The Old Yellow Book Part 21

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 pa.s.s 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, -- _Praesertim_.

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 Const.i.tutions 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 princ.i.p.al himself, according to almost innumerable authorities, and they of great name, who were alleged in my past argument, -- _quae 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 Const.i.tutions 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 a.s.serts 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 pa.s.sed 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 pa.s.sive 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 va.s.sals, 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.]

And so they are contrary, or incompatible. [Citations.]

Soccinius [Citation] bears witness of what manner these statutes of Arezzo are, as compared with those of the city of Florence, etc., and this is plain from the Rubric, etc., where it is commanded that those under twenty-five years cannot be rendered liable, without certain ceremonies, as Paolo di Castro counsels. [Citation.] For from this statute it is sufficiently evident that in the said city and its environs a less age is the rule according to common law.

So far as the Fisc may have foundations, which in our feeble judgment we have been unable to guess, I pray that these be kindly communicated to me, lest the poor accused minor may remain undefended.

Finally, as regards Count Guido, I pray that notice be taken of the unfortunate condition of himself and of his n.o.ble family. For all of his family and connection have had enough to lament even to the last breath of their lives, when they look upon the ignominy brought upon them by this woman and her parents. And because of this, there has been doubt up to the very present moment whether one nearly related would go mad. And the excellent piety of our most clement Prince and Most Ill.u.s.trious Lord has declared this, to whom the Accused himself with his whole heart commends himself in the Arguments made in his defence, not to speak of what they may learn about it from the Anonymous Author [Pamphlet 10]. [Citation.]

DESIDERIO SPRETI, _Advocate of the Poor_.

LETTER

WRITTEN BY THE HONOURABLE SIGNOR GIACINTO ARCANGELI, PROCURATOR OF THE POOR, TO MONSIGNORE FRANCESCO CENCINI, IN FLORENCE, IN WHICH HE TELLS HIM THAT THE SENTENCE OF DEATH HAD BEEN EXECUTED IN ROME AGAINST THE GUILTY ON FEBRUARY 22, 1698--THAT IS, THAT FRANCESCHINI HAD BEEN BEHEADED, AND THE OTHER FOUR HANGED.

[LETTER I.]

To the ill.u.s.trious Signor, my most worshipful Signor and Patron:

Too late have arrived those proofs, which were sent to me by your Honour, on behalf of Signor Guido Franceschini of blessed memory. For when the Congregation of Monsignor the Governor had determined, in spite of the reasons given in his favour, that Signor Guido was guilty under the death penalty, I obtained, with much trouble to myself, some delay for proving his clergyship alleged by me. To this end a messenger was dispatched to Arezzo. But since the Sanct.i.ty of Our Lord [the Pope] did not deem it wise to postpone the execution of the sentence already decreed, he has seen best by special writ to make denial of any clerical privilege, which might have been claimed [in Guido's favour], and also as regards the minority of Francesco di Pasquini, one of the accomplices. Hence sentence against all five has been executed to-day, with distinction only in the manner of their death, as Guido's life was ended by decapitation. This consolation survives for his relatives and friends, that he has been pitied by all men of honour and by all good men. Confessing my own shortcomings, I cannot deny feeling infinite regret, as I attribute the whole outcome to my inability in offering the valid grounds. May G.o.d reward his house and all his friends with abundant blessedness for this tragic accident. Desiring your further commands, I reaffirm myself, as ever,

Your Excellency's most obedient servant, GIACINTO ARCANGELI.

ROME, _February 22, 1698_.

To the ill.u.s.trious Signor, my most worshipful Signor and Patron, Signor Advocate Francesco Cencini, Florence.

LETTERS

WRITTEN BY SIGNOR GASPERO DEL TORTO AND SIGNOR CARLO ANTONIO UGOLINUCCI TO THE AFORESAID MONSIGNORE FRANCESCO CENCINI.

[Letter II.]

The proofs you send did not arrive in time, because to-day finally, after so many disputes, the execution of poor Signor Guido has taken place, he having been beheaded, while the four cut-throats have been hanged. The case was decided Tuesday, but because it was a churchman who had sinned, and because it was claimed that the death-sentence was not in keeping therewith, a messenger was dispatched to Arezzo later on to get proofs of it. But the Pope yesterday set his hand thereto, and has decided the case, so that to-day it has so followed completely. Now that the will of G.o.d has been fulfilled that he should suffer such a punishment, it has at least been brought about, in view of the arguments made in his defence, that he died the death of a gallant man. For aside from the fact that he has died with exemplary courage, he has also been pitied by all gallant men, and his house has lost nothing in the matter of reputation. All Rome was there, as you may well believe. And [the mistake] cannot be made good with such speed as this may be written, because there have not been lacking admonitions of greatest consequence, since the Amba.s.sador of the Emperor spoke of that point on Tuesday, as he himself told me day before yesterday; and than the matter was settled precipitately.

I have finished the argument before the Congregation of the Council, and at any time that Monsignor Secretary wishes to take it, I think we shall be ready. I pray you favour me with those copies of the proof as soon as possible. And if Canon Philippo does not give us the opportunity, he should be good enough to acknowledge it to me that I may think of other measures, wishing once for all to get out of this imbroglio if it shall be possible. And finally, I remain with all reverence, my most ill.u.s.trious and most excellent Signor, Your humble and obedient Servant,

GASPERO DEL TORTO.

ROME, _February 22, 1698_.

To the most ill.u.s.trious and most excellent Signor, my dear Signor, Signor Francesco Cencini, Florence.

[Letter III.]

My most ill.u.s.trious and excellent Signor, my most worshipful Patron:

Tuesday this most unfortunate case was brought up and the Congregation of the Governor decided--Delay and according to instructions. The instructions were that they would await the proofs of the well-known clericate. At this favourable decision the defence took heart and Guido's good friends began to breathe again. Then last evening at eight o'clock Monsignor signed of his own accord the warrant, in denial of the clergyship which might be alleged and of the minority of one of the accomplices. No sooner had he signed the warrant than the news of it sped throughout the City, and with it the a.s.surance of the sentence, which has been executed to-day since dinner against the five; that is, the loss of his head in the case of Signor Guido, and the gallows for the other four accomplices. I will not tell your Excellency my own grief, because you yourself will be able to be a true witness of it. These proofs would have been of the greatest relevancy, but not in this case, because Monsignor wished it so.

I enclose the Fisc's argument, except a single response, which I will send to you as soon as I can lay hands on it, that your Excellency may have the entire case.

Now that Signor Advocate del Corto has abandoned his own interests I may serve your Excellency in the matrimonial case and in the other of Gomez. Therefore I set myself to all that in order that I may serve your Excellency, praying evermore your continual commands, that I may ever be your Excellency's obedient servant,