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

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СКАЧАТЬ 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.

      ROMANA HOMICIDIORUM

      [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 СКАЧАТЬ