The Old Yellow Book Part 3

It is deep-seated even in beasts that they should defend their mating even with deadly conflict, since what is condemned by natural law is hateful to all living creatures. We see bulls defending their cows by strife of horns, rams fighting with their heads for their wethers, horses vindicating by kicks and bites their females; so even these, who are moved by no sense of shame, lay down their lives for their mates. How then may a man endure to leave adultery unavenged, which is known to have been committed to his eternal disgrace? And so if you have made very little false statements in the pet.i.tion you offer, and if you have indeed only washed away the stain to your marriage-bed by the blood of the adulterer, taken in the act, and if you are looking back from your exile, which was evidently inflicted not by reason of a bloodthirsty mind, but because of your sense of shame, we bid you return from your exile; since for a husband to use the sword for the love of his sense of honour is not to overthrow the laws, but to establish them."

Dondeus says this interpretation is clearly proved by the authority of a glossa in the chapter: _Ex litterarum_. [Citation.] For in the text, when these words are used: "your wife taken in adultery," a glossa explains the word "taken" as equal to "convicted." Marta says this opinion is much more just and equitable, and is commonly held. And Muta (_dec. Siciliae 61_) in the end offers a decision of the supreme court of the kingdom, by which a husband was condemned to the galleys for seven years. This was on account of the accompanying circ.u.mstances; for he had had his wife summoned outside of the city walls by his son, and there had killed her; and afterward her body was found to have been devoured by dogs. Dexartus testifies that it was thus decided in Sacred Royal Court, in condemning a husband only to exile. Sanfelix also tells us that certain n.o.ble young men, who had killed their wives, after an interval, because of strong suspicion of adultery, were absolved by the Royal Council of Naples, in view of the quality of the persons concerned. In their favour, authorities of the highest rank had written, whose allegations this same author places under the said decision. And although some of these young men were condemned to the oars, he said that this punishment had been imposed because of the mutilation of the privates which followed; because those who do such things are considered enemies to nature. (_Panimoll.

dec. 86._) And Caldero, although in the preceding numbers he inclined toward an opinion contrary to ours, came over to our side when he saw that Matthaeus held that opinion.

And the reason is very evident, for whenever such an injury is suffered by fine natures, especially among the n.o.ble cla.s.s, it is ever present with them, and continually oppresses the heart, and urges it on to vengeance for the recovery of lost honour, as Giurba well notes. [Citations.]

For this reason, it has always and everywhere been held in case of murder committed for honour's sake that there is no place for the ordinary death penalty, which should be mitigated at the discretion of the judge. And this rule has been followed, when the murder was committed after an interval, and even after a long interval. For the abovesaid reason, both Grammaticus and Gizzarellus affirm and hand down this opinion. The latter says that it has always been so adjudged by the Sacred Council of Naples, and that this opinion has always been accepted by our ancestors. [Citations.]

It was so judged by the high court of the Vicar, although it was dealing with a murder committed after two years, and by craft, by two brothers upon the adulteress in the presence of her sister's cousin.

Cyriacus also speaks of the murder of a husband by his wife, because he was keeping a mistress and was contriving against her honour; and there he said that since just anger has a long continuance, because of its extreme bitterness, vengeance should always be said to follow immediately. [Citation.]

Another reason also is at hand, which is considered by the authorities, namely, that an injury, whereby the honour is hurt, is not personal, but real, and therefore can be resented at any time whatsoever, even after the lapse of a very long time, as Giurba holds in our circ.u.mstances. [Citations.]

We have therefore a great many standard authorities who affirm, for most vital reasons, that murder committed, even after an interval, upon the person of the wife or of any one else, for honour's sake, ought not to be punished with the ordinary death penalty, but more mildly. Furthermore, these authorities bear witness that the matter has been so judged in the tribunals with which they are acquainted. No attention therefore should be paid to the opposite opinion held by Farinacci [Citation]; for we plainly see that he speaks contrary to the common and usually accepted opinion in tribunals. [Citation.]

