[PAMPHLET 14.]
Most Illustrious Lord:
The matters deduced by his Honour, the Advocate of the Poor, for the
defence of Guido Franceschini, who is accused of three murders with
very grave qualifications which magnify the same, are of no real force
in proving [first] that he should not be punished with the ordinary
penalty of the _Lex Cornelia de Sicariis_, inasmuch as he had
confessed these crimes, and [secondly] that simple torture only should
be demanded for gaining the truth as to these, and that the torment of
the vigil should be omitted. I will attempt to show this, in
responding to these points singly, so far as the excessive scantiness
of time admits, and will keep my eyes on the rights of the Fisc, as
the duty of my office and the dire atrocity and inhumanity of the
crime demand.
The chief ground taken by my Lord consists in placing on an equality
[first] a case of vengeance taken immediately by the husband with the
death of the adulteress found in her sin, and [second] that of one
slain after an interval when the wife is plainly convicted of adultery
(as he claims is proven in our case). But this falls to the ground
both in fact and in law; and hence the inference for the moderation of
the penalty drawn from this same parity is likewise shown to be
without foundation.
In fact, the proof of the pretended adultery is quite deficient
according to what I deduced fully in my other information. In that, I
have confuted singly his proofs, or rather suspicions, resulting from
the prosecution, to which his Honour attaches himself. I have shown
that the wife's flight in company with Canon Caponsacchi, the
pretended lover, was for a legitimate reason (namely the imminent and
deadly peril, which she feared), and not from the illicit impulse of
lust. The participation and complicity of the Canon Conti and Signor
Gregorio Guillichini, relatives of the Accused, in forwarding the
same, ought to prove this. For they would not have furnished aid if
she were running away for the evil purpose of violating her conjugal
faith, even to their own dishonour. But they well knew the necessity
of the remedy, and that it was to free her from peril. And a witness
for the prosecution in the same trial for flight swore to having heard
this from Signor Gregorio. And they gave their aid in carrying this
out.
Nor is it at all relevant that, in the decree in condemnation of the
same Canon to banishment in Civita Vecchia, the title of "carnal
cognition" was written down; because, as was formerly responded, the
alteration of that was demanded, and likewise the substitution of a
general title relative to the trial. And since no proofs of it
resulted either from the prosecution or from the defences which the
unfortunate wife (who was dismissed with the mere precaution of
keeping her home as a prison) could have made, if she had not been so
horribly murdered, and since the said decree, issued without her
having been summoned or heard, would be void, the inscription made by
the judge in the records as a title could not convict her of that
crime; but only the truth of the fact resulting from the proofs should
be considered. [Citations.]
I acknowledge that the Accused should have been considered worthy of
some excuse if he had slain his wife in the act of taking her in
flight with the pretended lover; since for this purpose, not merely
the absolute proof, but the mere suspicion of adultery committed,
would be enough. [Citation.] But when, after neglecting the pretended
right of private vengeance, he sought out with entreaty public
vengeance, by having her arrested, he could not thereafter, while she
was under the public authority of the judge, take private vengeance by
butchering her who had no fear of such a thing. The suspicion of a
just grievance, which is difficult to restrain when aroused, excuses
the husband in part, if not entirely, whenever he takes vengeance
immediately under the headlong impetus of anger. But when the
vengeance is after an interval, and while the cause is in the hands of
the judge, and the victim is imprisoned at his own instance, this does
not hold good, as will be proved further on, by showing the
irrelevance of the principle assumed.
Nor does the glossa in the alleged text, in the law of Emperor
Hadrian, stand in the way; because it speaks of a son taken by his
father in flagrant adultery with his step-mother, and killed by the
father immediately. [Citation.] And there is a wide difference between
a father and a husband killing after an interval; because, as
Farinacci adds, a father has the greatest authority over his son, and
by ancient law could even kill him. And certainly the husband does
not have this. The law also more readily excuses a father, because he
is always supposed to take good counsel for his child, from the mere
instinct of paternal love. But one does not have this same confidence
as regards a husband, who is accustomed to conceive unjust suspicion
of his wife more readily. Hence it is not permitted that he kill her
on mere suspicion after an interval. Nor is he in any way to be
excused on this account, according to the text. [Citation.] "The
devotion of a father's love usually takes good counsel for his own
children, but the hot precipitancy of a furious husband should readily
be restrained." [Citation.]
