The Old Yellow Book Part 18

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 pa.s.sing. 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 a.s.sociation 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 a.s.sertion. [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 a.s.sociation 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 l.u.s.tful 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 pa.s.sed 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 pa.s.sion. 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 Matthaeus 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 circ.u.mstances, 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 a.s.serted 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 a.s.serting that they had arrived there at dawn, yet no proof of adultery may be drawn from the said lie, for she made that a.s.sertion 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 circ.u.mstances 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 circ.u.mstance 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 inc.u.mbent upon him for escaping the ordinary penalty might be discharged by the mere a.s.sertion 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 Matthaeus 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 a.s.serts 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 a.s.sert 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 a.s.serted 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 circ.u.mstance 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 a.s.serted 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 a.s.sumed 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 inst.i.tuted 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 a.s.serts 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 a.s.sume 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 a.s.sa.s.sins.

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 unchast.i.ty, 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 _laesa majestas_, according to the well-known order of the Const.i.tution of Alexander, as was proved in our past information, -- _Accedit ad exasperandam_.

To escape the penalty a.s.signed 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 a.s.serted 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 a.s.serted 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 a.s.serted 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 Const.i.tution 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 Const.i.tution 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 a.s.sembling of armed men, and their introduction into the City for accomplishing more safely the murder of the entire family, increases the crime to _laesa 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 princ.i.p.al 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 a.s.sembling men, imposed by the Apostolic Const.i.tutions and the general Banns, cannot be inflicted; for the latter is included with the penalty for the princ.i.p.al offence, which alone is to be attended, since the spirit and purpose make differences in crimes. [Citations.] Because the order of the said Const.i.tution and Banns would prove utterly vain if the penalty for a.s.semblage should cease, whenever the a.s.sembly 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 a.s.sembly 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 Const.i.tution considered only the uproar and other ills which are accustomed to arise from the a.s.sembling 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 a.s.sembling 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 a.s.semblage 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 Const.i.tution to our case, since the a.s.sembling 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 a.s.semblage 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 _laesa 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 Const.i.tution, and not of the Banns issued later. For this decree would prove vain and useless if the capital penalty, imposed thereby against those a.s.sembling armed men, could be applied only when the crime for which the a.s.sembly was made was punishable with the same penalty. And even if this necessity be admitted, the application of the Const.i.tution 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 Const.i.tutions 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 a.s.sembling" 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 pa.s.sive 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 a.s.signed 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 circ.u.mstance.

Because in the said writing prepared in Italian for giving true notice of the fact [Pamphlet 10], it is a.s.serted 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 circ.u.mstances 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 a.s.serted 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-t.i.tle of Pamphlet 14.]

_By the Most Ill.u.s.trious and Most Reverend Lord Governor in Criminal Cases:_

_ROMAN MURDER-CASE with qualifying circ.u.mstance._

_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._

ROMANA HOMICIDIORUM c.u.m QUALITATE

[PAMPHLET 14.]

Most Ill.u.s.trious Lord: