[PAMPHLET 13.]
Most Illustrious and Most Reverend Lord:
In the beginning of his recent information, my Lord Advocate of the
Poor has criticised as unjust the decree of this Supreme Tribunal,
which inflicted the torture of the vigil upon Count Guido Franceschini
and his associates, for the purpose of getting confession of that most
horrible crime committed by them. Hence he claims that those
confessions, given under the fear of it and ratified after it was over
(as is the custom), cannot do the Accused any harm. He attempts,
indeed, to deny the justice of the said decree, not merely because of
the absence of the quality of special atrocity (as required by the
decree of Paul V. of sacred memory for the reformation of the
tribunals of the City), but also from the fact that the death penalty
cannot be demanded for the crime under discussion. And this he claims
is so (in spite of the unusual powers for ordering the torture of the
vigil granted to this Tribunal) lest there may be greater harshness in
the course of the trial than in the penalty itself. [Citation.]
In the end of this said recent information, he also criticises me
because, to the very great wonder of himself and others, I have failed
in my duty of seeking the truth in that I have made certain
allegations in the defence of the rights of the Fisc, which I have not
communicated to him. I thought he had complained quite enough about
that orally, so that he might have spared us his new complaint. But it
was not my duty to tell them to him, just as his informations, which
he made for the Defence (very learned indeed in their way), have never
been made known to me by him. But I assert only this, that I have paid
the price of much labour, lest I may seem to have failed in my office
and in the reverence with which I attend upon my Lord.
Passing over, therefore, my own personal apology, I go on to vindicate
the decree of this Tribunal from the injustice charged against it. I
also omit proof of the quality of the crime as to whether it may be
considered very atrocious, for I have abundantly argued this point in
my past response, § _Sed quatenus etiam_, with the one following.
For I showed that this quality could be sustained because of the
attendant circumstances which exasperated and raised the crime to the
outraging of the majesty of the law, according to the provisions of
the Apostolic Constitutions and the General Banns. I think it is quite
enough in my present argument to show that for this offence the death
penalty should be demanded. I hope to accomplish this with little
difficulty, since from the very kind of severe torture decreed, by
judges of such integrity, the applicability of this said penalty is
pre-supposed. And so since nothing new, whether in fact or in law, can
be brought, which has not been already examined in relation to the
cause for decreeing the torture, now that the confession of the
Accused has followed it, it is the duty of the Judges to pronounce the
execution of the well-deserved penalty, which has been long expected
by every one.
I have said that nothing new is brought by the defence, since their
special attempt consists in repeating the plea of injured honour
because of the pretended adultery committed by the wife of Guido, with
the help and conspiracy of her parents, who were barbarously
slaughtered along with her. This plea is offered for the purpose of
exciting the pity of my Most Illustrious Lord, and the Lords Judges,
in order that Guido and his associates may be punished more mildly,
according to the authorities adduced on that point in their first
information, § _hoc stante_, together with the one following, and §
_Prædictis nullatenus_, likewise with the one following; and in the
present information, § _Verum et socios_. But the same response
recurs, that for the Accused this exception on the plea of pretended
injury to honour can afford no refuge, because this plea has no
foundation in fact and is irrelevant in law.
For what difference does it make even if the mere strong suspicion of
adultery is enough to excuse vengeance taken immediately by a husband
against his wife or her lover? If she were found either in lustful
acts, or in those preparatory thereto; then because of such a sudden
grievance excited thereby, which provokes a man to anger, the penalty
should very often be tempered according to the nature of the case and
the persons. But it is quite certain that to escape the ordinary
penalty of the _Lex Cornelia de Sicariis_ for the murder of a wife
committed after an interval, the mere suspicion of adultery, however
strong, is not enough; but the clearest proof of it is required,
either from the confession of the wife herself or from a condemnatory
sentence following. [Citations.]
But such proof is entirely lacking in our case. For the luckless wife
constantly denied the adultery even till the last breath of her life,
as is evident from the sworn attestations of priests and others who
gladly ministered to her after she had been wounded. For they
unanimously assert that she always affirmed that she had never
violated her conjugal faith. Nor did she ask that such sin be forgiven
her by the Divine Clemency; this assertion indeed should have much
weight, since no one is presumed to die unmindful of his eternal
safety. [Citations.]
Nor are the responses given by the Defence at all relevant; namely,
that such proof in denial of the adultery is drawn entirely from
testimony taken out of court, and extorted by the heir while a lawsuit
was pending, to remove the annoyances brought by the Monastery of the
Convertites, and that some of the undersigned were legatees. They also
respond that since such an assertion as hers served to cover her own
baseness, it should not be believed, especially as it was not sworn.
And further, that although no one is presumed to be unmindful of his
eternal safety, yet all are not supposed to be immune from sin, like
Saint John the Baptist, which is especially true when the argument is
about the prejudice of a third party and about the more severe
punishment of an enemy of the one making declaration.
Now that all these claims are destroyed with so little trouble, the
irregularity of the proof could stand in our way, if the Fisc were
obliged to assume proof and perfect it. But the burden of proof rests
upon the Accused, according to the authorities cited above for
avoiding the death penalty, whenever a man kills his wife after an
interval. The above attestations are brought merely to damage the
proof of pretended adultery, offered by Guido. In this case,
certainly, such attestations are not to be spurned, especially when we
consider the quality of the persons attesting, since they are priests
of well-known probity, and it is incredible that they would be willing
to lie. [Citations.]
The further objection that these attestations were extorted by the
heir, while a lawsuit was pending, for the purpose of escaping the
trouble brought upon him by the Monastery of the Convertites, is also
removed by the same reply; because when one is arguing for the proof
of an assertion given in the last days of life and in the very face of
death, proof cannot be established, unless this hold good. And the
heir is praiseworthy, because he is obliged to avenge the murder of
the one slain, lest he be considered unworthy according to the text.
[Citation.] "Heirs who are proved to let the murder of the testator
go unavenged are compelled to give back the entire property," etc. He
procured these attestations that he might guard the good fame of the
testatrix; and this was rather because of his zeal for her good repute
than to prevent the annoyances unjustly brought, and the quashing of
these latter could be turned back for the exclusion of the pretended
proof of the dishonesty of the unfortunate wife.
Still less can it stand in our way that some of the signers are
legatees, since their interest is not large enough to prevent their
giving testimony. [Citations.] And this is especially true when one is
arguing to prove a matter which happened within the walls of a home,
and the proof of which, on that account, is considered difficult.
[Citations.] And such an exception to their testimony, so far as it
has any foundation, is utterly removed by the number of the witnesses
subscribed to the said attestations. [Citations.]
