The Old Yellow Book: Source of Robert Browning's The Ring and the Book. Various

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СКАЧАТЬ 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, СКАЧАТЬ