[PAMPHLET 16.]
Most Illustrious and Most Reverend Lord:
I omit further discussion with my Lord Advocate of the Fisc about the
communication of his allegations, because the time is brief, and I
have professed great reverence for him since my youth. Let me also
pass over the claim that when one is arguing about death inflicted by
a husband upon his wife, not in the act of taking her in adultery, but
after an interval, mere suspicion, however strong, is not sufficient
to redeem him from the ordinary penalty of the Cornelian law, but that
the clearest proof of the adultery is required, as is claimed by our
opponents. Yet we have proved the contrary in our former argument,
§ _quamquam ad hoc_. And Dondeus, Sanfelicius, and Muta, who were not
cited there, hold that it is quite enough if the couple be found alone
in some retreat; and No. 3 says especially if the wife be beautiful.
[Citation.] See the word of Ovid: "Great is the strife of modesty with
beauty, And man keeps eagerly craving it." [_Heroides_, Paris to
Helen.] So in the present case, according to the same author: "By this
young and passionate man is she supposed to have been returned still a
virgin?" [_Heroides_, 5, 109.]
At present, we are dealing with a case not merely of clearest proof,
but also of notorious fact; because we have a decree of this very
Tribunal by which such adultery was declared. Although the words of
this decree have been given in the present information, § _Absque eo
quod_, yet I wish to repeat them here, because they are so clear:
"Giuseppe Maria Caponsacchi, of Arezzo, for complicity in the flight
of Francesca Comparini, and for criminal knowledge of the same, is
banished for three years to Civita Vecchia."
But I cannot pass over what is still claimed--that this decree was
revoked--because, as I have said in my information, the truth is quite
the contrary; for we have only the fact that in the mandate for
imprisoning the sinning Canon the repetition of the whole decree, as
given above, was omitted, and it was said: "For the cause, concerning
which in the suit." These words are so far from showing a revocation
that they rather offer confirmation of the said decree, as we have
affirmed in our information, § _Nec verum est_. The same should be
said of the like words furnished by the notary in the bond which
Francesca Pompilia executed to keep the home of her father as a
prison. This was when she was brought there from the nunnery, where
she had been staying securely, on the grounds of her supposed
infirmity, but I may say more truly that it was because of her
pregnancy, which she wished to hide by some evil deed.
[Our claim is all the more true] because this pretended revocation of
the decree could not be made when the other side had not been heard,
as I have said in my information, § _Eoque magis_.
Likewise I cannot pass over what is said as to the Canon having been
condemned only to the penalty of banishment because of defect of proof
of adultery. For if such proof had not existed, how could my Lords
Judges express in the decree that they condemned him for criminal
knowledge of the same Francesca Pompilia? It is the truth that the
judges held that the said adultery was most conclusively proved, and
that the said Canon was convicted of the same, since in the
prosecution nothing is wanting but the taking of them in the foul act;
and this is not necessary to prove adultery. [Citations.]
The penalty to which the said Canon was condemned did not indeed
correspond with the said crime. As to this many replies may be made,
but, because this has no connection with Count Guido let it also pass
by. For however that may be, who can deny that Count Guido, on reading
the said decree, which needed no comment, ought justly to be angered
for the conjugal faith violated toward himself? And who can deny that
he ought to be somewhat excused, if afterwards he took vengeance for
such a violation? [Citations.]
And this is true, although he took such vengeance after an interval,
as was plainly demonstrated in my said past information, § _Nec verum
est_. For there are few authorities who hold the contrary, and
therefore it would be almost heretical to doubt the truth of such an
opinion. [Citation.] Especially since this has been accepted in almost
all the tribunals in the world, particularly in that of the Sacred
Council, which establishes the precedent for all the other tribunals
of the City and of the entire Ecclesiastical State. Hence Concioli
affirms that it is almost like sacrilege to depart from this opinion.
[Citation.]
And is it not a fine pretence to wish to exclude the plainest proofs
of adultery by the word of the very wife convicted of it, and then
retained in the nunnery by reason of it, as my honourable Lord
Procurator General of the Fisc has ingenuously acknowledged? For a
person is not obliged to disclose his own baseness in the face of
death, as we have proved in the said present information, § _Et
quatenus_, and the § following. And since she had lived badly, not to
say in utter baseness, to the injury of the honour and reputation of
her husband, we inflict no injury on her by wishing to presume that
even in death she did not come to her right mind, according to the
saying: "He who lives badly dies badly." And no one, even in death, is
presumed to be a Saint John the Baptist, as in my information, § _Nec
valet dici_.
As therefore it remains firmly established that Count Guido had just
cause for killing, or causing to be killed, Francesca Pompilia, his
wife, the same must be said as to the murder of Pietro and Violante,
the father-in-law and mother-in-law. For in the prosecution of the
said Francesca Pompilia for flight from her husband, proof also came
to light that they had conspired in that same crime, and consequently
were among the causes of the injured honour and reputation of Count
Guido. And this injury to his honour had also resulted from what they
had pretended and had exposed before every one--that his wife was not
their daughter, nor legitimately born, but was the daughter of a
harlot. And afterward they had received her into their home when she
had been declared an adulteress. For either she was their daughter,
and they ought not to deny it in Court, or else she was not their
daughter, and they should not receive her into their home after she
had been convicted of adultery. For in doing so they had, by that very
act, declared that they had been and wished to be her panderers.
[Citations.]