Still further it should be noted that the same author in _cons. 66, num. 5_, holds the very opposite, basing his opinion especially upon a text in the law of Emperor Hadrian [Citation], where a father had killed his son, who was not found in the act with his stepmother, but while out hunting and in the woods, that is, after an interval. And he was punished not with the death penalty, but by deportation. Several of the above-cited authorities offer the decision of this text likewise in corroboration of this opinion of ours. Our point is also proved by the fact that this same author in _quaest. 121_ is rather doubtful; and there he acknowledges that for this opinion of ours the reason given above is very strong, namely, that "injured honour" and "just anger" always oppress the heart. And so he says in such a case one should note the sense of the text in the law _Non puto_ [Citation], where Modestinus, Doctor of Law, says that he thinks that one would not make a mistake who in doubtful cases should readily give this response against the Fisc; and Farinacci cites him so speaking.

But one should be on his guard against what this same Farinacci a.s.serts: namely, that this opinion of his, so far as he could see, was the one more approved by the Sacred Court. For since this point of doubt, as he himself confesses, had not then been advanced, he could not judge what would be the outcome if it had been proposed. And indeed the wisest of the said high authorities do not give their a.s.sent to his opinion, but rather hold the contrary, which is favourable to ourselves, as is seen in the decisions they have given from time to time. For it was so held on March 25, 1672, in the case of Carolo Falerno, who was condemned to an unusual penalty for the murder of Francesco Domenici; for he had found him coming out of a church, to which he had warned him not to go, as he was suspicious that the one slain was following his wife. In like manner with Carolo Matarazzi, August 15, 1673, who killed his wife on the foolish grounds that he suspected her of illegitimate conception because of the absence of her menses; but this suspicion did not indeed correspond with the truth. And in law a matter may be even more mistaken and less observed by human intellect. [Citations.]

Likewise in a murder committed treacherously with an arquebus upon the person of Tomaso Bovini by Francesco Mattucio of Monte San Giovanni, a person of the very lowest cla.s.s, merely because of the attempted dishonour of his sister. The attempt of the one killed was proved by two witnesses on hearsay of the one slain. On September 4, 1692, the penalty of life sentence to the galleys, to which the said Mattucio had been convicted on strongest proofs on the preceding July 12, was moderated by the sacred court, before the Right Reverend Father Ratta, of blessed memory. With good right, therefore, this same Farinacci is expressly confuted and overthrown by Matthaeus. [Citations.]

This opinion of ours is to be accepted the more readily when we consider that the husband is more stirred by the adultery of his wife than by the murder of his son. [Citations.] Yes, and even more than by the defilement of his daughter. [Citation.] So that if a husband does not complain of the adultery of his wife, he is considered a pimp, as Paschal holds, where we read recently: "Adultery of the wife gives offence not merely to the husband, but blackens and stains the entire kin." [Citations.] That this happened in the present case is plainly evident; for Abate Paolo, brother of Guido, was compelled not only to leave the City, in which he had lived for many years with highest praise, but even to pa.s.s out of Italy, because he was pursued undoubtedly by the greatest disgrace on account of this adultery.

While he was carrying on Guido's cause in the courts, he moved the laughter and sneers of almost all sensible and wise men, not to say of the very judges themselves, as usually happens in these circ.u.mstances.

[Citations.]

Nor would it stand in the way of what we have said above, if without prejudice to the truth, we should admit (as the Fisc claims) that Count Guido killed his wife with the complicity and aid of the said Blasio, Domenico, Francesco, and Alessandro, a.s.sembled for that purpose; for he could do that in order to take vengeance upon her more easily and more safely. [Citations.]

[Nor would it stand in our way if we admitted] that he had a.s.sembled the said men by means of money. [Citations.]