But [last of all], as to the objection that the assertion of one dying
is not to be attended, when directed toward the exoneration of one's
self, because no one is compelled to reveal his own baseness. This
might indeed hold good if the adultery had been proved, and if it were
not evident that, though wounded, she had died with strongest
manifestation of Christian penitence, which would exclude all
suspicion of a lie. In this case such an objection does not hold good,
but another very valid supposition takes its place, namely, that no
one is believed to be willing to die unmindful of his eternal safety.
[Citations.]
For Mascardus [Citation.] says that a confession given in the hour of
death holds good, and he adds that this approaches nearer the truth,
and cites in proof of it Marsilius. [Citation.] The latter affirms
that if any one assert that a person making oath in the hour of death
is lying, he says what is improbable. And Mascardus concludes that
this opinion is more just, and more in accord with reason and with
natural law. And though he offers some limitations, none of these are
applicable to our case; and the question about which he was arguing
was concerning the assertion of one wounded, as to whether such
assertion constituted proof against the one charged; and this differs
by the whole heaven from our dispute, if we only note that the burden
of proof does not rest with the Fisc. Nor does the assertion of
Pompilia when dying tend principally toward vengeance, since it is
quite evident from those making attestations that she shrank with
horror from that; as she always professed that she most freely
pardoned her husband.
These matters we have noted beforehand rather in super-abundance than
because we were obliged to assert the justice of the decree of this
Tribunal. It will now be easy to escape the proof of pretended
adultery, brought by the counsel for the Defence. For so far as this
proof is drawn from the other decree of this same Tribunal, condemning
Canon Caponsacchi for flight and carnal knowledge with Francesca
Pompilia, the response which has already been given holds good:
namely, that a title should be given no attention, but merely the
proof resulting from the trial, and the penalty imposed by the
sentence. And what if in that decree, along with the "title" of
"complicity in the flight and escape of Francesca Pompilia," there was
also added the title "for criminal knowledge of the same"? Yet since
in the trial itself no proof in verification of this was found, and
since the penalty of three years' banishment does not correspond
therewith, the mere title should not be given attention, according to
the authorities adduced in my past response, § _non relevante_.
And on account of the following reason, still less can such clear
proof of the pretended adultery be established as is required to
escape the ordinary penalty for taking vengeance after an interval.
For at the instance of the Procurator of the Poor a correction was
decreed by the Judges, with the approval of my Most Illustrious Lord,
which substituted a general title relative to that suit, namely _Pro
causa de qua in actis_; and although this correction is not to be read
in the record (commonly called the _Vachetta_) in which decisions are
usually noted, yet it was made in the order for the dispatching of
Caponsacchi to his exile and in the decree assigning to Pompilia the
home as a prison. (Summary, No. 1.) And since the latter was made with
the consent of Abate Paolo Franceschini, we may assert that the said
change of title became known to him because of his notorious
solicitude in conducting the case; and so it would be very improbable
that he had not carefully examined such a decree and the obligation
made by Pietro to furnish her food, without hope of repayment, and the
bond given for her to keep the home as a prison. For these reasons his
knowledge of that change should be considered as sufficiently proved.
[Citations.]
And therefore the response falls to the ground that the decree could
not be changed unless both sides were given a hearing. For while
Francesca Pompilia, whose defence had not yet been finished, was
unheard, much less could the title of criminal knowledge be included
in the condemnation of the Canon. For this would be injurious to her,
not merely as regards her reputation, but also for the loss of her
dowry, for which her husband was especially greedy. For in this way
would an undefended woman suffer condemnation, and what is worse, as
the event shows, would be exposed to the fury of her husband. And
hence with justice was this correction requested and made. And even if
this had not happened, a sentence given against the Canon could not
injure her, as it was a matter done with regard to other parties.
[Citations.]
But it is quite gratuitous to assert that a change as regards the
matter of the trial does also impart the same change as to the
expression of the title of carnal knowledge. For since several titles
were originally expressed in the decree of condemnation (such as
complicity in flight, running away, and carnal knowledge upon which
the suit was based) the statement of the cause contained therein is no
more probable as regards one than as regards another, and certainly it
is not probable as regards them all. For if they had wished to include
all those in the modified decree, they would have said: _Pro causis de
quibus in Processu_, for the singular number does not agree with
several causes. [Citations.] But in the prosecution the charge of
"criminal knowledge" was not proved and the Canon could not be
condemned for that while Francesca Pompilia was unheard and
undefended. This is on account of the indivisibility of the crime of
adultery, which does not permit the division of the case for the
purpose of condemning the one, while the case is pending as regards
the other. And this is especially true when all parties are present
and are held in prison. [Citations.] The expression, therefore,
_Causæ, de qua in Processu_, should be understood to apply only to the
complicity in flight and running away (for this could be issued
without the condemnation of Francesca Pompilia), and not to apply to
"carnal knowledge." For the statement made should be considered
applicable only to those matters with which the judgment relative
thereto agrees. [Citations.]
And this claim of ours is rendered manifest by the mildness of the
penalty to which the Canon was condemned, namely, that of three years'
banishment. This certainly does not correspond with the offences of
running away with a married woman from her husband's home, bringing
her to the City, and carnal knowledge of her. For inasmuch as the
attendant circumstance of rape, spoken about, is punishable by the
capital penalty, unless a priest is being dealt with, a far severer
penalty would have to be inflicted for the adultery alone, if proof
thereof had resulted from the trial. [Citations.]
My Lord Advocate of the Poor acknowledges that the penalty was too
light to expiate harshly such a crime, and especially in accordance
with the Constitution of Sixtus, revived by Innocent XI. of sacred
memory. And therefore to avoid acknowledging the lack of proof, which
might very well be inferred from the lightness of the penalty, he
attempts to respond that the said Canon was dealt with more mildly
because he was a foreigner and because the crime under consideration
had been committed outside of the Ecclesiastical State. In this case
one should be dismissed merely with exile. But this response is proved
to be without foundation for many reasons.
First, because on account of the well-known privilege of the City of
Rome, which is the country of all men, even those may be punished here
who have committed crime outside of the Ecclesiastical State, which is
subject to the secular authority of the Pope. And this is true, not
merely for the handling of criminals, which is permitted to any
Prince, but for the trial of the crimes. [Citations.] Cyrill testifies
that he himself had so held in 1540, in the Capitolian Court, and
Farinacci testifies that it was so held in this same Court in the year
1580, in the case of Gregorio Corso, who had been condemned to the
galleys, because he had committed murder in Florence and had come here
to Rome, after seizing the horse of the one he had slain. And this was
notwithstanding the fact that the cause was very sharply defended for
the accused. [Citations.]
Second, because this authority holds good whenever there is argument
for punishing crimes committed by churchmen, who are subject to the
jurisdiction of the Supreme Pontiff, and in the City can be punished
for their crimes with the ordinary penalty, even though the crimes
were committed outside of the temporal authority of the Pope.
