[PAMPHLET 12.]
Most Illustrious and Most Reverend Lord:
Why should we waste time in disputing the point whether adultery
committed by Francesca Comparini with Canon Caponsacchi, as is claimed
by the other side, is sufficiently proved? For in our first
information [Pamphlet 5] as to the law and fact in the case, we have
already declared that judgment was given in the _Congregation_ only
for the penalty of banishment to Civita Vecchia against the abovesaid
Canon, and of retention in the nunnery against Francesca, because of
the very lack of proof of the said adultery. And this is quite right
in law, because neither the Canon himself nor the said Francesca have
confessed, much less been convicted of it; and because the
suppositions brought on the other side are trivial and equivocal. But,
even if these latter had been weighty and very urgent, they would not
have been enough to establish conclusive proof, but at the most could
only lead the mind of the judge to place some minor punishment upon
them arbitrarily, as Farinacci testifies. [Citation.]
Therefore there should be strict insistence on behalf of the Fisc upon
the point that Guido Franceschini had not the right to kill, after an
interval, his wife, whom he had not taken in adultery nor in base
conduct, without incurring the ordinary penalty of the _Lex Cornelia
de Sicariis_. For in our former writings, § _Alii vero_, we have
proved by the strength of many distinguished authorities that a
husband who kills his wife after an interval is not excused from the
said penalty.
Now that this fundamental assertion [in their argument] is overthrown,
we declare that the rights of the Fisc cannot at all be controverted
in the case with which we are dealing, since the authorities alleged
by the Defence, who excuse a husband from the ordinary penalty, speak
in the case of simple murder; and they ought not, accordingly, to be
extended to a case made still graver by qualifying attendant
circumstances. And for this reason, because the penalty cannot
possibly be the same, when the crime is greater in the one case than
in the other. [Citations.]
Nor for the purpose of overthrowing this fundamental idea of the Fisc
can the objection be made that all the qualifying and attendant
circumstances, which have been brought together in behalf of the Fisc,
should have no consideration, because they tend toward and are
preordained for the end had in mind; for the end and intention of
Count Guido was directed toward the murder of his wife and the
vindication of his honour. But one can well understand how fallacious
this argument really is, from what I have already written in § _Prima
enim_ together with the one following, and § _secunda qualitas_ and
_si ergo_. There we have proved that the learned authorities who can
be adduced by the other side speak and should be so understood when
the end is licit and not prohibited by law, or else when some
qualifying circumstance, through the force of particular Constitutions
or Banns, does not establish some further capital crime, distinct and
separate. And this is true whether the preordained end in the mind of
the delinquent follow or do not follow.
But in our case, from what has been conceded by the lawyers for the
Defence, the husband is not permitted by law to kill with impunity his
wife, after an interval, for adultery. But he is permitted by law to
slay the vile adulterer and his adulterous wife only when taken in
adultery. How then can these authorities be applied to our case? For
they hold good and find a place for themselves only in a case
permitted by law. In these circumstances speaks Laurentius Matthæus
[Citation], who is cited by the other side, where in his setting forth
a case we may read: "The adulterer and adulteress were slain in the
home of the husband, although in that case the husband did not escape
unpunished, because he had used firearms."
Nor does it hold good in law and practice that the bearing of arms is
included along with the crime committed. Not in law, as we have
affirmed in our other argument § _si ergo_; nor in practice, because
in all the tribunals of the entire Ecclesiastical State, it is held
that even when murder in a rage has been committed, if it has been
committed with the arms which are prohibited under the capital
penalty, especially if these arms come into the possession of the
Court, a more severe penalty is inflicted. And murders which should
suffer a lighter penalty because they were done in anger are condemned
under the ordinary penalty because of the carrying of such arms.
Farinacci and Guazzini testify that this has been the practice in the
Ecclesiastical State while this Decree has held good. [Citations.]
Still less applicable are the other authorities, who were adduced to
escape the order of the Constitution of Alexander. For although it is
true that for this crime the penalty threatened by the same decree
does not enter, unless these three matters are concurrently present,
namely craft, the occasion of a lawsuit, and the fact that no
provocation has arisen (as Farinacci holds [Citation]), yet in our
case, all of the abovesaid concur. As to the craft, there can be
little doubt, since by the very confession of the Defendants we have
knowledge of the preceding discussion and deliberation for committing
the murders. And Decian and others affirm the charge of craft may
arise from such a discussion. [Citations.]
The presence of a lawsuit is likewise undoubted; because, on the
representation of Pietro Comparini, suit was not only brought before
Judge Tomati as to the dowry promised and the goods subject to entail,
for the exclusion of the said Guido Franceschini and Francesca his
wife, but also a sentence favourable to the said Franceschini has been
handed down by the same judge.
But still further we may gather, from the confession of Franceschini
himself, that the provocation whereby he was moved to kill his wife
arose because of the pretended adultery; on this point the counsel for
the defence have principally insisted. Nor can they deny that this
same cause was introduced in the criminal prosecution in the presence
of the judge by the same Franceschini. It is quite necessary, then, to
acknowledge that this ought to justify the application of the penalty
of the Alexandrian Bull; for this decree speaks in civil as well as
criminal cases, as is evident in the fourth paragraph of the same
Bull, where we read: "That successively in future times forever, each
and all persons, ecclesiastical and secular, of whatever quality,
dignity, state and grade of rank and prominence, in their own causes
under benefit of clergy or secular, also in criminal and mixed cases,
whether now before this Court or pending for the time, their
adversaries, or those following or helping them, or the Advocates or
Counsel of them." And also in the place where we read: "If mutilation
of limb, or death (which God avert) follow, they incur _ipso facto_
beside the loss of their right and case, the sentence for the outraged
majesty of the Law."
We believe we have sufficiently canvassed these matters with galloping
pen (there being but a brief three hours) to prove clearly that the
foundations of the Fisc affirmed in our former writings still stand
fast, in spite of what has been recently deduced by the opposition so
fully and so learnedly, but without legitimate proof.
F. GAMBI,
_Procurator General of the Fisc and of the
Reverend Apostolic Chamber_.
[File-title of Pamphlet 13.]
_By the Most Illustrious and Most
Reverend Lord Governor of the
City in Criminal Cases_:
_ROMAN MURDER-CASE
with qualifying circumstance_.
_For the Fisc, against Count Guido Franceschini
and his Associates._
_A reply in matters of law, by the Lord
Advocate of the Fisc._
_At Rome, in the type of the Reverend Apostolic Chamber,
1698._