The second quality and circumstance is the carrying of arms contrary to the specification of the Constitution of Alexander VIII., which is extended to the whole Ecclesiastical State. Still less can the authority of jurists be alleged in excuse from this threatened penalty, if the husband kill an adulterer and the wife with prohibited arms. For aside from the response given by us in the explanation of the first circumstance of assembling and of conventicle (namely that these authorities hold good and should be understood to apply only in cases permitted by law, and therefore unpunishable), we say still further that they have very little application as regards the arms we are discussing; since the said Constitution prohibits not merely the carrying of such arms, but even their retention, manufacture, or introduction into the City and the Ecclesiastical State, under the penalty of rebellion and criminal insult to the majesty of the law. And so far as we are acquainted with such cases as are permitted by law, the authority of these jurists should be understood to hold good concerning arms, the carrying of which is indeed prohibited, but not the retention and introduction under any pretext whatsoever, even the pretext of justice; as is included in this same Constitution § 1, where we read: "Or to carry them on any pretext whatever, whether of military service or of the execution of justice, and still less to keep them in one's home or elsewhere." And in § Ad haec it prohibits even the introduction of them: "the retention of them at home, in storehouses, and elsewhere, their introduction into the Ecclesiastical State, and their manufacture."
If therefore the retention and introduction of such arms is prohibited, even when on the pretext of executing justice, ridiculous indeed would be Franceschini's pretence that he could approach the City and the home of his wife with such arms to vindicate after an interval this pretended offence of honour. This is the more certain as the crime concerning such arms is grave and of itself is punished with the capital penalty, as we have proved. In this case, when the crime actually follows, if the penalty for carrying the arms is greater than for the crime itself, the penalty for the graver offence is held to apply, and includes the lighter. [Citations.]
The third circumstance is that Franceschini and the aforesaid men committed the murders in the very home and dwelling-place of the Comparini; because homicide is always said to be qualified when it is committed in the home of the one slain; since the home should be a safe refuge for its master, etc. Then also Franceschini entered with changed garb; in which case the murder is said to be committed ex insidiis. [Citations.]
The fourth quality and circumstance is that the said Francesca was under the power of the judge, since the home, as we have said in our narrative of fact, was assigned to her under bond to keep it as a safe and secure prison. And hence she was under the protection of the court. [Citations.] And this is especially true when arguing in favour of the one who is under protection of the court, whatever may be said when arguing to his prejudice. And therefore the law holds that one under the protection of the court cannot be killed under less penalty than the death [of the assassin]. [Citations.]
But all debate seems to cease since it is proven in the process that the said Franceschini approached the said home with his company of men with the thought and intent to kill not merely Francesca, his wife, but also Pietro and Violante. These, as he himself acknowledges, he hated with a deadly hatred, because of the suit they had brought and because they had urged Francesca to poison her husband and her brother-in-law, and had kept his wife in their home so that still further, in the continuation of the adultery, his honour was offended. But aside from this, as we have said above, Francesca was placed in the said home by the authority of the judge with the consent of the brother of this same husband, and so the question does not enter as to whether a husband may lawfully kill the relatives, friends, and servants of his adulterous wife, even if he does suspect them of affording their leave or assent to the wife committing adultery; since the special rights and privileges conceded to the husband should not be multiplied against the wife, and be given greater scope, but rather should be strictly interpreted. [Citation.] This holds good not merely when one is arguing about the prejudice of a third party, but concerning one's sole prejudice. [Citation.] In our very circumstances we read that the permission cannot be passed from person to person. [Citation.] Yet we can more truly declare that such an assertion of adultery on the part of Franceschini is calumniously false; for, in the very face of death, Francesca protested, to the very damnation of her soul, that she had given no offence to her husband's honour. This protestation is the more to be believed since those about to die are not presumed to be unmindful of their eternal salvation. [Citation.]
The other causes adduced by Franceschini himself, so far as they are true, can indeed prove hatred and enmity existing between himself and the couple, which would tend in that direction and so would serve to prove in him a cause for their premeditated murder. But this is not sufficient to excuse him from the ordinary penalty of death, which premeditated homicide altogether demands. [Citations.] And it is for this reason, because the laws prohibit private vengeance (that is, vengeance which those without public office usurp to themselves because of their hatred, by killing or otherwise injuring men). [Citations.] Raynaldus affirms that in premeditated murder the ordinary penalty is inflicted not merely upon the slayer himself, but also upon all others who aid and give help, or concur in committing the murder by their help or council. [Citations.]
Francesco Gambi,
Procurator General of the Fisc and of the
Reverend Apostolic Chamber.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases: