Transcriber's Note:
Obvious typographical errors have been corrected. Inconsistent spelling and hyphenation in the original document have been preserved.
Frequent reference is made to material not included in this text, often, but not always indicated by [Citation] or a page reference. Hyper-links are provided, therefore, only when references are clearly internal.
EVERYMAN'S LIBRARY
EDITED BY ERNEST RHYS
POETRY AND
THE DRAMA
THE OLD YELLOW BOOK
BEING A SUPPLEMENTARY VOLUME TO
"THE RING AND THE BOOK"
TRANSLATED AND EDITED BY
CHARLES W. HODELL
THIS IS NO. 503 OF EVERYMAN'S LIBRARY. THE PUBLISHERS WILL BE PLEASED TO SEND FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND PROJECTED VOLUMES, ARRANGED UNDER THE FOLLOWING SECTIONS:
TRAVEL * SCIENCE * FICTION
THEOLOGY & PHILOSOPHY
HISTORY * CLASSICAL
FOR YOUNG PEOPLE
ESSAYS * ORATORY
POETRY & DRAMA
BIOGRAPHY
REFERENCE
ROMANCE
IN FOUR STYLES OF BINDING: CLOTH, FLAT BACK, COLOURED TOP; LEATHER, ROUND CORNERS, GILT TOP; LIBRARY BINDING IN CLOTH, & QUARTER PIGSKIN
London: J. M. DENT & SONS, Ltd.
New York: E. P. DUTTON & CO.
POETS
ARE THE
TRUMPETS
WHICH SING
TO BATTLE ...
POETS
ARE THE
UNACKNOWLEDGED
LEGISLATORS
OF THE
WORLD
SHELLEY
THE OLD YELLOW BOOK:
Source of
Robert Browning's
THE RING
& THE BOOK
London & Toronto
J. M. DENT & SONS
LTD. NEW YORK
E. P. DUTTON & CO
| First Issue of this Edition | 1911 |
| Reprinted | 1917 |
PUBLISHERS' NOTE
Some years before his death Browning promised to leave the Old Yellow Book, together with other books and manuscripts, to Balliol College, Oxford, and his son carried out the promise soon after the poet's decease. The Carnegie Institution of Washington, D. C., has reproduced the entire book in photo-facsimile, with translation and editing by Charles W. Hodell. The Publishers gratefully acknowledge the kindness and generosity of the Institution in allowing the translation of the Yellow Book to be reproduced in the present volume. They have also to acknowledge their indebtedness to Professor Hodell for the courtesy he has shown, and the great help he has given in editing these volumes. Hitherto the work has been practically inaccessible to British readers, and in its new dress it is hoped it will be found invaluable in interpreting the greatest work of Robert Browning.
INTRODUCTION
The Old Yellow Book is a soiled and bloody page from the criminal annals of Rome two centuries ago, saved apparently by mere chance for the one great artist of modern literature who could best use it, and who has raised this record of a forgotten crime to a permanent place in that ideal world of man's creation where Caponsacchi and Pompilia have joined the company of Paolo and Francesca, of the Red Cross Knight, of Imogen, of Marguerite and Faust, and of Don Quixote.
One June day of 1860, Robert Browning passed from the Casa Guidi home to enjoy the busy life of Florence. There, "pushed by the hand ever above my shoulder," he entered the Piazza of San Lorenzo:
crammed with booths, Buzzing and blaze, noontide and market-time.
He had brought home from such wanderings many a rare old tapestry, or picture, or carving from the long artistic past of the city. This day his eye caught the soiled, vellum-covered volume, crowded between its insignificant neighbours. "One glance at the lettered back," declares the poet, "and Stall! a lira made it mine." All the way home and all day long, he pored over these pages, until by nightfall he had so mastered the facts of the case that the whole tragedy lay plain before his mind's eye.
The book led him, and leads us, back to the morning of January 3, 1698, when all Rome was astir with the sensation of a brutal assassination. The aged Comparini, cut to pieces in their own home in the very heart of Rome on the evening before by a band of assassins, were now exposed to the view of an excited mob of the curious and idle. Pompilia, desperately wounded, lay a-dying. A police captain and posse were in pursuit of the criminals, one of whom was a nobleman who had held office in the household of one of the great cardinals. Toward night the criminals were brought back to the city, and were followed through the streets to the prison doors by a great throng.
Just seven weeks later and again Rome was throbbing with excitement. Unwonted crowds were pressing into the Piazza del Popolo, where gallows and scaffold had been prepared. At last, up the Corso filed the Brotherhood of Death with their black gowns and great cross, and behind them, in separate carts, the five criminals. In the midst of a sea of upturned faces Guido and his fellows met their end, and the curtain fell.
The Old Yellow Book is the record of the court procedure of those seven intervening weeks, and shows us the whole legal battle fought to save Guido, while Rome looked on with the fascinated interest which has always attended the great murder trials. It includes the lawyers' arguments for and against the accused, together with a part of the evidence brought into court, and some additional miscellaneous data on the case. All this had evidently been assembled by the Florentine lawyer, Cencini, to whom certain letters included are addressed. He seems to have been interested in the case as a precedent on an important and much disputed point of law, "whether and when a husband may kill an adulterous wife." Cencini may also have had some professional relation with the Franceschini family at Arezzo. At any rate, he set the material in order, provided title-page and index, and a transcript of the record in a criminal case against Pompilia in the Tuscan courts (pp. [5]-[7]), and bound it securely in the vellum cover which conveyed it to the poet's hands more than a century and a half later.
Whatever meaning this volume may have as a legal precedent, it had for Browning, and has for the lay reader, a deep human interest as the incomplete record of a sordid series of intrigues for certain properties, ending at last in a fearful crime.
Guido Franceschini, scion of a noble but impoverished Tuscan family, had sought his fortunes in Rome, and had attained a secretaryship in the household of Cardinal Lauria. His brother, the Abate Paolo, a shrewd and effective man, rose much higher, at last attaining important office among the Knights of St. John. Guido, less astute and less ingratiating, reached middle life with but scant success, and at last was left unprovided. With the assistance of Abate Paolo, he planned to recoup his fortunes by a bourgeois marriage. Though past forty years of age and of unattractive appearance, he won, by his noble name and subtle intrigue and falsification, the thirteen-year-old daughter of the Comparini, of the well-to-do middle class of Rome. After the marriage in December 1693, Pompilia and her parents accompanied Guido back to Arezzo, where, in the ruinous Franceschini palazzo, the Comparini had ample opportunity to repent their folly. Bitter contentions soon arose, and at last the Comparini fled from the brutalities of their son-in-law, and returned to Rome. There they published broadcast the sordid poverty and the ignoble brutality of their persecutors, probably printing and circulating the affidavit of the servant (pp. [49]-[53]). Guido seems to have retorted by circulating the forged letter from Pompilia (pp. [56], [57]). But they struck a more deadly blow at the pride of the Franceschini when they revealed that Pompilia was not their own child, but was of ignominious parentage. And in the spring of 1694 they brought suit before Judge Tomati for the recovery of the dowry monies paid to Franceschini—a bitter humiliation to the greedy poverty of the Franceschini. It must have been a scandalous suit, bringing dishonour to both parties as their domestic difficulties were exposed to the throngs of the curious. In this trial were adduced the letters of the governor (pp. [89], [90]) and of the Bishop of Arezzo (p. [99]). The Comparini lost their suit, but appealed to the Rota, and their case was pending for several years, during which time they may have baited the Franceschini with spiteful scandals.
In the meantime, the child-wife, Pompilia, was left in desperate plight—despised and hated by her husband's family. Her situation grew intolerable. Guido had evidently determined to rid himself of her without relaxing his grip on her property. His brutalities were systematic and cunning. At last she was driven to flee for her life, and on April 29, 1697, made her escape under the protection of Caponsacchi, a gallant young priest. It was a desperate step, gravely reprehensible in the eyes of the world. The fugitives pressed toward Rome, but Guido overtook them at Castelnuovo, fifteen miles short of their destination, and had them arrested.
At Rome, criminal charges of flight and adultery were brought against them. This Process of Flight, as it is repeatedly called in the Yellow Book, continued all through the summer. It was for their defence in this case that Pompilia and Caponsacchi made their affidavits (pp. [90] and [95]), giving their motives for the flight. At the same time Guido urged the evidence of the love-letters (pp. [99]-[106]), which he claimed to have found at the time of the arrest of the fugitives. In September, judgment was rendered against Caponsacchi—relegation for three years to Civita Vecchia—a punishment commensurate with indiscretion rather than with crime. Pompilia was unsentenced, but was retained for a month in safekeeping in the nunnery delle Scalette, and was then permitted to return to the home of her foster-parents, the Comparini, though still technically a prisoner in this home (p. [159]). Here on December 18 a boy was born.
On Christmas Eve, Guido reached Rome with four young rustics, whom he had hired to assist him in the assassination. For a week he lurked in the villa of his brother, Abate Paolo, who had left Rome. Then, on the evening of January 2, he won entrance to the home of the Comparini by using the name of Caponsacchi. The parents were instantly stabbed to death, and Pompilia was cut to pieces with twenty-two wounds. Leaving her for dead, Guido and his cut-throats fled, as the outcries of the victims had given the alarm. That night they travelled afoot nearly twenty miles, but were pursued by the police, and were arrested with the bloody arms still in their possession.
Such was the crime, and the Old Yellow Book is the record of the legal battle over the assassins, which was fought through the criminal courts of Rome, presided over by Vice-governor Venturini. The prosecution and defence alike were conducted by officers of the court, two lawyers on each side, the Procurator and Advocate of the Poor for the defendants, and the Procurator and Advocate of the Fisc against them. As the fact of the crime was definitely ascertained, the legal battle turned entirely on the justification or condemnation of the motive of the crime. The defence maintained that the assassination had been for honour's sake, and the unwritten law, to which appeal is made in generation after generation, was urged at every point. That Guido had suffered unspeakable ignominy cannot be denied; that his wife had been untrue to him even in the perilous flight with Caponsacchi is unproved, as the courts had evidently held in the Process of Flight. The prosecution, on the other hand, reiterated in every argument their reading of Guido's motive—greed. Greed had led him to marry Pompilia. Greed had occasioned his disgraceful wranglings with the Comparini. Defeated greed had made him torture his wife into scandalous flight, and calculating greed had led him to commit the murder at a time and in a manner to save the whole property to himself. Still further, said the prosecution, not only was his motive bad, but the crime was committed in a way which involved him in half a dozen accessory crimes, each of them capital. Such is the drift of the argument, which is fortified at every point by citation of precedent from the legal procedure of all ages. Altogether it is a highly skilled legal battle according to the technical limitations of the game, while the simple appeals to equity and to common human feeling hardly enter at all.
The trial proceeded in two stages. The earlier one, during the latter half of January, was opened by Arcangeli ([pamphlet 1]), supported by Advocate Spreti ([pamphlet 2]). The prosecution is opened by Procurator Gambi ([pamphlet 5]), supported by Advocate Bottini ([pamphlet 6]). Arcangeli and Bottini make further argument in [pamphlets 3] and [14]. Two pamphlets of evidence were assembled and printed—for the defence, [pamphlet 7]; and for the prosecution, [pamphlet 4]. The latter part of this stage of the case is much occupied with arguing whether Guido and his companions may be tortured to get a fuller statement from them. In spite of the efforts of Guido's attorneys, the torture was evidently decreed, and fuller evidence was forced from the defendants, though one of them bore the torture till he fainted twice. The trial then enters on its second stage, in which, after some preliminary skirmishing about the legality of the torture and the status of the evidence given under this torture, the lawyers settle to their most masterly work. Arcangeli and Spreti develop an elaborate and skilled defence ([pamphlets 8] and [9]), and are answered by Bottini's masterpiece for the prosecution ([pamphlet 13]). Spreti closes the defence in [pamphlet 16]. [Pamphlet 11] presents some additional matters of evidence.
All these arguments and summaries of evidence were printed by the official papal press (see the imprint Typis Rev. Cam. Apost.), probably overnight, between the sessions of the court, as typewritten briefs would be prepared to-day. Few copies were printed, and these were solely for the judges and attorneys in the case. There would be no popular circulation of them in Rome at large. The particular copies included in the Old Yellow Book were probably gathered by one of these attorneys, and sent to Signor Cencini in Florence (letter iii. p. [238]).
We need but look to our own age to rest assured that outside of the court room all Rome was athrill with interest in this murder case, and was speculating on the fate of the accused. The attorneys for the defence, in the midst of the trial, made a sudden appeal to this public interest and sought the support of public sentiment by means of an anonymous pamphlet ([pamphlet 10]) written in Italian and printed without an imprint or signature, but evidently addressed to the bar of public opinion. It seems to have been written by Guido's lawyers, or their lackeys, for it repeats the various points already made in the arguments. Whether it was distributed free or was sold for a small price, it must have been seized and devoured by all Rome as are the journalistic reports of notorious criminal trials to-day. We can imagine the alarm of the prosecution when they perceived this flank movement against them. With all possible haste they prepared their reply, also in Italian and without signature or imprint, and probably within a day or two had issued this response ([pamphlet 15]), which meets the other pamphlet at every point, and bitterly arraigns the greed of Guido. These two pamphlets evidently suggested to Browning his "Half-Rome" and "Other Half-Rome."
There must have been other popular exploitations of this crime. Two manuscript Italian narratives of it have been discovered. The first of these (pp. [259]-[266]) was found in London and sent to Browning, who used it extensively in writing his poem. The second (pp. [269]-[281]) was discovered a few years ago in Rome. Other accounts may yet come to light.
The trial of Guido and his companions was carried forward to a prompt judgment, and on February 18 they were pronounced guilty and were condemned to death. A technical staying of sentence for four days was granted by reason of Guido's clerical privilege, but execution followed on February 22. The Old Yellow Book includes three original letters (pp. [237]-[8]) written from Rome immediately after the execution to Signor Cencini at Florence.
Yet the case was not quite at an end. A number of civil suits were promptly instituted by various claimants for the property of the Comparini. The Franceschini still pushed their claim in spite of the infamy they had suffered for that property. Pompilia's executor, Tighetti, claimed all in trust for the child, Gaetano. Then the refuge of the Convertites, under their legal right to the property of all women of evil life who died in Rome, accused the memory of Pompilia and claimed her property. The case seemed to be entering on one of those interminable struggles in court. The Procurator Lamparelli ([pamphlet 17)] goes back to analyse again the motives in the whole case and to justify Pompilia's innocence. The remainder of this trial is lost to us save for the final Definitive Sentence of the courts ([pamphlet 18)], issued in September 1698, which clears the memory of Pompilia entirely and for ever in the eyes of the law.
This was the record which fell into Browning's hands. The poet tells of his immediate interest in the tragedy, partly due to that common human interest in great crimes, partly to the casuistic presentation of motive throughout the Book, partly to his championing the rights of Pompilia, dishonoured and slain not merely by a brutally selfish husband, but by a corrupt social condition around her.
After some delay, Browning saw his way to embody in art the story which had interested him so deeply. The plan came to him, according to W. M. Rossetti, one day while he was walking at Biarritz, and from 1862 till the publication in 1868-9, he was working continuously on The Ring and the Book. He had mastered every detail of the Yellow Book by continuous re-readings, and in his art he was scrupulously, but never laboriously, accurate to the facts before him. In the poem he names thirty-three persons exactly as he found them in his original. Place names are adopted with the same accuracy. The specific dates recorded in the Book are followed at all points, save in the significant change of the date of Caponsacchi's rescue of Pompilia from April 29 to 23, St. George's Day. The incidents of the tragedy, even when compromising to Pompilia, whose cause he championed, are used without repression or falsification. And perhaps most remarkable of all, the poet had mastered all the technical paraphernalia and phraseology of the lawyers, and uses these with minute care, not entirely devoid of misunderstanding and error. In the Book he found all the points of law, all the precedents and authorities, and almost all of the Latin phrases and sentences found in the monologues of the lawyers of the poem. A remarkable instance of this is seen in his word for word adaptation of the long peroration of Arcangeli ([pamphlet 8)] in the close of the monologue of the Arcangeli of the poem. And the actual letter of Arcangeli (p. [235]) is reproduced verbatim in the poem, book xii. ll. 239-88. Altogether the poet affords one of the most remarkable illustrations of literal and detailed accuracy in the use of the raw material of art.
Yet here, as in all cases of true art, the greatness of the final product lies not so much in the material that fell to the artist as in the personal resource and power within himself which was able to use the material. Browning found suggestion for a suffering saint in Fra Celestino's report of Pompilia's death-bed (pp. [57], [58]), but the Pompilia of the poem embodies the poet's deepest insight into womanhood with all its spiritual relationships, in the love of man, the passion of maternity, and devotion to God. Browning ascertained in the Book that Caponsacchi was a resolute man, who had involved himself in many perils for the sake of Pompilia, but from his own personal resource of manly devotion, of chivalrous daring, of passionate indignation at wrong, of spiritual tenderness and reverence, he created a Caponsacchi. In the Book he found every turn of the cunning, of the greed, of the brutality of Guido and his family, but from his own deep realisation of the power of evil in the world, and of the black depravity of the lowest forms of humanity, he created his Franceschini. Thus at every point, founding himself on the fact of the Book, he is able to set forth this tragedy to the world as it grew in his own imagination while searching his own heart and the hearts of others through many years. And the chance-found Old Yellow Book at last occasioned the most profound utterance Robert Browning was to give to the world in all that concerns the human heart and its motives as they play the drama of the world before the eye of the Almighty.
"Do you see this square old yellow book ... pure, crude fact. Give it me back! The thing's restorative
I' the touch and sight."
A Setting-forth
of the entire Criminal Cause
against
GUIDO FRANCESCHINI, Nobleman
of Arezzo,
and his Bravoes,
who were put to death in Rome,
February 22, 1698.
The first by beheading, the other four by the gallows.
ROMAN MURDER-CASE.
In which it is disputed whether and when a Husband
may kill his Adulterous Wife without
incurring the ordinary penalty.
CONTENTS
Sentence of the Criminal Court of Florence in the criminal case against Gregorio Guillichini, Francesca Pompilia Comparini, wife of Guido Franceschini, etc. December 1697
Argument in defence of the said Franceschini of the Honourable Signor Giacinto Arcangeli, Procurator of the Poor in Rome, made before the congregation of Monsignor the Governor
Argument of the Honourable Signor Advocate Desiderio Spreti, Advocate of the Poor, in defence of said Franceschini and his associates
Argument of the abovesaid Signor Arcangeli in defence of Biagio Agostinelli and his companions in crime
Summary of fact made in behalf of the Fisc
Argument of Signor Francesco Gambi, Procurator of the Fisc and of the Reverend Apostolic Chamber, against the abovesaid Franceschini and his companions in crime
Argument of Signor Giovanni Battista Bottini, Advocate of the Fisc and of the Reverend Apostolic Chamber, against the abovesaid
Summary of fact in behalf of Franceschini and his associates in crime
Another Argument of the abovesaid Signor Arcangeli in favour and defence of the abovesaid
Another Argument of Signor Advocate Spreti in favour of the above
An Account of the facts and grounds, made and given by an Anonymous Author
Another Summary made on behalf of the Fisc
Argument of Signor Gambi, Procurator of the Fisc, against the abovesaid Franceschini and his companions
Another Argument of the Signor Giovanni Battista Bottini, Advocate of the Fisc
Another Argument of the abovesaid against the said Defendants
A Response of the abovesaid account of fact as given by the Anonymous Author
Argument of Signor Advocate Spreti in favour of Franceschini, etc.
