our moderne Lawyers commend sometimes the splen­dor of an Embassage, & our Stories express them most [Page 12]successful in their Treaties, that are most honourable in their carriage, and Copious in their traines. And Kirch­nerus observes the French to be reputed ignominious by the parsimony of their Legations.

But heretofore (as well as at present) the Portugalls in their Embassies, as Warser. de Legat. speakes, Lusi­tani Regis in Hispaniam legationem instar exercitus appu­lisse, and the master of the Houshold appointed to quarter them, demanding how many they were, being answered by a Portugall, that they were 500 like unto Gods, and 500 like unto other men in that Embassage, replyed that the God-like should go into the Temples, and these like men into the Inns.

In this delivery of my Judgement, I have not endea­voured to flatter my Countrey-men into the usurpation of an illegall priviledge, but rather advertis'd them to amplifie their renown by a generous observation of Hospitality, and respect to strangers and Embassa­dours: and have impartially searched after truth, be­cause though there is no man before whom I might more safely erre, yet there is none whom I would more unwillingly seduce than my Second selfe.