This is so far true that a father is not excused unless he kill, or at
least severely wound, his daughter along with the adulterer; so that
it should be attributed to fate, rather than to paternal indulgence,
that she escape death. And this has been passed by law-makers for no
other reason than that such a grievance, provoking to rash anger, is
required for excusing a father, so that he may not spare his own
daughter. But since this statute is not to be found among the laws
about husbands, the manifest difference between the two, because of
the husband's excessive readiness to seize a suspicion and fly into a
rage against his wife, is plainly revealed.
Nor is mere suspicion a sufficient ground to diminish the penalty for
a husband who kills his wife after an interval. This is evident from
the very authorities excusing him in such a case, whenever the
adultery is proved either by the confession of the wife or by other
proofs, so that she can be said to be convicted of it. [Citations.]
Bertazzolus says: "I have seen the matter so regarded in the
contingency of such a fact, and the husband has been excused who had
killed an adulterous wife, not found in the very act, but whose
adultery was really and truly existent and was quite plainly proved."
Hence it is plain, from those very authorities adduced by his Honour,
that the husband who kills his wife after an interval is not excused
because of mere suspicion, or because of an adultery case which is
still pending judgment, and which he himself had brought.
In law, also, is his assumption proved to be without foundation, which
places on an equality [first] vengeance taken immediately, that is, in
the very act of taking the wife in adultery, or in acts immediately
preparatory, which lead him to such a legitimate belief; and
[secondly] vengeance taken after an interval, even when the adultery
is evident from such proofs as render it perfectly clear. There are
many authorities who urge the diminution of the penalty for the
following reason which they give--that the sense of injured honour
always keeps urging and provoking to vengeance, and that a wife may be
well enough said to be taken in adultery, when she has either
confessed it or been convicted of it. And these authorities have been
collected with a full hand by his Honour, and I myself recently
pointed out one of them. But the contrary opinion is the true one, and
is accepted in practice. To this fact the most distinguished and most
skilful practitioners of our time in criminal law bear witness. These
are [first] Farinacci, where, after he has first learnedly answered
the reasons and authorities adduced to the contrary, he concludes that
he undoubtedly believes so as to the law in the case, and counsels
that it be so held, unless we wish to err; and [second] Canon
Rainaldi, who also filled the office of Procurator of the Poor with
the highest praise, and so it may well be believed that he was very
strongly inclined toward mercy and commiseration, and that he
therefore adhered to this opinion in the mere zeal for the truth. And
he declared it to be the truer and the more advantageous to the State,
and said that one should not depart from it in giving judgment.
[Citations.]
But even if the conflict of authorities might in some manner favour
the diminishing of the penalty for the Accused, if there had been
excess merely in the matter of time; yet he is still to be considered
as inexcusable, so that he cannot escape the ordinary penalty, since
so many qualifying circumstances are present which increase the crime;
and any one of these is punishable with death.
To this end we should first consider the assembling of armed men,
which is so very injurious to the public peace, and constitutes the
crime of "conventicle." In the Banns, chapter 82, this is punishable
with the death of its author. It is also declared that it is enough to
establish this crime if four armed men are assembled. This had been
formerly prohibited under the same penalty by the seventy-fifth
Constitution of Sixtus V. of blessed memory, which had raised it to
the crime of rebellion, for whatever reason it might be done. Spada
proves this fully, asserting that it should generally be so understood
in all cases in which the assembling of men has been prohibited.
To escape or evade this capital penalty, it is not a relevant excuse
that a husband may kill an adulterous wife by armed men brought
together. For, however it may be when a husband wishes to kill his
wife taken in adultery, and is afraid that the armed adulterer can
resist him, and that he may have servants for his aid (in which case
he himself cannot take vengeance otherwise than by calling together
helpers, as Caballus advises), yet in the case of vengeance taken
after an interval, and while the wife is under the power of the judge,
and on the mere suspicion of adultery, such convocation of armed men
cannot be said to be at all permissible. For the seventy-fifth
Constitution of Sixtus V. of blessed memory, prohibits such assembling
even on lawful occasion, as a disturbance of the public peace.
[Citation.] And so it is much more to be prohibited and much the
rather to be expiated with the ordinary penalty both of the
Constitution and of the Banns, since it was made for an illegal and
damnable end, namely to kill his wife, and his father-in-law and
mother-in-law along with her. This is rendered plain by the assertion
of the very authorities who excuse from the ordinary penalty a husband
who takes vengeance after an interval. And indeed the path of private
vengeance, which is hateful to the law, would be strewn all too
broadly if, after the husband had chosen legal vengeance and had
neglected to avenge his pretended injury in the act of seizing his
wife in flight with the pretended lover, he should be excusable in
taking vengeance after an interval with all security, by means of
armed men, and in killing her while entirely off her guard, and under
the power of the judge, without the slightest risk to himself.
This is true in spite of the response which might favour him, that he
neglected to take private vengeance because he was unarmed, and the
wife was found in the company of the Canon, who was a bold, sturdy
man. The husband should impute it to himself if alone and unarmed he
was pursuing his wife, fleeing with the lover. For then he could take
associates with better right, and fully armed could pursue her; and in
such a case his assembling of men would be somewhat excusable. But
this is not so when he takes such awful vengeance after an interval.
For if we consider the reason why a husband killing an adulterer or
his wife is punished with a milder penalty according to the quality of
the persons, if the vengeance follow in the very act--namely, rash
anger, which cannot be restrained--the assembling of armed men to do
that after an interval is plainly revealed to be illegal. For rash
anger would cause him to expose himself to the risk of resistance by
the adulterer, who is not accustomed to approach unarmed. Because of
this risk the penalty is diminished, since it shows that the husband
carelessly exposed himself thereto, because of the violence of the
anger which blinded him. This is [not] the case in vengeance taken
after an interval, taken with all forethought and by means of armed
men, so that the husband cannot be afraid that any evil will befall
himself in carrying it out. Such preparation is quite repugnant to
rash anger, which cannot be restrained, and from which excuse is
drawn. [Citation.]
The second qualification that increases the crime results from the
kind of arms with which the murder was committed, for these were
prohibited by the well-known decree of Alexander VIII. of sacred
memory. This was not merely for the carrying, but even for the
keeping, introduction, or manufacture of them for any cause whatever,
even under the pretext of military service or the execution of
justice. Hence they would be all the more prohibited [when carried]
for the purpose of taking such impious and awful vengeance by the
destruction of an entire family.
Nor is the carrying of arms in such a case to be confused with the
main crime of murder; because when a greater penalty might be imposed
for the former, as when excuse for the killing is drawn from injured
honour, the carrying of the prohibited arms comes to be punished with
the ordinary penalty. [Citations.] Nor are the authorities adduced to
the contrary worthy of attention, for they hold good in the
circumstance of murder done in self-defence or because of provocation
in a quarrel. [Citation.] Still further, these are not applicable
because they do not speak within the bounds of the Constitution, which
so distinctly prohibits such arms. For Policardus speaks of the
_Regula Pragmatica_ which takes for granted the qualifying
circumstance of the crime of treachery from the kind of arms, and he
asserts that this order ceases in murder for self-defence, or on
provocation in a quarrel, when committed with the said arms. But this
judgment differs by the whole heaven from the sanction of our
Constitution; because the latter was issued for the very purpose of
entirely exterminating so pernicious a kind of arms.
The third qualification likewise increasing the crime is murder
committed because of a lawsuit; for by the well-known decree of
Alexander VII. of blessed memory, this was increased to the crime of
rebellion and _læsa majestas_, punishable with death and the
confiscation of goods. This qualifying circumstance as regards the
slaughter of Pietro and Violante cannot be denied; because the Accused
had won a victory in the lawsuit. And hence the offence should [not]
be said to have been committed because of just anger for injury
inflicted upon him; [first] by the pretence of birth, which was
revealed after the marriage had been celebrated, in order that they
might break the marriage contract; [second] by the publication of
pamphlets greatly to his injury; and [third] by their conspiracy in
the flight of his wife to the injury of the honour of the Accused and
of his entire family. They claim that since this cause for avenging
the injury is graver than that arising from the lawsuit, the murder
should be attributed to it, as more proportionate thereto.
But the victory he obtained had regard only to the actual possession
of the property while the lawsuit was under appeal. And the parents
were still pursuing this suit, so that that cause continued and could
not be said to be extinct. The injury, indeed, from whatever different
causes it may be claimed to have arisen, really came from this same
lawsuit. And this had regard both to the pretence of birth revealed,
and to the insults contained in those pamphlets concerning the
meagreness of the family affairs (which was quite the contrary of the
boasted riches, in the hope of which the marriage had been made), and
concerning the ill-treatment which the parents of the wife had
suffered in the home of the Accused. For by this marriage agreement
food was to be furnished them. Still further, as to any conspiracy in
her flight, much less as to any complicity in her pretended adultery,
we have no proof at all. And so the cause of hatred conceived because
of the lawsuit kept always urging him, and it does not redeem the
criminal from the penalty inflicted by the decree of Alexander,
because the suit might have been injurious to the Accused, either in
his substance or in the manner. For this indeed presents such a cause
as is always required in premeditated murders. Nor does it exclude the
qualifying circumstance of the lawsuit, and indeed confirms it; since
it is explicitly presupposed that injustice had been committed.