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
Two other Letters, one written by Signor Gaspero del Torto and the other by Signor Carlo Antonio Ugolinucci to the aforesaid Monsignore Francesco Cencini
Argument of Signor Antonio Lamparelli, Procurator of the Poor in the said case
The Sentence of Signor Marco Antonio Venturini, Judge in Criminal causes, which declares that the said adultery was not proved, and which restores to her original fame the memory of Francesca Pompilia Comparini, wife of Guido Franceschini
The Secondary Source of "The Ring and the Book"
Trial and Death of Franceschini and his Companions
But for me the Muse in her strength prepares her mightiest arrow.
Facsimile Page from the Original "Old Yellow Book."
SENTENCE OF THE CRIMINAL COURT OF FLORENCE
February 15, 1697 A.D.
Attestation by me undersigned how, in the order of the affairs of the Governors, which are set before His Serene Highness, in the Chancery of the Illustrious Signori Auditori of the Criminal Court of Florence, there appears among other affairs of business, under decision 3549, the following of tenor as written below, that is Arezzo against
1. Gregorio, son of Francesco Guillichini, not described.
2. Francesca Pompilia Comparini, wife of Guido Franceschini, and
3. Francesco, son of Giovanni Borsi called Venerino, servant of Agosto, Host at the "Canale,"
because the second Accused, against her honour and conjugal faith, had given herself up to dishonest amours with the Canon Giuseppe Caponsacchi and with the first Accused, who instructed her, as you may well believe, to part from the aforesaid City of Arezzo, the evening of April 28, 1697. And, that they might not be discovered and hindered, the second Accused put a sleeping-potion and opium in her husband's wine at dinner. At about one o'clock the same night, the said Canon Caponsacchi and the first Accused conducted the aforesaid second Accused away from the home of her husband. As the gates of the city were closed, they climbed the wall on the hill of the Torrione; and having reached the "Horse" Inn, outside of the gate San Clemente, they were there awaited by the third Accused with a two-horse carriage. When Canon Caponsacchi and the second Accused had entered into the said carriage, the word was given by him, the aforesaid first Accused, and they set out then upon the way toward Perugia, the said third Accused driving the carriage as far as Camoscia. And while they were travelling along the road they kissed one another before the very face of the third Accused.
Still further, the second Accused, along with the first Accused and Canon Caponsacchi, carried away furtively from the house of the said Guido, her husband, from a chest locked with a key, which she took from her husband's trousers [the following articles]: About 200 scudi in gold and silver coin; an oriental pearl necklace worth about 200 scudi; a pair of diamond pendants worth 84 scudi; a solitaire diamond ring worth 40 scudi; two pearls with their pins, to be used as pendants, 6 scudi; a gold ring with turquoise setting worth 2 scudi; a gold ring set with ruby worth 36 scudi; an amber necklace worth 5 scudi; a necklace of garnets alternated with little beads of fine brass worth 6 scudi; a pair of earrings in the shape of a little ship of gold with a pearl worth 16 scudi; two necklaces of various common stones worth 4 scudi; a coronet of carnelians with five settings and with a cameo in silver filigree worth 12 scudi; a damask suit with its mantle, and a petticoat of a poppy colour, embroidered with various flowers, worth 40 scudi; a light-blue petticoat, flowered with white, worth 8 scudi; two vests to place under the mantle worth 2 scudi; a pair of sleeves of point lace worth 20 scudi; another pair of sleeves fringed with lace worth 5 scudi; a collar worth 4 scudi; a scarf of black taffeta for the shoulder with a bow of ribbon worth 8 scudi; an embroidered silk cuff worth 14 scudi; two aprons of key-bit pattern with their lace worth 12 scudi; a pair of scarlet silk boots worth 14 scudi; a pair of woollen stockings, a pair of white linen hose, and a pair of light-blue hose, worth 5 scudi; a snuff-coloured worsted bodice with petticoat, ornamented with white and red pawns, worth 3 scudi; a blue and white coat of yarn and linen, adorned with scarlet and other coloured ornaments, worth 10 scudi; a worsted petticoat of light-blue and orange colour, striped lengthwise, with yellow lines and with various colours at the feet, worth 14 scudi; an embroidered petticoat worth 9 scudi; a silk cuff worth 5 scudi; four linen smocks for women worth 14 scudi; a pair of shoes with silver buckles worth 8 scudi; many tassels and tapes of various sorts worth 14 scudi; six fine napkins worth 7 scudi; a collar of crumpled silk worth 7 scudi; two pairs of gloves of a value of 4 scudi; four handkerchiefs worth 5 scudi; a little silver snuff-box with the arms of the Franceschini house upon it worth 16 scudi; a coat of her husband Guido, rubbed and rent by the lock of a chest where he kept part of the aforesaid clothing. And they had converted the whole to their own uses against the will of the same, the first Accused and Canon Caponsacchi having scaled the walls of the city in company with the second Accused, as soon as she had committed adultery with them. And the said third Accused had given opportunity for flight to the said second Accused along with the Canon, in the manner told.
Therefore the Commissioner of Arezzo was of opinion to condemn arbitrarily the first Accused to five years' confinement at Portoferrio with the penalty of the galleys for the same length of time, not counting the reservation of 15 days to appear and clear himself; to condemn the second Accused to the penalty of the Stinche for life and to the restitution of what was taken away, with the abovesaid reservation; and that the third Accused be not prosecuted further and be liberated from prison. But the Criminal Court was of opinion that the first Accused should be condemned to the galleys during the pleasure of His Serene Highness, with the said reservation. As to the second Accused, who was imprisoned here in Rome, in a sacred place, it suspended the execution. And for the third, who had done no voluntary evil, it gave up further inquiry.
Again proposed in the said business before His Serene and Blessed Highness with the signature of December 24, 1697.
The opinion of the Court stands approved.
In sign of which,
I, Joseph Vesinius, J. V. D., an official
in the Criminal Court of Florence,
etc., in faith whereto, etc.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE
On Behalf of Count Guido Franceschini,
Prisoner, against the Fisc.
Memorial of fact and law.
At Rome, in the type of the Reverend Apostolic Chamber,
1698.
[Pamphlet 1.]
Most Illustrious and Most Reverend Lord Governor:
Count Guido Franceschini, born of a noble race, had married, under ill omen, Francesca Pompilia, whom Pietro and Violante had asserted (even to one occupying a very high office) to be their own daughter. After a little while, she was taken to Arezzo, the country of her husband, along with her foster-parents, and was restrained from leading her life with utter freedom. Yet she has made pretence that she was hated on the pretext of sterility, as is clearly shown in her deposition during her prosecution for flight from her husband's home. Both she and her parents took it ill that they were denied their old free life, and they urged their daughter to make complaint before the Most Reverend Bishop, saying that she had been offered poison by her brother-in-law. At the departure of this couple, when they were about to return to the City, they most basely instigated her—yes, and even commanded her by her duty to obey them—that she should kill her husband, poison her brother-in-law and mother-in-law, and burn the house; and then with the aid of a lover to be chosen thereafter, she should put into effect her long-planned flight back to the City. (But all this should be done after their departure, lest they might seem to have given her evil counsel.) [Such facts] may be clearly deduced from one of the letters presented as evidence in the same prosecution.
When these pseudo-parents had returned home, they declared that Francesca was not born of themselves, but had been conceived of an unknown father by a vile strumpet. They then entered suit before Judge Tomati for the nullification of the dowry contract.
Day by day the love of Pompilia for her husband kept decreasing, while her affection for a certain priest was on the increase. This affair went so far that on an appointed night, while her husband was oppressed with sleep (and I wish I could say that she had no hand in this, and had not procured drugs from outside), she began her flight from her husband's house toward Rome, nor was this flight without theft of money and the company of her lover. Her most wretched husband pursued them, and she was imprisoned not far from the City. Then, when after a short time they were brought to trial, the lover was banished to Civita Vecchia for adultery, and she herself was placed in safe keeping. But owing to her pregnancy she returned to the home of Pietro and Violante, where she gave birth to a child (and I wish I could say that it had not been conceived in adultery). This increased the shame and indignation of the husband, and the wrath, which had long been stirred, grew strong, because his honour among upright men was lost and he was pointed out with the finger of scorn, especially in his own country, where a good reputation is much cherished by men who are well-born. Therefore his anger so impelled the luckless man to fury, and his indignation so drove him to desperation, that he preferred to die rather than to live ignominiously among honourable men. With gloomy mind, he rushed headlong to the City, accompanied by four companions. On the second night of the current month of January, under the show of giving a letter from the banished lover, he pretended to approach the home of the Comparini. When at the name of Caponsacchi the door was opened, he cut the throats of Violante and Pietro, and stabbed Francesca with so many wounds that she died after a few days.
While this desperation continued, his dull and unforeseeing mind suggested no way to find a place of safety. But accompanied by the same men, he set out for his own country along the public highway by the shortest route. Then, while he was resting upon a pallet in a certain tavern, he was arrested, together with his companions, by the pursuing officers.
Great indeed is this crime, but very greatly to be pitied also, and most worthy of excuse. Even the most severe laws give indulgence and are very mild towards husbands who wipe out the stain of their infamy with the blood of their adulterous wives. [Citation of Lex Julia de Adulteriis, Lex Cornelia de Sicariis and the Gracchian law. Cf. Ring and Book, I. 2268.]
This indeed was sanctioned in the laws of the Athenians and of Solon (that is, of the wisest of legislators), and what is more, even in the rude age of Romulus, law 15, where we read:
"A man and his relatives may kill as they wish a wife convicted of adultery." [Citations; and likewise in the Laws of the Twelve Tables, see Aulus Gellius, etc.]
I hold, to begin with, that there can be no doubt of the adultery of the wife [for several reasons]. [First], her flight together with her lover during a long-continued journey. [Citations.]
[Second], the love letters sent by each party; these cannot be read in the prosecution for flight without nausea. [Citations.]
