The Old Yellow Book Part 14

But why should I now insist on former matters when there is such conclusive proof of the adultery and further dishonour of the said wife from the many strong reasons deduced in the present stage of the case, and well weighed by my honourable colleague, the Procurator of the Poor, in his customary excellent manner? (I do not here repeat them, that I may avoid useless superfluity.) Hence there is left no room for doubt as to the outraged honour, which indeed impelled Count Guido to the commission of crime. For it would be quite enough that a cause of this kind be verified, even after one has committed the crime, as Bertazzolus advises on this point. [Citations.]

Still further, there is no need now to insist on past matters because Count Guido has stated the plea of injured honour not merely against his wife, but against his parents-in-law in his confession (especially page 98): "Thereupon followed her flight, which was so disgraceful, not merely to my house, which is n.o.ble, and would have been so to any house whatsoever, even if of low estate. She made this escape by night with Canon Caponsacchi and his companions. In the progress of her flight along with the driver of the carriage, she was seen by the said driver, kissing and embracing the abovesaid Canon. Still further, I have found out that they slept together at Foligno in the posthouse and then again at Castelnuovo. By such proof, she stands convicted as an adulteress, not merely for this, but for other like excesses, which I have since heard that she committed in Arezzo with other persons."

And page 672, where we read: "And when the said Santi was asked whether he would give ear to offering an affront to the Comparini, because of my honour and the plots they had made against my life, Alessandro responded that he would do it, and if some one else were necessary he would find him. Accordingly, after a few days, I received in my home Biagio, who has been twice named above, in company with the abovesaid Santi, and he said that he also would give ear to it, as being specially a question of my honour and the contrivance against my life." And at page 678: "And while we were staying in the same vineyard, that is in the house within it, we spoke of various matters and particularly of what was to be done, namely of the affronts to be offered to the Comparini (that is to Pietro, Violante, and Francesca, my wife) and of wounding them because they had taken away my honour, which is the chief thing, and had also plotted against my life." And at page 683, near the bottom, we read: "And I would have so much to say that one might write from now till to-morrow morning, if I wished to tell all the trouble and expense I have suffered from the said Comparini. But all this would amount to nothing, if they had not touched my honour and plotted against my life." And page 684: "The Santi above-named was a labourer of mine at my villa of Vittiano, and consequently was informed of all these troubles I had suffered at the hands of the said Comparini. He also knew of the very indecent flight made by my wife in the manner elsewhere told. The abovesaid Alessandro then began of his own accord to seek me out and did find me, so that he might give ear, in the event that I should wish to avenge my honour and the plots which they had made against my life." And page 699: "And she together with Canon Caponsacchi was overtaken by myself at Castelnuovo, where they were arrested by the officers and conducted to these prisons. In the Court, many a time I laid stress on the crime of her supposed conception in order that they might be punished. I never having seen what would be considered expedient in an affair of such importance to my honour, have been obliged to take some resolution for recovering it, because the Comparini, with greatest infamy, had transferred to me their own ignominy." And page 722: "And what I said to Alessandro, Biagio, and Domenico, I also said to Francesco once when he, knowing the offences against my honour which I had suffered, asked me if I were ready to give a beating to my said wife. And I then replied to him that she deserved not merely a beating, but death."

Such a confession should be accepted with its own qualifications, for the Fisc cannot divide and detach this from it (according to the usual theory). [Citations.]

This is undoubtedly true, when, as in the present case, one is arguing for the infliction of the ordinary penalty, whatever may be said, according to some authorities, for the infliction of an extraordinary penalty. [Citations.] Ludovicus extends this conclusion to all qualified confessions in any kind of crime.