Nor does this plea of injured honour cease with regard to the murders of the said father-in-law and mother-in-law; for since their conspiracy in the adultery of their daughter is established, they themselves were among the causes of the injury and ignominy which resulted therefrom to the prejudice of the honour and reputation of Count Guido, their son-in-law, and her husband respectively.

Therefore, these murders likewise ought to be punished with the same penalty as the princ.i.p.al, according to texts in the law _Qui domum_.

[Citations.] And so they gave cause enough to Count Guido to take vengeance on them.

It is to be added, furthermore (as will be proved indeed, and as Count Guido himself has a.s.serted in his testimony), that they themselves did another injury to his reputation by means of the civil suit which they brought on the grounds of the pretended birth of Francesca Pompilia; and not merely here in the City, but also in his own country, they distributed the most bitter libels, which were added to this same lawsuit. Hence it cannot be denied that Count Guido for this reason had conceived a just anger and provocation, and that he had just cause for taking vengeance. This is according to the text [Citation], where Alexander the Third wrote to the Bishop of Tournay that a certain woman who had killed her child should be placed in a monastery, because she was reproached by her husband with the accusation that it had been conceived in adultery. For in crimes where anger does not entirely excuse, still the delinquent who kills in anger conceived from just grievance is somewhat excused. [Citation.]

And this is true in spite of the fact that the Fisc may claim that the penalty given in the Const.i.tution of Alexander has been incurred. For in the present case the crime cannot be said to have been committed on account of hatred aroused by the lawsuit; for in that suit Count Guido had gained a favourable sentence from Judge Tomati, which was sanctioned by the Supreme Tribunal of Justice. But the crime was committed indeed because of his just indignation. And this arose, first, from the ignominy growing out of the said pretence as to her birth; second, from the provocation given by the Comparini (now slain) in issuing and distributing the said papers; and, third, from their conspiracy in the flight of his wife. For indeed this Const.i.tution of Alexander does not apply where no guile is present and where some provocation has been given by the one hurt. Farinacci very fully affirms this throughout _cons. 67_, where in the end he places the complete decision of the Sacred Court.

In any case, since with Count Guido two causes for committing crime concurred: one the aforesaid matter of the lawsuit, another wounded honour because of the lawsuit brought and the flight in which they conspired, wherefrom the adultery had followed, the cause of honour should be given attention, as it is the graver and consequently the more proportionate to the crime. [Citations.]

Likewise the penalty should not be increased in view of the place of the crime, because the defence of one's honour is so justifiable, and the anger and commotion of mind arising therefrom is so just, that reason for it cannot be demanded, as Merlin Pignatelli [Citation]

holds, because Giovanni Francesco de Carrillo [Citation] speaks of an insult offered in prison. And No. 29 approves the decision for the reason that greater reverence is due to churches and other places consecrated to G.o.d, and in which the King of Kings and Lord of Lords dwells in essence; and yet one who commits crime in them from just anger and grievance is excused; for he a.s.serts that all Canonists and other authorities there alleged by him unanimously acknowledge this.

More readily, therefore, should this conclusion follow in our case, since the said Francesca was not staying in a formal prison, but was merely keeping her home as a prison, under security of 300 scudi, that she would not depart therefrom; because one who has given bond and has sworn not to leave a place is neither in chains nor in custody.

[Citations.]

Lucano holds that there are differences between being kept in chains and being committed under bond, etc. And Farinacci holds that the word "custody" should be more strictly interpreted than the word "chains."

[Citations.]

Even if, therefore, Count Guido had confessed that he killed his own wife, his father-in-law, and his mother-in-law, with the complicity and aid of the above-named helpers, he should not be punished with the ordinary penalty, for reasons given above. And much more readily should we follow this opinion since we can see that he confessed only that he gave commands for mutilating his said wife (_ad sfrisiandum_), if I may use the word of the authorities. In this case he is not to be held responsible for the subsequent death of his wife and of the others. Decian, _cons. 622, no. 4_, in this very condition, holds that one giving orders can be punished only for the manner of committing the crime for which bodily punishment cannot be inflicted.

