The Old Yellow Book Part 13

[Citation.]

Nor does it amount to anything that Francesca, at the time she was killed, was under surety to keep the home as a prison, as if she were resting in the custody of the Prince. For, however that may be, even if the Accused had killed Francesca to the offence of the Prince, yet since he wished to recover his honour and to remove with her blood the unjust stains upon his reputation, for this particular reason the aforesaid custody is not to be given attention, nor does it increase the crime; as in the more extreme case of one injuring a person having safe-conduct from the Prince, Farinacci affirms in making a distinction [Citation] where knowledge thereof is not to be presumed.

Furthermore, when we speak of custody we should understand it to apply to public custody and not to a private home as was proved in our other argument. Nor is the response enough that this would hold good in the one under custody, but not concerning the custodian, Violante; for I do not know any probable distinction between the two, since both cases may suffice for escaping the penalty; nor is any stronger reason to be found for the one than for the other. And indeed a third case would be more worthy of excuse, of one who broke this kind of custody, when knowledge thereof was not proved. Because such an offence might arise under such custody, just as one who had killed a person under bann, but ignorant of that bann, excused himself. [Citations.]

If therefore Count Guido is not to be punished for murder of his wife, for the same reason he cannot be punished for the murder of Pietro and Violante, because these murders were committed for the same cause, _causa honoris_. For at their instigation, Francesca found her lover, and still more, in order that they might disgrace Guido, they did not blush to declare that Francesca had been conceived illegitimately, and had been born of a harlot. This greatly blackens the honour of an entire house, as Gratian observes [Citation]; for the daughters of such are usually like their mothers. Then also, as I have said above, the Accused burned with anger when he had notice of the return of Francesca to their home (p. 318), and the following. And Alexander proves this in his confession where he says (p. 646): "So that he had to kill his wife, his mother-in-law, and his father-in-law: because the said mother-in-law and father-in-law had a hand in making their daughter do evil, and had acted as ruffians to him." This following fact makes it all the clearer, because on the fatal evening when they were slain, at the knock on the door, and as soon as Violante heard the much beloved name of the lover, straightway she opened it. And thus she showed, unless I am mistaken, what removes all doubt that Pietro and Violante were not at all offended with the love affairs of their daughter and her lover.

It is all one, because we are compelled to acknowledge either [first]

that the Comparini had done new injury to his honour by receiving her into their home after they had declared that she was not their daughter, and after her adultery was clearly manifest, and hence there should be departure from the ordinary penalty. [Citation.] For just indignation, when once conceived, always oppresses the heart and urges one to take vengeance. [Citation.]

Or else [secondly] we must acknowledge a cause of just anger continued, and indeed was increased, which is quite enough foundation for a.s.serting that the murders were committed incontinently.

[Citations.]

Since, then, from the confession of Count Guido as well as from that of his a.s.sociates, and since from so very many proofs brought forward in the trial, it is evident that Guido was moved to kill them by his sense of injured honour, in vain does the Fisc pretend that for some other remote reason he committed the crimes. For, to tell the truth, I find no other cause which does not touch and wound the honour, if we only bear in mind what Guido has said in the trial (pp. 96 and 97): namely, that the Comparini had arranged the flight of Francesca and had plotted against his life. This alone would be enough to free him from the ordinary penalty. Bertazzolus and Grammaticus [Citation], testify that a man was punished more mildly who had had one who threatened him killed, though the threats were not clearly proved.

[Citations.] "And the death which he had threatened fell upon himself, and what he planned he incurred," and also: "There is no doubt that one who had gone with the intention of inflicting death seems to have been slain justly."

Another cause of the murder alleged by the Fisc is the lawsuit brought to annul the promise of dowry. Upon this point a complete and a very skilful examination was made by the other side, and because of this it was pretended that he had incurred the penalties of the Alexandrian Const.i.tution and of the Banns. But this pretence in fact soon vanishes. For if we look into it well we shall find, without difficulty, that a cause of this kind is no less offensive to the sense of honour. For the ground on which Pietro had attempted to free himself from the obligation to furnish the promised dowry was this solely: that Francesca was not his own daughter, but the child of an unknown father and of a harlot. Every man, however, well knows whether this kind of a declaration would wound the reputation of a n.o.bleman.

