[PAMPHLET 2.]
Most Illustrious and Most Reverend Lord Governor:
From the "prosecution [for flight]," which was brought in this very
tribunal, and by his honour, Lord Venturini, Judge in this present
case, there is more than satisfactory proof of adultery committed by
Francesca Pompilia, wife of Count Guido Franceschini, a nobleman of
Arezzo, with the Canon Caponsacchi. With Caponsacchi the parents of
this same Francesca Pompilia entered into conspiracy, although they
were living here in the City. And after she had given an opiate to
Count Guido and his entire household, she fled that same night from
the City of Arezzo toward Rome.
Consequently, the Canon, as may be remembered, was banished to Civita
Vecchia, with a statement of his criminal knowledge of that woman in
the said decree of condemnation. This adultery is also evident from
other matters of evidence deduced by the Procurator of the Poor. There
remains, accordingly, no room to doubt it, but rather their adultery
may be said to be notorious here in the City, in the country of Count
Guido, and throughout all Etruria.
Since this is established, we can safely assert that even if Guido had
confessed that he slew his wife with the complicity and help of Blasio
Agostinelli of the town of Popolo, Domenico Gambassini of Florence,
Francesco Pasquini of the castle of Monte Acuto, and Alessandro
Baldeschi of Tiferno, he should not therefore be punished with the
ordinary death penalty, but more mildly. This is in accord with the
decision of Emperor Pius as related by Ulpian [Citation] and by
Martian. [Citation.] For in both of them it is said that a man of low
birth is sent into perpetual exile, but that a noble is banished only
for a limited time, but the crime of a husband who is moved by just
anger is overlooked, as this same Ulpian confirms [Citation], since it
is most difficult to restrain such anger. [Citation.]
Yet we should not consider it necessary that the adultery of the wife
be conclusively proved (as it really is) in order that there be room
for mitigating the said penalty. For it would be enough, if we were
dealing with a case of mere suspicion: Glossa, etc. "A man who had
killed his son because he believed the young man had lain with his
stepmother, as was true, was deported to an island." [Citations.]
Dondeus also speaks of a man who had boasted that he wished to ruin
the sister of the one who killed him, which is said to have aroused
just suspicion and fear for the loss of honour sufficient to free the
slayer from the ordinary penalty of murder. [Citations.]
Nor is it true, as some authorities affirm, that the husband must take
the wife in very adultery, and kill her immediately; in which case,
they say the abovesaid laws hold good, but that it is otherwise if the
murder is done after an interval. [Citations.] For the contrary
opinion is the truer, the more usual, and the one to be observed in
practice, as Marsilius well advises, where he speaks in defence of a
certain nobleman who had killed another person after an interval. The
man slain had betrothed his sister by promise and had kept her for
three months, and had then rejected her. Because of this, a great
injury and much infamy were inflicted upon his family and the entire
kin. Marsilius then adduces the abovesaid laws, which pronounce
concerning a husband who kills his adulterous wife; and Bertazzolus
offers the case of one who had killed his adulterous wife and had
afterward, in his own defence, proved the adultery by the double
confession of the same wife. Claudius Jr. testifies that the murderer
was banished for a time by the praetor of Mirandola, and after the
lapse of several months he was recalled by the Duke of Mirandola.
[Citations.]
Afflitto cites the decree of the Kingdom, beginning _Si Maritus_,
which concedes impunity to a husband who kills his wife and the
adulterer both, in the very act of adultery, and without any delay. He
then says that if both of these requisites are not present, the
husband is excused in part, but not entirely; and so is punished more
mildly. And in No. 2 he gives the reason; because whenever one commits
a crime, under impulse of just anger, the penalty should be somewhat
moderated, according to the aforesaid text. [Citations.]
Matthæus [Citation] adduces the excellent words of Theodoric as quoted
by Cassiodorus [Citation], where we read: "For who can bear to drag
into court a man who has attempted to violate his matrimonial rights?