[Third], the clandestine entry of the lover into her home at a suspicious time. [Citations.]
[Fourth], the kisses given during the flight (p. 100) according to the following sentiment: "Sight, conversation, touch, afterwards kisses, and then the deed [adultery]." [Citations.]
[Fifth], their sleeping in the same room at the inn. [Citations.]
[Sixth], the sentence of the judge, who condemned the lover for his criminal knowledge of her, which made this adultery notorious. [Citations.]
Furthermore, we are not here arguing to prove adultery for the purpose of demanding punishment [upon the adulteress], but to excuse her slayer, and for his defence; in this case, even lighter proofs would be abundant, as Matthæus advises. [Citations.]
These matters being held as proved, the opinion of certain authorities who assert that a husband is not excusable from the ordinary penalty, who kills his adulterous wife after an interval, does not stand in our way. For the aforesaid laws speak of the wife who had been found in her guilt and has been killed incontinently. Hence such indulgence ought not to be extended to wife-murder committed after an interval, because the reins should not be relaxed for men to sin and to declare the law for themselves. [Citations.]
Furthermore, Farinacci does not affirm this conclusion, but shows that he is very much in doubt, where he says: "The matter is very doubtful with me, because injured honour and just anger—both of which always oppress the heart—are very strong grounds for the mitigation of the penalty." Matthæus well weighs these words on our very point. And both Farinacci and Rainaldi conclude that the penalty can be moderated at the judgment of the Prince.
I humbly pray that this be noted. The aforesaid laws, which seem to require discovery in the very act of sin, as some have thought, do not decide in that way merely for the purpose of excusing a husband moved to slaughter by a sudden impulse of wrath and by unadvised heat. But they so decide lest on any suspicion of adultery whatsoever, oftentimes entirely without foundation, men should rush upon and kill their wives, who are frequently innocent. Hence the "discovery in the very act of crime," which is required by law, is not to be interpreted, nor to be understood, as discovery in the very act of licence, but is to be referred to the proof of the adultery, lest on trifling suspicion a wife should be given over to death. But when the adultery is not at all doubtful, there is no distinction between one killing immediately and killing after an interval, so far as the matter of escaping extreme punishment is concerned. [Citations.]
For whenever a wife is convicted of adultery, or is a manifest adulteress, she is always said to be "taken in crime." [Citations.]
And in very truth the reasons adduced by those holding the contrary opinion are entirely too weak. For murder committed for honour's sake is always said to be done immediately, whensoever it may be committed. Because injury to the honour always remains fixed before one's eyes, and by goading one with busy and incessant stings it urges and impels him to its reparation. [Citations.]
Such relaxation of the reins to husbands, for taking into their own hands the law, would indeed be too great if the law of divorce were still valid. For in that case husbands would not be permitted to make such reparation of their honour. For another way would be satisfactorily provided for them, namely, in their right to dismiss and repudiate the polluted wife. In this way they could put far from themselves the cause of their disgrace, yes, and the very ignominy itself. But when by the divine favour our Gentile blindness was removed, and matrimony was acknowledged to be perpetual and indissoluble, those were indeed most worthy of pity who, when all other way of recovering their honour was closed to them, washed away their stains in the blood of their adulterous wives. Petrus Erodus [Citation], after he has discussed a matter of this kind according to the usual practice of Roman Law, adds in the end: "For as all hope of a second marriage is gone so long as the adulteress still lives, we judge that such very just anger is allayed with more difficulty, unless it be by the flight of time;" and therefore such a case, when not terminated by divorce, is usually terminated by murder. For as Augustine says, "what is not permitted, becomes as if it were permitted; that is, let the adulteress be killed, that the husband may be released."
I acknowledge that it is laudable to restrain the audacity of husbands, lest they declare the law for themselves in their own cause; since they may be mistaken. But it would be more laudable indeed to restrain the lust of wives; for if they would act modestly and would live honourably they would not force their husbands to this kind of crime, which I may almost call necessary. Nor can we deny that by the ignominy brought upon them by the adultery they are exasperated and are driven insane, and a most just sense of anger is excited in their hearts. For this grievance surpasses all others beyond comparison, and hence is worthy of the greater pity, according to the words of the satirist [Juv. X. 314]: "This wrath exacts more than any law concedes to wrath."
Papinianus also well acknowledges this [Citation], where we read: "Since it is very difficult to restrain just anger." For these reasons, authorities hold that a just grievance should render the penalty more lenient even in premediated crimes; because the sense of "just grievance does not easily quiet down, or lose its strength with the flight of time, but the heart is continually pierced by infamy, and the longer the insult endures, the longer endures the infamy, yea, and it is increased." [Citations.]
And this drives one on the more intensely, because with greater impunity, as I may say, wives pollute their own matrimony and destroy the honour of their entire household. In ancient times, while the Lex Julia was in force, wives who polluted their marriage-bed underwent the death penalty. [Citations.]
Likewise it was so ordained in the Holy Scriptures; for adulterous wives were stoned to death, Gen. 38; Lev. 20, 10; Deut. 23, 22; Ez. 16.
The solace drawn from the public vengeance quieted the anger and destroyed the infamy. Then the husband, who was restored to his original freedom, could take a new and honest wife and raise his sons in honour. But now, in our evil days, there is a deplorable frequency of crime everywhere, as the rigour of the Sacred Law has become obsolete. And since wives who live basely are dealt with very mildly, the husband's condition would indeed be most unfortunate if either he must live perpetually in infamy, or must expiate her destruction, when she is slain, by the death penalty, as Matthæus well considers. [Citation.]
Therefore, when it is claimed that the husband shall escape entirely unpunished, it is necessary that the wife be killed in the very act of discovered sin. But when the question is as to whether or not a husband may be punished more mildly than usual when driven to wife-murder for honour's sake, it makes no difference whether he kill her immediately or after an interval. [Citation.]
Nor does this opinion lack foundation in the very Civil Law of the Romans, for Martian [Citation] asserts that a father who had killed his son while out hunting, because he had polluted his stepmother with adultery, was exiled. Nor had the father found him in the very act of crime, but slew him while out hunting, that is with a pretence of friendliness and by dissimulating his injury. Accordingly he was punished, but not with the usual penalty; for he had killed his son, not in his right as a father, but in the manner of a robber. Hence we can infer that not the killing, but the method of killing was punishable, as we may deduce from Bartolo. [Citations.]
Still further, it is well worthy of consideration that one may kill an adversary with impunity, for the sake of his personal safety, but he must do so immediately and in the very act of aggression, and not after an interval. For the life of one slain may not be recovered by the slaying of the murderer. Accordingly, whatever violence may follow upon the first murder becomes vengeance, which is hateful and odious to the law; for the jurisdiction of the judge is insulted by depriving him of the power of publicly avenging murder. But if by the death of the slayer the one slain could be called back to life, I think there is no doubt that any one could kill the said slayer; for then such an act would not be revenge, but due defence, leading toward the recovery of the life that had been lost. But even when we are dealing with an offence and injury which does not affect the person of the one injured, it is likewise permitted that one who has been robbed may, even after an interval, kill the thief for the recovery of the stolen goods, provided every other way to recover them is precluded. Likewise, one offended in his reputation should be permitted at all times to kill the one injuring him; for such an act may be termed, not the avenging of an injury, but the re-establishing of wounded honour, which could be healed in no other way. [Citations.]
Furthermore, as I have said, when one is discussing the subject of self-defence, he is dealing with an instantaneous act; hence the anger conceived therefrom ought to quiet down after a while, according to the warning of St. Paul, Eph. 4: "Let not the sun go down upon your wrath." But when we are dealing with an offence that injures the honour, this is not merely a momentary matter, but is protracted, and indeed with the lapse of time becomes the greater, as the injured one is vilified the more. Therefore, whensoever the murder follows it is always said to have been committed immediately. [Citation.]
Relying upon these and other reasons, most authorities affirm that a husband killing his adulterous wife after an interval, but not found in licentiousness, is to be punished indeed, but more mildly and with a penalty out of the ordinary. [Citations.]
Caball testifies that this has been the practice in many of the world's tribunals. Calvinus gives other cases so decided. [Citation.] And Cyriacus, who speaks in worse circumstances, adduces numerous other cases, and the authorities recently cited offer many more.
This lenient opinion is the more readily to be accepted because, as I claim, the deed about which we are arguing does not also carry with it (as the Fisc holds) attendant circumstances demanding such a rigorous penalty.
[First] the taking of helpers to be present at the murders [is not such a circumstance]; because he could lawfully use the help of companions to provide more safely for his own honour by the death of his wife. [Citations.]
[Secondly] the crime is not raised to a higher class because he led with him helpers at a price agreed upon; for what is more, and is far more to be wondered at, a husband can lawfully demand of others the murder of an adulterous wife, even by means of money, as the following indisputably affirm. [Citations.]
Likewise it does not at all disturb [our line of argument] that Count Guido might have killed his wife and the adulterer when they were caught in the very act of flight at the tavern of Castelnuovo, but that he preferred rather to have them imprisoned, seeking their punishment by law, and not with his own hand. We deny that he could have safely killed both of them, inasmuch as he was alone, nor could he attack them, except at the risk of his own life. Because the lover was of powerful strength, not at all timid, and all too prompt for resisting, since, in the word of one of the witnesses in the prosecution for flight, he was called Scapezzacollo [cut-throat]. Nor is it credible that, unless he had been fearless and full of spirit, he would have ventured upon so great a crime, and would have dared to participate in her flight, and to accompany the fugitive wife from the home of her husband. And this fact is more clearly deducible from one of his letters, in which, after urging Francesca to mingle an opiate in the wine-flasks for the purpose of putting her husband and the servants to sleep, he adds that if they find it out she should open the door; for he would either suffer death with her or would snatch her from their hands. These things indicate both courage and audacity. And though the wife is a woman, that is a timid and unwarlike creature, nevertheless Francesca was all too impudent and audacious, whether because of her hatred for her husband or on account of her anger at the imprisonment of her lover. For she drew a sword upon her husband in the very presence of the officers who were about to arrest her. And to prevent her from going further, one of the bystanders had to snatch it from her hands. Therefore, before their imprisonment, Guido could not put into effect what he had had in mind and what he could lawfully do, because he was alone and his strength was not sufficient. Then when she had been taken to prison, and afterwards was placed in safe keeping, it was impossible for him to vindicate his honour. But when at last she had left the monastery and had gone back to the home of Pietro and Violante, he took vengeance as soon as he could. Therefore we hold that he killed her in the very act, as it were, and immediately. In Sanfelicius [Citation], we read of a case where a husband, though he could have killed his wife immediately, did not do so, but craftily redeemed himself from his disgrace by slaying his wife as soon as possible. And Giurba also speaks of a case where the argument is concerning an injury that was not personal, but real, as was said above.
Guido saw to her capture, and insisted that she be punished, lest she continue her adultery and viciousness, being powerless to do anything else, because his confusion of mind, his helpless fury, and his sense of shame led him unwisely into not taking the law into his own hands and recovering his lost honour. He indeed lodged complaint, but it was because he could not kill her. Nor would his ignominy have been wiped out nor his infamy have been destroyed by her imprisonment and punishment. But when, indeed, after her imprisonment he was still more shut out from noble company, his injury ever became the more acute, and it stimulated him the more strongly to regain his own reputation. But his bitterness of mind was increased especially at hearing that she had gone back to the home of Pietro and Violante, who had declared that she was not their daughter, but the child of a dishonest woman; hence his injury was increased by her staying in a home which he suspected, as is said a little further on. Accordingly the same cause kept urging him after her departure from the monastery, as had done so before her imprisonment and the appeals made by Count Guido.
It makes very little difference that Francesca was staying in the home of Violante, which had been assigned to her as a safe prison with the consent of Guido's brother. For what would it amount to even if with the consent of Guido himself she had been taken from the monastery (yet we have no word of this matter in the trial). For Guido could make that pretence to gain the opportunity of killing her for the restoration of his honour. Nor would such dissimulation increase the crime, especially to the degree of the ordinary penalty, since it is certain that the husband may kill a wife stained with adultery without incurring such penalty. Yet a heavier or lighter penalty is inflicted, just as more or less treachery accompanies the murder, as Matthæus testifies it was practised in the Senate of Matrinumsis. [Citation.]
Nor is the attendant circumstance of the place assigned as a prison worthy of consideration, as if the custody of the Prince had been insulted; for one is not said to be in custody when he is merely detained in a place under security that he will not leave it. [Citation.] Furthermore, this objection falls utterly to the ground, because the circumstance of such a place does not increase the crime, whenever it is committed by one having provocation or for the repelling of an injury. And [the following authorities] hold thus in the more serious case of a crime committed in prison. [Citations.]
Furthermore we do not believe, from what is said above, that the penalty can be increased because of the murder of Pietro and Violante, since the same injured honour, which impelled Count Guido to kill his wife, forced him to kill the said parents. And now may the ashes of the dead spare me if what I have urged above, and what I am about to say, may seem to disturb their peace! Neither the flame of hatred nor the impulse of anger (which are far from me) have suggested these charges; but the demands of the defence, which I have assumed without a penny of compensation, compel me to employ every means leading to the desired end.
I have said, and I think not without due reason, that the Accused sprang forward to the death of both of them, moved simply by an immediate injury to his own reputation. For a few months after the marriage contracted with Francesca, whom they had professed to be their daughter, they had not blushed to declare that she was not such. Hence there is an inevitable dilemma. Either [first] she was in deed and truth their daughter, and then we must acknowledge that in afterward denying her parentage they had inflicted the greatest injury upon the honour and reputation of the Accused; for they had conceived strong hatred and malice against him. Hence they did not hesitate to disgrace their own daughter, in order that they might bring upon him the infamy of having married the daughter of a vile and dishonest woman. This is indeed a fact, that whoever knows Count Guido supposes he has married a girl, not merely of rank unequal to his own, but even of the basest condition, and this greatly injures the reputation of his entire household.
Or else [second] Francesca was indeed conceived of an unknown father and born of a dishonest harlot. And it cannot be denied, that in that case he suffered even greater injury, which branded him with a mark of infamy; both because of her birth and from the fact that daughters are usually not unlike their mothers. Cephalus [Citations], where we read: "From such mingling with harlots it is to be supposed that the people become degenerate, ignoble, and burning with lust." And would that experience had not taught us this fact!
The unfortunate man believed he was marrying the daughter of Pietro and Violante, born legitimately, and yet by the contrivance and trickery of this couple he married a girl of basest stock, conceived illegitimately by a dishonourable mother. From this fact alone the quality of those parents can be inferred, who, for the sake of deceiving those lawfully entitled to the trust-moneys, had made most vile pretence of the birth of a child, entirely unmindful that they laid themselves liable to capital punishment. [Citations.]
It will not, therefore, be difficult to believe what Francesca reveals in her letter to her brother-in-law, that the abovesaid couple, in spite of the fact that she was well treated, kept instigating her daily to poison her husband, her brother-in-law, and her mother-in-law, and to burn the home. And though these crimes are very base, they gave her still worse counsel, even by her obligation to obey them; namely, that after their departure from Arezzo, she should allure a lover, and leaving her husband's home in his company, should return to the City. In her obedience to their commands, this daughter seemed indeed all too prompt. Who then will deny that such reckless daring, wherefrom a notorious disgrace was inflicted upon the entire household of the Accused, ought to be attributed to the base persuasion of the said couple? Nor was it difficult to persuade that girl to do what she was prone to by inborn instinct and by the example of her mother.
It is not my duty to divine why that couple so anxiously desired the return of Francesca to their home. But I cannot persuade myself that they were moved by mere charity, namely, that she might escape ill-treatment. For Francesca, in the said letter, acknowledges that she is leading a quiet life, and that her husband and the servants are treating her very well, and that what she had laid before the Bishop had been the falsehood of the said couple.
I know furthermore that if a husband have knowledge of the adultery of his wife and keep her in his home, he cannot escape the mark and penalty of a pimp. [Citations.] If, therefore, as the said couple declare, Francesca was not their daughter, why did they receive her so tenderly into their home after her adultery was plainly manifest? Why did they, as I may say, cherish her in their breasts, not merely up till the birth of her child, but even till death? And I wish I could say that her love affairs with the banished [priest] were not continued there! For at his mere name, after the knocking at the door, as soon as they heard that some one was about to give them a letter from the one in banishment, immediately the door was opened and Guido was given an entry for recovering his honour. If, indeed, the said couple had been displeased with the adultery of Francesca, they would, without doubt, have shuddered at the name of the adulterer, and would have cut off every way for mutual correspondence. Therefore it is most clearly evident that the cause of wounded honour in the Accused had continued, and indeed new causes of the same kind had arisen, all of which tended toward blackening his reputation.
Nor does it make any difference that the Accused may have had in mind several causes of hatred toward both Francesca and the Comparini. For if these are well weighed, they all coincide with, and are reduced to, the original cause, namely, that of wounded honour. However that may be, when causes are compatible with one another, the act that follows should always be attributed to the stronger and more urgent and more acute. [Citations.] And on the point that when several causes concur, murder is to be referred and attributed to injured honour, and not to the others: [Citations.]
Therefore I think that any wise man ought to acknowledge that Guido had most just cause for killing the said couple, and that very just anger had been excited against them. This was increased day by day by the perfectly human consideration that he would not have married her unless he had been deceived by that very tricky couple. And to what is said above we may add that either the child born [of Pompilia] was conceived in adultery, as the Accused could well believe, since he was ignorant of the fact that his wife was pregnant during her flight; and then we cannot deny that new offence was given to his honour, or the old one was renewed, by the said birth; or the child was born of his legitimate father; and who will deny that by the hiding of the child, Guido ought to be angered anew over the loss of his son? And the great indignation conceived from either cause (the force of which is very powerful) is so deserving of excuse that very many atrocious crimes committed upon the impulse of just anger have gone entirely unpunished. [Citations.] The following text [Citation] agrees with this, "Nevertheless, because night and just anger ameliorate his deed, he can be sent into exile." [Citations.]
And not infrequently, in the contingency of such a deed, men have escaped entirely unpunished, who, when moved by just anger, have laid hands even upon the innocent. For a certain Smyrnean woman had killed her husband and her son conceived of him, because her husband had slain her own son by her first marriage. When she was accused before Dolabella, as Proconsul, he was unwilling either to liberate one who was stained with two murders, or to condemn her, as she had been moved by just anger. He therefore sent her to the Areopagus, that assembly of very wise judges. There, when the cause had been made known, response was given that she and her accuser should come back after a hundred years. And so the defendant in a double murder, although she had also killed one who was innocent, escaped entirely unpunished. [Citation.]
Likewise, a wife who had given command for the murder of her husband because of just anger from his denial of her matrimonial dues was punished with a fine, and a temporary residence in a monastery, as Cyriacus testifies. [Citation.] Such pleas might indeed hold good whenever the accused had confessed the crime, or had been lawfully convicted, neither of which can be affirmed [in our case]. But much more are they to be admitted, since he confesses only that he gave order for striking his wife's face, or for mutilating it; and if those he commanded exceeded his order, he should not be held responsible for their excess. [Citations.]
His fellows and companions give his name, and claim that he had a hand in the murders. And in spite of the fact that the Fisc claims they have hidden the truth in many respects, equity will not allow that certain matters be separated from their depositions and that these be accepted only in part; for if they are false in one matter, such are they to be considered in all. It would be more than enough to take away from those depositions all credence that, under torture in his presence, they did not purge that stain. [Citations.]
It has very justly been permitted that in defence of this noble man, I should deduce these matters, as they say, with galloping pen. The scantiness of the time has not suffered me to bring together other grounds for my case; these could be gathered with little labour, and possibly not without utility. Yet I believe that all objections, which can be raised on the part of the Fisc, have been abundantly satisfied.
Giacinto Arcangeli, Procurator of the Poor.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE
On Behalf of Count Guido Franceschini
and his Associates, Prisoners,
against the Court and the Fisc.
Memorial of law by the Honourable
Advocate of the Poor.
At Rome, in the type of the Reverend Apostolic Chamber,
1698.
[Pamphlet 2.]
Most Illustrious and Most Reverend Lord Governor:
From the "prosecution [for flight]," which was brought in this very tribunal, and by his honour, Lord Venturini, Judge in this present case, there is more than satisfactory proof of adultery committed by Francesca Pompilia, wife of Count Guido Franceschini, a nobleman of Arezzo, with the Canon Caponsacchi. With Caponsacchi the parents of this same Francesca Pompilia entered into conspiracy, although they were living here in the City. And after she had given an opiate to Count Guido and his entire household, she fled that same night from the City of Arezzo toward Rome.
Consequently, the Canon, as may be remembered, was banished to Civita Vecchia, with a statement of his criminal knowledge of that woman in the said decree of condemnation. This adultery is also evident from other matters of evidence deduced by the Procurator of the Poor. There remains, accordingly, no room to doubt it, but rather their adultery may be said to be notorious here in the City, in the country of Count Guido, and throughout all Etruria.
Since this is established, we can safely assert that even if Guido had confessed that he slew his wife with the complicity and help of Blasio Agostinelli of the town of Popolo, Domenico Gambassini of Florence, Francesco Pasquini of the castle of Monte Acuto, and Alessandro Baldeschi of Tiferno, he should not therefore be punished with the ordinary death penalty, but more mildly. This is in accord with the decision of Emperor Pius as related by Ulpian [Citation] and by Martian. [Citation.] For in both of them it is said that a man of low birth is sent into perpetual exile, but that a noble is banished only for a limited time, but the crime of a husband who is moved by just anger is overlooked, as this same Ulpian confirms [Citation], since it is most difficult to restrain such anger. [Citation.]
Yet we should not consider it necessary that the adultery of the wife be conclusively proved (as it really is) in order that there be room for mitigating the said penalty. For it would be enough, if we were dealing with a case of mere suspicion: Glossa, etc. "A man who had killed his son because he believed the young man had lain with his stepmother, as was true, was deported to an island." [Citations.]
Dondeus also speaks of a man who had boasted that he wished to ruin the sister of the one who killed him, which is said to have aroused just suspicion and fear for the loss of honour sufficient to free the slayer from the ordinary penalty of murder. [Citations.]
Nor is it true, as some authorities affirm, that the husband must take the wife in very adultery, and kill her immediately; in which case, they say the abovesaid laws hold good, but that it is otherwise if the murder is done after an interval. [Citations.] For the contrary opinion is the truer, the more usual, and the one to be observed in practice, as Marsilius well advises, where he speaks in defence of a certain nobleman who had killed another person after an interval. The man slain had betrothed his sister by promise and had kept her for three months, and had then rejected her. Because of this, a great injury and much infamy were inflicted upon his family and the entire kin. Marsilius then adduces the abovesaid laws, which pronounce concerning a husband who kills his adulterous wife; and Bertazzolus offers the case of one who had killed his adulterous wife and had afterward, in his own defence, proved the adultery by the double confession of the same wife. Claudius Jr. testifies that the murderer was banished for a time by the praetor of Mirandola, and after the lapse of several months he was recalled by the Duke of Mirandola. [Citations.]
Afflitto cites the decree of the Kingdom, beginning Si Maritus, which concedes impunity to a husband who kills his wife and the adulterer both, in the very act of adultery, and without any delay. He then says that if both of these requisites are not present, the husband is excused in part, but not entirely; and so is punished more mildly. And in No. 2 he gives the reason; because whenever one commits a crime, under impulse of just anger, the penalty should be somewhat moderated, according to the aforesaid text. [Citations.]
Matthæus [Citation] adduces the excellent words of Theodoric as quoted by Cassiodorus [Citation], where we read: "For who can bear to drag into court a man who has attempted to violate his matrimonial rights? 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 petition 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. Siciliæ 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 circumstances; 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 noble 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 Matthæus held that opinion.
And the reason is very evident, for whenever such an injury is suffered by fine natures, especially among the noble class, 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 circumstances. [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 asserts: 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 assent 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 class, 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 Matthæus. [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 pass 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 circumstances. [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, assembled 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 assembled 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 principal, 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 asserted 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 Constitution 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 Constitution 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 God, 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 asserts 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 Constitution 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 Constitutions 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 nobles. [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 principal, 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 principal. [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 assassinated, the assassin 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 assemble his friends, to afford him aid, and that they shall go unpunished, just as the principal does. He also asserts that Jacobus Butrigarus [Citation], held thus, in cons. 277, where he speaks of the case of a husband who had assembled 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 assembly was permissible for the husband, who was principal. [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. Cæpollinus also illustrates 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 assembled them; and he says that they should not be punished, just as the principal 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 principal, as often happens in the case of auxiliaries. And he speaks in our very circumstances of men assembled by a husband for the sake of killing one who had polluted his wife. In these same circumstances, see also Parisius. [Citation.] Carera [Citation] speaks of a father who had his daughter (who had been keeping bad company) killed by an assassin; 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. Cassanis also [Citation] holds that men assembled 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 principal. And in these same circumstances 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 circumstances the rule holds good that auxiliaries shall not be punished with greater penalty than the principal. 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 associates for this act," and if they kill the adulterers in company of the principal 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 assassination, and consequently in the absence of the principal, this is the opinion of Baldo [Citation], where we read: "And now it is inquired whether an assassin 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 assassin; 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 passed 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 principal 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 principal 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 Constitutions 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 Constitutions 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 rectitude 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.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE.
In behalf of Blasio Agostinelli and his
Associates, Prisoners, against
the Fisc.
Memorial of fact and law.
At Rome, in the type of the Reverend Apostolic Chamber,
1698.
[Pamphlet 3.]
Most Illustrious and Most Reverend Lord:
The plea of injured honour which redeems Count Guido from the rigorous penalty that should follow for the commission of murders, likewise urges mitigation of the ordinary penalty for Blasio and the associates who had hand in the murder, even though it may be pretended that they were paid thereto. For it is taken for granted that we are dealing with a case far removed from assassination, because of the presence of a person who had real cause for vengeance, as the following authorities think in common. [Citation.]
There has been the strongest controversy among authorities as to whether a father or husband may demand of any one except his son the murder of his daughter or of his adulterous wife. And divided on the two sides of the question, they have contended strongly. [Citation.] Yet the majority are in favour of the affirmative and of the milder sentence; and often, in the event of such a murder, it has evidently been so adjudged. [Citation.]
But since this question lies outside of our line of argument, it would be vain and quite useless labour to take it up, nor is time to be wasted when we are so hard pressed for it. For we are evidently dealing with auxiliaries, assembled for committing homicide, according to the thought of the Fisc. Hence the conditions of a mere "mandatory" are not applicable; because of the immediate presence of the principal in the crime; for when he also lays hand to the crime, those who do likewise are not called mandatories, but auxiliaries and helpers. [Citations.]
Furthermore, just as Guido himself is freed from the death penalty because of the said plea of injured honour, so likewise are his allies and auxiliaries freed, as the following authorities unanimously assert. [Citations.]
Those who are cited in support of the opposite view do not pronounce opinion in our peculiar circumstances, but speak of a husband demanding of another the murder of his adulterous wife, and not of auxiliaries who do the killing in company with the husband, as in our case. [Citations.]
In such contingency, auxiliaries who give aid to a husband while killing his adulterous wife have always enjoyed the same indulgence as the principal himself; that is, they always escape the capital penalty, and indeed go entirely unpunished. [Citations.]
Nor does the distinction of Caballus make any difference, where he holds that auxiliaries may indeed assist with impunity a husband or a father killing a wife or daughter respectively, in order that these may kill the more safely; but that they cannot lend a hand and actually kill; for in the latter case they are to be held accountable for the murder. Because, for foundation in making such a distinction, he plants his feet upon Paolo de Castro. [Citation.] But this is so far from proving his purpose that it rather turns back on him remarkably to his own injury. For after the latter sets before himself this kind of a difficulty, under No. 2, he adds: "But I hold entirely the contrary: that neither the one who did the killing nor he who made the assembly (as it may be called) are to be held for the murder for the purpose of inflicting the capital penalty."
This is also true in the council of Rollandus a Valle. [Citations.] May that learned authority pardon me; for even if he does attempt to confute Paolo de Castro in the said 154th council, which is in our favour, under the pretext that he speaks contrary to the common opinion, this claim does not suffice in view of the above-cited authorities. And if there were time, I would demonstrate this more clearly.
Furthermore, Rollandus alleges Parisius, cons. 154, lib. 4. But he could well omit that, because No. 22 proves expressly contrary to him on its very face, where it says: "Under our very conditions was given that excellent decision of Paolo de Castro in the before-cited council. In stronger circumstances (which also include the present case) he concludes that those who knew of, or were present, or were associated with a husband in the act of the said murder, and who furnished him aid, ought not to be punished with a greater penalty than the principal, according to the rule concerning auxiliaries, beside the accurate authority of Marsilius." And he concludes that at the very worst, when the utmost rigour of it is considered, they should not be punished with more than a temporary banishment.
Furthermore, Rollandus in the said council is expressly confuted by Facchinus. [Citation.] Nor is this without vital reason. For just as a qualification that modifies a crime in the principal delinquent increases it also for the auxiliaries, whenever they are aware of it, so all sense of equity demands that a qualification that diminishes the penalty for the principal, even though it be unknown to the auxiliaries, shall act in favour of them also. [Citations.] Hence Caballus remains without a stable foundation, and is opposed to the opinion of the many doctors here alleged, who make no distinction between those who simply assist and those taking a hand in the murder; and indeed all of them speak of auxiliaries. Furthermore, it is found that this has often been the judgment, even in the more extreme circumstances of one commanded to a murder, as was said above. And so strong is the plea of injured honour that not only does it extend its protection to mere mandatories, but even to mandatories whose case is modified by the circumstance of assassination. And it causes them to be absolved, as we find that it was so decided. [Citations.]
Hence if both mandatories and assassins are redeemed from the ordinary death penalty, whenever they kill an adulteress at the command of the husband, it necessarily follows that the distinction of Caballus is not a true one, nor is it accepted in practice. For if they are mandatories, we cannot deny that they may kill with their own hands; and nevertheless, not to speak of the other decisions cited above, Clar. [Citation] testifies such a decision favourable to the accused was handed down, contrary to the opinion of Caballus.
If, therefore, Blasio and his fellows are not to be punished with the death penalty for affording aid in the murders, vain is the question whether they can be subjected to the torment of the vigil for the purpose of having the very truth from their own mouths. For this procedure demands two requisites: one that the most urgent proofs stand against the accused, and the other that the crime be very atrocious, according to the prescript of the Bull. [Citations.]
And although the powers of this Tribunal are very great for the dispensing with one of the said requisites, yet I have never seen the said torment of the vigil inflicted unless when there was no doubt that the crime, for which the Fisc was trying to draw confession from the accused, deserved the capital penalty. We cannot believe that the prosecution expects to make a case to this end because of the pretended conventicle; since those who are assembled are not to be held under the penalty for conventicle, but only the one who assembled them is so held, as Baldo well asserts. [Citations.] Nor in this case can the penalty for the asserted conventicle be made good against Count Guido himself, since the cause for which he assembled the men aids him in evading the penalty; inasmuch as one may assemble his friends and associates for the purpose of regaining his reputation. [Citations.]
For this has been well proved, that whenever any one for just grievance assembles men to avenge his injury, he has not incurred the crime and penalty of conventicle.
And although Farinacci, quaest 113, n. 55, declares that this holds good provided the vengeance be immediate, but that it is otherwise if the vengeance be after an interval, yet I pray that it be noted that in either case, if it concern vengeance for a personal injury (in which conditions he himself speaks), and therefore when for an injury which wounds the honour, such vengeance is at all times said to be taken immediately. For such an injury always urges and presses, because it should be termed the restoration and reparation of honour (which the one injured in his reputation could not otherwise accomplish), rather than vindication and vengeance, as we believe was satisfactorily proved in our other plea in behalf of Count Guido.
But all further difficulty ceases with this consideration: prosecution can be brought for conventicle, if the men were assembled for an evil end and no other crime followed therefrom; but when, according to the sense of the Fisc, they have been called together for committing murders, and these are really committed, no further action can be taken as regards the prohibited conventicle, but rather for the murders themselves; for the assembling of the men tended to this same effect. [Citations.] And it is for this reason more particularly; because when the beginning and the end of an act are alike illegal, the end is given attention, and not the beginning, as Bartolo teaches us. [Citations.]
It is to be added still further, that the assembling of men is not illegal in itself; indeed it is possible for it at some times to be both permissible and worthy of approval, as in the cases related by Farinacci. But it is illegal because of its evil consequences and the base end for which it is usually made. Hence, as the assembling of men is prohibited, not in itself, but because of something else, the end ought to be considered rather than what precedes the end.
Nor should the rigorous penalty of death be inflicted at all upon Domenico Gambassini and Francesco Pasquini for the pretended carrying of arms of illegitimate measure; because they are foreigners and had not stayed long enough in the Ecclesiastical State so that their knowledge of this law could be taken for granted. Nor ought it to be inflicted upon the others; for even if the death penalty is threatened by the Constitutions and Banns for the bearing or retention of them; yet since the carrying of this kind of arms is not prohibited for reasons in itself, but because of the pernicious end which follows it, or can follow it; and because this bearing of arms was looking towards the said murders; and because these, although they are not entirely permissible, are not utterly without excuse, the crime of carrying such arms should be included with the end for which they were carried; because the one is implied in the other, nor may the means seem worse than the end. And although, according to the opinion of some persons, the penalty for carrying arms is not to be confused with the crime committed with them, whenever the latter is the graver, yet this seems to be so understood when a crime is committed with them which is entirely illegal and without excuse. But this is not so when the crime is deceased and extenuated, and indeed excused in part, because of the reason for which it was committed.
In any case, the bearing of arms, according to common law, is but a slight crime. [Citations.]
Although by special Constitutions and Banns the penalty has been increased almost to the highest possible point, yet this kind of increase does not change the nature of the crime. And just as in the eyes of the common law, torture is not inflicted for getting the truth from those indicted for the said carrying of arms, in view of the insignificance of the crime, in like manner it cannot be inflicted by the force of Constitutions and Statutes which have increased the penalty. [Citations.]
And this is especially true in the case of the torment of the vigil, which cannot be inflicted for a crime that is not in its very nature most atrocious, but that is held as such, so far as the penalty is concerned, merely by the strength of a decree. This holds good unless indeed the nature of that crime is changed according to the method of proceeding in it. [Citation.]
And we see in the Banns of our Illustrious Lord Governor that he expressly declared this, when he wished to proceed with the torment of the vigil in cases in which he could not proceed legally; that of a certainty he would not do so. Nor would he indeed have done this, if he could have inflicted such tortures in the case of crimes which are not capital by common law, but are to be expiated with the death penalty by the rigour of the Banns.
Giacinto Arcangeli, Procurator of the Poor.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE
with qualifying circumstance.
For the Fisc.
Summary.
At Rome, in the type of the Reverend Apostolic Chamber,
1698.
[Pamphlet 4.]
No. 1.—The sworn testimony of a witness as to the poverty of said Count Guido Franceschini and the miseries suffered by the Signori Comparini while they stayed in his home in the city of Arezzo.
June 24, 1694.
Angelica, the daughter of the deceased Pietro and Johanna Battista of Castelluccio, in the Diocese of Arezzo, about 35 years of age, was examined by me on behalf of Pietro Comparini, against any one whomsoever, and put on permanent record; as to which testimony, she took oath to speak the truth, as is seen below.
I tell you in all truth, sir, that while I was staying in Arezzo last January in the home of Signora Maddalena Baldi Albergotti, the chance was offered me to go and serve Signora Beatrice Franceschini and her sons, etc. I decided to do so, and when I had gone to the home of the Signori Franceschini I spoke with the said Signora Beatrice. She drew me aside into a little room and told me that she would take me as a servant, but that I should never have any private dealings with the two old people who were in the house; one of them was Signor Pietro Comparini and the other Signora Violante, his wife. She charged me still further that if either of the two old people chanced to call me into their chamber, I should not go without first asking her permission. On these terms I accepted the service. After I had entered thereupon, I noticed that Signora Violante stayed in her room most of the time, weeping, and though the Comparini were stiff with cold, the room was without fire. Hence I took pity on her, and without the knowledge of Signora Beatrice, I took the coals from my own brazier and carried them to her. But no sooner did I offer them to her than Signora Violante ordered me out of the room, lest Signora Beatrice might take offence that I had done this act of charity. Also, once among the many times, when Signora Beatrice found it out she made me leave the coals in the fireplace and snatched the shovel from my hands, and threatened me, saying that if she had wished it she herself would have come to bring it; because she did not want me to do any service whatsoever for the said Signori Comparini. And the Comparini could not even speak among themselves, because Signor Guido Franceschini, the Canon Girolamo his brother, and Signora Beatrice, their mother, would stand at one door or another of the apartment and listen to what the said Signori Comparini were saying to one another. This occurred every evening and morning until the said Signor Pietro left the room and the house. And when he returned at night they were unwilling for me to make a light for him on the stairway. And once when Signor Pietro came back home about half-past six in the evening, and I heard him scrape his feet, I took up the lamp to go and meet him. But Signor Guido noticing that, snatched the lamp from my hands, telling me that I had better keep still, and that I had better not approach unless I wished to be pitched out of the window. And this seemed all the worse to me, because when I first entered upon the service of the said Franceschini I had heard it said around the house that one evening, as Signor Pietro was coming back home, he had fallen, while ascending the same steps without a light, and that he had made a very ugly bruise, because of which he had had to keep his bed for many days. At the same time, while I was in the said service, it chanced one morning at breakfast that the Franceschini gave some offence to Signora Violante, because of which a mishap befell her. For no sooner had she reached her own room than she threw herself into a straw-chair and swooned away. When Signora Francesca Pompilia, wife of the said Signor Guido, found it out, she began to weep and to cry out with a loud voice, saying, "My mother is dying." Whereupon I ran to Signora Violante and began to unlace her, and turned to bring her a little vinegar and fire. But because there was no fire I took some wood and put it in the fireplace to kindle it. When Signora Beatrice saw this she snatched the wood from the fire, in great anger, and told me to take the ashes, which were quite enough to warm her feet. So I took the ashes that were in the fireplace, but because of the intensely cold weather they were cool when I reached the room where the Signora Violante was half dead. Accordingly, the Signora Pompilia and I, both of us weeping, unclothed Signora Violante and put her in the bed, which was as cold as ice. And because I was crying when I returned to the kitchen, after having put Signora Violante to bed, Signora Beatrice said to me: "Do you want me to take a little hemp and wipe your eyes?" Signora Francesca Pompilia also heard this, and she made some complaint to Signora Beatrice who did not want me to return to the room again nor to make a little gruel, as Signora Violante had ordered.