[Citations.] "Rome is a common country and, therefore, in the Roman
courts any cleric or layman may be brought to trial, even though he
did not commit his crime there." [Citation.]
Third, because inasmuch as it was claimed that the approach to the
City and the carrying away of the wife to the same were done because
of lust, and to secure greater liberty for knowing her carnally, by
taking her from the home of her husband, so the Canon, on account of
this purpose, would have subjected himself to penalties such as could
really expiate the crime, and which also might be inflicted here in
the City; for one is punishable with the same penalty who continues
in a crime here, although he put it into effect outside of the State.
[Citations.] Caballus [Citation] holds that, for deciding the
jurisdiction of a judge over crimes that have been committed, the
person offending, rather than the offence, should be considered.
[Citation.]
Fourth, because the pretended carnal knowledge, so far as it can be
said to be proved in the prosecution (and it can be verified that the
decree was changed with relation to that), happened in the
Ecclesiastical State; for the strongest proof of that crime was drawn
from the asserted sleeping together in the same bedroom at the inn of
Castelnuovo. [Citation.] And therefore the Canon could and should have
been punished with condign punishment, not merely for his undertaking,
but for the adultery, if that had been proved. And since this was not
imposed, it may well be asserted that the Canon was not at all
condemned for "criminal knowledge," unless one wishes to criticise as
unjust that decree, which imposed a mild penalty and one suitable
merely to simple running away and complicity in flight, and which was
much tempered because of the excuse brought by the Procurator of the
Poor. Therefore it may be asserted that the Canon was not condemned
for the pretended criminal knowledge, since the nature of the penalty
well proves the nature of the crime, with which it should be
commensurate, according to Deuteronomy 25: "According to the measure
of one's sin shall be the manner of his stripes." [Citations.]
And therefore, since the pretended condemnation of Canon Caponsacchi
for criminal knowledge of Francesca Pompilia is excluded, the
pretended notoriousness of the adultery resulting therefrom also falls
to the ground. Neither can this notoriousness be alleged against her
undefended. And just as public vengeance, which is to be decreed by a
judge, cannot be based lawfully upon it, so much less should private
vengeance be considered excusable, when taken by the husband in
murdering her after an interval. He is immune from the ordinary
penalty for murder even according to the more merciful opinion only
when the adultery is established by the very clearest proofs displayed
in confession by the accused, or by a sentence given thereupon.
Likewise it would be superfluous to avoid the presumptions adduced by
the Defence, especially by the Procurator of the Poor, to destroy the
proof of adultery drawn therefrom; for this single response would be
enough, namely, that these proofs were all gathered together in the
prosecution for Pompilia's flight, made at the instance of Count
Guido, he pressing hard to gain the dowry because of her adultery. And
this was insisted on by the counsel for the Fisc, who wrote acutely
upon these matters at that time. And yet, in the report of the cause
these presumptions were not considered by the judges because of their
irrelevance. This is evident from the lightness of the penalty decreed
against the Canon. And so the examination of these cannot be renewed
after the Fisc has yielded and quietly acquiesced in the sentence,
from which it could appeal if it considered itself wronged. Nor could
Guido legitimately have recourse to such awful vengeance by his own
hand. But lest some feature of the case may be left untouched, and
that the justice of the decree may be more clearly asserted, I have
taken the pains to confute these briefly.
And since, in the first place, the cause of flight is considered by
the Defence in order that they may prove that the said flight was
entirely illicit and was planned for easier criminal knowledge, the
proofs brought for this purpose should be examined. The chief of these
was drawn from the asserted letter of Francesca Pompilia, written to
Abate Franceschini. This makes pretence that her parents urged her to
poison her husband, her brother, and her mother-in-law, to burn the
home, and to return to the City with her lover. But one cannot have a
better refutation of this than the very tenor of that letter,
including matters that are so improbable, yes and indeed incredible,
that it was rightly rejected by the judges. For who can be found so
destitute and ignorant of filial love and duty as to make himself
believe that a mere child, not more than fourteen years old
[Citation], married away from her father's home, grieving bitterly for
the departure of her parents, and wretchedly kept in the home of her
husband, so that she was obliged to have recourse to ecclesiastic and
laic authorities, could have written to her husband's brother (who was
so unfeeling toward them), with a calm mind, of such base counsels and
commands given by them, unless, as she ingenuously confesses, she was
compelled by her husband to write it? Nor could she, without great
peril, refuse her husband, who was demanding this. Such an
improbability alone is enough to thrill with horror those reading it,
and well shows that she had written this not of her own accord, but
under compulsion. [Citations.]
And, therefore, there is no need to examine whether the qualification
added to her confession is probable, namely, that her husband had
first marked the letters of the said epistle, which she had afterward
inked by tracing them with a pen; because she did not know how to
write. For possibly she shuddered to confess that she had written such
matters, even under compulsion of fear, to the injury of her father
and mother. Such fear is quite presumable in a wretched wife of tender
age, destitute of all help, away from her father's hearth and in her
husband's home. [Citations.] Mogolon says that from the absence of
relatives, the presumption of such fear may arise. [Citation.] And
this is especially true after she had had recourse in vain to the
authorities. Nor is a sufficient proof to the contrary deducible from
Francesca's signature to the matrimonial contract, and from the
letters that were said to have been written and sent by her in
succession to the Canon, or else thrown from the window. [Citation.]
For the very brief signature made in the marriage agreement does not
show such skill in writing that with the same ease she could have
written so long a letter, inasmuch as daily experience teaches that
many are found who can scarcely write their own names.
Still less can the ability to write be said to be proved by the
asserted love-letters; for these were constantly denied by Pompilia.
Nor can these letters be said to be sufficiently verified by the
assertion of the said witness for the Fisc, namely, that she threw
from the window a note, which the Canon picked up and then departed.
For aside from the fact that the witness stands alone and is of the
basest condition, namely a dishonest harlot, and so unsuited for
proving a matter [Citations], she neither affirms, nor can affirm that
the said letter was written by Francesca Pompilia. Likewise the
letters found in the prison of Castelnuovo might have been written by
some stranger's hand. And even though they had been written by her,
inasmuch as they are of a later date, they do not prove her skill in
writing at some past time; for she could have acquired this skill
afterward because of desperation which sharpened her wits, for the
purpose of inducing the Canon to undertake the flight with her, so
that she might escape the peril of imminent death. For in such matters
at these, which are variable and can be changed, one cannot well argue
from the present to the past. [Citations.] And that in fact she did
learn to write in Arezzo after the departure of her parents is evident
from her letter written in the prison of Castelnuovo, and found among
her private papers after her death. This is given in the present
Summary, No. 3.