Otherwise an opportunity to take private vengeance would be permitted,
which in all law is forbidden, especially when a lawsuit is going on;
because then the majesty of the Prince is insulted, as was proved in
my other information, § _Accedit ad exasperandum_.
The fourth and, indeed, a very grave qualifying circumstance is drawn
from the place in which the crime was committed, namely in the home of
those slain. It was also in an insidious manner, by pretending the
delivery of a letter sent by Canon Caponsacchi. For one's home should
be the safest of refuges to himself, as was proved in our other
information, § _plurimum quoque_. The manner indeed savours of
treachery, as is proved not merely by committing murder under the show
of friendship, but also at a time when the power and obligation of
special caution in the one slain had ceased. [Citation.] And this is
far from doubtful in our case, for the wretched parents could have had
no such apprehension from the Accused, who was staying in his own
country.
To these is added a fifth very grave qualifying circumstance, drawn
from the place with respect to the very wretched wife. For she had
been imprisoned at the instance of the Accused, and was detained in
the home of her parents as a prison with the consent of the Abate, his
brother; and hence she was under public safekeeping, which it were
wrong for the Accused to violate without incurring the penalty of
_læsa majestas_. [Citation.]
This very grave qualifying circumstance, which increases the crime,
cannot be avoided by the dual response given by his Honour; first,
that we are dealing with no prison properly speaking; second, that one
giving offence, or killing in prison, is excused on a just plea of
injured honour. Neither of these excludes this qualifying crime; for
the unsuitability of a prison would be considerable if we could defend
a violation of it made by one in prison and so to avoid his own
injury, but if it were otherwise when we were arguing in his favour
for avenging an injury to himself in a home assigned as a prison. The
plea of injured honour can help one only if the offence in prison
follow in self-defence under the very impulse of rash anger. In such
circumstances the authorities adduced by his honour would hold good.
But this is not so in excusing vengeance taken after an interval upon
one imprisoned even at the instance of the slayer. For then the
qualifying circumstance of the place greatly aggravates the crime, as
it is indeed injurious to the public safekeeping and involves
treachery, etc.
It is therefore very evident that the murders committed by the Accused
have many qualifications mingled with them, which greatly magnify
them. And however far the opinion has weight, which urges the
diminution of punishment for one killing an adulteress after an
interval, and however much the pretended adultery may be declared to
have been proved in the manner required to gain such diminution, even
by all those in favour of the milder judgment, still this penalty,
because of these qualifications, would have to be increased and the
ordinary penalty of the _Lex Cornelia de Sicariis_ in its entirety
would have to be demanded. And therefore it seems superfluous to argue
about the kind of torture, since in view of these very urgent proofs,
of which I understand there is no doubt, and in view of the
well-known powers granted to the Most Illustrious Governor, it is
quite within limits that the crime should be punished with the
ordinary penalty, even if the qualifying circumstance of special
atrocity were not present, so that the penalty should not be increased
on that account.
But such a qualifying circumstance is not wanting here, as it results
indeed from the treacherous manner and from the charge of _læsa
majestas_, which is provable in our case on three grounds; namely
offence committed during a lawsuit, the assembling of armed men, and
the violation of public safekeeping, because of the home assigned as a
prison. For according to the Apostolic Constitutions, the crime would
be raised to that degree upon the basis of the first and the second;
and there should be no doubt as to the power of the Prince to do so.
[Citation.] Spada asserts that in such a case, so far as all the
effects of law are concerned, it should not be considered a matter of
controversy that the qualification of special atrocity, which is in
agreement with such a crime, is to be revoked. And in our very
circumstances Spada gives this opinion in demanding the torment of the
vigil.
Nor can that qualifying circumstance of the person concerned, so far
as it is proved, stand in the way of such infliction of the torment of
the vigil, which does not allow the death penalty upon a nobleman to
be made worse, as is accustomed to happen in very atrocious crimes
(because noble blood should not be degraded by such increase of
penalty which adds infamy). But for this purpose merely the nature of
the crime is considered, and not the quality of the person, which
would hinder the execution of a penalty carrying with it such infamy.
Otherwise the torture of the vigil never could be inflicted upon
noblemen, priests, and men in religious office upon whom an infamous
penalty cannot be inflicted. But nobility affords no privilege in the
manner of torment, especially in very atrocious crimes [Citation],
etc.
GIOVANNI BATTISTA BOTTINI,
_Advocate of the Fisc and of the Apostolic Chamber_.