Whether or not a pretence of this kind could have found a place for itself before we had the confessions of Count Guido and his companions, as I have said above (for then the Fisc might have been in doubt how Guido could be moved to kill her), yet thereafter it was clear from the confessions of them all that the sense of injured honour had given him the impulse, and had even compelled him to the killing, as Count Guido a.s.serts (p. 678) where we read: "To inflict wounds upon them, inasmuch as they had injured my honour, which is the chief thing." Vain is it to inquire whether he had killed them for some other reason, because, as it was clearly for honour's sake, the Fisc never could prove that they were killed on account of the lawsuit, and not on account of honour, as is required for the incurring of the penalty of the aforesaid Bull. [Citation.]

These statements are apt also as regards the murder of Francesca, who had sought a divorce. For if she had made pretence of being separated from him for any other reason, and if her dishonour were not perfectly clear, then indeed there might be room for the Alexandrian Const.i.tution. But since wounded honour gave occasion for the murder, we are far beyond the conditions of the Alexandrian Const.i.tution.

Otherwise a very fine way would be found for wives to act the prost.i.tute with impunity. For if it were possible, after adultery was admitted, to bring suit for divorce, they would find a safe refuge to escape the hands of justly angered husbands, and would be rendered safe by the protection of the said Bull even though the divorce was not obtained and though the husbands had been offended because of their dishonour.

But still less can such capital punishment be inflicted upon Guido on the pretext that he a.s.sembled armed men, contrary to the rule of the Apostolic Const.i.tutions and Banns. For whenever the question is whether a husband may a.s.semble men to kill his adulterous wife, we are still beyond the conditions of the Const.i.tutions; for they have place whenever men are a.s.sembled for an indeterminate crime, and crime does not follow; then indeed the provisions of the Bull are applicable. But whenever men are joined together to commit crimes, and these actually follow, attention is directed to the end for which the men had been a.s.sembled, and the punishment for that is p.r.o.nounced, nor is there any further inquiry concerning the beginning (that is, the a.s.sembling), as I have proved in my other argument. And I now add another citation [Citations], where after the question was disputed, he a.s.serts: "But certainly, notwithstanding what has been said above, in the current case, I do not believe there should be any departure from the decision of so many men, whom we may well believe have considered and written the entire matter with maturity and prudence for Our Most Sacred Lord Clement VIII." And at the end of this addition, it is testified that the Apostolic Chamber had so decided it at the order of the said Pope.

[Citation.]

This is also proved by the Banns of my Most Ill.u.s.trious Lord Governor, chapter 82, where they impose a penalty for a.s.sembling men for an evil end, if the evil end may not have followed. But they decide nothing when the crime for which the men had been a.s.sembled had been put into execution, because in this case the penalties for a.s.sembling cease and only the penalty for the crime committed is inflicted, as was said above.

And that the a.s.sembling of men for the purpose of recovering one's reputation does not fall under the penalties of the Apostolic Const.i.tutions (see _Farinaccius_, _cons. 65_, _No. 66_).

Finally, the matter of carrying prohibited arms is still left for consideration. Even if some authorities have a.s.serted that this is not to be confounded with the princ.i.p.al crime, yet the contrary opinion is held by the majority; for the purpose is to be considered, which the delinquent chiefly had in mind. So Bartolo holds in our very circ.u.mstances. [Citations.] And on the point that one killing for honour's sake, with prohibited arms, is still to be punished more mildly, Matthaeus testifies that it has been so judged. [Citation.]

This also holds good in the more extreme case of several crimes, which can easily be committed separately and which tend toward different ends; yet, if they are committed at the same time and for the same end, the punishment only for the crime which was chiefly in mind is imposed. Thus, if one wishing to commit theft climb over the walls of the city, even though he could commit that deed without the crime of crossing the wall (which is a very grave crime, according to Farinaccius, _quaest. 20_, _No. 146_), even then only a single penalty, namely that for theft, is inflicted, as the one chiefly in mind; and this is a little harsher than that for crossing the walls of the city, but is not of utmost severity. [Citations.]

Nor does it escape my notice that the Banns of our Most Ill.u.s.trious Lord Governor, chapter 8, seem to settle the question by deciding that the punishment for carrying arms ought not to be confounded with punishment for the crime committed therewith. Nor do I fail to see, still further, that these Banns do not include one of the companions, who was a foreigner and not of that district. But since by common law these Banns receive a pa.s.sive interpretation whenever arms are not borne for an ill end, and then some crime is committed with them (because the delinquent did not have in mind the crime which he committed), he is punished for both crimes, because at divers times he committed different crimes. But when any one bears prohibited arms with the purpose of murder, and then commits the murder, the chief crime of homicide, in view of which he bore the arms, is considered and the penalty for murder is inflicted, but not that for carrying the arms. [Citations.]

I beg you note that this crime in question is made important from the fact that those three who had no fear of ill, but who ought by all means to have feared, were slain, and not because of the kind of arms with which they were slain. The number of the victims, and not the instrument of their death, excited astonishment, and it would have been the very same if they had been slain with the longest of swords, or with sticks, or with stones. Therefore it would indeed be a very hard matter that the Fisc should be aflame over these murders, and not being able to demand the death penalty for them, should demand it for the carrying of arms.

But beside this, Count Guido denies expressly that he owned, carried, or kept arms of unlawful measure. And although it is a.s.serted by the four a.s.sociates that at the time of the murders Guido had in his hands a short knife, and had given the same kind of arms to his companions, yet these could not doom him to the ordinary penalty. Thus Farinaccius and others affirm after this matter has been well discussed and the contrary opinion confuted. [Citations.]

Nor does he deny that he had on his person a dagger which was entirely lawful. But he did not have it with him at the murder, nor did he carry it for the murder, but only to defend himself if he should find in the aforesaid home outsiders ready to use force against him. And that was permissible to him; for there is ample right to bear arms of this kind throughout the Ecclesiastical State, and (I may boldly add) even in the very City. Because no mention is made of the City, although some places are excepted; according to that very true axiom: "The exception proves the rule in what is not excepted." [Citations.]

And he could the more readily believe that it was permissible for him to do so, because he had enemies in the city who threatened him there and made plots against him, as Guido himself says; and therefore the bearing of arms of this kind was more necessary here than elsewhere.

Nor is it to the point that, because it is claimed he had killed with forethought, the privilege of bearing this kind of arms should not be granted him. For aside from what is said above and in the other argument establishing the fact that the aforesaid crimes were "for honour's sake," they cannot be said to be committed "after an interval." The objection might hold good if he had used the arms in the murder, but as this is not established, it does not seem possible to deny him the right to carry the arms. In any case, although strictly speaking he could be said to have done the killing when armed with the said arms, yet he should not be punished with the extreme penalty of death. In _Caballus_, _case 90_, _No. 7_: "Yet in fact in these cases, I have never seen the death penalty follow, but by grace it is commuted to a milder penalty."

Finally, he cannot be said to have incurred the penalty for prohibited arms from the fact that he was present at the murders committed by his a.s.sociates with such arms; because the penalty of this kind which is due to one furnishing the said arms does not extend to the helpers and a.s.sistants. [Citations.]

I do not speak of Domenico and Francesco, because these last two, as foreigners, are not bound by our Banns. But all matters fight for all of them, and every single ground for the diminution of the punishment, which favours Count Guido, also favours them all; since accessories are not to be judged on different grounds from the princ.i.p.al, as I have shown in my other argument. There I cited, not the authority of one or another doctor singly, but the decisions of the highest magistrates. Clar also testifies that this opinion has been observed in actual practice. (-- _Homicidium_, _sub No. 51_).

But I earnestly beg that my Most Ill.u.s.trious Lord will be pleased to consider with kindly countenance and untroubled vision that Count Guido did the killing that his honour, which had been buried in infamy, might rise again. He killed his wife, who had been his shame, and her parents, who had set aside all truthfulness and had repudiated their daughter. Nor had they blushed to declare that she was born of a harlot, in order that he might be disgraced. They also perverted her mind, and not merely solicited, but even by the strength of her filial obligation compelled her to illicit amours. He killed her lest he might live longer in disgrace, loathed by his relatives, pointed out by the n.o.ble, abandoned by his friends, and laughed at by all. He killed her, indeed, in that City which in olden days had seen a n.o.ble matron wash away the stains of shame with her own blood--stains which against her will the son of a king had imposed upon her. And thus she expiated the violent fault of another by her own death. (See Valerius Maximus and t.i.tus Livius.) This city also saw a father go entirely unpunished, and even receive praise, who had stained his hands with the murder of his daughter, lest she might be dragged away to shame.

[Citations.] So much did the fear of losing his honour weigh upon his heart, that he preferred to be deprived of his daughter rather than that she should continue to live in dishonour, even against her own wish. Count Guido did the killing in their own home, that the adulteress and her parents, who were aware of her crime, might find out that no place nor refuge whatsoever was safe from and impenetrable by one whose honour had been wounded. He killed them lest deeds of shame might be continued there, and that the home which had been witness of these disgraces might also be witness of their punishment.

