[PAMPHLET 3.]
Most Illustrious and Most Reverend Lord:
The plea of injured honour which redeems Count Guido from the rigorous
penalty that should follow for the commission of murders, likewise
urges mitigation of the ordinary penalty for Blasio and the associates
who had hand in the murder, even though it may be pretended that they
were paid thereto. For it is taken for granted that we are dealing
with a case far removed from assassination, because of the presence of
a person who had real cause for vengeance, as the following
authorities think in common. [Citation.]
There has been the strongest controversy among authorities as to
whether a father or husband may demand of any one except his son the
murder of his daughter or of his adulterous wife. And divided on the
two sides of the question, they have contended strongly. [Citation.]
Yet the majority are in favour of the affirmative and of the milder
sentence; and often, in the event of such a murder, it has evidently
been so adjudged. [Citation.]
But since this question lies outside of our line of argument, it would
be vain and quite useless labour to take it up, nor is time to be
wasted when we are so hard pressed for it. For we are evidently
dealing with auxiliaries, assembled for committing homicide, according
to the thought of the Fisc. Hence the conditions of a mere "mandatory"
are not applicable; because of the immediate presence of the principal
in the crime; for when he also lays hand to the crime, those who do
likewise are not called mandatories, but auxiliaries and helpers.
[Citations.]
Furthermore, just as Guido himself is freed from the death penalty
because of the said plea of injured honour, so likewise are his allies
and auxiliaries freed, as the following authorities unanimously
assert. [Citations.]
Those who are cited in support of the opposite view do not pronounce
opinion in our peculiar circumstances, but speak of a husband
demanding of another the murder of his adulterous wife, and not of
auxiliaries who do the killing in company with the husband, as in our
case. [Citations.]
In such contingency, auxiliaries who give aid to a husband while
killing his adulterous wife have always enjoyed the same indulgence as
the principal himself; that is, they always escape the capital
penalty, and indeed go entirely unpunished. [Citations.]
Nor does the distinction of Caballus make any difference, where he
holds that auxiliaries may indeed assist with impunity a husband or a
father killing a wife or daughter respectively, in order that these
may kill the more safely; but that they cannot lend a hand and
actually kill; for in the latter case they are to be held accountable
for the murder. Because, for foundation in making such a distinction,
he plants his feet upon Paolo de Castro. [Citation.] But this is so
far from proving his purpose that it rather turns back on him
remarkably to his own injury. For after the latter sets before himself
this kind of a difficulty, under No. 2, he adds: "But I hold entirely
the contrary: that neither the one who did the killing nor he who made
the assembly (as it may be called) are to be held for the murder for
the purpose of inflicting the capital penalty."
This is also true in the council of Rollandus a Valle. [Citations.]
May that learned authority pardon me; for even if he does attempt to
confute Paolo de Castro in the said 154th council, which is in our
favour, under the pretext that he speaks contrary to the common
opinion, this claim does not suffice in view of the above-cited
authorities. And if there were time, I would demonstrate this more
clearly.
Furthermore, Rollandus alleges Parisius, _cons. 154, lib. 4_. But he
could well omit that, because No. 22 proves expressly contrary to him
on its very face, where it says: "Under our very conditions was given
that excellent decision of Paolo de Castro in the before-cited
council. In stronger circumstances (which also include the present
case) he concludes that those who knew of, or were present, or were
associated with a husband in the act of the said murder, and who
furnished him aid, ought not to be punished with a greater penalty
than the principal, according to the rule concerning auxiliaries,
beside the accurate authority of Marsilius." And he concludes that at
the very worst, when the utmost rigour of it is considered, they
should not be punished with more than a temporary banishment.
Furthermore, Rollandus in the said council is expressly confuted by
Facchinus. [Citation.] Nor is this without vital reason. For just as a
qualification that modifies a crime in the principal delinquent
increases it also for the auxiliaries, whenever they are aware of it,
so all sense of equity demands that a qualification that diminishes
the penalty for the principal, even though it be unknown to the
auxiliaries, shall act in favour of them also. [Citations.] Hence
Caballus remains without a stable foundation, and is opposed to the
opinion of the many doctors here alleged, who make no distinction
between those who simply assist and those taking a hand in the murder;
and indeed all of them speak of auxiliaries. Furthermore, it is found
that this has often been the judgment, even in the more extreme
circumstances of one commanded to a murder, as was said above. And so
strong is the plea of injured honour that not only does it extend its
protection to mere mandatories, but even to mandatories whose case is
modified by the circumstance of assassination. And it causes them to
be absolved, as we find that it was so decided. [Citations.]
Hence if both mandatories and assassins are redeemed from the ordinary
death penalty, whenever they kill an adulteress at the command of the
husband, it necessarily follows that the distinction of Caballus is
not a true one, nor is it accepted in practice. For if they are
mandatories, we cannot deny that they may kill with their own hands;
and nevertheless, not to speak of the other decisions cited above,
Clar. [Citation] testifies such a decision favourable to the accused
was handed down, contrary to the opinion of Caballus.
If, therefore, Blasio and his fellows are not to be punished with the
death penalty for affording aid in the murders, vain is the question
whether they can be subjected to the torment of the vigil for the
purpose of having the very truth from their own mouths. For this
procedure demands two requisites: one that the most urgent proofs
stand against the accused, and the other that the crime be very
atrocious, according to the prescript of the Bull. [Citations.]
And although the powers of this Tribunal are very great for the
dispensing with one of the said requisites, yet I have never seen the
said torment of the vigil inflicted unless when there was no doubt
that the crime, for which the Fisc was trying to draw confession from
the accused, deserved the capital penalty. We cannot believe that the
prosecution expects to make a case to this end because of the
pretended conventicle; since those who are assembled are not to be
held under the penalty for conventicle, but only the one who assembled
them is so held, as Baldo well asserts. [Citations.] Nor in this case
can the penalty for the asserted conventicle be made good against
Count Guido himself, since the cause for which he assembled the men
aids him in evading the penalty; inasmuch as one may assemble his
friends and associates for the purpose of regaining his reputation.
[Citations.]
For this has been well proved, that whenever any one for just
grievance assembles men to avenge his injury, he has not incurred the
crime and penalty of conventicle.
And although Farinacci, _quaest 113, n. 55_, declares that this holds
good provided the vengeance be immediate, but that it is otherwise if
the vengeance be after an interval, yet I pray that it be noted that
in either case, if it concern vengeance for a personal injury (in
which conditions he himself speaks), and therefore when for an injury
which wounds the honour, such vengeance is at all times said to be
taken immediately. For such an injury always urges and presses,
because it should be termed the restoration and reparation of honour
(which the one injured in his reputation could not otherwise
accomplish), rather than vindication and vengeance, as we believe was
satisfactorily proved in our other plea in behalf of Count Guido.
But all further difficulty ceases with this consideration: prosecution
can be brought for conventicle, if the men were assembled for an evil
end and no other crime followed therefrom; but when, according to the
sense of the Fisc, they have been called together for committing
murders, and these are really committed, no further action can be
taken as regards the prohibited conventicle, but rather for the
murders themselves; for the assembling of the men tended to this same
effect. [Citations.] And it is for this reason more particularly;
because when the beginning and the end of an act are alike illegal,
the end is given attention, and not the beginning, as Bartolo teaches
us. [Citations.]
It is to be added still further, that the assembling of men is not
illegal in itself; indeed it is possible for it at some times to be
both permissible and worthy of approval, as in the cases related by
Farinacci. But it is illegal because of its evil consequences and the
base end for which it is usually made. Hence, as the assembling of men
is prohibited, not in itself, but because of something else, the end
ought to be considered rather than what precedes the end.
Nor should the rigorous penalty of death be inflicted at all upon
Domenico Gambassini and Francesco Pasquini for the pretended carrying
of arms of illegitimate measure; because they are foreigners and had
not stayed long enough in the Ecclesiastical State so that their
knowledge of this law could be taken for granted. Nor ought it to be
inflicted upon the others; for even if the death penalty is threatened
by the Constitutions and Banns for the bearing or retention of them;
yet since the carrying of this kind of arms is not prohibited for
reasons in itself, but because of the pernicious end which follows it,
or can follow it; and because this bearing of arms was looking towards
the said murders; and because these, although they are not entirely
permissible, are not utterly without excuse, the crime of carrying
such arms should be included with the end for which they were carried;
because the one is implied in the other, nor may the means seem worse
than the end. And although, according to the opinion of some persons,
the penalty for carrying arms is not to be confused with the crime
committed with them, whenever the latter is the graver, yet this seems
to be so understood when a crime is committed with them which is
entirely illegal and without excuse. But this is not so when the crime
is deceased and extenuated, and indeed excused in part, because of the
reason for which it was committed.
In any case, the bearing of arms, according to common law, is but a
slight crime. [Citations.]
Although by special Constitutions and Banns the penalty has been
increased almost to the highest possible point, yet this kind of
increase does not change the nature of the crime. And just as in the
eyes of the common law, torture is not inflicted for getting the truth
from those indicted for the said carrying of arms, in view of the
insignificance of the crime, in like manner it cannot be inflicted by
the force of Constitutions and Statutes which have increased the
penalty. [Citations.]
And this is especially true in the case of the torment of the vigil,
which cannot be inflicted for a crime that is not in its very nature
most atrocious, but that is held as such, so far as the penalty is
concerned, merely by the strength of a decree. This holds good unless
indeed the nature of that crime is changed according to the method of
proceeding in it. [Citation.]
And we see in the Banns of our Illustrious Lord Governor that he
expressly declared this, when he wished to proceed with the torment of
the vigil in cases in which he could not proceed legally; that of a
certainty he would not do so. Nor would he indeed have done this, if
he could have inflicted such tortures in the case of crimes which are
not capital by common law, but are to be expiated with the death
penalty by the rigour of the Banns.
GIACINTO ARCANGELI, _Procurator of the Poor_.
[File-title of Pamphlet 4.]
_By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases_:
_ROMAN MURDER-CASE
with qualifying circumstance._
_For the Fisc._
_Summary._
_At Rome, in the type of the Reverend Apostolic Chamber,
1698._