The proofs of the abovesaid letter [to Abate Franceschini] drawn from
the letters of the Governor of Arezzo, of the Reverend Bishop, and of
Bartolommeo Albergotti, are so far from excluding the legitimate
reason for flight given by herself and the Canon, during the
prosecution, that they rather favour it. For although they criticised
her for having such ill-advised recourse to them, they possibly did
this to free themselves from censure for having thoughtlessly turned
her away. Therefore it is more probable that by them the minds of her
cruel husband and of her mother-in-law, who was pitiless and
implacable, as experience teaches us, were exasperated all the more.
Any one may well know that Guido's mind was much more embittered after
the lawsuit brought concerning the pretence of birth and the
rescinding of the dowry contract, and after the publication of
pamphlets about the domestic scantiness and the base treatment which
they had suffered in the home of the couple in Arezzo. His anger was
also stirred by his jealous suspicion of the Canon (although
Pompilia's love of the latter was merely pretended for the purpose of
winning him) and by his exasperation, that increases the deadly
hatred, which arises from a lawsuit about a considerable amount, and
much more about an entire property. [Citations.] Such should the
controversy about the pretence of birth be considered. Nor can the
just fear of the luckless wife as to her deadly peril be denied. And
driven to desperation in avoiding this, she might well have fled; for
if it is permissible because of blows beyond mere legitimate
correction [Citations] how much more permissible should it be
considered, when the wife was continually afraid that he would kill
her either with the sword or by means of poison. And, to avoid this,
it was but prudent counsel for her to leave her husband and go back to
her father's hearth.
It would indeed have been better if she had won her security by having
recourse to the Right Reverend Bishop, in order that he might place
her in some nunnery or with some honest matron; or to the Lord
Governor, who would have considered her safety and the honour of her
husband's family; or if she had fled in the company of some one
connected with the household. But the fear of imminent peril does not
permit one to take better counsel, and especially a wretched wife of
tender age, destitute of all aid and exposed to the fury of her
husband and her mother-in-law. And still further, she might well fear
that new recourse to them would be in vain, since she had found the
former so useless. Nor could she find any better way of fleeing
safely, wherein she thought lay the sole help for herself, than by
using the help and company of the Canon, who had been proposed to her
for this purpose by the Canon Conti and by Signor Gregorio
Guillichini, relatives of her husband. It is incredible that they
would have conspired against Guido's honour without the strongest and
most urgent reason and without confidence in Caponsacchi's honesty and
modesty. For one of them, namely Gregorio, had offered himself as a
companion for the journey and would have carried out his offer if his
infirmity had permitted; as we read in the said letter of Francesca
Pompilia found since her death and shown in our present Summary, No.
3, which refers to the same causes, of the infirmity of Gregorio and
the imminent peril, which did not permit her to await his
convalescence. And therefore she is worthy of excuse since she fled
for dire necessity in company of the Canon, a man of modesty well
known by her (as is likewise evident from another letter in the
Summary of our opponents, No. 7, letter 12, in which she calls him the
chaste Joseph, and from the other letter, in which she commends him
for his sense of shame). For if she chose this remedy under dire
necessity, she should be excused according to the common axiom,
"necessity knows no law." [Citations.]
Nor is an illegitimate cause of flight to be inferred because of the
dishonest love with which Francesca Pompilia pursued the Canon in some
of these letters. For although they seem amatory, yet they were
ordained to the purpose of alluring this same Canon, in order that he
might flee with her; since, without him, she knew that she could
neither carry that out, nor even attempt it. Hence the letters can
afford no proof of subsequent adultery. For although proof may result
from love-letters, according to the authorities adduced by the Defence
in § _His praehibitis_, yet this is avoided, if the letters are
directed to a permissible end, such as flight to escape deadly peril.
For then, inasmuch as the end is permissible, the means are likewise
so considered, even though these are not without suspicion; for they
are not considered in themselves, but because of their end.
[Citations.] Nor is the proof of adultery hitherto drawn from
love-letters so very strong unless they include the implicit
confession of subsequent fornication. [Citations.]
The following consideration is especially urgent in leading to the
belief that the luckless girl thought the Canon would conduct himself
modestly during the journey. For in one of her letters she does not
fail to take him to task (who had elsewhere been commended for honesty
and modesty) because he had sent her questionable verses (present
Summary, No. 4): "I am surprised that you, who are so chaste, have
composed and copied matters so immodest." And further on: "I do not
want you to do in everything as you have done in these books; the
first of them was so very nice, but these other octaves are quite the
contrary. I cannot believe that you, who were so honourable, would
become so bold." From this sincere rebuke it is quite evident in what
spirit these letters were written, even though they are filled with
blandishments and proofs of love; for she shrank even from the
dishonourable verses sent to her. Hence the letters should be
understood according to the intention of the one writing them, just as
one's words are. [Citations.]
And should not the supposition that the unfortunate wife had destroyed
her matronly shame in the journey be therefore considered trivial and
improbable? For she had quite enough to do to provide for her own
safety by headlong flight. Nor is it probable that she was tempted by
the Canon, since the love between them is proved merely by the said
letters which were preparing for the flight. And these letters show
her solicitude for his modesty and continence, since for the mere
sending of them she had made such complaint. For she feared lest he
might become too bold, as is evident from details of the letter cited
above. Nor are examples lacking of continence observed during a longer
and easier journey, which had been undertaken and completed by lovers,
even though they might lawfully have indulged their love. Hence it is
not improbable that the wretched girl kept herself scrupulously within
bounds; for she was in deadly peril, which she hoped to avoid by
precipitate flight.
The other proofs of this pretended adultery are far weaker, and were
rightly ignored in the report of the case, both as regards the flight
and as regards the decreeing of torment; for mutual love between her
and the Canon cannot be said to be sufficiently proved by the
abovesaid letters; for they were preparatory to this prearranged
flight.
The entry and egress to and from the home of Francesca by night is
proved by a single base witness. Nor should even such entry be
considered to be for a bad end, since it was in preparation for the
flight. For when we have a permissible cause given, to which a matter
may be referred, it should not be attributed to one that is
illegitimate and criminal. [Citation.]
To this reason also should be referred her readiness in showing
herself at the window by day and night at the hiss which gave signal
that her pretended lover was passing. For since her love might be a
mere matter of pretence for the purpose of winning him to give her
help in the flight by affording her his company in the journey, these
marks of love can be of no further import than the pretended love
itself. The unfortunate wife employed it as a stratagem, indeed, that
she might provide for her own safety. And so this response recurs: "If
the end is lawful, the means ordered toward carrying it out cannot be
condemned."