It is deep-seated even in beasts that they should defend their mating
even with deadly conflict, since what is condemned by natural law is
hateful to all living creatures. We see bulls defending their cows by
strife of horns, rams fighting with their heads for their wethers,
horses vindicating by kicks and bites their females; so even these,
who are moved by no sense of shame, lay down their lives for their
mates. How then may a man endure to leave adultery unavenged, which is
known to have been committed to his eternal disgrace? And so if you
have made very little false statements in the petition you offer, and
if you have indeed only washed away the stain to your marriage-bed by
the blood of the adulterer, taken in the act, and if you are looking
back from your exile, which was evidently inflicted not by reason of a
bloodthirsty mind, but because of your sense of shame, we bid you
return from your exile; since for a husband to use the sword for the
love of his sense of honour is not to overthrow the laws, but to
establish them."
Dondeus says this interpretation is clearly proved by the authority of
a glossa in the chapter: _Ex litterarum_. [Citation.] For in the text,
when these words are used: "your wife taken in adultery," a glossa
explains the word "taken" as equal to "convicted." Marta says this
opinion is much more just and equitable, and is commonly held. And
Muta (_dec. Siciliæ 61_) in the end offers a decision of the supreme
court of the kingdom, by which a husband was condemned to the galleys
for seven years. This was on account of the accompanying
circumstances; for he had had his wife summoned outside of the city
walls by his son, and there had killed her; and afterward her body was
found to have been devoured by dogs. Dexartus testifies that it was
thus decided in Sacred Royal Court, in condemning a husband only to
exile. Sanfelix also tells us that certain noble young men, who had
killed their wives, after an interval, because of strong suspicion of
adultery, were absolved by the Royal Council of Naples, in view of the
quality of the persons concerned. In their favour, authorities of the
highest rank had written, whose allegations this same author places
under the said decision. And although some of these young men were
condemned to the oars, he said that this punishment had been imposed
because of the mutilation of the privates which followed; because
those who do such things are considered enemies to nature. (_Panimoll.
dec. 86._) And Caldero, although in the preceding numbers he inclined
toward an opinion contrary to ours, came over to our side when he saw
that Matthæus held that opinion.
And the reason is very evident, for whenever such an injury is
suffered by fine natures, especially among the noble class, it is
ever present with them, and continually oppresses the heart, and urges
it on to vengeance for the recovery of lost honour, as Giurba well
notes. [Citations.]
For this reason, it has always and everywhere been held in case of
murder committed for honour's sake that there is no place for the
ordinary death penalty, which should be mitigated at the discretion of
the judge. And this rule has been followed, when the murder was
committed after an interval, and even after a long interval. For the
abovesaid reason, both Grammaticus and Gizzarellus affirm and hand
down this opinion. The latter says that it has always been so adjudged
by the Sacred Council of Naples, and that this opinion has always been
accepted by our ancestors. [Citations.]
It was so judged by the high court of the Vicar, although it was
dealing with a murder committed after two years, and by craft, by two
brothers upon the adulteress in the presence of her sister's cousin.
Cyriacus also speaks of the murder of a husband by his wife, because
he was keeping a mistress and was contriving against her honour; and
there he said that since just anger has a long continuance, because of
its extreme bitterness, vengeance should always be said to follow
immediately. [Citation.]
Another reason also is at hand, which is considered by the
authorities, namely, that an injury, whereby the honour is hurt, is
not personal, but real, and therefore can be resented at any time
whatsoever, even after the lapse of a very long time, as Giurba holds
in our circumstances. [Citations.]
We have therefore a great many standard authorities who affirm, for
most vital reasons, that murder committed, even after an interval,
upon the person of the wife or of any one else, for honour's sake,
ought not to be punished with the ordinary death penalty, but more
mildly. Furthermore, these authorities bear witness that the matter
has been so judged in the tribunals with which they are acquainted. No
attention therefore should be paid to the opposite opinion held by
Farinacci [Citation]; for we plainly see that he speaks contrary to
the common and usually accepted opinion in tribunals. [Citation.]
Still further it should be noted that the same author in _cons. 66,
num. 5_, holds the very opposite, basing his opinion especially upon a
text in the law of Emperor Hadrian [Citation], where a father had
killed his son, who was not found in the act with his stepmother, but
while out hunting and in the woods, that is, after an interval. And he
was punished not with the death penalty, but by deportation. Several
of the above-cited authorities offer the decision of this text
likewise in corroboration of this opinion of ours. Our point is also
proved by the fact that this same author in _quaest. 121_ is rather
doubtful; and there he acknowledges that for this opinion of ours the
reason given above is very strong, namely, that "injured honour" and
"just anger" always oppress the heart. And so he says in such a case
one should note the sense of the text in the law _Non puto_
[Citation], where Modestinus, Doctor of Law, says that he thinks that
one would not make a mistake who in doubtful cases should readily give
this response against the Fisc; and Farinacci cites him so speaking.
But one should be on his guard against what this same Farinacci
asserts: namely, that this opinion of his, so far as he could see, was
the one more approved by the Sacred Court. For since this point of
doubt, as he himself confesses, had not then been advanced, he could
not judge what would be the outcome if it had been proposed. And
indeed the wisest of the said high authorities do not give their
assent to his opinion, but rather hold the contrary, which is
favourable to ourselves, as is seen in the decisions they have given
from time to time. For it was so held on March 25, 1672, in the case
of Carolo Falerno, who was condemned to an unusual penalty for the
murder of Francesco Domenici; for he had found him coming out of a
church, to which he had warned him not to go, as he was suspicious
that the one slain was following his wife. In like manner with Carolo
Matarazzi, August 15, 1673, who killed his wife on the foolish grounds
that he suspected her of illegitimate conception because of the
absence of her menses; but this suspicion did not indeed correspond
with the truth. And in law a matter may be even more mistaken and less
observed by human intellect. [Citations.]
Likewise in a murder committed treacherously with an arquebus upon the
person of Tomaso Bovini by Francesco Mattucio of Monte San Giovanni, a
person of the very lowest class, merely because of the attempted
dishonour of his sister. The attempt of the one killed was proved by
two witnesses on hearsay of the one slain. On September 4, 1692, the
penalty of life sentence to the galleys, to which the said Mattucio
had been convicted on strongest proofs on the preceding July 12, was
moderated by the sacred court, before the Right Reverend Father Ratta,
of blessed memory. With good right, therefore, this same Farinacci is
expressly confuted and overthrown by Matthæus. [Citations.]
This opinion of ours is to be accepted the more readily when we
consider that the husband is more stirred by the adultery of his wife
than by the murder of his son. [Citations.] Yes, and even more than by
the defilement of his daughter. [Citation.] So that if a husband does
not complain of the adultery of his wife, he is considered a pimp, as
Paschal holds, where we read recently: "Adultery of the wife gives
offence not merely to the husband, but blackens and stains the entire
kin." [Citations.] That this happened in the present case is plainly
evident; for Abate Paolo, brother of Guido, was compelled not only to
leave the City, in which he had lived for many years with highest
praise, but even to pass out of Italy, because he was pursued
undoubtedly by the greatest disgrace on account of this adultery.
While he was carrying on Guido's cause in the courts, he moved the
laughter and sneers of almost all sensible and wise men, not to say of
the very judges themselves, as usually happens in these circumstances.
[Citations.]
Nor would it stand in the way of what we have said above, if without
prejudice to the truth, we should admit (as the Fisc claims) that
Count Guido killed his wife with the complicity and aid of the said
Blasio, Domenico, Francesco, and Alessandro, assembled for that
purpose; for he could do that in order to take vengeance upon her more
easily and more safely. [Citations.]
[Nor would it stand in our way if we admitted] that he had assembled
the said men by means of money. [Citations.]