The confession of Count Guido cannot be divided from its
qualification, that he had demanded the murders for honour's sake. But
it ought to be accepted by the Fisc along with the said qualification,
as we have proved in our information, § _Huiusmodi enim confessio_.
The authorities alleged to the contrary by my Lord Advocate of the
Fisc hold good in a qualification, extraneous to the confession itself
and which is not therefore proved otherwise, and when there is
argument for some extraordinary penalty, and we have admitted this in
our information, § _Præsertim_.
But just as the plea of injured honour relieves Count Guido from the
ordinary penalty for murder, so should he be excused from certain
other ordinary penalties, laid in the Banns and Apostolic
Constitutions against those bearing prohibited arms or committing
other crimes. For I have said, and I repeat, that the just anger which
excuses him from the one crime should also excuse him from the others,
since this reason is everywhere and always in his favour, that he was
not of sound mind, according to what was affirmed in our information
from § _Agnoscit Fiscus_, down to § _quo vero ad litem_.
And just as this cause is enough to gain for Count Guido a diminution
of the penalty, so should it be considered to be sufficient likewise
to gain that favour for his fellows, who as auxiliaries cannot be
punished with a greater penalty than the principal himself, according
to almost innumerable authorities, and they of great name, who were
alleged in my past argument, § _quæ dicta sunt_, with the following,
and in my present argument, § _Verum et Sociis_. To this, no response
has been given by the other side.
This is all the easier as regards Blasio Agostinelli, who has not at
all confessed that he killed or wounded any one, but only that he was
present, as we have formerly considered the matter in our information,
§ _Quoad Blasium_.
And as to Domenico and Francesco, beside what has been deduced in
favour of the others, they are foreigners, and are therefore not bound
by the Banns of the Governor (for by these, men who live outside of
the District are not bound) nor by the Apostolic Constitutions
prohibiting the bearing of arms, as we have said in our past argument,
§ _Quae eo facilius_.
This is all the more so since Domenico still asserts that he is a
minor, and for this purpose he was so described in the prosecution
(page 304). And as regards Francesco, beside the abovesaid description
in the same prosecution (page 35), we have the baptismal register,
which conclusively proves his age. [Citations.] For he was born the
14th day of February, 1674, from which it is evident that at the time
of the commission of the crime, which is to be had in regard for
punishment [Citations], he had not completed the twenty-fourth year of
his age. And to one less than twenty-five years old the penalty should
be diminished, etc. [Citations.]
And this indeed is of necessity, and not at the discretion of the
judge, because such diminution of penalty arises by advantage of law
that has been passed and from intrinsic reason, diminishing the
penalty. [Citations.]
Although there are not lacking some authorities who think the
contrary, namely that it all depends upon the discretion of the judge,
yet our opinion is the truer and the more generally accepted in
criminal causes which are not very atrocious. [Citations.] And when
the crime is merely savage, or more savage, the judge is obliged by
the very necessity of his duty to diminish the penalty, according to
those authorities recently alleged. [Citations.]
This opinion also has a place in the crime of murder, notwithstanding
the order of the text. [Citations.] "If any one should make you a
defendant under the Cornelian Law, it is suitable that your innocence
shall defend and purge itself by your minority." For the order of this
text should be interpreted thus, namely, that a delinquent who is a
minor is not to be excused entirely, but is only to be punished more
mildly, according to the old authorities who are cited with abundant
hand by Farinacci. [Citations.]
This is especially so when, as in the present case, the delinquent
minor does not sin alone, but in company with others; for then he is
presumed to be seduced by them, and therefore the ordinary penalty
comes to be diminished the more readily for him. [Citations.]
We do not know whither the Fisc pretends to turn for the destruction
of these foundations in law, because my Honourable Lords, the
counsellors of the Fisc, have claimed nothing as to this matter,
either in their past argument or the present one. For when they claim
to escape our exception by the Florentine Statute [Citation], that a
minor of sixteen years is punished criminally, other responses are at
hand:
First, that the provision of this statute does not extend to crimes
committed outside of the territory of the said State, but that the
place of the crime and its statutes should be attended. Then these
indeed cease, as they do in the present case, because the Banns of the
Governor have no place when there is argument for the punishment of a
foreigner. This fact arises from defect of power in the Prince or
official establishing them, according to what was alleged in the past
argument, § _Quae eo facilius_, and the one following. For then the
criminal should be punished according to common law. [Citations.]
The second response is that the statute says nothing else than that a
minor of sixteen years cannot be punished with the ordinary penalty of
the crime. Consequently it ought to hold good in our case, since we
are indeed arguing about a minor exceeding sixteen years, but of one
less than twenty-five years old. Such a rule should be drawn from
Common Law, in view of which the said statute in such a case receives
a passive interpretation. [Citations.] Caballus testifies that he saw
it so practised in diminishing the penalty to one less than
twenty-five years, that is to one who was eighteen years old.
[Citations.]
Finally the third response, and the one that lays the axe to the root
of the tree, is that the Accused is not of the city of Florence, nor
of its territory, but of the territory of Arezzo. But the city of
Arezzo and its dependencies are not bound by the statutes of Florence;
first because they are not called subjects, but vassals, of the said
city of Florence; and, second, because the city of Arezzo has its own
statutes. [Citations.] For reference is had to the ruling state, when
other subject states have not their own statutes; but it is otherwise,
if they have them. [Citations.]