The pretended insidious manner of preparing for the flight and putting
it into execution by means of an opiate administered to her husband
and the servants (so far as it is proved, and it was by no means
proved in the Prosecution) affords indeed a proof of her flight, but
not of adultery; for it was prearranged, not for that purpose, but to
escape deadly peril, to which the wife would have exposed herself, all
too foolishly, unless she had made sure that her husband, who was
lying in bed with her, was sound asleep, or unless she had contrived
some such easy way.
The ardour shown in some of the letters is indeed a sign of love,
according to the word of the poet: "Love is a thing full of solicitous
fear." [Ovid, _Heroides_, I. 12.] But since love was pretended for a
legitimate end (as was said) she could also make a show of ardour for
feigning love, since it tended toward the same end of winning his
goodwill, so that possessed of his true service she might escape.
Therefore, from this pretended love and these feigned signs of love,
one cannot argue that their departure together from the home of the
husband and their association during a long journey gives proof of the
pretended adultery; because even in true and mutual love continence
has been observed, which is certainly more difficult.
Nor are the authorities adduced by the Defence, in § _Accedit quod_,
applicable; because that text has regard to a woman spending the night
outside of her husband's home and against his will, without just and
probable cause, as is evident from the words of the same. This
decision is not applicable to our case, since the wretched Pompilia
left her husband's home and went to her father's hearth that she might
escape the deadly peril which she feared was threatening her. And so,
since she did it for just and probable reason, the condemnation of the
aforesaid text is turned away. And Farinacci so explains the
assertion. [Citations.] "But it is otherwise if done for reason,
because the mere spending of the night together does not of itself
prove vice; for a case can be given where a wife spent the night with
men, and yet did not break her marriage vow." [Citation.] Since this
possibility is verified in our own case also, the proof of subsequent
adultery cannot be inferred from her flight and association with him
in the journey, for the purpose of providing for her own safety.
Their mutual kissing on the journey, so far as it is proved, affords
no light presumption of violated shame; but the proof of it is too
uncertain; for it rests upon the word of a single base witness, who
swears to matters that are quite improbable, namely that, while he was
driving their carriage very rapidly, he saw Francesca Pompilia and the
Canon kissing one another. How full of animus this deposition really
may be is evident from this fact--that during the night he saw a
momentary and fleeting deed, without giving any reason for his
knowledge, such as that the moon was shining or that some artificial
light afforded him the opportunity to see it. [Citations.] The
improbability, or rather incredibility, is increased because, while
the witness was intent on driving the carriage with such great speed
as to seem like flying (as another witness testifies), how could he
look backward and see their mutual kissing? Such an improbability
would take belief away not merely from a single witness, but from many
of them. [Citation.] Furthermore, there is the possibility to be
considered that the jostling together of those sitting in the carriage
might have happened from the high speed; and from this fact an
over-curious witness might believe that they were kissing each other,
although, in fact, the nearness of their heads and faces to one
another might indeed be by mere chance, and not for the purpose of
shameful and lustful kisses. Because whenever an act may be presumed
to be for either a good or a bad end, the presumption of the evil end
is always excluded. [Citations.] And so in the said report of the
prosecution for flight, this presumption was justly passed over
because of lack of proof; nor would it have been rejected otherwise.
Nor can this improbable and prejudiced deposition of the said witness
receive any support from the pretended letters, in which Francesca
thanks him for the kisses sent, which she says would be dearer to her
if they had been given by the Canon himself, and sends him back ten
hundred thousand times as many. For it cannot be thence inferred that
if the opportunity were given their mutual kissing would follow, since
these words were offered as serviceable and alluring for the purpose
of winning him over; nor do they involve an obligation. [Citations.]
And therefore they do not lead one to infer that they were carried
out, especially since Francesca many and many a time warned the Canon
to observe due modesty. And when she found that he had transgressed
its limits by sending her dishonourable verses she abjured him not to
become bold in urging his passion. This is far removed from impure
desire to receive his kisses, which is formally stated in the said
letter, as it is without any thought of injuring her matronly honour.
The use also of laic garb, in which the Canon was found clothed, can
afford no proof, because, as he is no priest, he cannot be said to be
forbidden to do so on a journey. And this was probably arranged in
good faith to conceal himself and to avert scandal, which might be
conceived at seeing a priest with a woman in the flower of her age
and, as I have heard, of no small reputation for beauty, journeying
without the company of another woman or servant. [Citation.] And so
the authority of Matthæus Sanzio, etc., is not applicable, because in
his case there was no concurrent cause on account of which the priest
might approach with improper clothes and girded with arms; and he was
found by the husband, either in the very act or in preparation
thereto, and was killed on the spot. In such a case the proofs of
adultery may well be admitted for the purpose of diminishing the
penalty, and they were gathered by the same author to that end.
Their sleeping together on the same bed, or at least in the same
bedroom, at the inn of Castelnuovo, was not given consideration in the
report of the prosecution for flight, because of defect of proof. This
charge was indeed denied by Francesca Pompilia, and the Canon frankly
confessed merely that he had rested for a little while on another bed
in the same room. Nor ought a brief stay in that room be magnified to
a crime, since it should be attributed to his guardianship of the said
Francesca, whom he was accompanying on the journey, and hence was
under obligation to guard her lest some evil might befall her.
Whenever an act may be said to be done for a good purpose all
suspicion of evil ceases. In these very circumstances, Gravetta
[Citation] says that the interpretation should tend toward lenience,
even though the harsher interpretation seems the more probable. Nor
does it suffice as a full proof of adultery (if one is arguing a
criminal case) that a young man be seen alone and naked with her, and
that he be found locked in the bedroom with the wife, even though he
have his shoes and clothing off; because these matters may be merely
preparatory. And much less can proof of adultery arise from his brief
stay in the same bedroom for the purpose of protecting her.
Nor can proof of their having slept together be drawn from the
deposition of the servant of the same inn who asserted that he had
been ordered to prepare only a single bed. For it does not follow
from this that both of them slept in it; but this was done because
only Pompilia wished to rest a little while to refresh her strength,
which had been exhausted by the swiftness of the journey they had
made. The Canon was keeping guard over her and preparing for the
continuance of the journey; and so, when the husband arrived, he was
attending to this by ordering that the carriage be made ready. Hence
no proof of their having slept together can result from this
deposition, and it was justly rejected by the judges, so that it needs
no further refutation.
And although Francesca Pompilia, in her cross-examination, tried to
conceal a longer stay at the said inn by asserting that they had
arrived there at dawn, yet no proof of adultery may be drawn from the
said lie, for she made that assertion to avoid the suspicion of
violated modesty, which might be conceived from a longer delay and
more convenient opportunity. And so, inasmuch as her confession would
have done her no harm, even if she had acknowledged it with
circumstances leading to belief in the preservation of her sense of
honour, neither can this lie injure her. [Citations.]
Since, for these reasons, the proof of the pretended adultery is
excluded and almost utterly destroyed, no attention should be paid to
the fact that Count Guido, in his confession, claims the mitigating
circumstance of injured honour, as regards both his wife and his
parents-in-law; and that this confession cannot be divided for the
purpose of inflicting the ordinary penalty. For authorities of great
name are not lacking who affirm that a qualification to this end added
to a confession, ought to be rejected; and above the others, is
Bartolo [Citation], who proves this conclusion by many reasons, and
responds to those given contrary [Citation], where it is said that a
judge should not admit such qualified confession. [Citations.]
Nor is such a plea of injured honour always in one's favour in
avoiding the capital penalty, but only when vengeance is taken
immediately; or after an interval, according to more lenient opinion,
when the adultery is proved by condemnatory sentence or by confession.
But the reins of private vengeance would be relaxed far too much to
the detriment of the state if, when proof of adultery were lacking, a
stand could be made for the purpose of diminishing the penalty upon
some qualification added by the defendant to his confession. Because
in this way a witness might make a way of escape in his own cause,
which is not permitted to any one. [Citations.] And nothing more
absurd can be thought of than that the burden of proof incumbent upon
him for escaping the ordinary penalty might be discharged by the mere
assertion of the defendant.
Nor should we admit the opinion that, even when the adultery is
proved, a husband may kill, after an interval, an adulterous wife
without incurring the capital penalty, since the weightiest
authorities deny that. [Citations.] Bartolo, in distinguishing between
real and personal injury, affirms that when injury is personal, it
should be resented immediately; but if it be real it may be resented
after an interval. [Citations.] And Gomez declares: "I hold the
contrary opinion, indeed, that a husband may be punished with the
ordinary penalty of such a crime as murder; and for this reason he may
not by any means be excused, because murder cannot be committed to
compensate for a crime or for its past essence, unless one kill in the
act of flagrant crime," etc. And in subsequent numbers he responds to
reasons given to the contrary. [Citation.] Gaillard, after he says
that murder committed for honour's sake is permissible, states that
this exception should be understood to hold good if the injury be
resented immediately, but that it is otherwise if done after an
interval. In this case the retort is more like vengeance than the
defence of honour, and the offender is held to account for the
injuries. [Citation.]
Much less can it be claimed that the vengeance was taken immediately
because the husband executed it as soon as possible, according to the
authorities adduced by my Lord Advocate of the Poor [Citation], where
he tries to show that since Guido was unarmed, or insufficiently armed
(that is, he was girded only with a traveller's sword), he could not
attack the wife accompanied by the Canon; for Caponsacchi, as he
claims, is strong and bold, and accustomed to sin in that way, and was
carrying firearms. And the wife showed herself ready to die in the
defence of her lover; for it is said still further that the wife
rushed upon Guido with drawn sword, and was about to kill him, if she
had not been checked by the police officers. But the opportunity to
kill an adulteress is not to be so taken that a violent death may be
visited upon her with all security and without any risk. For every
legal opinion giving excuse for diminishing the penalty shrinks from
this. For such diminution of the capital penalty follows because of
the violence of sudden anger, which compels the husband to neglect the
risk to his own life, that he may avenge the injury done him by the
adultery. And so this first opportunity, as spoken of by the
authorities, in order that murder may be said to be committed
immediately, should be understood to be whenever an occasion first
offers itself, in excusing the delay in taking vengeance either
because of absence or for some other just reason. Such is the fact in
the case about which Matthæus Sanfelix writes, _contr._ 12. For in
that case, the adultery was committed in the absence of the husband,
and the wife had run away, so that he could not have avenged himself
earlier, as is evident from the narrative of fact, given in No. 1, and
No. 28 established this conclusion: "So they are excused if they take
vengeance as soon as possible, since it then seems that they killed
incontinently."
But who can say in our case that the husband took the first chance,
since when he found his wife in the very act of flight, at the tavern
of Castelnuovo, he abstained from vengeance with his own hand, and
turned to legal vengeance, to which he had always clung. And indeed he
charges himself with the worst baseness when he asserts that he was
unequal to the task of taking vengeance because of the fierce nature
of the Canon; since, when the latter had been arrested, Guido could
have rushed upon his wife. Nor ought the kind of arms they carried to
have alarmed him, because, according to the description made in the
prosecution, it is apparent that the Canon was wearing only a sword.
And so they were provided with like arms. He would not have taken such
care of his own safety if he had been driven to taking vengeance by
the stings of his honour that needed reparation, even at some risk to
himself. For just anger knows no moderation. And he should lay the
blame on himself if, alone and insufficiently armed, he had followed
up his wife, who was fleeing, as he might fear, with a strong and
better-armed lover. His very manner of following her proves the more
strongly that his mind had turned toward legal vengeance, for the
purpose of winning the coveted dowry, rather than to vengeance with
his own hand for recovering his honour. For facts well show that such
was his thought. [Citations.]
Likewise the delay of the vengeance after the return of the wife to
her father's home excludes the pretended qualification that the
vengeance was taken "immediately," because he could not put it into
execution sooner. For the return home took place on October 12 of last
year, and the murder was not committed till the second of January of
this year. And we should rather assert that he was waiting for her
confinement, which took place on December 18, in order that he might
make safe the succession to the property, for which he was eagerly
gaping; because he immediately put into effect his depraved plan by
destroying his wife and her parents with an awful murder. Hence, from
a comparison of these dates it will be easy to see this, and it is
evident with what purpose he committed the murders, and whether this
vengeance for the asserted reparation of his injured honour may be
said to have been undertaken "immediately," that is, as soon as
opportunity was given, according to the authorities adduced on the
other side.
Then when he had chosen legal vengeance by the imprisonment of the
wife and of the pretended lover, and by the prosecution of the
criminal cause, it was not permissible for him to go back to vengeance
with his own hand; and in taking that he cannot be said to have taken
vengeance immediately. He also violated public justice and the majesty
of the Prince himself. This single circumstance greatly exasperates
the penalty and increases the crime. [Citations.]
[But the above is true] in spite of the fact that the conclusions
adduced by the Advocate of the Poor, in § _Et tantum abest_, may be
applicable, and likewise the authorities approving those conclusions,
on the ground that it is not presumable that the husband has remitted
the injury, but rather that his desire to avenge himself has
continued; and that this excludes the charge of treachery, even though
the husband use trickery in taking vengeance. Because in the present
case the question is not as to the nature of the murder, from which it
might be claimed to have been treacherous. The husband indeed did not
conceal his injury, but rather laid it bare by turning to legal
vengeance. Although this is possibly less honourable, yet since it was
pleasing to him, for the purpose of gaining the dowry, he could not
when frustrated in this hope, because the adultery was unproved, take
up again the vengeance with his own hand. And this is true even though
he pretends as an excuse for his delay that he could not accomplish it
sooner. For since the delay and hindrance arose from his own act he
could not take therefrom the protection of an excuse. [Citations.]