This is true especially when the qualification is not merely propped up in some way, but is conclusively proved. [Citations.] For beside the said decree, and the other considerations above, we have his fellows in crime especially swearing that their services were required by Count Guido for committing crime in his very company for the abovesaid reason. Especially is this the case with Blasio Agostinelli, page 316: "Signor Guido told me that his wife had fled from him in company of an Abate, and had carried away some money and jewellery. He led me into the very room where she had robbed him of the said jewellery and money, and told me that he wished to go to Rome to kill his wife, and that he wished that I and the said Alessandro would go with him," etc. And page 317: "At the above time the said Guido told me that his wife, for the purpose of fleeing securely with the said Abate, and that he might not perceive it, had mixed an opiate in the wine for dinner to put himself and all the rest of them to sleep. He also said that he was in litigation with his father-in-law, who had not merely sworn that the said wife was not his own daughter, but still further had received her back into his home, after she had run away from her husband, although he would have put her in a monastery after he overtook her at Castelnuovo during the flight." And Alessandro Baldeschi (page 623): "The said Guido in the presence of myself, as well as that of Biagio, Francesco, and Domenico, told me that he ought to kill the lady, that is, his wife, who was here in Rome, to recover his own honour; and also to kill the father and mother of the said wife because they had lent her a hand in the insult she had offered to his honour." And page 645: "He told us also, in the presence of the keeper of the vineyard, that he was obliged to kill his wife, his father-in-law, and his mother-in-law, because the latter had lent a hand to their daughter in her ill-doing, and had acted the ruffians too, and because the said Guido also declared that these same people, whom he had to kill, had wished to have himself, that is Guido, killed."

Nor can the plea of injured honour be excluded by the attestations of those who afforded a.s.sistance to Francesca Pompilia even up to the time of her death: for they attest that she made declaration that she had never violated her conjugal faith. These a.s.sertions are merely testimony given outside of a trial, and do not demand belief.

[Citations.]

And more especially as they were extorted and begged (while the suit was pending and the other side was not summoned), by the heir of the same Francesca Pompilia, for avoiding the prosecution by the Monastery of the Convert.i.tes, which was laying claim to the succession to her property on account of her dishonesty. Such shame would cause all of her hereditary property to be sequestered and judicially a.s.signed to the said Monastery by law. [Citations.]

And this objection to their testimony is especially true because some of the witnesses who swear as above are beneficiaries of the same Francesca Pompilia, so that they might be swearing for their own advantage. For if her dishonour were substantiated, her property would devolve upon the said Monastery, and consequently they would be shut out of their legacies. [Citations.]

And however far these attestations may occasion belief, a declaration of this kind serves to no purpose, because no one is presumed to be willing to reveal his own baseness. [Citations.] So likewise Francesca Pompilia should not be believed, especially when testifying outside of a court and without oath. [Citations.] Much less are the aforesaid witnesses to be believed, lest more credence be given to hearsay evidence than to its original. [Citations.]

Nor can it be said that no one is presumed to be unmindful of his eternal safety; for all are not presumed to be Saint John the Baptist.

[Citation.] Especially when the argument is concerning the prejudice of the third. [Citation.] And still more so when the argument is for punishing more gravely the enemy of the declarant. [Citations.]

And therefore, as the plea of injured honour is substantiated, it makes no further difference that the said murders were committed after an interval, according to what we have very fully affirmed in our last argument, -- _nec verum est_, even down to -- _praedictis nullatenus_.

There it was shown that this is the general opinion of authorities, and in accordance therewith judgment has been given from time to time not only in the Sacred Courts, but also in all the other tribunals of the world, as Matthaeus well observes, etc. [Citation.]

Nor can there be any departure from this opinion in the present case on the ground that Count Guido did not kill his wife in the act of seizing her in her flight with her lover, but was indeed content to carry her before the judge as an adulteress. For it would not have been safe for him to kill her then; because he was alone and she was in company of the said lover, a daring young fellow, strong, and well armed, and accustomed to sinning. And what is more, this lover was prompt and well prepared to make resistance, lest his beloved Amarillis should be s.n.a.t.c.hed from him. Likewise she was prompt and ready to hinder her husband even with a sword she had seized and drawn, lest her beloved Mirtillo might be offended. Guido should not therefore be considered to have spared her nor to have remitted his injury. But lest she might escape into more distant parts where he could have no hope of the due vengeance, his just and sudden anger then counselled him to have her arrested by officers, so that he might kill her as soon as possible; and when afterward a suitable occasion arose, if he killed her, it should be considered as if he had slain her immediately. [Citations.]

And, generally, whatever is done after an interval may be said to be done incontinently, if done as soon as a chance for doing it was given. [Citations.]

But so far is the Law from believing that this kind of injury is remitted by a husband that it rather believes that the spirit of vengeance always continues in him. Therefore it comes about that a wife may be held responsible for looking out for herself; so much so, indeed, that her death which follows thereupon may never be said to be treacherous. [Citations.] Muta speaks of the case of a husband who had his wife summoned outside of the city walls by his son, in order that he might kill her safely, and yet the husband was condemned only to the oars for seven years.

This also makes some difference in the case, that certain authorities hold that a husband may indeed hide his wife's baseness for the purpose of taking vengeance upon her safely later on. [Citations.]

Likewise he may have his wife hide his disgrace for the purpose of taking vengeance securely upon the one who wishes to offend her modesty, according to the very famous council of _Castro_ 277, _lib._ 2.

And this is all the more to the point because Count Guido was censured by the Procurator of the Poor himself, the defender of Francesca and Canon Caponsacchi, for this appeal to the judge. [Citations.] We have alleged many of these authorities in our past argument, -- _et haec nostra_: for they unanimously a.s.sert that husbands are considered vile and horned, if they do not take vengeance with their own hands, but wait for that to be done by the judges, who themselves ridicule and laugh at them. Therefore it is no wonder if the luckless husband, after he had made the said recourse to the judge, as the foolish heat of his wrath suggested to him, wished to avenge himself for his lost honour. For he sinned that he might shun the censure of the vulgar and learned alike, and that he might not add this infamy also to his lost honour.

Nor is it at all to the point that the said Count Guido, in his confession in one place, beside speaking of his injured honour, also mentions the plots aimed at his life; because the force of honour was far the stronger in his mind, as he himself a.s.serts (page 678): "In consideration of the fact that they had taken away my honour, which is the princ.i.p.al thing." Nor ought any consideration be given the other cause; because, as it is so much weaker, it should be made to give way to the aforesaid reason, as was proved in our former argument, -- _Et in omnem Casum_, where for another purpose we have adduced Matthaeus [Citation], who is speaking in these very terms.

And so far as we desire to give attention to this other cause, it likewise is sufficient for escaping the ordinary penalty. [Citations.]

The Fisc acknowledges the relevance of the abovesaid matters; he therefore has recourse to the circ.u.mstances attending the crime, namely, the a.s.sembling of armed men, the lawsuit going on between Count Guido and the Comparini, the prohibited arms, and finally the place where the crime was committed. For Francesca Pompilia was detained in the home where she was killed, as a prison. But a response is easy because such circ.u.mstances can indeed somewhat increase the penalty of the princ.i.p.al in the crime, but not so much as to raise it to the highest degree, in such a way that Count Guido and his a.s.sociates should come to be punished with death. For we find it decided in these circ.u.mstances as quoted by Muta [Citation]: "A decision was therefore made in view of the case in general, March, 1617, before his Excellency, wherefrom the ill manner of killing her was evident; for he had her summoned by her son, and afterward her body was discovered, which the dogs had eaten outside of the walls.

Leonardus was therefore condemned to the royal galleys for seven years." And Sanfelici [Citation] says: "And although some of them were condemned to banishment, it was because of their mutilation of the privates, a crime for which the Fisc claimed they ought to be punished by the penalty of the _Lex Cornelia de Sicariis_."

And Matthaeus [Citation] says:

"When the matter had been more carefully considered in the Council, it was decided that the husband had proceeded too treacherously in pretending absence, in taking his brother with him, and in killing with prohibited arms; because merely by the use of firearms a crime is rendered insidious with us, etc. And it was accordingly decided that, because of this excess, he should be condemned to the penalty of exile for four years and to the payment of 2000 ducats." And this at the stage of appeal was confirmed [Citation] where we read: "And thus it was decided in the face of the facts proposed in condemning Francesco Palomi to the penalty of the galleys for ten years, etc., from the aggravating qualification of firearms. To the same penalty, Antonio Alvarez was condemned, who had deliberately killed his wife because she was playing him false, etc. The penalty was increased because he was judged to have omitted this earlier, since he did not complain of mere adultery, but of her living as a strumpet. And she could not do this without the indifference and connivance of the husband."

And our reasoning is manifest, because it cannot be denied that Count Guido and his a.s.sociates committed all the aforesaid crimes on the same ground of injured honour. Because just as this excuse should be considered sufficient for escaping the ordinary penalty for murder, so likewise it should be considered sufficient for avoiding the other punishments whatsoever, appointed in the Apostolic Const.i.tutions against those committing other crimes expressed in the same; as the princ.i.p.al purpose of the delinquent is always to be attended.

[Citation.]

So it was declared on this point for the purpose of avoiding the penalty inflicted in the 75th Const.i.tution of Sixtus V. [Citation], against those who a.s.sembled armed men, whenever these men were evidently a.s.sembled for the purpose of committing some other crime, such as breaking prison and freeing those detained therein. And three very celebrated judges of the Sacred Court, namely Coccini, Blanchetti, and Orani so decided. Their decision is included among others gathered by Farinacci [Citation], and he testifies that it was so decided in the full chamber, in which the case was proposed and examined at the order of Clement VIII. of sacred memory.

Nor does what he wrote later on to the contrary in aid of the Fisc, of which he was then Advocate, stand in refutation; Spada. [Citation.]

For this opinion of his was refuted clearly and rejected on the most substantial of reasons and arguments, [Citations.]

And in such conditions, for the purpose of avoiding the penalty of the Banns or Apostolic Const.i.tutions prohibiting the carrying of arms, I have alleged many authorities in my past argument, -- _neque plures_ [neque vero], and above the rest, Policardus, etc. [Citation], who fully examines the matter. My honourable Procurator of the Poor gathers together others in his present argument, -- _remanet tandem_.

To these I add, Caballus [Citations], where it says that preparatory acts are to be included with what was prepared, and he testifies that it was so decided by the Sacred Council of Naples.

Likewise, for the purpose of avoiding the penalty set for those killing one detained in prison, and so remaining in the custody of the Prince, I have cited many authorities in my past argument, -- _similiter nec aggravari_. To these I now add. [Citations.]

Nor does it make any difference that Policardus, in the place cited, and some of the other authorities recently alleged speak of homicide committed in a quarrel or for self-defence. For the attendant circ.u.mstance of a quarrel relieves one committing crime from the ordinary penalty of the crime only in so far as it overlooks the crime in one who, when provoked, wished to be avenged (as Ulpian says), and insomuch as one swept away by a just indignation is not in the fullness of his intellect. [Citation.]

But both of these reasons without doubt stand in favour of the husband or of any one else committing murder for honour's sake [Citation], even if they do so after an interval. [Citations.]

And in these very conditions, one killing an adulterous wife after an interval is excused because of just anger, which causes him not to be in the fullness of his intellect, etc. [Citations.]

Ulpian [Citation] also says: "He ought to be angered with a wife who has violated his marriage with her, and his wrath should spring from indignation for contumely when received, and his nature should arise so that he would drive her from himself in whatever manner he could."

"For it is more difficult to restrain one's anger than to perform miracles," as St. Gregory says. [Citation.]

The other authorities, indeed, who speak of persons committing murder in self-defence with prohibited arms or in prisons should likewise be in our favour. For the defence of honour in the case of men of good birth, especially of n.o.bles, is to be likened to the defence of life itself. [Citations.] And indeed it surpa.s.ses life, according to the words of the Apostle in his first letter to the Corinthians, chapter 9: "Better were it for me to die than that any one should deprive me of my glory." And St. Ambrose: "For who does not consider an injury to the body, or the loss of patrimony, less than injury to the spirit or the loss of reputation?" And the third Philippic of Cicero: "We are born to honour and liberty; either let us keep them, or die with honour." [Citations.]

So that he who spurns his own honour, and does not see to regaining it by vengeance, differs naught from the beasts. [Citations.] Indeed he should be considered even more irrational than the very beasts, according to the golden words of Theodoric. as quoted by Ca.s.siodorus, which we have cited in our past argument, -- _Nec verum est_.

[Citations.]

Then as to the lawsuit going on between Count Guido and the Comparini as regards the fraud about the birth, beside what was said recently, I pray that it again be noticed that the Const.i.tution of Alexander does not enter where some provocation has arisen from the one injured, as Farinacci well affirms [Citation] in following a decision of the Rota, which he places at the end of his counsel. And we have weighed this heretofore in our past argument, -- _absque eo quod_. Such provocation in the present case resulted from the injury which the said Comparini inflicted upon this same Count Guido while the lawsuit was pending, because of their complicity in the said flight and adultery committed by their daughter on that occasion.

The other lawsuit which Francesca Pompilia made pretence of bringing against Count Guido, for divorce, might be omitted. For beside the considerations offered by my honoured Procurator of the Poor in his present argument, -- _quae etiam aptantur_, this suit was brought illegally, because the warning of it, as I suppose, had reached only Abate Paolo, the brother of Count Guido, who had no authority in this matter. And this is true especially because it is not proved that the same Guido had any knowledge of that suit brought, as is now pretended.

As to Blasio Agostinelli enough has been written in the former argument, since he has not been examined anew, and in his former examination he confessed only that he was present at the said murders, but that he had no hand in them. So the more rigorous opinion of Caballus cannot apply to him, who said that such helpers are not immune from the penalty of murder whenever they kill any one with their own hands. For the opinion of this author was proved by us to be erroneous, in our past argument, -- _quidquid in contrarium_.

I might wish to add something to what has been said in the past argument as to the alienage and minority of Domenico and Francesco; but it is not yet very clear under what law the Fisc pretends that they miss these. Therefore I will rest satisfied with this response, believing certainly that it will not chance that my Lord Advocate of the Fisc may fashion his own allegations and also respond to ours without communicating them to me, as happened in the past argument very greatly to the astonishment of myself and of others. For he and I both ought to seek the truth and to be advocates of that, as both of us are officers of the Prince according to the considerations of Rainaldi. [Citation.] Who indeed desires that anything else than justice be administered, and especially when dealing with poor imprisoned wretches? In their cause, piety should triumph, because they are the treasure of Christ. [Citation.]

DESIDERIO SPRETI, _Advocate of the Poor_.

AN ACCOUNT OF THE FACTS AND GROUNDS OF THE FRANCESCHINI CASE

[PAMPHLET 10.]

The property of Pietro Comparini did not amount to more than the sum of 10,000 or 12,000 scudi, subject to a reversionary interest, coupled likewise with the obligation to compound a good percentage of the income. He, therefore, had to live sparingly to avoid being reduced to a state of dest.i.tution, there being a bar against his use of the capital and of a part of the income. He was also too indulgent to his stomach and was given to laziness, and furthermore had taken a wife with a very small dowry. Then lawsuits came upon him, the income of his bonds was reduced, and other misfortunes befell him, so that he was brought down to a state poor and miserable enough. So much so that he was several times arrested for debt and, after making a statement of his property, received from the Papal Palace secret alms each month.

When he found himself in such straits, he decided to marry off Francesca Pompilia, his daughter, to some person who would undertake the burden of supporting him together with his wife, Violante Peruzzi, who was a very shrewd woman and of great loquacity. It was with her advice that he had undertaken the affair, and the marriage with Count Guido Franceschini was considered suitable. For when the latter had conducted his new wife and her parents back to Arezzo, his own country, he might be able to find some opportune remedy for their necessities, by the a.s.sistance in Rome of Abate Paolo Franceschini his brother, an active and diligent man; thereby putting in order the patrimony of Pietro which had been sequestered and tied up by his creditors. Therefore, when the dowry had been set at twenty-six bonds, with added hope of future succession to the rest of his property by virtue of the reversionary interest to which the wife was ent.i.tled, the bargain was accepted. This bargain was advantageous to Pietro and his wife in freeing them from the straits in which they found themselves. And it was likewise advantageous to the Franceschini, as the diligence of the Abate, and some temporary expenditure by their house well attests. For they might well believe that they would gain in time the aforesaid property either entire, or little decreased.

Such from the beginning were the mutual purposes of that unhappy marriage. From this fact one may see how slight a pretext there is for saying that Count Guido, while making the arrangements, had tricked Pietro and his wife by giving an inventory of property with an annual income of 1700 scudi, which income was later proved to be much less, because the primary end for which the marriage was concluded might very well have been obtained by showing a much smaller income. For it is known that when this inventory was shown by Violante to Pietro Comparini, he said on seeing it: "Ho, ho, it would have been enough for me if it had been only half as much." And indeed it would have been the greatest stupidity in Pietro to have given his daughter a husband, upon the simple inventory of a foreigner and without finding out if this were true, so that the real impelling cause of the marriage had been the resources represented in the said inventory. Not even on the mere grounds of propriety and civility may Guido be reproved; because when the said inventory was produced by Pietro in the trial, the Abate Paolo Franceschini was very much surprised at it, so that he took his brother to task about it by letter, and Guido replied that he had done it at the instigation of Violante. For she desired the completion of the marriage, and, seeing Pietro irresolute, she induced Guido to give the abovesaid inventory, with some modifications, for the purpose of stimulating her husband thereto.