Part 19 (1/2)

The matters deduced by his Honour, the Advocate of the Poor, for the defence of Guido Franceschini, who is accused of three murders with very grave qualifications which magnify the same, are of no real force in proving [first] that he should not be punished with the ordinary penalty of the _Lex Cornelia de Sicariis_, inasmuch as he had confessed these crimes, and [secondly] that simple torture only should be demanded for gaining the truth as to these, and that the torment of the vigil should be omitted. I will attempt to show this, in responding to these points singly, so far as the excessive scantiness of time admits, and will keep my eyes on the rights of the Fisc, as the duty of my office and the dire atrocity and inhumanity of the crime demand.

The chief ground taken by my Lord consists in placing on an equality [first] a case of vengeance taken immediately by the husband with the death of the adulteress found in her sin, and [second] that of one slain after an interval when the wife is plainly convicted of adultery (as he claims is proven in our case). But this falls to the ground both in fact and in law; and hence the inference for the moderation of the penalty drawn from this same parity is likewise shown to be without foundation.

In fact, the proof of the pretended adultery is quite deficient according to what I deduced fully in my other information. In that, I have confuted singly his proofs, or rather suspicions, resulting from the prosecution, to which his Honour attaches himself. I have shown that the wife's flight in company with Canon Caponsacchi, the pretended lover, was for a legitimate reason (namely the imminent and deadly peril, which she feared), and not from the illicit impulse of l.u.s.t. The partic.i.p.ation and complicity of the Canon Conti and Signor Gregorio Guillichini, relatives of the Accused, in forwarding the same, ought to prove this. For they would not have furnished aid if she were running away for the evil purpose of violating her conjugal faith, even to their own dishonour. But they well knew the necessity of the remedy, and that it was to free her from peril. And a witness for the prosecution in the same trial for flight swore to having heard this from Signor Gregorio. And they gave their aid in carrying this out.

Nor is it at all relevant that, in the decree in condemnation of the same Canon to banishment in Civita Vecchia, the t.i.tle of ”carnal cognition” was written down; because, as was formerly responded, the alteration of that was demanded, and likewise the subst.i.tution of a general t.i.tle relative to the trial. And since no proofs of it resulted either from the prosecution or from the defences which the unfortunate wife (who was dismissed with the mere precaution of keeping her home as a prison) could have made, if she had not been so horribly murdered, and since the said decree, issued without her having been summoned or heard, would be void, the inscription made by the judge in the records as a t.i.tle could not convict her of that crime; but only the truth of the fact resulting from the proofs should be considered. [Citations.]

I acknowledge that the Accused should have been considered worthy of some excuse if he had slain his wife in the act of taking her in flight with the pretended lover; since for this purpose, not merely the absolute proof, but the mere suspicion of adultery committed, would be enough. [Citation.] But when, after neglecting the pretended right of private vengeance, he sought out with entreaty public vengeance, by having her arrested, he could not thereafter, while she was under the public authority of the judge, take private vengeance by butchering her who had no fear of such a thing. The suspicion of a just grievance, which is difficult to restrain when aroused, excuses the husband in part, if not entirely, whenever he takes vengeance immediately under the headlong impetus of anger. But when the vengeance is after an interval, and while the cause is in the hands of the judge, and the victim is imprisoned at his own instance, this does not hold good, as will be proved further on, by showing the irrelevance of the principle a.s.sumed.

Nor does the glossa in the alleged text, in the law of Emperor Hadrian, stand in the way; because it speaks of a son taken by his father in flagrant adultery with his step-mother, and killed by the father immediately. [Citation.] And there is a wide difference between a father and a husband killing after an interval; because, as Farinacci adds, a father has the greatest authority over his son, and by ancient law could even kill him. And certainly the husband does not have this. The law also more readily excuses a father, because he is always supposed to take good counsel for his child, from the mere instinct of paternal love. But one does not have this same confidence as regards a husband, who is accustomed to conceive unjust suspicion of his wife more readily. Hence it is not permitted that he kill her on mere suspicion after an interval. Nor is he in any way to be excused on this account, according to the text. [Citation.] ”The devotion of a father's love usually takes good counsel for his own children, but the hot precipitancy of a furious husband should readily be restrained.” [Citation.]

This is so far true that a father is not excused unless he kill, or at least severely wound, his daughter along with the adulterer; so that it should be attributed to fate, rather than to paternal indulgence, that she escape death. And this has been pa.s.sed by law-makers for no other reason than that such a grievance, provoking to rash anger, is required for excusing a father, so that he may not spare his own daughter. But since this statute is not to be found among the laws about husbands, the manifest difference between the two, because of the husband's excessive readiness to seize a suspicion and fly into a rage against his wife, is plainly revealed.

Nor is mere suspicion a sufficient ground to diminish the penalty for a husband who kills his wife after an interval. This is evident from the very authorities excusing him in such a case, whenever the adultery is proved either by the confession of the wife or by other proofs, so that she can be said to be convicted of it. [Citations.]

Bertazzolus says: ”I have seen the matter so regarded in the contingency of such a fact, and the husband has been excused who had killed an adulterous wife, not found in the very act, but whose adultery was really and truly existent and was quite plainly proved.”

Hence it is plain, from those very authorities adduced by his Honour, that the husband who kills his wife after an interval is not excused because of mere suspicion, or because of an adultery case which is still pending judgment, and which he himself had brought.

In law, also, is his a.s.sumption proved to be without foundation, which places on an equality [first] vengeance taken immediately, that is, in the very act of taking the wife in adultery, or in acts immediately preparatory, which lead him to such a legitimate belief; and [secondly] vengeance taken after an interval, even when the adultery is evident from such proofs as render it perfectly clear. There are many authorities who urge the diminution of the penalty for the following reason which they give--that the sense of injured honour always keeps urging and provoking to vengeance, and that a wife may be well enough said to be taken in adultery, when she has either confessed it or been convicted of it. And these authorities have been collected with a full hand by his Honour, and I myself recently pointed out one of them. But the contrary opinion is the true one, and is accepted in practice. To this fact the most distinguished and most skilful pract.i.tioners of our time in criminal law bear witness. These are [first] Farinacci, where, after he has first learnedly answered the reasons and authorities adduced to the contrary, he concludes that he undoubtedly believes so as to the law in the case, and counsels that it be so held, unless we wish to err; and [second] Canon Rainaldi, who also filled the office of Procurator of the Poor with the highest praise, and so it may well be believed that he was very strongly inclined toward mercy and commiseration, and that he therefore adhered to this opinion in the mere zeal for the truth. And he declared it to be the truer and the more advantageous to the State, and said that one should not depart from it in giving judgment.

[Citations.]

But even if the conflict of authorities might in some manner favour the diminis.h.i.+ng of the penalty for the Accused, if there had been excess merely in the matter of time; yet he is still to be considered as inexcusable, so that he cannot escape the ordinary penalty, since so many qualifying circ.u.mstances are present which increase the crime; and any one of these is punishable with death.

To this end we should first consider the a.s.sembling of armed men, which is so very injurious to the public peace, and const.i.tutes the crime of ”conventicle.” In the Banns, chapter 82, this is punishable with the death of its author. It is also declared that it is enough to establish this crime if four armed men are a.s.sembled. This had been formerly prohibited under the same penalty by the seventy-fifth Const.i.tution of Sixtus V. of blessed memory, which had raised it to the crime of rebellion, for whatever reason it might be done. Spada proves this fully, a.s.serting that it should generally be so understood in all cases in which the a.s.sembling of men has been prohibited.

To escape or evade this capital penalty, it is not a relevant excuse that a husband may kill an adulterous wife by armed men brought together. For, however it may be when a husband wishes to kill his wife taken in adultery, and is afraid that the armed adulterer can resist him, and that he may have servants for his aid (in which case he himself cannot take vengeance otherwise than by calling together helpers, as Caballus advises), yet in the case of vengeance taken after an interval, and while the wife is under the power of the judge, and on the mere suspicion of adultery, such convocation of armed men cannot be said to be at all permissible. For the seventy-fifth Const.i.tution of Sixtus V. of blessed memory, prohibits such a.s.sembling even on lawful occasion, as a disturbance of the public peace.

[Citation.] And so it is much more to be prohibited and much the rather to be expiated with the ordinary penalty both of the Const.i.tution and of the Banns, since it was made for an illegal and d.a.m.nable end, namely to kill his wife, and his father-in-law and mother-in-law along with her. This is rendered plain by the a.s.sertion of the very authorities who excuse from the ordinary penalty a husband who takes vengeance after an interval. And indeed the path of private vengeance, which is hateful to the law, would be strewn all too broadly if, after the husband had chosen legal vengeance and had neglected to avenge his pretended injury in the act of seizing his wife in flight with the pretended lover, he should be excusable in taking vengeance after an interval with all security, by means of armed men, and in killing her while entirely off her guard, and under the power of the judge, without the slightest risk to himself.

This is true in spite of the response which might favour him, that he neglected to take private vengeance because he was unarmed, and the wife was found in the company of the Canon, who was a bold, st.u.r.dy man. The husband should impute it to himself if alone and unarmed he was pursuing his wife, fleeing with the lover. For then he could take a.s.sociates with better right, and fully armed could pursue her; and in such a case his a.s.sembling of men would be somewhat excusable. But this is not so when he takes such awful vengeance after an interval.

For if we consider the reason why a husband killing an adulterer or his wife is punished with a milder penalty according to the quality of the persons, if the vengeance follow in the very act--namely, rash anger, which cannot be restrained--the a.s.sembling of armed men to do that after an interval is plainly revealed to be illegal. For rash anger would cause him to expose himself to the risk of resistance by the adulterer, who is not accustomed to approach unarmed. Because of this risk the penalty is diminished, since it shows that the husband carelessly exposed himself thereto, because of the violence of the anger which blinded him. This is [not] the case in vengeance taken after an interval, taken with all forethought and by means of armed men, so that the husband cannot be afraid that any evil will befall himself in carrying it out. Such preparation is quite repugnant to rash anger, which cannot be restrained, and from which excuse is drawn. [Citation.]

The second qualification that increases the crime results from the kind of arms with which the murder was committed, for these were prohibited by the well-known decree of Alexander VIII. of sacred memory. This was not merely for the carrying, but even for the keeping, introduction, or manufacture of them for any cause whatever, even under the pretext of military service or the execution of justice. Hence they would be all the more prohibited [when carried]

for the purpose of taking such impious and awful vengeance by the destruction of an entire family.

Nor is the carrying of arms in such a case to be confused with the main crime of murder; because when a greater penalty might be imposed for the former, as when excuse for the killing is drawn from injured honour, the carrying of the prohibited arms comes to be punished with the ordinary penalty. [Citations.] Nor are the authorities adduced to the contrary worthy of attention, for they hold good in the circ.u.mstance of murder done in self-defence or because of provocation in a quarrel. [Citation.] Still further, these are not applicable because they do not speak within the bounds of the Const.i.tution, which so distinctly prohibits such arms. For Policardus speaks of the _Regula Pragmatica_ which takes for granted the qualifying circ.u.mstance of the crime of treachery from the kind of arms, and he a.s.serts that this order ceases in murder for self-defence, or on provocation in a quarrel, when committed with the said arms. But this judgment differs by the whole heaven from the sanction of our Const.i.tution; because the latter was issued for the very purpose of entirely exterminating so pernicious a kind of arms.

The third qualification likewise increasing the crime is murder committed because of a lawsuit; for by the well-known decree of Alexander VII. of blessed memory, this was increased to the crime of rebellion and _laesa majestas_, punishable with death and the confiscation of goods. This qualifying circ.u.mstance as regards the slaughter of Pietro and Violante cannot be denied; because the Accused had won a victory in the lawsuit. And hence the offence should [not]

be said to have been committed because of just anger for injury inflicted upon him; [first] by the pretence of birth, which was revealed after the marriage had been celebrated, in order that they might break the marriage contract; [second] by the publication of pamphlets greatly to his injury; and [third] by their conspiracy in the flight of his wife to the injury of the honour of the Accused and of his entire family. They claim that since this cause for avenging the injury is graver than that arising from the lawsuit, the murder should be attributed to it, as more proportionate thereto.

But the victory he obtained had regard only to the actual possession of the property while the lawsuit was under appeal. And the parents were still pursuing this suit, so that that cause continued and could not be said to be extinct. The injury, indeed, from whatever different causes it may be claimed to have arisen, really came from this same lawsuit. And this had regard both to the pretence of birth revealed, and to the insults contained in those pamphlets concerning the meagreness of the family affairs (which was quite the contrary of the boasted riches, in the hope of which the marriage had been made), and concerning the ill-treatment which the parents of the wife had suffered in the home of the Accused. For by this marriage agreement food was to be furnished them. Still further, as to any conspiracy in her flight, much less as to any complicity in her pretended adultery, we have no proof at all. And so the cause of hatred conceived because of the lawsuit kept always urging him, and it does not redeem the criminal from the penalty inflicted by the decree of Alexander, because the suit might have been injurious to the Accused, either in his substance or in the manner. For this indeed presents such a cause as is always required in premeditated murders. Nor does it exclude the qualifying circ.u.mstance of the lawsuit, and indeed confirms it; since it is explicitly presupposed that injustice had been committed.

Otherwise an opportunity to take private vengeance would be permitted, which in all law is forbidden, especially when a lawsuit is going on; because then the majesty of the Prince is insulted, as was proved in my other information, -- _Accedit ad exasperandum_.

The fourth and, indeed, a very grave qualifying circ.u.mstance is drawn from the place in which the crime was committed, namely in the home of those slain. It was also in an insidious manner, by pretending the delivery of a letter sent by Canon Caponsacchi. For one's home should be the safest of refuges to himself, as was proved in our other information, -- _plurimum quoque_. The manner indeed savours of treachery, as is proved not merely by committing murder under the show of friends.h.i.+p, but also at a time when the power and obligation of special caution in the one slain had ceased. [Citation.] And this is far from doubtful in our case, for the wretched parents could have had no such apprehension from the Accused, who was staying in his own country.

To these is added a fifth very grave qualifying circ.u.mstance, drawn from the place with respect to the very wretched wife. For she had been imprisoned at the instance of the Accused, and was detained in the home of her parents as a prison with the consent of the Abate, his brother; and hence she was under public safekeeping, which it were wrong for the Accused to violate without incurring the penalty of _laesa majestas_. [Citation.]

This very grave qualifying circ.u.mstance, which increases the crime, cannot be avoided by the dual response given by his Honour; first, that we are dealing with no prison properly speaking; second, that one giving offence, or killing in prison, is excused on a just plea of injured honour. Neither of these excludes this qualifying crime; for the unsuitability of a prison would be considerable if we could defend a violation of it made by one in prison and so to avoid his own injury, but if it were otherwise when we were arguing in his favour for avenging an injury to himself in a home a.s.signed as a prison. The plea of injured honour can help one only if the offence in prison follow in self-defence under the very impulse of rash anger. In such circ.u.mstances the authorities adduced by his honour would hold good.

But this is not so in excusing vengeance taken after an interval upon one imprisoned even at the instance of the slayer. For then the qualifying circ.u.mstance of the place greatly aggravates the crime, as it is indeed injurious to the public safekeeping and involves treachery, etc.