We do not deny that Abate Franceschini had given consent to the removal of Francesca to the home of Pietro and Violante (in order that we may yield to our respect for my Lord Advocate of the Fisc), but only on verbal representation, for I have not been able to see it in writing. But, for our proposition, this does not affect Count Guido, since it is not made clear that he was informed of such consent, and thus far the Fisc merely presumes that he had been informed by Abate Franceschini, his brother, of this consent. [Citation.]
We are compelled to affirm that this knowledge is not to be presumed as is shown below, or at the very worst there is present only presumptive knowledge. And I do not think that on this kind of merely presumptive knowledge the death penalty can be demanded, nor can Count Guido be condemned, since he has neither confessed nor been convicted of such knowledge: chapter nos in quemquam, where we read: "We cannot inflict sentence upon any one unless he is either convicted or has confessed of his own accord."
Indeed, what if Count Guido had acknowledged that he had written the consent furnished by the Abate, his brother, since it had no special authorisation for that particular matter; nor a general authorisation to conduct litigation, but only to receive moneys taken from himself by Francesca, as is to be seen (p. 136). By exceeding the limit of his power, Abate Paolo would have exasperated the mind of Guido; for the luckless man was already burning so with rage at the temerity of Francesca, Pietro, and Violante, that he was almost driven, I might say, to taking vengeance. He had put this off as long as he had any hope that he might have the marriage annulled because of mistake concerning the person married. For he was ignorant of the point of Canon Law that error as to the nature of the person contracted does not render a marriage null, but only an error as to the individual. [Citation.]
Nor does it amount to anything that Francesca, at the time she was killed, was under surety to keep the home as a prison, as if she were resting in the custody of the Prince. For, however that may be, even if the Accused had killed Francesca to the offence of the Prince, yet since he wished to recover his honour and to remove with her blood the unjust stains upon his reputation, for this particular reason the aforesaid custody is not to be given attention, nor does it increase the crime; as in the more extreme case of one injuring a person having safe-conduct from the Prince, Farinacci affirms in making a distinction [Citation] where knowledge thereof is not to be presumed.
Furthermore, when we speak of custody we should understand it to apply to public custody and not to a private home as was proved in our other argument. Nor is the response enough that this would hold good in the one under custody, but not concerning the custodian, Violante; for I do not know any probable distinction between the two, since both cases may suffice for escaping the penalty; nor is any stronger reason to be found for the one than for the other. And indeed a third case would be more worthy of excuse, of one who broke this kind of custody, when knowledge thereof was not proved. Because such an offence might arise under such custody, just as one who had killed a person under bann, but ignorant of that bann, excused himself. [Citations.]
If therefore Count Guido is not to be punished for murder of his wife, for the same reason he cannot be punished for the murder of Pietro and Violante, because these murders were committed for the same cause, causa honoris. For at their instigation, Francesca found her lover, and still more, in order that they might disgrace Guido, they did not blush to declare that Francesca had been conceived illegitimately, and had been born of a harlot. This greatly blackens the honour of an entire house, as Gratian observes [Citation]; for the daughters of such are usually like their mothers. Then also, as I have said above, the Accused burned with anger when he had notice of the return of Francesca to their home (p. 318), and the following. And Alexander proves this in his confession where he says (p. 646): "So that he had to kill his wife, his mother-in-law, and his father-in-law: because the said mother-in-law and father-in-law had a hand in making their daughter do evil, and had acted as ruffians to him." This following fact makes it all the clearer, because on the fatal evening when they were slain, at the knock on the door, and as soon as Violante heard the much beloved name of the lover, straightway she opened it. And thus she showed, unless I am mistaken, what removes all doubt that Pietro and Violante were not at all offended with the love affairs of their daughter and her lover.
It is all one, because we are compelled to acknowledge either [first] that the Comparini had done new injury to his honour by receiving her into their home after they had declared that she was not their daughter, and after her adultery was clearly manifest, and hence there should be departure from the ordinary penalty. [Citation.] For just indignation, when once conceived, always oppresses the heart and urges one to take vengeance. [Citation.]
Or else [secondly] we must acknowledge a cause of just anger continued, and indeed was increased, which is quite enough foundation for asserting that the murders were committed incontinently. [Citations.]
Since, then, from the confession of Count Guido as well as from that of his associates, and since from so very many proofs brought forward in the trial, it is evident that Guido was moved to kill them by his sense of injured honour, in vain does the Fisc pretend that for some other remote reason he committed the crimes. For, to tell the truth, I find no other cause which does not touch and wound the honour, if we only bear in mind what Guido has said in the trial (pp. 96 and 97): namely, that the Comparini had arranged the flight of Francesca and had plotted against his life. This alone would be enough to free him from the ordinary penalty. Bertazzolus and Grammaticus [Citation], testify that a man was punished more mildly who had had one who threatened him killed, though the threats were not clearly proved. [Citations.] "And the death which he had threatened fell upon himself, and what he planned he incurred," and also: "There is no doubt that one who had gone with the intention of inflicting death seems to have been slain justly."
Another cause of the murder alleged by the Fisc is the lawsuit brought to annul the promise of dowry. Upon this point a complete and a very skilful examination was made by the other side, and because of this it was pretended that he had incurred the penalties of the Alexandrian Constitution and of the Banns. But this pretence in fact soon vanishes. For if we look into it well we shall find, without difficulty, that a cause of this kind is no less offensive to the sense of honour. For the ground on which Pietro had attempted to free himself from the obligation to furnish the promised dowry was this solely: that Francesca was not his own daughter, but the child of an unknown father and of a harlot. Every man, however, well knows whether this kind of a declaration would wound the reputation of a nobleman.