Question II: On homicide of deliberate purpose, by ambush, and by treachery

A MAN is killed in a threefold way: by Accident, by Necessity, and by Will, as the holy Doctor notices, sermon 6. on the ten precepts: But in the first part of the Centil. sect. 31. he adds the Homicides of Justice; and since we treat of the sin of homicide, we must first treat of that which is more voluntary, such as those placed in the title, which are called qualified Homicides, each of which always has the punishment of death enjoined: l. 3. C. de Episcopali audientia, l. si servus, C. de his, qui ad Ecclesiam confugiunt, l. 3. §. of the Law Cornelia. And l. Qua caedem, ff. de sicariis, l. Poena, ff. on Parricide, §. Likewise the Law Cornelia, t. of the Instit. on public judgments.

HOMICIDE from design (which we call, deliberated case) is that which is proved to have been premeditated for a long time. And although we cannot penetrate thoughts, yet we deduce it from the acts, for example, if he has elsewhere laid snares for him, if he has waited armed with assembled cutthroats in some place; if he has kept watch many days in some house,¹ etc.; if the slain man has been cruelly stabbed, cut down, mutilated in some members, for example the nose, ears, etc. It is said to be from design if, after 24 hours from the injury received, he kills, he being proved to have laid snares or plotted death, by calling together companions, sending out scouts, etc. All which things are entrusted to prudent judgment, as Julius Clarus warns, l. 5. sent. §. Homicidium, num. 8. Therefore one guilty of such must be punished with the ordinary punishment, which is death. So Salicet. l. 15. Qui cum telo, C. de sicariis. And l. 1. ff. extraord. Couar. on the Clementine, si furiosus, at the beginning of the second part; Ioan. Igneus l. 1. §. occisorum, num. 41. ff. ad Syll. Iul. Clar. §. Finali, 9. quaest. 1. ¹ Editor's note: the print reads 'attendetit multos dies in aliqua domo'; 'attendetit' is a corrupt verb form; rendered 'attendebat' (kept watch/lingered), the reading required by the insidiis context.

TREACHEROUS homicide, which almost always carries with it guile and fraud, is when someone awaits a man in a hidden place and kills him as he comes, or treacherously, feignedly, and by simulation, having summoned him, kills him in the house in which he is. But it can be treacherous and yet not from design, if he be killed in the heat of anger within the day. He is punished with the punishment of death, as the alleged laws and the expositors of the law decree, with St. Bonav. in the Dieta, tit. 3. cap. 4.

TRAITOROUS homicide is that which is committed traitorously, no other injury intervening, no hatred, no quarrel preceding; as he who kills a companion of his journey, or, feigning himself a friend, kills. So St. Bonav. in the mirror of the soul, cap. 1. about the middle; Barthol. l. to be regarded, §. Delinquant, num. 1. ff. de poenis. Igneus on the Law, si certus, §. si unus ex dominis, ff. ad Syll. after number 44. Iul. Clar. l. 5. sent. §. Homicidium, num. 10. These are condemned to the punishment of death, as the Laws above alleged decree; and they are excluded from the immunity of the Church, just as those who killed treacherously were also excluded; and those who killed from design were excluded by the old law.

The holy Doctor shows all this most beautifully in the Biblioth. loc. 19, cited from Scripture; for Joab the General, united to King David by blood and faithful, yet because he had killed Abner, 2 Reg. 3. from design and with guile, and Amasa, 2 Reg. c. 20. traitorously, kissing him, the dying holy King condemned him, and commanded Solomon his son: 3 Reg. 2: Thou also knowest what Joab the son of Saruiae did to me, what he did to the two generals of the army of Israel, Abner the son of Ner, and Amasa the son of Iether: whom he slew, and shed the blood of war in peace. Do thou therefore according to thy wisdom, and let not his grey head go down to the grave in peace.

STRAIGHTWAY Solomon the King, most wise and most just, commanded Banaiae to kill him. And because he fled to the Temple and laid hold of the horn of the Altar, and would not go out, Solomon commanded that he be killed in the Temple: whence he killed him.

From this it is deduced, with the holy Doctor, that such traitorous homicides are excluded from ecclesiastical immunity.

And indeed Doctors taught commonly that homicides also from design are excluded: Suarez t. 1. l. 3. de relig. cap. 11. Nauar. summa cap. 25. Couar. l. 2. var. cap. 20. Julius Clar. l. 5. sent. §. finali, quaest. 30. Guido Papa decis. 121. Bouërius decis. 109. Alex. consil. 145. num. 46. Corrad. in pract. fol. 268. Blancus in pract. fol. 4. num. 26. Ordinatio Lusitana in nouis lib. 2. tit. 5. Gambacurt. l. 5. cap. 4. num. 19. Fagundez on the 5th Precept, l. 5. cap. 1.

Of homicides also from snares they assert that they are excluded: Julius Clarus, Suarez, Nauartus cited, Remigius on the immunity of the Church, fallentia 13. Fagundez loc. cit. num. 19.

NOW, however, Gregory XIV. by his Constitution excludes from these only those who kill traitorously, correcting the common law, cap. 1. on Homicide. And thus Clement VIII. declared in a certain Brief to the Archbishop of Palermo, in the year 1597, on the 6th of February; which is found in Marcus Antonius Genuensis in praxi, cap. 76., as Diana relates, p. 1. Tract. on the immunity of the Church, resol. 1., where he shows that by that Bull Gregory revokes all the former privileges and all the customs, and he cites very many Doctors. See Riccius p. 5. collect. 1791. Peregrin. on Immunity, cap. 7. Bonacina Tract. on the Laws, disp. 3. quaest. 7. §. 6.

MOREOVER, that the one who kills traitorously is excluded was taught also by Iul. Clar. l. 5. sent. §. Homicidium, num. 10. Couar. l. 2. variarum, cap. 20. num. 7. Gomez cap. 10. on crimes; Remig. on the immunity of the Church fol. 225. Placa lib. 1. delict. cap. 21. Igneus on l. 1. si Dominus, num. 7. ff. ad Syll. Milleus in pract. crim. fol. 32. Fagundez num. 21.; and Covarruvias testifies that this is the custom of the whole world.

NOTE, however, that in St. Bonaventure Abner also was the traitor killed by Joab; for, although he had formerly been an enemy and had killed Asaëlem the brother of Joab, yet he had been reconciled, and he killed him under the appearance of friendship, or of reconciliation; which very many also think. Hence much more are kinsmen excluded.

NOTE also, with Diana resol. 5., that long after the Bull had been published, some, interpreting it otherwise, asserted the opposite of that sentence: but others wrote against it for this reason, as Fagundez and Portellus, because they dwell in Spain, where the Bull of Gregory was not received.

AS FOR the intermediary of assassination, they teach that he enjoys ecclesiastical immunity: Antonius Novatius in summa Bullarum, tit. on the Immunity of the Church, num. 72., who cites the other Novarius Ronius and Gambacurtus, with whom Diana subscribes, p. 4. tract. on the immunity of the Church, resol. 109. and resol. 33., where he also relates that Antonius de Marinis in resol. quotidian. cap. 171., Gambacurtus on the immunity of the Church l. 5. cap. 34. num. 14., Masculus in his addition to Capyc. decis. 112. The reason is, because the Doctors, in C. pro humana, on homicide, in 6., state that the intermediary does not fall under the name of assassin; and that this was decided in the Sacred Consistory in the year 1615, Rovitus relates in pragm. 1. on assassination, num. 49. But in the Bull of Gregory XIV. only the assassins are excluded from immunity: therefore not the intermediaries.

WHETHER, however, one who kills an infidel traitorously enjoys immunity: Ambrosius on immunity, cap. 7. Bonacina on the decal. disp. 3. quaest. 7. p. 6. §. 3. num. 6. bring forward that he does, because the infidel does not seem to be our neighbor: But Gregory excludes only the one who kills his neighbor traitorously. Ambrosinus argues, moreover, because if an assassin [killing an infidel] enjoys it, much more the traitor, since assassination is graver than treachery.

BUT assassins and those who command them are excluded from immunity, as Doctors commonly teach, cited by Fagundez on the 5th Precept of the decal. l. 5. cap. 1. n. 22. Now the assassins are a certain kind of men in Syria, subject to Christian lords, believing that they will be saved if they kill men at the command of their lords. So Suarez judges, T. 5. in 3. p. disp. 23. sect. 5. Couar. l. 2. var. cap. 20. num. 9. and others, cited by Fagundez num. 25.

BUT others say that the assassins are those who, lying in wait on the roads, kill men. But Julius Clarus, l. 5. sent. §. Assassini, and Bossius in the Counsel, on the command to homicide, num. 16., and others say less severely that these do not incur the punishments of assassins established in cap. 1. on homicide, in 6.

INDEED those who, lying in wait on the roads, kill men are truly assassins, and therefore are to be mulcted with their punishment, as St. Bonav. also seems to assert in the little work on the ten precepts, cap. 6., where he calls them robbers; for so they are called also in Italy. For these have their own Chiefs, whom they obey, after the manner of the Syrians. The authors of this opinion are Imola, and Geminianus on cap. 1. on homicide, in 6. Barthol. on l. Non solum, §. si mandatu, ff. de iniuriis. Salicetos on l. ea quidem, C. de accusat. and others, cited by Julius Clar. l. 5. sent. §. Assassini.

YOU WILL SAY that in cap. 1. on homicide, in 6., the punishment of death is established only for those who command the assassins, because the assassins are infidels, outside the law of the Church.

Fagundez ANSWERS, num. 25., that it was enough for the Pontiff to impose the punishment on those who command; for if these did not command, neither would the assassins go out to homicides.

I SAY therefore that excommunication is imposed only on those who command, inasmuch as they are Christians; not on the Syrian assassins, infidels; but the punishment of death is understood, from all the laws, to be common to these and to those.

BUT that those who travel on the roads, whom we call assassins, are robbers, the holy Doctor shows on those words of Luke, 10: And he fell among robbers, which he proves also by Jeremiah 3: On the ways you sat, waiting for them, like a robber in the wilderness.

Of these it is said, Proverbs 1: Their feet run to evil, and make haste to shed blood. He intimates the same on cap. 19 of Luke, on those words: You have made it a den of robbers.