Thus far the Fisc has been unwilling to rest satisfied with such a qualified confession. Yet since he claims the right to torture the accused for proving some further pretended truth, the torture shall be simple; nor can the torment of the vigil be inflicted; because the Const.i.tution given out by Pope Paul Fifth, of sacred memory, for the reformation of the courts of the City, stands in the way of that. This is included among his Const.i.tutions as the 71st. By this it was decreed that such torment could not be inflicted unless these two features jointly concur: namely, that the crime be very atrocious and that the accused be burdened with the strongest proofs. [Citations.]

But a crime is said to be "very atrocious" provided it is one for which a penalty more severe than mere death should be inflicted, such as useless mutilation, burning, and the like. _Farinaccius qu. 18, num. 68_, etc. And such a death, as ignominious and infamous, has no place with the persons of n.o.bles. [Citations.]

Hence it is much less so here, because we are not arguing about the death penalty even, which does not enter into the present case for reasons given above. And Gabriellus speaks to this effect on the point that such a crime may not be said to be qualified.

What has been said in favour of Guido, the princ.i.p.al, also stands in favour of the aforesaid Blasio, Domenico, Francesco, and Alessandro; because they cannot be punished with the ordinary penalty, but only with the same penalty as the princ.i.p.al. [Citation.] Baldo cites a case under the statute which shows that one under bann for a certain crime cannot be killed save by the enemy who had him put under bann; and he says that if the enemy has him a.s.sa.s.sinated, the a.s.sa.s.sin is not punished. And he gives this reason, that what is permissible in the person of the one giving the order should be held as permissible in the one to whom orders are given; and he says it had been so held in a case under that law. Castro [Citation] holds that when one is permitted under the statute to take vengeance upon a person who has given him offence, he is also permitted to a.s.semble his friends, to afford him aid, and that they shall go unpunished, just as the princ.i.p.al does. He also a.s.serts that Jacobus Butrigarus [Citation], held thus, in _cons. 277_, where he speaks of the case of a husband who had a.s.sembled men to beat one who had wished to shame the modesty of his wife, he ordered his wife to pretend to give ear, and when the intriguer had come, murder was committed. And he says that men brought together in this way should be spared, because such an a.s.sembly was permissible for the husband, who was princ.i.p.al. [Citation.] Jason holds that in any vengeance permitted by law, one cannot demand it of another; yet he to whom it is permitted may take fellows and accomplices with him for the same act, and if they kill in company with him they shall not be held to account for the murder nor for the aid they have given; and he says that this opinion should be much kept in mind. Caepollinus also ill.u.s.trates this in several cases, especially in that of certain men who had killed one keeping the company of the sister of the man who had a.s.sembled them; and he says that they should not be punished, just as the princ.i.p.al was not, and he gained his point so that it was thus adjudged. [Citations.]

Soccini also holds it should be thus adjudged, unless one wishes to say that they should be punished with a slighter penalty than the princ.i.p.al, as often happens in the case of auxiliaries. And he speaks in our very circ.u.mstances of men a.s.sembled by a husband for the sake of killing one who had polluted his wife. In these same circ.u.mstances, see also Parisius. [Citation.] Carera [Citation] speaks of a father who had his daughter (who had been keeping bad company) killed by an a.s.sa.s.sin; and he says that neither the father nor the murderer are to be held to account. [Citation.]

Marsilius also, after placing in the very beginning this principle that when one matter is conceded all seem to be conceded which lead thereto, draws inference therefrom for the present case and many reasons for it are adduced. Ca.s.sanis also [Citation] holds that men a.s.sembled in this way are not held responsible either for the murder or for the aid furnished, if they do the killing in the company of the princ.i.p.al. And in these same circ.u.mstances Garzonus speaks, decision 71, throughout.

Nor does it stand in the way of our reasoning that one of the aforesaid defendants had inflicted wounds with his own hands, or had killed one of the victims; as Francesco has confessed that he inflicted four or five wounds in the back of Francesca Pompilia. Even in these circ.u.mstances the rule holds good that auxiliaries shall not be punished with greater penalty than the princ.i.p.al. And so affirm individually the following authorities among those recently cited.

[Citations.]

And Garzoni testifies that it was so adjudged in the said decision 71, where we read: "Or he may have with himself a.s.sociates for this act,"

and if they kill the adulterers in company of the princ.i.p.al they are held to very slight account, either for the murder or for the aid given, and it was so adjudged.

And even in the more extreme case of one killing by a.s.sa.s.sination, and consequently in the absence of the princ.i.p.al, this is the opinion of Baldo [Citation], where we read: "And now it is inquired whether an a.s.sa.s.sin is ever punished, and I say he is not; because what is permitted in the person giving command is also permitted in the person commanded." Castro [Citation] also says: "Because what I can do of myself I can have done through my helpers who are necessary for that purpose." And Afflitto [Citation] says: "Either with one's own hands, or by help of another, even with the influence of money, and thus by an a.s.sa.s.sin; for Baldo says on this same point: 'What is permitted in the person giving command is also permitted in the person commanded'; and he witnesses that it was so adjudged." [Citations.] Marta [speaks as follows]: "Much more so because authorities affirm that a husband, who on account of fear cannot kill the adulteress, may even by the help of money demand of another that he kill her, and neither of them is then to be punished."

But whatever Caballus [Citation] may say to the contrary, he bases his opinion upon Castro and Rollandus. Castro, however, favours our opinion, as is to be seen in No. 3. Rollandus should not be given heed; for when he offers this very same opinion about the statute which permits any one to take vengeance; and says that since this kind of permission is personal, it cannot be pa.s.sed on from one to another, this opinion of his is expressly contrary to the teaching of Baldo, Castro, Jason, and others, whom we have alleged above in paragraph _quae dicta sunt_. And since this opinion of ours is milder and more equitable, it should hold good, as Jason decides on this point.

[Citation.]

Nor can the punishment be increased because of the alleged carrying of prohibited arms; because the latter offence is included then with the real crime. [Citations.] In Guazzin we read that this is so, even if for the carrying of the arms a greater penalty would be inflicted [than for the princ.i.p.al offence]. And so, whenever it is evident that the crime has been committed for honour's sake and for a just grievance, as in the present case, the carrying of the arms may go unpunished, or at least it should not be punished with a more severe penalty than should be imposed for the princ.i.p.al crime itself. Thus Policardus [Citation] well affirms when speaking of arms which are considered treacherous by the Banns.

These claims should hold good more readily as regards Domenico and Francesco, who are foreigners, and are therefore not included in any of the Apostolic Const.i.tutions or Banns, which prohibit the bearing of arms under very heavy penalties. [Citations.]

Especially since they are minors, as is made clear in the course of the trial, pp. 35 and 304; in which case they are likewise not bound by these Const.i.tutions and Banns, which give judgment upon the crime of a minor. For the power to make and establish such regulations was lacking in the Prince or public official concerned. [Citations.]

Such are the matters which, in view of the excessive scantiness of time, I have been able to collect in discharge of my duty for the defence of these poor prisoners. Nor do I at all distrust that my Lords Judges, when they see that too little has been said, will wish to supply and offer what is lacking out of the high rect.i.tude for which they are distinguished. For this would be quite in accord with the decree of Emperors Diocletian and Maximian, as related.

[Citation.] And they will follow the advice of Hippolitus Marsilius, famous in criminal proceedings, who says that a judge is obliged by his office to seek out grounds of defence for the accused.

[Citations.]

DESIDERIO SPRETI, _Advocate for the Poor_.

[File-t.i.tle of Pamphlet 3.]

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

_ROMAN MURDER-CASE._

_In behalf of Blasio Agostinelli and his a.s.sociates, Prisoners, against the Fisc._

_Memorial of fact and law._