Nor does this plea of injured honour cease with regard to the murders
of the said father-in-law and mother-in-law; for since their
conspiracy in the adultery of their daughter is established, they
themselves were among the causes of the injury and ignominy which
resulted therefrom to the prejudice of the honour and reputation of
Count Guido, their son-in-law, and her husband respectively.
Therefore, these murders likewise ought to be punished with the same
penalty as the principal, according to texts in the law _Qui domum_.
[Citations.] And so they gave cause enough to Count Guido to take
vengeance on them.
It is to be added, furthermore (as will be proved indeed, and as Count
Guido himself has asserted in his testimony), that they themselves did
another injury to his reputation by means of the civil suit which they
brought on the grounds of the pretended birth of Francesca Pompilia;
and not merely here in the City, but also in his own country, they
distributed the most bitter libels, which were added to this same
lawsuit. Hence it cannot be denied that Count Guido for this reason
had conceived a just anger and provocation, and that he had just
cause for taking vengeance. This is according to the text [Citation],
where Alexander the Third wrote to the Bishop of Tournay that a
certain woman who had killed her child should be placed in a
monastery, because she was reproached by her husband with the
accusation that it had been conceived in adultery. For in crimes where
anger does not entirely excuse, still the delinquent who kills in
anger conceived from just grievance is somewhat excused. [Citation.]
And this is true in spite of the fact that the Fisc may claim that the
penalty given in the Constitution of Alexander has been incurred. For
in the present case the crime cannot be said to have been committed on
account of hatred aroused by the lawsuit; for in that suit Count Guido
had gained a favourable sentence from Judge Tomati, which was
sanctioned by the Supreme Tribunal of Justice. But the crime was
committed indeed because of his just indignation. And this arose,
first, from the ignominy growing out of the said pretence as to her
birth; second, from the provocation given by the Comparini (now slain)
in issuing and distributing the said papers; and, third, from their
conspiracy in the flight of his wife. For indeed this Constitution of
Alexander does not apply where no guile is present and where some
provocation has been given by the one hurt. Farinacci very fully
affirms this throughout _cons. 67_, where in the end he places the
complete decision of the Sacred Court.
In any case, since with Count Guido two causes for committing crime
concurred: one the aforesaid matter of the lawsuit, another wounded
honour because of the lawsuit brought and the flight in which they
conspired, wherefrom the adultery had followed, the cause of honour
should be given attention, as it is the graver and consequently the
more proportionate to the crime. [Citations.]
Likewise the penalty should not be increased in view of the place of
the crime, because the defence of one's honour is so justifiable, and
the anger and commotion of mind arising therefrom is so just, that
reason for it cannot be demanded, as Merlin Pignatelli [Citation]
holds, because Giovanni Francesco de Carrillo [Citation] speaks of an
insult offered in prison. And No. 29 approves the decision for the
reason that greater reverence is due to churches and other places
consecrated to God, and in which the King of Kings and Lord of Lords
dwells in essence; and yet one who commits crime in them from just
anger and grievance is excused; for he asserts that all Canonists and
other authorities there alleged by him unanimously acknowledge this.
More readily, therefore, should this conclusion follow in our case,
since the said Francesca was not staying in a formal prison, but was
merely keeping her home as a prison, under security of 300 scudi, that
she would not depart therefrom; because one who has given bond and has
sworn not to leave a place is neither in chains nor in custody.
[Citations.]
Lucano holds that there are differences between being kept in chains
and being committed under bond, etc. And Farinacci holds that the word
"custody" should be more strictly interpreted than the word "chains."
[Citations.]
Even if, therefore, Count Guido had confessed that he killed his own
wife, his father-in-law, and his mother-in-law, with the complicity
and aid of the above-named helpers, he should not be punished with the
ordinary penalty, for reasons given above. And much more readily
should we follow this opinion since we can see that he confessed only
that he gave commands for mutilating his said wife (_ad sfrisiandum_),
if I may use the word of the authorities. In this case he is not to be
held responsible for the subsequent death of his wife and of the
others. Decian, _cons. 622, no. 4_, in this very condition, holds that
one giving orders can be punished only for the manner of committing
the crime for which bodily punishment cannot be inflicted.
Thus far the Fisc has been unwilling to rest satisfied with such a
qualified confession. Yet since he claims the right to torture the
accused for proving some further pretended truth, the torture shall be
simple; nor can the torment of the vigil be inflicted; because the
Constitution given out by Pope Paul Fifth, of sacred memory, for the
reformation of the courts of the City, stands in the way of that. This
is included among his Constitutions as the 71st. By this it was
decreed that such torment could not be inflicted unless these two
features jointly concur: namely, that the crime be very atrocious and
that the accused be burdened with the strongest proofs. [Citations.]
But a crime is said to be "very atrocious" provided it is one for
which a penalty more severe than mere death should be inflicted, such
as useless mutilation, burning, and the like. _Farinaccius qu. 18,
num. 68_, etc. And such a death, as ignominious and infamous, has no
place with the persons of nobles. [Citations.]
Hence it is much less so here, because we are not arguing about the
death penalty even, which does not enter into the present case for
reasons given above. And Gabriellus speaks to this effect on the point
that such a crime may not be said to be qualified.
What has been said in favour of Guido, the principal, also stands in
favour of the aforesaid Blasio, Domenico, Francesco, and Alessandro;
because they cannot be punished with the ordinary penalty, but only
with the same penalty as the principal. [Citation.] Baldo cites a case
under the statute which shows that one under bann for a certain crime
cannot be killed save by the enemy who had him put under bann; and he
says that if the enemy has him assassinated, the assassin is not
punished. And he gives this reason, that what is permissible in the
person of the one giving the order should be held as permissible in
the one to whom orders are given; and he says it had been so held in a
case under that law. Castro [Citation] holds that when one is
permitted under the statute to take vengeance upon a person who has
given him offence, he is also permitted to assemble his friends, to
afford him aid, and that they shall go unpunished, just as the
principal does. He also asserts that Jacobus Butrigarus [Citation],
held thus, in _cons. 277_, where he speaks of the case of a husband
who had assembled men to beat one who had wished to shame the modesty
of his wife, he ordered his wife to pretend to give ear, and when the
intriguer had come, murder was committed. And he says that men brought
together in this way should be spared, because such an assembly was
permissible for the husband, who was principal. [Citation.] Jason
holds that in any vengeance permitted by law, one cannot demand it of
another; yet he to whom it is permitted may take fellows and
accomplices with him for the same act, and if they kill in company
with him they shall not be held to account for the murder nor for the
aid they have given; and he says that this opinion should be much kept
in mind. Cæpollinus also illustrates this in several cases, especially
in that of certain men who had killed one keeping the company of the
sister of the man who had assembled them; and he says that they should
not be punished, just as the principal was not, and he gained his
point so that it was thus adjudged. [Citations.]
Soccini also holds it should be thus adjudged, unless one wishes to
say that they should be punished with a slighter penalty than the
principal, as often happens in the case of auxiliaries. And he speaks
in our very circumstances of men assembled by a husband for the sake
of killing one who had polluted his wife. In these same
circumstances, see also Parisius. [Citation.] Carera [Citation] speaks
of a father who had his daughter (who had been keeping bad company)
killed by an assassin; and he says that neither the father nor the
murderer are to be held to account. [Citation.]
Marsilius also, after placing in the very beginning this principle
that when one matter is conceded all seem to be conceded which lead
thereto, draws inference therefrom for the present case and many
reasons for it are adduced. Cassanis also [Citation] holds that men
assembled in this way are not held responsible either for the murder
or for the aid furnished, if they do the killing in the company of the
principal. And in these same circumstances Garzonus speaks, decision
71, throughout.
