[PAMPHLET 5.]
Most Illustrious and Most Reverend Lord:
The deplorable slaughter of the entire Comparini family, which
occurred in this dear city of ours on the second night of the current
month of January, and the shedding of their blood, cries out from
earth to God for vengeance upon the criminals. And in order that we
may fulfil the obligations of the office we are occupying, we have
paid down the price of toil to narrate here with faithful pen the
series of events. From this, my Lords Judges may readily see what laws
may be applicable for a decision as to this cause and for the
punishment of the delinquents for the same deed, etc., and so Barbosa
says in his axioms in jurisprudence, axiom 93, No. 1: "Just as from
the deed the law takes its rise, so from the deed the law dies."
The series of facts, therefore, is as follows: Guido Franceschini of
the city of Arezzo, married Francesca Comparini, for whom, by Pietro
and Violante Comparini, there were promised as dowry, among other
matters, certain properties subject to a reversionary interest. For
they had brought this same Francesca up in their home as their own
daughter, and as such they married her. Then, as the aforesaid Pietro
and Violante had no other children, they left their home in the City
to go and live in the home of Franceschini at Arezzo. There, for some
time, they continued to live together in peace; but, as often happens
among friends and relatives, contentions and quarrellings arose. On
account of these, the aforesaid Pietro and Violante left that home and
the city of Arezzo, and went back to Rome. In the meantime, as the
flame of this enkindled hatred increased, a lawsuit was instituted as
to the dowry once promised, but now denied by Pietro, on the pretext
that Francesca was not indeed the daughter of the same Pietro and
Violante, but that, after a pretence of her birth had been made, she
had been received and brought up by them. And for this reason the said
Guido and Francesca could not hope for the inheritance of the
properties under the reversionary interest. But although Franceschini
gained a favourable judgment on this point, yet when appeal had been
made on behalf of Pietro Comparini, Francesca declared that she was
ill-treated in the home of her husband by himself, and therefore
desired to leave that home. Accordingly with the aid and companionship
of Canon Caponsacchi, a relative of the said Franceschini, as is
supposed, she ran away. But Franceschini had notice of his wife's
flight and, following her up, he overtook her at the tavern of
Castelnuovo. There he went to the governor of that place and saw to
effecting the capture of his wife and the Canon, as indeed followed.
Then the quarrel was continued. A criminal suit was brought in this
Tribunal of the Governor of the City; the process of action was
arranged, and the counsel on both sides was often heard, both by word
of mouth and in writing. At last it was decided that owing to lack of
proof of adultery the said Canon should be banished to Civita Vecchia
and Francesca should be held in safekeeping. But because the Comparini
claimed that the furnishing of food in the safekeeping was the duty of
Franceschini, and the latter declared it lay with Comparini, the most
Illustrious Lord Governor, having first secured the consent of Abate
Paolo, the brother of Guido and his representative in the case,
assigned the home of the Comparini to Francesca as a safe and secure
prison under security.
While these contests were still pending, both in the civil and
criminal cases, as well as in that for divorce brought by Francesca,
the wife, this same Franceschini schemed to take vengeance upon the
abovesaid. For the execution of this criminal purpose he brought
together Domenico Gambassini of Florence, Alessandro Baldeschi of the
region of Castello, Francesco Pasquini Antonii of the Marquisate of
Monte Acuto, and Blasio Agostinelli of the town of Popolo, and
dwelling at the Villa Quarata. He provided them with swords and
dagger, prohibited by the Bull of Alexander VIII., and entered the
City in company with the aforesaid men. Approaching the home of the
Comparini, at the first hour of the night, he secured the opening of
the door to himself under the pretence of bringing a letter, sent to
Violante by the said Canon Caponsacchi, then staying at Civita
Vecchia. As soon as the door of the home was opened by the said
Violante, the aforesaid Guido and his companions immediately set upon
her. She was cut to pieces with their swords and immediately fell
dead. Pietro likewise was cut down and died. Francesca, however, tried
to hide under a bed, but was found and wounded in many places. Then,
as if God granted her the favour, she was not left utterly dead,
though after a few days she also passed away; and thus she could
reveal this monstrous crime. As soon as my Lord Governor had notice of
this, with most vigilant attention, he saw that the malefactors were
pursued beyond the City. Accordingly that same night, they were
discovered in the tavern at Merluccia with firearms and illegal
swords, still bloody, and were taken back to prison. Then, when a case
had been made against them, they were examined as to the crime. Some
of them indeed confessed it, and although the others made denial of
the management and knowledge of the killing of the entire family, yet
against them there are most urgent presumptions of the knowledge and
management abovesaid. Furthermore, from the same prosecution the
gravest proofs have resulted, such as can be but slightly attacked and
controverted by the Defence.
Hence, when this cause may be presented to receive judgment, we
believe that no foundation can afford defence for the criminals to
escape the capital penalty, so far as they have confessed their crime,
or can release those who have denied it from the rigorous torture of
the vigil. For what if the Defence do strongly argue the question as
to whether a husband who kills an adulterous wife, not immediately and
when found in adultery, but after an interval, ought to be excused
from the ordinary penalty of the _Lex Cornelia de Sicariis_? Some
authorities indeed give an affirmative opinion for the excuse of the
husband, as is to be seen in Giurba. [Citations.] Yet all of these
authorities for mitigating the penalty upon a husband who kills his
wife after an interval are moved by this reason: That since the sense
of injured honour always oppresses the heart, it is difficult to
restrain just resentment; for this reason the defence of the honour is
said to be immediate when done as quickly as possible.
But there are indeed many other authorities who stand by the negative,
asserting that a husband who kills his wife, otherwise than when taken
in adultery and in acts of passion, should be punished with the
ordinary penalty. [Citations.] Rainaldi [Citation] says this opinion
is the truer and the more advantageous to the state, nor should one
depart from it in giving judgment. Sanzio says that it was often
adjudged in this Senate that a husband was not excused by adultery
legitimately proved, if he killed his wife after an interval; and for
this reason, because formerly, according to the law of Romulus, a
husband could kill his wife, but the _Lex Julia_ permitted him to kill
only the vile adulterer, as Matthæus proves. [Citation.]
But in this our present show of fact we believe we are dealing with a
matter outside of the difficulty of this proposed question. For the
authorities cited above for the contrary opinion hold good, and should
be understood to do so, whenever the contention is about a husband who
has killed his wife without excess of law and with no concurring
circumstances and aggravating qualities, and when moved only by just
grievance. But it is otherwise when, as in our case, excess and
contempt of law is present and aggravating circumstances and qualities
concur. Laurentius Matthæus [Citation] testifies that, according to
common practice, such a distinction has been followed out. And after
he had affirmed that a husband should be excused from the ordinary
penalty and be punished more mildly, he adds: "For these reasons, it
is the common practice to weigh the effect of the grievance and to
punish only the excess; so that if the suspicion of guile in the
manner of killing is present (as he considers any circumstance which
tends toward treachery) the penalty is aggravated."
The aggravating circumstances which concur in our case are indeed
many, and they are so grave that any one of them is enough reason for
imposing the death penalty or for qualifying the crime.
The first of these is the assembling of armed men; for according to
decrees of the Governor of this City, the penalty of death and of the
confiscation of goods is inflicted upon the one assembling the men;
and this is true even if those assembled are but four, as is read in
chapter 82 of the same Banns. This circumstance and quality cannot be
evaded on the authority of certain jurists who assert that it is
permissible for a husband to kill his wife, even by means of men thus
brought together. For the said authorities speak, and should be
understood, in a case in which a husband may kill with impunity an
adulterer and his own wife in the very act of adultery, or in the home
of the husband. But it is otherwise if she is killed after an
interval, or outside of the home of her husband; according to what is
given. [Citation.] Or these matters might hold good if in no other way
he could kill the adulterer and his wife. So think all authorities who
can be adduced in favour of the husband. This cannot be said in our
case since Franceschini, while following his wife with firearms, could
have taken vengeance at the inn of Castelnuovo. But he had recourse to
the judge, and chose the legal way of punishing his wife and the Canon
with whom she fled. Or these claims would hold good if he had
assembled a smaller number of men, whereby the crime of conventicle
would not have been established. And this is the more strongly to be
held because we are not concerned with a deed that is unpunishable,
and permissible by law, as I have said.
Nor do we believe that the Defence can make a claim that the husband
may kill an adulterous wife after an interval with impunity; for all
the authorities who can be adduced in favour of the husband free him
indeed from the ordinary penalty, but not from an extraordinary
penalty, as those adduced by us above in § _Hinc cum Causa_ can be
seen to hold. If therefore, in our case, the husband committed a crime
punishable in itself, how could he assemble a number of men forming a
conventicle prohibited by the Banns, without incurring the penalty
threatened by them?
The second quality and circumstance is the carrying of arms contrary
to the specification of the Constitution of Alexander VIII., which is
extended to the whole Ecclesiastical State. Still less can the
authority of jurists be alleged in excuse from this threatened
penalty, if the husband kill an adulterer and the wife with prohibited
arms. For aside from the response given by us in the explanation of
the first circumstance of assembling and of conventicle (namely that
these authorities hold good and should be understood to apply only in
cases permitted by law, and therefore unpunishable), we say still
further that they have very little application as regards the arms we
are discussing; since the said Constitution prohibits not merely the
carrying of such arms, but even their retention, manufacture, or
introduction into the City and the Ecclesiastical State, under the
penalty of rebellion and criminal insult to the majesty of the law.
And so far as we are acquainted with such cases as are permitted by
law, the authority of these jurists should be understood to hold good
concerning arms, the carrying of which is indeed prohibited, but not
the retention and introduction under any pretext whatsoever, even the
pretext of justice; as is included in this same Constitution § 1,
where we read: "Or to carry them on any pretext whatever, whether of
military service or of the execution of justice, and still less to
keep them in one's home or elsewhere." And in § _Ad haec_ it prohibits
even the introduction of them: "the retention of them at home, in
storehouses, and elsewhere, their introduction into the Ecclesiastical
State, and their manufacture."
If therefore the retention and introduction of such arms is
prohibited, even when on the pretext of executing justice, ridiculous
indeed would be Franceschini's pretence that he could approach the
City and the home of his wife with such arms to vindicate after an
interval this pretended offence of honour. This is the more certain as
the crime concerning such arms is grave and of itself is punished with
the capital penalty, as we have proved. In this case, when the crime
actually follows, if the penalty for carrying the arms is greater than
for the crime itself, the penalty for the graver offence is held to
apply, and includes the lighter. [Citations.]
The third circumstance is that Franceschini and the aforesaid men
committed the murders in the very home and dwelling-place of the
Comparini; because homicide is always said to be qualified when it is
committed in the home of the one slain; since the home should be a
safe refuge for its master, etc. Then also Franceschini entered with
changed garb; in which case the murder is said to be committed _ex
insidiis_. [Citations.]
The fourth quality and circumstance is that the said Francesca was
under the power of the judge, since the home, as we have said in our
narrative of fact, was assigned to her under bond to keep it as a safe
and secure prison. And hence she was under the protection of the
court. [Citations.] And this is especially true when arguing in favour
of the one who is under protection of the court, whatever may be said
when arguing to his prejudice. And therefore the law holds that one
under the protection of the court cannot be killed under less penalty
than the death [of the assassin]. [Citations.]
But all debate seems to cease since it is proven in the process that
the said Franceschini approached the said home with his company of men
with the thought and intent to kill not merely Francesca, his wife,
but also Pietro and Violante. These, as he himself acknowledges, he
hated with a deadly hatred, because of the suit they had brought and
because they had urged Francesca to poison her husband and her
brother-in-law, and had kept his wife in their home so that still
further, in the continuation of the adultery, his honour was offended.
But aside from this, as we have said above, Francesca was placed in
the said home by the authority of the judge with the consent of the
brother of this same husband, and so the question does not enter as to
whether a husband may lawfully kill the relatives, friends, and
servants of his adulterous wife, even if he does suspect them of
affording their leave or assent to the wife committing adultery; since
the special rights and privileges conceded to the husband should not
be multiplied against the wife, and be given greater scope, but
rather should be strictly interpreted. [Citation.] This holds good not
merely when one is arguing about the prejudice of a third party, but
concerning one's sole prejudice. [Citation.] In our very circumstances
we read that the permission cannot be passed from person to person.
[Citation.] Yet we can more truly declare that such an assertion of
adultery on the part of Franceschini is calumniously false; for, in
the very face of death, Francesca protested, to the very damnation of
her soul, that she had given no offence to her husband's honour. This
protestation is the more to be believed since those about to die are
not presumed to be unmindful of their eternal salvation. [Citation.]
The other causes adduced by Franceschini himself, so far as they are
true, can indeed prove hatred and enmity existing between himself and
the couple, which would tend in that direction and so would serve to
prove in him a cause for their premeditated murder. But this is not
sufficient to excuse him from the ordinary penalty of death, which
premeditated homicide altogether demands. [Citations.] And it is for
this reason, because the laws prohibit private vengeance (that is,
vengeance which those without public office usurp to themselves
because of their hatred, by killing or otherwise injuring men).
[Citations.] Raynaldus affirms that in premeditated murder the
ordinary penalty is inflicted not merely upon the slayer himself, but
also upon all others who aid and give help, or concur in committing
the murder by their help or council. [Citations.]
FRANCESCO GAMBI,
_Procurator General of the Fisc and of the
Reverend Apostolic Chamber_.
[File-title of Pamphlet 6.]
_By the Most Illustrious and Most