But, however he might find excuse for the barbarous slaughter of his
wife while under the authority of the judge at the instance and
delivery of her husband, certainly the murder of Pietro and Violante
should be considered utterly inexcusable. In his confession he has
tried to apply to them also his plea of injured honour, because of
their pretended complicity in urging the flight of his wife and in her
asserted dishonour. Yet no proof of this qualification can be
brought, nor did the slightest shadow of it result from the
prosecution for flight. And this is proved to be improbable, and
utterly incredible, from merely considering the fact that Abate
Franceschini, brother of the accused and confessed defendant, would
not have consented that she be committed to their custody if he had
had even the slightest suspicion of their complicity, since he so
keenly desired the reparation of their honour. This fact, which was
plainly confessed in an instrument prepared in the statement of fact
in the Italian language [Pamphlet 10] and very stoutly denied by the
Procurator of the Poor, was admitted by his own wonderful ingenuity in
denying merely that notice had reached the husband, or in claiming
that the Fisc could pretend to no more than mere presumptive knowledge
in Guido.
But, still further, such knowledge is quite probable and is drawn from
strong proof. For it is very probable that Guido was informed by his
brother of his wife's departure from the Monastery, of her
establishment in the said home, of the obligation assumed by her
parents to provide her with food, and especially of her detected
pregnancy. [Citation.] But we are not now arguing to prove the
husband's knowledge thereof, but to draw from that consent of Abate
Paolo a proof which would exclude the pretended complicity of Pietro
and Violante in the dishonour of the wife, which latter is by no means
proved.
So far is such complicity from being proved as regards Pietro, that
the very contrary is quite evident from his will, made in 1695, after
litigation had been instituted about Pompilia's pretended birth. In
this will, notwithstanding the litigation, in the first place he
leaves as his usufructuary heir Violante his wife, and after her death
Francesca Pompilia, laying upon her the obligation to dwell in the
City and to live honourably. This is evident from the details of the
said will given in our present Summary, No. 5. In this he also asserts
that she had thus far conducted herself honourably, and he claimed to
leave the annuity to her because of her good manner of life. And so it
becomes still further incredible that he, while alive, was willing to
conspire in her dishonour, from which he shrank even when dead. For
the income was to be taken from her if she should live a dishonest
life, and he urged her in case her marriage were dissolved to assume a
religious dress, and he left her a fat legacy to that end.
Nor can it afford any proof of this pretended complicity that when
Guido had made pretence of delivering a letter sent to them from the
Canon, the doors were immediately opened by Violante to the assassins.
The attorneys for the Defence try to argue from this ready credulity
that the name of the lover was not hateful to Violante, and that hence
his intimacy with Francesca was not displeasing. But since the Canon
was the author of her liberation from deadly peril by bringing her
from her husband's home to her father's hearth at the neglect of his
own risk, it should not seem wonderful that Violante should give proof
of a grateful mind for the help given her daughter and should open the
door. Nor can one infer therefrom consent in unchastity, from which
their past acquaintance had been entirely free. Much more is this so
at a time when he himself was absent and in banishment at Civita
Vecchia.
Therefore the true cause, on account of which the Comparini also were
murdered, could be no other than the hatred with which the husband had
been aflame; [and this first of all was] because of the lawsuit
concerning the supposed birth, which they had brought, and which had
deceived him in his hope of gaining a fat dowry and inheritance; [and
second] his desire for vengeance because of the pamphlets distributed
at the time of the said lawsuit, and which had exposed the meagreness
of the home comforts and the wretched treatment they had received in
the home of the husband. These two do not excuse Guido from the
penalty for premeditated murder, and indeed increase it, even raising
it to the crime of _læsa majestas_, according to the well-known order
of the Constitution of Alexander, as was proved in our past
information, § _Accedit ad exasperandam_.
To escape the penalty assigned thereto by the disposition of this
decree, in vain does he turn to an excuse drawn from supervening
provocation. [Citation.] But so far as it is claimed that this crime
resulted from the counsel they gave toward her flight, and their
complicity in the same, the proof of such complicity is entirely drawn
from the asserted letter, written by Francesca Pompilia to Abate
Franceschini. But this letter has been completely rejected, and even
spurned by Guido himself, since in the prosecution for flight we find
no insistence was made that action should be entered against Pietro
and Violante for their pretended instigation. Pietro, moreover, had
long ago broken off the lawsuit brought as regards the pretended birth
and the revocation of the dowry contract, and so this complicity
cannot be made to seem the sole provoking cause, which would exclude
_causa litis_. For such a cause should be true and not pretended, and
should be in accord with the crime committed. [Citations.] These
excuses, indeed, which are claimed to be drawn from complicity in the
asserted dishonour, are still further excluded by lack of proof, both
of the impurity and of their connivance therein; and so the
provocation implied therefrom is shown to be entirely irrelevant, and
possibly fraudulent.
The other suit for divorce, brought in the name of Francesca Pompilia,
it is vainly claimed is made void because of the asserted invalidity
of the summons; for this summons was executed against Abate
Franceschini, who lacked the authority of a proxy. Yet his
authorisation was quite full enough for a lawsuit, as is evident from
its tenor as given in our present Summary, No. 6, and accordingly when
a suit was brought it was ample for receiving a summons. [Citation.]
We are also dealing with the conditions of the Constitution of
Alexander and of the order of the Banns given against those who commit
offence on account of lawsuits. Hence the reply is not relevant, which
is given by the Procurator of the Poor in § _Quae etiam aptantur_,
that when the dishonesty of the wife is established her impunity from
the wrath of her husband, who would take vengeance, should not be
permitted by the introduction of a divorce suit. Nor can such murder
be said to be committed for the reparation of honour when committed in
anger at a lawsuit. For he takes for granted as proved, what is in
question, namely, the dishonour of the wife, the proof of which is
quite lacking. And Guido might have proceeded to such an extreme if,
as soon as the adultery was committed, his wife brought a suit for
divorce; but it is otherwise since he tried that revenge after the way
of legal vengeance had been chosen by bringing criminal charge for the
pretended adultery and for the purpose of winning the dowry. For after
he was frustrated in this hope (since no proofs of adultery resulted
from the prosecution), and after her husband's mind had been
exasperated, she ought to be permitted to provide for her own safety
by begging for the remedy of divorce. And while such judgment is
pending any murder inflicted upon her ought surely to be expiated by
the penalties inflicted under the sanction of the Alexandrian
Constitution and of the Banns. For the provision of this decree is
applicable, since the murder was committed while the criminal cause,
brought against her for pretended adultery by her husband, was still
pending. And this decree includes both civil and criminal suits, as is
evident from reading it.