It happened a few days later, during the month of February following, that while the Signori Franceschini, Francesca Pompilia, Signor Pietro, and Signora Violante were at the table, they began talking of their purpose of sending me away, as the Franceschini had already dismissed me from service. When Signora Francesca Pompilia, who was at the table with the others as I have said above, heard this, she remarked to Signor Pietro and Signora Violante: "Do you know why they wish to send her away? They believe she wished to censure me because Signora Beatrice said some days ago that she would take hemp and wipe the tears from her eyes, when she was weeping over the accident that happened to you, mother." Then Signor Pietro spoke up and asked the Signori Franceschini to keep me in their good graces for eight or ten days more, for if he wished to return to Rome with Signora Violante he would take me with them. And he said he could expect this favour at their hands, as it was the first he had ever asked of them. To this, none of the Franceschini replied; but Signor Guido rose from the table and, approaching me, gave me two very good licks. The others then came up. While he was doing this, the Canon, his brother, also gave me some kicks, and his mother struck me and told me to leave at once. As soon as Signora Violante saw and heard this she took pity on me and exclaimed to the said Signori: "Where do you wish the poor thing to go now?" And all the Franceschini with one accord said to Signora Violante: "You get out with her, too." And they called her "slut," and other insulting names, so that Signora Violante went to her room to put on her wraps. The Canon drew a sword and ran after her into the room and shut the door. I, fearing that he would inflict some wounds upon Signora Violante, ran to enter the room and found that the Canon had locked himself within. So myself and Signor Pietro and Francesca Pompilia began to weep and to cry out for help, thinking that the Canon would kill Signora Violante there inside. And after some little time, I left the house, while the said couple and Signora Francesca Pompilia were still making outcry to the Signori Franceschini.
During all the time I remained in the service of the said Signori Franceschini at Arezzo, as I have said above, I can say of a truth that every morning and evening at the table I served the said Signori Franceschini, Signora Francesca Pompilia, Signor Pietro, and Signora Violante Comparini. For the food of all this tableful, the Franceschini bought on Saturday a sucking lamb, on which they spent, at most, twelve or fourteen gratie. Then Signora Beatrice cooked it and divided it out for the entire week. And the head of the lamb she divided up for a relish three times, and for the relish at other times she served separately the lights and intestines. During the days of the week when they ate there was no other sort of meat on the table to satisfy the needs of all the tableful. When he did not buy the lamb on Saturday, as I have said, Signor Guido gave money to Joseph, the houseboy, to buy two pounds of beef. Signora Beatrice herself put this to cook every morning, nor was she willing for the rest to meddle with it, and they ate therefrom at the table and carved for the evening meal. And because this meat was so tough that Signor Pietro could not eat it (as they had not cooked it enough), Signor Pietro did without eating meat, for the most part, and ate only a little bread, toasted and in bad condition, and a morsel of cheese. Thus Signor Pietro passed the days when they bought beef. On fasting days he ate vegetable soup with a little salted pike, and sometimes a few boiled chestnuts. But always, whether on fasting days or not, the bread was as black as ink, and heavy, and ill-seasoned. Then the wine which served for the table was but a single flask; and as soon as the wine was poured into this, Signora Beatrice made me put in as much more of water. And so I made out to fill the wine flask, half of it being water, and very often there was more water than wine. This flask she put on the table, and ordinarily it sufficed for all those eating, although at most the flask did not hold more than 3½ foghliette [half-pints] according to Roman measure.
Furthermore, I say that, not many days after I had left this service, it was public talk throughout Arezzo that Signor Pietro had gone home about half-past six in the evening and had found the street door shut so that he could not open it, and he was obliged to knock. When Signora Violante saw that no one about the house was going to open the door, she herself went downstairs to do so, but the door was locked with a key. And although she called Signor Guido and others who were in the house, yet no one stirred to go and open it. Therefore Signor Pietro went to sleep at the inn, and in the morning returned to see Signora Violante and Signora Francesca Pompilia. It was likewise said throughout Arezzo that when Signor Pietro complained at having been locked out of the house by the Canon, and when both Signor Pietro and Signora Violante reproached them bitterly about it, a new quarrel arose among them, and because of it both the Signori Comparini were driven out of the house. Signora Violante was received at the home of Signor Doctor Borri, where she dined that evening and spent the night. And Signor Pietro went to the inn to dine and sleep.
When I heard that, I went to the house of Signor Borri to see Signora Violante, but was not admitted. And the wife of Signor Borri told me to go and tend to my own affairs. For she did not wish the Franceschini, who lived opposite, to perceive that I had gone there to see Signora Violante, as some disturbance might arise therefrom. Then the next morning I went to the inn, where I had been told Signora Violante had gone to find Signor Pietro, but I did not find either of them, and was told by the host that they had gone out. So, not knowing where to find them, I returned to the home of Signora Maddelena Albergotti, where I was staying. And I heard afterwards that both Signor Pietro and Signora Violante had returned to the Inn, where they had breakfasted. Then by the interposition of the Governor of Arezzo they were reconciled with the Franceschini, and they returned indeed to the house of the latter. I heard also that the Franceschini continued to maltreat and insult the said couple, as they had continually done while I was in their service. Therefore they were finally obliged to leave Arezzo and go back to Rome.
All the abovesaid matters I know from having seen and heard the ill-treatment, which the Franceschini inflicted upon the Comparini and the insults which they offered them and Signora Francesca Pompilia; and likewise from having heard them talked about publicly throughout Arezzo, where it is known to every one and is notorious, and where there is public talk and rumour about it.
No. 2.—Various attestations as to Francesca's recourse to the Bishop and Governor because of the cruelty of her husband and relatives.
June 17, 1697.
To whomsoever it may concern:
We, the undersigned, attest as true: That Signora Francesca Pompilia Comparini, wife of Signor Guido Franceschini, has many and many a time fled from home and hastened now to Monsignor the Bishop, and again to the Governor, and also to the neighbours, because of the continual scolding and ill-treatment which she has suffered at the hands of Count Guido her husband, Signora Beatrice her mother-in-law, and the Signor Canon Girolamo her brother-in-law. We know this from having met her when she was fleeing as above, and from the public talk and notoriety of it throughout the city of Arezzo. In pledge of which, have we signed the present attestation with our own hands this abovesaid day and year, etc.
I, Canon Alessandro Tortelli, affirm the truth to be as abovesaid, and in pledge thereto have signed with my own hand.
I, Marco Romano, affirm the truth to be as abovesaid, and in pledge, etc., with my own hand.
I, Antonio Francesco Arcangeli, affirm the truth to be as is contained above, with my own hand.
I, Cammillo Lombardi, affirm as is contained above, with my own hand.
I, Francesco Jacopo Conti of Bissignano, affirm as is contained above, and in pledge, etc., with my own hand.
I, Urbano Antonio Romano, a priest of Arezzo, and at present Curate of the parish church of San Adriano, affirm the truth to be as is contained above, and in pledge thereto have subscribed with my own hand.
Then follows the identification of the handwriting in due form, etc.
Extract from a letter written by D. Tommaso Romani, uncle of Guido Franceschini, to Pietro Comparini in Rome.
Most Illustrious Sir, my most Honoured Master:
I can not do less, etc., departure, she has been little like the Signora Francesca, etc.; she fled from home, and went into San Antonio. And thither ran also Signor Guido, the Canon, and Beatrice, etc., in order that she might come back, and in that belief the Signora Francesca returned home, etc. Yesterday, Signora Francesca and my sister were in the Duomo at sermon. At its close, while she was going away and was near the gate of Monsignore, Francesca fled into the Palace, which is very near by. This was about seven o'clock in the evening, and there was a fine row in the Palace, etc.
Extract from another letter written by Bartholomeo Albergotti, a gentleman, to Pietro Comparini.
Most Illustrious Signor and most Cherished Master:
At my return, etc., the Signora, his wife, has been melancholy, and two evenings after your departure, she made a big disturbance, because she did not wish to go and sleep with Signor Guido her husband, etc. The day before Palm Sunday, the Signora went, etc., to preaching, etc., and in leaving there, she rushed into the Palace of the Bishop, etc. She took her station at the head of the stairs and stayed there until half past six in the evening; and neither Signora Beatrice nor Signor Guido were able to make her return home. Yet the Bishop did not give her an audience, but his secretary hastened thither and urged Signor Guido and Signora Beatrice not to scold the Signora his wife, etc. And after quite enough of such disputes, they took her back home, etc.
No. 3.—Deposition of Francesca as to the letters asserted to have been written by her to Abate Franceschini, and previously outlined by her husband; recorded in the prosecution brought for her pretended flight.
March 21, 1697 [for May.]
Francesca Comparini, when under oath, etc., when questioned whether she had ever sent any letter to Abate Franceschini here in the City, while she lived in Arezzo, replied:
While I was in Arezzo I wrote at the instance of my husband, to my brother-in-law Abate Franceschini here in Rome; but as I did not know how to write, my husband formed the letters with a pencil and then he made me trace it with a pen and ink it with my own hand. And he told me that his brother had taken pleasure in receiving such a letter of mine, written by myself. This happened two or three times.
When questioned whether, if she should see one of the letters written as is told above, and sent to the City to the same Abate Franceschini, she would recognise it, etc.
She replied: If your Honour would cause me to see one of the letters written by me, as above, and sent to Abate Franceschini, I should recognise it very well.
And when at my command the letter was shown to her, about which there was discussion in the prosecution, and which begins Carissimo Cognato sono con questa, and ends, etc., Arezzo 14 Giugnio 1694, affetionatissima Serva, e Cognata Francesca Comparini ne Franceschini.
She responded: I have seen and have examined carefully this letter shown me by the order of your Honour, which begins Carissimo Signor Cognato sono con questa, etc., and ends Francesca Comparini, ne Franceschini, and having looked at it, I think, but cannot swear to it as the truth, that this is one of the letters written by me to my brother-in-law, Abate Franceschini, in conformity [to my husband's wishes] as is said above.
No. 4.—The tenor of the letter written as above to Abate Franceschini.
Dearest Brother-in-law: