[PAMPHLET 9.]
Most Illustrious and Most Reverend Lord:
The confessions of Count Guido Franceschini, and of Domenico
Gambassini, Francesco Pasquini and Alessandro Baldeschi, his
companions, are null; and therefore they should be given no
consideration, as they issued under fear of the rigorous torment of
the vigil, unjustly decreed against them. [Citations.] And this is
true even though they still persevere in the same confessions.
[Citations.] For as we have said in our past argument (which may be
reassumed here by favour), the Constitution of Paul V., of sacred
memory, issued for the reformation of the tribunals of the City
[Citation], commands that this torture be not inflicted except under
two concurrent circumstances. One of these is that the accused be
under the strongest of proofs, and the other that the crime be very
atrocious. And the authorities alleged in my argument, § _Quatenus_,
etc., testify that it has been so practised.
Nor indeed can the asserted [discretionary] powers of this tribunal
give support; because, whatever they may be, they have no place unless
the crimes are punishable by death. Raynaldus [Citation] gives this
reason: Whenever the defendant should not be condemned to death, he
also should not, for the purpose of getting confession from him, be
exposed to torture which might cause death, as it almost caused the
death of Alessandro, who fainted dead away under two turns at the same
torture.
But the crime, which has been imputed to Count Guido and his helpers,
and which they themselves have confessed, is murder neither of the
first nor of the second degree, as was fully proved in my past
argument. And indeed since Count Guido was moved to kill or to have
killed both Francesca Pompilia, his wife, and Pietro and Violante, his
parents-in-law, because of his sense of honour; namely, on account of
the adultery which Francesca Pompilia committed with their conspiracy
and aid, this fact relieves from the penalty of death, not merely
himself (according to the texts and authorities alleged in my said
argument) [Citations], but also his helpers (according to the
authorities likewise alleged in said argument). [Citations.]
Gabriel states: "And much less ought those to be punished with death,
because if we will only examine the common opinion of wise men, just
anger may excuse from a graver penalty than this; for according to the
Gracchian law, Code concerning Adultery, even those who are called and
led to the crime should likewise be excused."
Aside from what may be claimed in this present state of the case, that
the plea of injured honour is not established, the decree in
condemnation of the Canon Caponsacchi for the said adultery issued in
this tribunal, September 24, last past, and given in full in our
Summary, No. 8, makes the matter clear and manifest. [Citations.] For
it is there said: "Joseph Maria Caponsacchi, of Arezzo, for complicity
in the flight and running away of Francesca Comparini, and for carnal
knowledge of the same, has been banished for three years to Civita
Vecchia." Nor can these words be said to be merely the title of the
case, which does not make any one guilty, as my Lord Advocate of the
Fisc supposes; but the very decree and the title of the case, as seen
by me in the original Process, was that which follows: _Aretii in
Etruria fugæ a viro_.
But, in brief, the said Canon was condemned merely to the said
punishment because he was a foreigner and had committed his crime
outside of this State; in such case he should be dismissed merely with
exile. [Citation.]
Nor is it true that the Court receded from the said decree and still
less that a modification of it was demanded. For we have no other fact
than that for the purpose of giving some little indulgence to the
still asserted honour of the wife and to the decorum of the said
Canon, for which the Procurator of the Poor, their defender, kept
sharply and incessantly urging, in the command for imprisonment,
instead of the words of the said decree, these other words were
applied: _Pro causa de qua in actis_. These words do not imply the
correction of the preceding words, but indeed the virtual insertion of
all the acts, and consequently of this same decree also. [Citations.]
And this is all the more true because the said decree could not be
changed unless both sides were heard; which, as I remember, was the
response given to the said Procurator when he insisted upon the said
modification. [Citations.]
But why should I now insist on former matters when there is such
conclusive proof of the adultery and further dishonour of the said
wife from the many strong reasons deduced in the present stage of the
case, and well weighed by my honourable colleague, the Procurator of
the Poor, in his customary excellent manner? (I do not here repeat
them, that I may avoid useless superfluity.) Hence there is left no
room for doubt as to the outraged honour, which indeed impelled Count
Guido to the commission of crime. For it would be quite enough that a
cause of this kind be verified, even after one has committed the
crime, as Bertazzolus advises on this point. [Citations.]
Still further, there is no need now to insist on past matters because
Count Guido has stated the plea of injured honour not merely against
his wife, but against his parents-in-law in his confession (especially
page 98): "Thereupon followed her flight, which was so disgraceful,
not merely to my house, which is noble, and would have been so to any
house whatsoever, even if of low estate. She made this escape by night
with Canon Caponsacchi and his companions. In the progress of her
flight along with the driver of the carriage, she was seen by the said
driver, kissing and embracing the abovesaid Canon. Still further, I
have found out that they slept together at Foligno in the posthouse
and then again at Castelnuovo. By such proof, she stands convicted as
an adulteress, not merely for this, but for other like excesses, which
I have since heard that she committed in Arezzo with other persons."
And page 672, where we read: "And when the said Santi was asked
whether he would give ear to offering an affront to the Comparini,
because of my honour and the plots they had made against my life,
Alessandro responded that he would do it, and if some one else were
necessary he would find him. Accordingly, after a few days, I received
in my home Biagio, who has been twice named above, in company with the
abovesaid Santi, and he said that he also would give ear to it, as
being specially a question of my honour and the contrivance against my
life." And at page 678: "And while we were staying in the same
vineyard, that is in the house within it, we spoke of various matters
and particularly of what was to be done, namely of the affronts to be
offered to the Comparini (that is to Pietro, Violante, and Francesca,
my wife) and of wounding them because they had taken away my honour,
which is the chief thing, and had also plotted against my life." And
at page 683, near the bottom, we read: "And I would have so much to
say that one might write from now till to-morrow morning, if I wished
to tell all the trouble and expense I have suffered from the said
Comparini. But all this would amount to nothing, if they had not
touched my honour and plotted against my life." And page 684: "The
Santi above-named was a labourer of mine at my villa of Vittiano, and
consequently was informed of all these troubles I had suffered at the
hands of the said Comparini. He also knew of the very indecent flight
made by my wife in the manner elsewhere told. The abovesaid Alessandro
then began of his own accord to seek me out and did find me, so that
he might give ear, in the event that I should wish to avenge my honour
and the plots which they had made against my life." And page 699: "And
she together with Canon Caponsacchi was overtaken by myself at
Castelnuovo, where they were arrested by the officers and conducted to
these prisons. In the Court, many a time I laid stress on the crime of
her supposed conception in order that they might be punished. I never
having seen what would be considered expedient in an affair of such
importance to my honour, have been obliged to take some resolution for
recovering it, because the Comparini, with greatest infamy, had
transferred to me their own ignominy." And page 722: "And what I said
to Alessandro, Biagio, and Domenico, I also said to Francesco once
when he, knowing the offences against my honour which I had suffered,
asked me if I were ready to give a beating to my said wife. And I then
replied to him that she deserved not merely a beating, but death."
Such a confession should be accepted with its own qualifications, for
the Fisc cannot divide and detach this from it (according to the usual
theory). [Citations.]
This is undoubtedly true, when, as in the present case, one is arguing
for the infliction of the ordinary penalty, whatever may be said,
according to some authorities, for the infliction of an extraordinary
penalty. [Citations.] Ludovicus extends this conclusion to all
qualified confessions in any kind of crime.
This is true especially when the qualification is not merely propped
up in some way, but is conclusively proved. [Citations.] For beside
the said decree, and the other considerations above, we have his
fellows in crime especially swearing that their services were required
by Count Guido for committing crime in his very company for the
abovesaid reason. Especially is this the case with Blasio Agostinelli,
page 316: "Signor Guido told me that his wife had fled from him in
company of an Abate, and had carried away some money and jewellery. He
led me into the very room where she had robbed him of the said
jewellery and money, and told me that he wished to go to Rome to kill
his wife, and that he wished that I and the said Alessandro would go
with him," etc. And page 317: "At the above time the said Guido told
me that his wife, for the purpose of fleeing securely with the said
Abate, and that he might not perceive it, had mixed an opiate in the
wine for dinner to put himself and all the rest of them to sleep. He
also said that he was in litigation with his father-in-law, who had
not merely sworn that the said wife was not his own daughter, but
still further had received her back into his home, after she had run
away from her husband, although he would have put her in a monastery
after he overtook her at Castelnuovo during the flight." And
Alessandro Baldeschi (page 623): "The said Guido in the presence of
myself, as well as that of Biagio, Francesco, and Domenico, told me
that he ought to kill the lady, that is, his wife, who was here in
Rome, to recover his own honour; and also to kill the father and
mother of the said wife because they had lent her a hand in the insult
she had offered to his honour." And page 645: "He told us also, in the
presence of the keeper of the vineyard, that he was obliged to kill
his wife, his father-in-law, and his mother-in-law, because the latter
had lent a hand to their daughter in her ill-doing, and had acted the
ruffians too, and because the said Guido also declared that these same
people, whom he had to kill, had wished to have himself, that is
Guido, killed."
Nor can the plea of injured honour be excluded by the attestations of
those who afforded assistance to Francesca Pompilia even up to the
time of her death: for they attest that she made declaration that she
had never violated her conjugal faith. These assertions are merely
testimony given outside of a trial, and do not demand belief.
[Citations.]
And more especially as they were extorted and begged (while the suit
was pending and the other side was not summoned), by the heir of the
same Francesca Pompilia, for avoiding the prosecution by the Monastery
of the Convertites, which was laying claim to the succession to her
property on account of her dishonesty. Such shame would cause all of
her hereditary property to be sequestered and judicially assigned to
the said Monastery by law. [Citations.]
And this objection to their testimony is especially true because some
of the witnesses who swear as above are beneficiaries of the same
Francesca Pompilia, so that they might be swearing for their own
advantage. For if her dishonour were substantiated, her property would
devolve upon the said Monastery, and consequently they would be shut
out of their legacies. [Citations.]
And however far these attestations may occasion belief, a declaration
of this kind serves to no purpose, because no one is presumed to be
willing to reveal his own baseness. [Citations.] So likewise Francesca
Pompilia should not be believed, especially when testifying outside of
a court and without oath. [Citations.] Much less are the aforesaid
witnesses to be believed, lest more credence be given to hearsay
evidence than to its original. [Citations.]
Nor can it be said that no one is presumed to be unmindful of his
eternal safety; for all are not presumed to be Saint John the Baptist.
[Citation.] Especially when the argument is concerning the prejudice
of the third. [Citation.] And still more so when the argument is for
punishing more gravely the enemy of the declarant. [Citations.]
And therefore, as the plea of injured honour is substantiated, it
makes no further difference that the said murders were committed after
an interval, according to what we have very fully affirmed in our last
argument, § _nec verum est_, even down to § _prædictis nullatenus_.
There it was shown that this is the general opinion of authorities,
and in accordance therewith judgment has been given from time to time
not only in the Sacred Courts, but also in all the other tribunals of
the world, as Matthæus well observes, etc. [Citation.]
Nor can there be any departure from this opinion in the present case
on the ground that Count Guido did not kill his wife in the act of
seizing her in her flight with her lover, but was indeed content to
carry her before the judge as an adulteress. For it would not have
been safe for him to kill her then; because he was alone and she was
in company of the said lover, a daring young fellow, strong, and well
armed, and accustomed to sinning. And what is more, this lover was
prompt and well prepared to make resistance, lest his beloved
Amarillis should be snatched from him. Likewise she was prompt and
ready to hinder her husband even with a sword she had seized and
drawn, lest her beloved Mirtillo might be offended. Guido should not
therefore be considered to have spared her nor to have remitted his
injury. But lest she might escape into more distant parts where he
could have no hope of the due vengeance, his just and sudden anger
then counselled him to have her arrested by officers, so that he might
kill her as soon as possible; and when afterward a suitable occasion
arose, if he killed her, it should be considered as if he had slain
her immediately. [Citations.]
And, generally, whatever is done after an interval may be said to be
done incontinently, if done as soon as a chance for doing it was
given. [Citations.]
But so far is the Law from believing that this kind of injury is
remitted by a husband that it rather believes that the spirit of
vengeance always continues in him. Therefore it comes about that a
wife may be held responsible for looking out for herself; so much so,
indeed, that her death which follows thereupon may never be said to be
treacherous. [Citations.] Muta speaks of the case of a husband who had
his wife summoned outside of the city walls by his son, in order that
he might kill her safely, and yet the husband was condemned only to
the oars for seven years.
This also makes some difference in the case, that certain authorities
hold that a husband may indeed hide his wife's baseness for the
purpose of taking vengeance upon her safely later on. [Citations.]
Likewise he may have his wife hide his disgrace for the purpose of
taking vengeance securely upon the one who wishes to offend her
modesty, according to the very famous council of _Castro_ 277, _lib._
2.
And this is all the more to the point because Count Guido was censured
by the Procurator of the Poor himself, the defender of Francesca and
Canon Caponsacchi, for this appeal to the judge. [Citations.] We have
alleged many of these authorities in our past argument, § _et hæc
nostra_: for they unanimously assert that husbands are considered vile
and horned, if they do not take vengeance with their own hands, but
wait for that to be done by the judges, who themselves ridicule and
laugh at them. Therefore it is no wonder if the luckless husband,
after he had made the said recourse to the judge, as the foolish heat
of his wrath suggested to him, wished to avenge himself for his lost
honour. For he sinned that he might shun the censure of the vulgar and
learned alike, and that he might not add this infamy also to his lost
honour.
Nor is it at all to the point that the said Count Guido, in his
confession in one place, beside speaking of his injured honour, also
mentions the plots aimed at his life; because the force of honour was
far the stronger in his mind, as he himself asserts (page 678): "In
consideration of the fact that they had taken away my honour, which is
the principal thing." Nor ought any consideration be given the other
cause; because, as it is so much weaker, it should be made to give way
to the aforesaid reason, as was proved in our former argument, § _Et
in omnem Casum_, where for another purpose we have adduced Matthæus
[Citation], who is speaking in these very terms.
And so far as we desire to give attention to this other cause, it
likewise is sufficient for escaping the ordinary penalty. [Citations.]
The Fisc acknowledges the relevance of the abovesaid matters; he
therefore has recourse to the circumstances attending the crime,
namely, the assembling of armed men, the lawsuit going on between
Count Guido and the Comparini, the prohibited arms, and finally the
place where the crime was committed. For Francesca Pompilia was
detained in the home where she was killed, as a prison. But a response
is easy because such circumstances can indeed somewhat increase the
penalty of the principal in the crime, but not so much as to raise it
to the highest degree, in such a way that Count Guido and his
associates should come to be punished with death. For we find it
decided in these circumstances as quoted by Muta [Citation]: "A
decision was therefore made in view of the case in general, March,
1617, before his Excellency, wherefrom the ill manner of killing her
was evident; for he had her summoned by her son, and afterward her
body was discovered, which the dogs had eaten outside of the walls.
Leonardus was therefore condemned to the royal galleys for seven
years." And Sanfelici [Citation] says: "And although some of them were
condemned to banishment, it was because of their mutilation of the
privates, a crime for which the Fisc claimed they ought to be punished
by the penalty of the _Lex Cornelia de Sicariis_."
And Matthæus [Citation] says:
"When the matter had been more carefully considered in the Council, it
was decided that the husband had proceeded too treacherously in
pretending absence, in taking his brother with him, and in killing
with prohibited arms; because merely by the use of firearms a crime is
rendered insidious with us, etc. And it was accordingly decided that,
because of this excess, he should be condemned to the penalty of exile
for four years and to the payment of 2000 ducats." And this at the
stage of appeal was confirmed [Citation] where we read: "And thus it
was decided in the face of the facts proposed in condemning Francesco
Palomi to the penalty of the galleys for ten years, etc., from the
aggravating qualification of firearms. To the same penalty, Antonio
Alvarez was condemned, who had deliberately killed his wife because
she was playing him false, etc. The penalty was increased because he
was judged to have omitted this earlier, since he did not complain of
mere adultery, but of her living as a strumpet. And she could not do
this without the indifference and connivance of the husband."
And our reasoning is manifest, because it cannot be denied that Count
Guido and his associates committed all the aforesaid crimes on the
same ground of injured honour. Because just as this excuse should be
considered sufficient for escaping the ordinary penalty for murder, so
likewise it should be considered sufficient for avoiding the other
punishments whatsoever, appointed in the Apostolic Constitutions
against those committing other crimes expressed in the same; as the
principal purpose of the delinquent is always to be attended.
[Citation.]
So it was declared on this point for the purpose of avoiding the
penalty inflicted in the 75th Constitution of Sixtus V. [Citation],
against those who assembled armed men, whenever these men were
evidently assembled for the purpose of committing some other crime,
such as breaking prison and freeing those detained therein. And three
very celebrated judges of the Sacred Court, namely Coccini,
Blanchetti, and Orani so decided. Their decision is included among
others gathered by Farinacci [Citation], and he testifies that it was
so decided in the full chamber, in which the case was proposed and
examined at the order of Clement VIII. of sacred memory.
Nor does what he wrote later on to the contrary in aid of the Fisc, of
which he was then Advocate, stand in refutation; Spada. [Citation.]
For this opinion of his was refuted clearly and rejected on the most
substantial of reasons and arguments, [Citations.]
And in such conditions, for the purpose of avoiding the penalty of the
Banns or Apostolic Constitutions prohibiting the carrying of arms, I
have alleged many authorities in my past argument, § _neque plures_
[neque vero], and above the rest, Policardus, etc. [Citation], who
fully examines the matter. My honourable Procurator of the Poor
gathers together others in his present argument, § _remanet tandem_.
To these I add, Caballus [Citations], where it says that preparatory
acts are to be included with what was prepared, and he testifies that
it was so decided by the Sacred Council of Naples.
Likewise, for the purpose of avoiding the penalty set for those
killing one detained in prison, and so remaining in the custody of the
Prince, I have cited many authorities in my past argument, § _similiter
nec aggravari_. To these I now add. [Citations.]
Nor does it make any difference that Policardus, in the place cited,
and some of the other authorities recently alleged speak of homicide
committed in a quarrel or for self-defence. For the attendant
circumstance of a quarrel relieves one committing crime from the
ordinary penalty of the crime only in so far as it overlooks the crime
in one who, when provoked, wished to be avenged (as Ulpian says), and
insomuch as one swept away by a just indignation is not in the
fullness of his intellect. [Citation.]
But both of these reasons without doubt stand in favour of the husband
or of any one else committing murder for honour's sake [Citation],
even if they do so after an interval. [Citations.]
And in these very conditions, one killing an adulterous wife after an
interval is excused because of just anger, which causes him not to be
in the fullness of his intellect, etc. [Citations.]
Ulpian [Citation] also says: "He ought to be angered with a wife who
has violated his marriage with her, and his wrath should spring from
indignation for contumely when received, and his nature should arise
so that he would drive her from himself in whatever manner he could."
"For it is more difficult to restrain one's anger than to perform
miracles," as St. Gregory says. [Citation.]
The other authorities, indeed, who speak of persons committing murder
in self-defence with prohibited arms or in prisons should likewise be
in our favour. For the defence of honour in the case of men of good
birth, especially of nobles, is to be likened to the defence of life
itself. [Citations.] And indeed it surpasses life, according to the
words of the Apostle in his first letter to the Corinthians, chapter
9: "Better were it for me to die than that any one should deprive me
of my glory." And St. Ambrose: "For who does not consider an injury to
the body, or the loss of patrimony, less than injury to the spirit or
the loss of reputation?" And the third Philippic of Cicero: "We are
born to honour and liberty; either let us keep them, or die with
honour." [Citations.]
So that he who spurns his own honour, and does not see to regaining it
by vengeance, differs naught from the beasts. [Citations.] Indeed he
should be considered even more irrational than the very beasts,
according to the golden words of Theodoric. as quoted by Cassiodorus,
which we have cited in our past argument, § _Nec verum est_.
[Citations.]
Then as to the lawsuit going on between Count Guido and the Comparini
as regards the fraud about the birth, beside what was said recently, I
pray that it again be noticed that the Constitution of Alexander does
not enter where some provocation has arisen from the one injured, as
Farinacci well affirms [Citation] in following a decision of the Rota,
which he places at the end of his counsel. And we have weighed this
heretofore in our past argument, § _absque eo quod_. Such provocation
in the present case resulted from the injury which the said Comparini
inflicted upon this same Count Guido while the lawsuit was pending,
because of their complicity in the said flight and adultery committed
by their daughter on that occasion.
The other lawsuit which Francesca Pompilia made pretence of bringing
against Count Guido, for divorce, might be omitted. For beside the
considerations offered by my honoured Procurator of the Poor in his
present argument, § _quæ etiam aptantur_, this suit was brought
illegally, because the warning of it, as I suppose, had reached only
Abate Paolo, the brother of Count Guido, who had no authority in this
matter. And this is true especially because it is not proved that the
same Guido had any knowledge of that suit brought, as is now
pretended.
As to Blasio Agostinelli enough has been written in the former
argument, since he has not been examined anew, and in his former
examination he confessed only that he was present at the said murders,
but that he had no hand in them. So the more rigorous opinion of
Caballus cannot apply to him, who said that such helpers are not
immune from the penalty of murder whenever they kill any one with
their own hands. For the opinion of this author was proved by us to be
erroneous, in our past argument, § _quidquid in contrarium_.
I might wish to add something to what has been said in the past
argument as to the alienage and minority of Domenico and Francesco;
but it is not yet very clear under what law the Fisc pretends that
they miss these. Therefore I will rest satisfied with this response,
believing certainly that it will not chance that my Lord Advocate of
the Fisc may fashion his own allegations and also respond to ours
without communicating them to me, as happened in the past argument
very greatly to the astonishment of myself and of others. For he and I
both ought to seek the truth and to be advocates of that, as both of
us are officers of the Prince according to the considerations of
Rainaldi. [Citation.] Who indeed desires that anything else than
justice be administered, and especially when dealing with poor
imprisoned wretches? In their cause, piety should triumph, because
they are the treasure of Christ. [Citation.]
DESIDERIO SPRETI, _Advocate of the Poor_.