Likewise the assembling of armed men, and their introduction into the
City for accomplishing more safely the murder of the entire family,
increases the crime to _læsa majestas_, and also necessitates the
increasing of the punishment, as was affirmed in our former
information. Nor is this avoided by the replies given, or rather
repeated, by the Defence, and especially by the response that since
the principal offence was committed for honour's sake (and hence the
ordinary penalty of the _Lex Cornelia de Sicariis_ has no application
for that reason), so likewise the penalty for assembling men, imposed
by the Apostolic Constitutions and the general Banns, cannot be
inflicted; for the latter is included with the penalty for the
principal offence, which alone is to be attended, since the spirit and
purpose make differences in crimes. [Citations.] Because the order of
the said Constitution and Banns would prove utterly vain if the
penalty for assemblage should cease, whenever the assembly were made
for the purpose of committing some crime that is punishable with a
milder penalty. [Citation.] This Bull indeed is applicable even when
men are called to arms in a permissible cause and for a good end;
because by it the Supreme Pontiff wished to provide for the public
security and to restrain the audacity of those laying down the law for
themselves. Hence all the more shall it have place when the assembly
may be made for an evil end, namely for committing crime, even though
the crime may not deserve the ordinary death penalty, and when the
crime actually follows. [Citation.] Spada gives this reason, that the
Pontiff in establishing this Constitution considered only the uproar
and other ills which are accustomed to arise from the assembling of
armed men to the injury of the public peace. And although his opinion
was rejected by the authorities adduced by his Honour, the Advocate of
the Poor, in § _non refragante_, this refutation does not apply to the
assembling of armed men to an evil end (even though this end is not so
criminal that the death penalty may be inflicted), but to their
assemblage for a permitted cause of regaining possession immediately,
by meeting force with force. Even in this latter case Spada holds that
there is place for the order of the Bull. Hence the refutation given
above does not prevent the application of the provision of the
abovesaid Constitution to our case, since the assembling was
prearranged for the murder of an entire family, which was put into
execution with reckless daring.
Nor may the opinions of the said judges of the Sacred Rota, requiring
that the assemblage be directed against the Prince or the State, and
not to commit some other crime, stand in the way; because if this
qualification were accepted as true the decree would be vain which
had raised the act to the crime of _læsa majestas_ and rebellion; for
this crime would result plainly enough from the deed itself, and from
the intent to disturb the peace of the Prince and the State. And so
far as the opinion affirmed by these authorities does have foundation,
it can be applied when we investigate the order of the Constitution,
and not of the Banns issued later. For this decree would prove vain
and useless if the capital penalty, imposed thereby against those
assembling armed men, could be applied only when the crime for which
the assembly was made was punishable with the same penalty. And even
if this necessity be admitted, the application of the Constitution
cannot be avoided, because no plea of injured honour can be alleged in
excuse for the murder of Pietro and Violante, and it had not at all
been proved as regards Francesca Pompilia.
Likewise the preparation and use of prohibited arms is also punishable
with the capital penalty, if we investigate the order of the Banns and
Constitutions of Alexander VIII., of sacred memory. Nor is this
sufficiently avoided by the response given by the Defence that it is
included in the main offence; so that no greater penalty can be
inflicted for it than the main crime itself deserves. For what we have
said above as regards "an assembling" is opposed to such a confusing
of the punishment of the Banns, and the authorities adduced in our
past response, § _nec delationis_, affirm the contrary. And those
authorities cited for the contrary opinion should be understood to
apply only when one is dealing with an insult, or with murder
committed in a quarrel, or in self-defence, or for the sake of
immediate reparation of honour. [Citation.] The difficulty is at an
end in our case, because of the clear disposition of the Banns, which
expressly declare and command that the penalty for the carrying of
arms is not to be confounded with the penalty of the crime committed
therewith. Nor does the response given by the Procurator of the Poor
seem strong enough to avoid this; namely that when, under the common
law, the Banns receive only a passive interpretation, merely the crime
of preparing and bearing arms for committing murder is considered; but
that it is otherwise if the arms are borne, for no ill end, and then a
crime is committed with them. Because it would be too harsh for one
bearing arms for no ill end and then sinning with them, to suffer a
greater penalty than one preparing arms to commit crime, and carrying
his purpose into effect. Hence these Banns never can receive such an
interpretation. For since by them the carrying of arms is forbidden
as pernicious and as affording occasion to commit crime, much more
should the bearing of them when purposed for committing crime be
considered prohibited and punishable with a rigorous penalty. This is
especially true when we consider the declaration that the crimes are
not to be confounded with one another.
There is left, finally, one other qualification, which greatly
aggravates the crime, namely the violating of the home assigned as a
prison with the consent of Abate Franceschini. And this is so in spite
of what can be alleged as to Guido's ignorance of this circumstance.
Because in the said writing prepared in Italian for giving true notice
of the fact [Pamphlet 10], it is asserted that the entire management
of the cause was left and committed to this same brother, since Guido
had left the City. Hence it is quite incredible that Guido was not
informed by him of so important a matter. And as concerning the
distinction between violating a public prison and mere custody in a
home under bond, and as to offence permitted therein for honour's
sake, we have given sufficient response in our past argument, § _Quibus
accedit_ and those following. For the same reasoning is applicable in
both cases, since in both the person detained is under the protection
of the Prince whose majesty is accordingly insulted. And the excuse
would hold good if we were arguing about the resenting of an injury
offered in prison. Under these very circumstances do those authorities
adduced by the Defence speak, as is evident from their recognition of
them.
Therefore, in the present case many grave qualifications are present,
which increase the crime, and on account of these his Honour, the
Advocate of the Poor, admits in § _Agnoscit Fiscus_ that the penalty
should be increased. Nor can such increase of penalty be made good
except by death. For even if the adultery were proved, as it is not
proved in our case, the mere murder of the wife, when committed after
an interval, could demand only a diminution of penalty, according to
the more lenient opinion. Hence the justice of the decree for the
torment of the vigil should be said to be sufficiently asserted and
vindicated against opposing reasons. And now that confession has
followed, there remains only that condign punishment be inflicted in
expiation of this awful crime.
GIOVANNI BATTISTA BOTTINI,
_Advocate of the Fisc, and of the Reverend
Apostolic Chamber_.
[File-title of Pamphlet 14.]
_By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:_
_ROMAN MURDER-CASE
with qualifying circumstance._
_For the Fisc, against Count Guido Franceschini
and the others._
_Response of the Lord Advocate of the Fisc._
_At Rome, in the type of the Reverend Apostolic Chamber,
1698._