Nor does it stand in the way of our reasoning that one of the
aforesaid defendants had inflicted wounds with his own hands, or had
killed one of the victims; as Francesco has confessed that he
inflicted four or five wounds in the back of Francesca Pompilia. Even
in these circumstances the rule holds good that auxiliaries shall not
be punished with greater penalty than the principal. And so affirm
individually the following authorities among those recently cited.
[Citations.]
And Garzoni testifies that it was so adjudged in the said decision 71,
where we read: "Or he may have with himself associates for this act,"
and if they kill the adulterers in company of the principal they are
held to very slight account, either for the murder or for the aid
given, and it was so adjudged.
And even in the more extreme case of one killing by assassination, and
consequently in the absence of the principal, this is the opinion of
Baldo [Citation], where we read: "And now it is inquired whether an
assassin is ever punished, and I say he is not; because what is
permitted in the person giving command is also permitted in the person
commanded." Castro [Citation] also says: "Because what I can do of
myself I can have done through my helpers who are necessary for that
purpose." And Afflitto [Citation] says: "Either with one's own hands,
or by help of another, even with the influence of money, and thus by
an assassin; for Baldo says on this same point: 'What is permitted in
the person giving command is also permitted in the person commanded';
and he witnesses that it was so adjudged." [Citations.] Marta [speaks
as follows]: "Much more so because authorities affirm that a husband,
who on account of fear cannot kill the adulteress, may even by the
help of money demand of another that he kill her, and neither of them
is then to be punished."
But whatever Caballus [Citation] may say to the contrary, he bases his
opinion upon Castro and Rollandus. Castro, however, favours our
opinion, as is to be seen in No. 3. Rollandus should not be given
heed; for when he offers this very same opinion about the statute
which permits any one to take vengeance; and says that since this kind
of permission is personal, it cannot be passed on from one to another,
this opinion of his is expressly contrary to the teaching of Baldo,
Castro, Jason, and others, whom we have alleged above in paragraph
_quae dicta sunt_. And since this opinion of ours is milder and more
equitable, it should hold good, as Jason decides on this point.
[Citation.]
Nor can the punishment be increased because of the alleged carrying of
prohibited arms; because the latter offence is included then with the
real crime. [Citations.] In Guazzin we read that this is so, even if
for the carrying of the arms a greater penalty would be inflicted
[than for the principal offence]. And so, whenever it is evident that
the crime has been committed for honour's sake and for a just
grievance, as in the present case, the carrying of the arms may go
unpunished, or at least it should not be punished with a more severe
penalty than should be imposed for the principal crime itself. Thus
Policardus [Citation] well affirms when speaking of arms which are
considered treacherous by the Banns.
These claims should hold good more readily as regards Domenico and
Francesco, who are foreigners, and are therefore not included in any
of the Apostolic Constitutions or Banns, which prohibit the bearing of
arms under very heavy penalties. [Citations.]
Especially since they are minors, as is made clear in the course of
the trial, pp. 35 and 304; in which case they are likewise not bound
by these Constitutions and Banns, which give judgment upon the crime
of a minor. For the power to make and establish such regulations was
lacking in the Prince or public official concerned. [Citations.]
Such are the matters which, in view of the excessive scantiness of
time, I have been able to collect in discharge of my duty for the
defence of these poor prisoners. Nor do I at all distrust that my
Lords Judges, when they see that too little has been said, will wish
to supply and offer what is lacking out of the high rectitude for
which they are distinguished. For this would be quite in accord with
the decree of Emperors Diocletian and Maximian, as related.
[Citation.] And they will follow the advice of Hippolitus Marsilius,
famous in criminal proceedings, who says that a judge is obliged by
his office to seek out grounds of defence for the accused.
[Citations.]
DESIDERIO SPRETI, _Advocate for the Poor_.
[File-title of Pamphlet 3.]
_By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases_:
_ROMAN MURDER-CASE._
_In behalf of Blasio Agostinelli and his
Associates, Prisoners, against
the Fisc._
_Memorial of fact and law._
_At Rome, in the type of the Reverend Apostolic Chamber,
1698._