He killed them because in no other way could his reputation, which had been so enormously wounded, find healing. He killed them that he might afford wives an example that the sacred laws of marriage should be religiously kept. He killed them, finally, that either he might live honourably among men, or at least might fall the pitied victim of his own offended honour.

GIACINTO ARCANGELI, _Procurator of the Poor_.

[File-t.i.tle of Pamphlet 9.]

_By the Most Ill.u.s.trious and Most Reverend Lord Governor of the City in Criminal Cases_:

_ROMAN MURDER-CASE._

_For Count Guido Franceschini and his a.s.sociates, Prisoners, against the Fisc._

_New Memorial of law, by the Advocate of the Poor._

_At Rome, in the type of the Reverend Apostolic Chamber, 1698._

ROMANA HOMICIDIORUM

[PAMPHLET 9.]

Most Ill.u.s.trious and Most Reverend Lord:

The confessions of Count Guido Franceschini, and of Domenico Gamba.s.sini, Francesco Pasquini and Alessandro Baldeschi, his companions, are null; and therefore they should be given no consideration, as they issued under fear of the rigorous torment of the vigil, unjustly decreed against them. [Citations.] And this is true even though they still persevere in the same confessions.

[Citations.] For as we have said in our past argument (which may be rea.s.sumed here by favour), the Const.i.tution of Paul V., of sacred memory, issued for the reformation of the tribunals of the City [Citation], commands that this torture be not inflicted except under two concurrent circ.u.mstances. One of these is that the accused be under the strongest of proofs, and the other that the crime be very atrocious. And the authorities alleged in my argument, -- _Quatenus_, etc., testify that it has been so practised.

Nor indeed can the a.s.serted [discretionary] powers of this tribunal give support; because, whatever they may be, they have no place unless the crimes are punishable by death. Raynaldus [Citation] gives this reason: Whenever the defendant should not be condemned to death, he also should not, for the purpose of getting confession from him, be exposed to torture which might cause death, as it almost caused the death of Alessandro, who fainted dead away under two turns at the same torture.

But the crime, which has been imputed to Count Guido and his helpers, and which they themselves have confessed, is murder neither of the first nor of the second degree, as was fully proved in my past argument. And indeed since Count Guido was moved to kill or to have killed both Francesca Pompilia, his wife, and Pietro and Violante, his parents-in-law, because of his sense of honour; namely, on account of the adultery which Francesca Pompilia committed with their conspiracy and aid, this fact relieves from the penalty of death, not merely himself (according to the texts and authorities alleged in my said argument) [Citations], but also his helpers (according to the authorities likewise alleged in said argument). [Citations.]

Gabriel states: "And much less ought those to be punished with death, because if we will only examine the common opinion of wise men, just anger may excuse from a graver penalty than this; for according to the Gracchian law, Code concerning Adultery, even those who are called and led to the crime should likewise be excused."

Aside from what may be claimed in this present state of the case, that the plea of injured honour is not established, the decree in condemnation of the Canon Caponsacchi for the said adultery issued in this tribunal, September 24, last past, and given in full in our Summary, No. 8, makes the matter clear and manifest. [Citations.] For it is there said: "Joseph Maria Caponsacchi, of Arezzo, for complicity in the flight and running away of Francesca Comparini, and for carnal knowledge of the same, has been banished for three years to Civita Vecchia." Nor can these words be said to be merely the t.i.tle of the case, which does not make any one guilty, as my Lord Advocate of the Fisc supposes; but the very decree and the t.i.tle of the case, as seen by me in the original Process, was that which follows: _Aretii in Etruria fugae a viro_.

But, in brief, the said Canon was condemned merely to the said punishment because he was a foreigner and had committed his crime outside of this State; in such case he should be dismissed merely with exile. [Citation.]

Nor is it true that the Court receded from the said decree and still less that a modification of it was demanded. For we have no other fact than that for the purpose of giving some little indulgence to the still a.s.serted honour of the wife and to the decorum of the said Canon, for which the Procurator of the Poor, their defender, kept sharply and incessantly urging, in the command for imprisonment, instead of the words of the said decree, these other words were applied: _Pro causa de qua in actis_. These words do not imply the correction of the preceding words, but indeed the virtual insertion of all the acts, and consequently of this same decree also. [Citations.]

And this is all the more true because the said decree could not be changed unless both sides were heard; which, as I remember, was the response given to the said Procurator when he insisted upon the said modification. [Citations.]