The confessions of Count Guido Franceschini, and of Domenico Gambassini, Francesco Pasquini and Alessandro Baldeschi, his companions, are null; and therefore they should be given no consideration, as they issued under fear of the rigorous torment of the vigil, unjustly decreed against them. [Citations.] And this is true even though they still persevere in the same confessions. [Citations.] For as we have said in our past argument (which may be reassumed here by favour), the Constitution of Paul V., of sacred memory, issued for the reformation of the tribunals of the City [Citation], commands that this torture be not inflicted except under two concurrent circumstances. One of these is that the accused be under the strongest of proofs, and the other that the crime be very atrocious. And the authorities alleged in my argument, § Quatenus, etc., testify that it has been so practised.
Nor indeed can the asserted [discretionary] powers of this tribunal give support; because, whatever they may be, they have no place unless the crimes are punishable by death. Raynaldus [Citation] gives this reason: Whenever the defendant should not be condemned to death, he also should not, for the purpose of getting confession from him, be exposed to torture which might cause death, as it almost caused the death of Alessandro, who fainted dead away under two turns at the same torture.
But the crime, which has been imputed to Count Guido and his helpers, and which they themselves have confessed, is murder neither of the first nor of the second degree, as was fully proved in my past argument. And indeed since Count Guido was moved to kill or to have killed both Francesca Pompilia, his wife, and Pietro and Violante, his parents-in-law, because of his sense of honour; namely, on account of the adultery which Francesca Pompilia committed with their conspiracy and aid, this fact relieves from the penalty of death, not merely himself (according to the texts and authorities alleged in my said argument) [Citations], but also his helpers (according to the authorities likewise alleged in said argument). [Citations.]
Gabriel states: "And much less ought those to be punished with death, because if we will only examine the common opinion of wise men, just anger may excuse from a graver penalty than this; for according to the Gracchian law, Code concerning Adultery, even those who are called and led to the crime should likewise be excused."
Aside from what may be claimed in this present state of the case, that the plea of injured honour is not established, the decree in condemnation of the Canon Caponsacchi for the said adultery issued in this tribunal, September 24, last past, and given in full in our Summary, [No. 8], makes the matter clear and manifest. [Citations.] For it is there said: "Joseph Maria Caponsacchi, of Arezzo, for complicity in the flight and running away of Francesca Comparini, and for carnal knowledge of the same, has been banished for three years to Civita Vecchia." Nor can these words be said to be merely the title of the case, which does not make any one guilty, as my Lord Advocate of the Fisc supposes; but the very decree and the title of the case, as seen by me in the original Process, was that which follows: Aretii in Etruria fugæ a viro.
But, in brief, the said Canon was condemned merely to the said punishment because he was a foreigner and had committed his crime outside of this State; in such case he should be dismissed merely with exile. [Citation.]
Nor is it true that the Court receded from the said decree and still less that a modification of it was demanded. For we have no other fact than that for the purpose of giving some little indulgence to the still asserted honour of the wife and to the decorum of the said Canon, for which the Procurator of the Poor, their defender, kept sharply and incessantly urging, in the command for imprisonment, instead of the words of the said decree, these other words were applied: Pro causa de qua in actis. These words do not imply the correction of the preceding words, but indeed the virtual insertion of all the acts, and consequently of this same decree also. [Citations.]
And this is all the more true because the said decree could not be changed unless both sides were heard; which, as I remember, was the response given to the said Procurator when he insisted upon the said modification. [Citations.]
But why should I now insist on former matters when there is such conclusive proof of the adultery and further dishonour of the said wife from the many strong reasons deduced in the present stage of the case, and well weighed by my honourable colleague, the Procurator of the Poor, in his customary excellent manner? (I do not here repeat them, that I may avoid useless superfluity.) Hence there is left no room for doubt as to the outraged honour, which indeed impelled Count Guido to the commission of crime. For it would be quite enough that a cause of this kind be verified, even after one has committed the crime, as Bertazzolus advises on this point. [Citations.]
Still further, there is no need now to insist on past matters because Count Guido has stated the plea of injured honour not merely against his wife, but against his parents-in-law in his confession (especially page 98): "Thereupon followed her flight, which was so disgraceful, not merely to my house, which is noble, and would have been so to any house whatsoever, even if of low estate. She made this escape by night with Canon Caponsacchi and his companions. In the progress of her flight along with the driver of the carriage, she was seen by the said driver, kissing and embracing the abovesaid Canon. Still further, I have found out that they slept together at Foligno in the posthouse and then again at Castelnuovo. By such proof, she stands convicted as an adulteress, not merely for this, but for other like excesses, which I have since heard that she committed in Arezzo with other persons." And page 672, where we read: "And when the said Santi was asked whether he would give ear to offering an affront to the Comparini, because of my honour and the plots they had made against my life, Alessandro responded that he would do it, and if some one else were necessary he would find him. Accordingly, after a few days, I received in my home Biagio, who has been twice named above, in company with the abovesaid Santi, and he said that he also would give ear to it, as being specially a question of my honour and the contrivance against my life." And at page 678: "And while we were staying in the same vineyard, that is in the house within it, we spoke of various matters and particularly of what was to be done, namely of the affronts to be offered to the Comparini (that is to Pietro, Violante, and Francesca, my wife) and of wounding them because they had taken away my honour, which is the chief thing, and had also plotted against my life." And at page 683, near the bottom, we read: "And I would have so much to say that one might write from now till to-morrow morning, if I wished to tell all the trouble and expense I have suffered from the said Comparini. But all this would amount to nothing, if they had not touched my honour and plotted against my life." And page 684: "The Santi above-named was a labourer of mine at my villa of Vittiano, and consequently was informed of all these troubles I had suffered at the hands of the said Comparini. He also knew of the very indecent flight made by my wife in the manner elsewhere told. The abovesaid Alessandro then began of his own accord to seek me out and did find me, so that he might give ear, in the event that I should wish to avenge my honour and the plots which they had made against my life." And page 699: "And she together with Canon Caponsacchi was overtaken by myself at Castelnuovo, where they were arrested by the officers and conducted to these prisons. In the Court, many a time I laid stress on the crime of her supposed conception in order that they might be punished. I never having seen what would be considered expedient in an affair of such importance to my honour, have been obliged to take some resolution for recovering it, because the Comparini, with greatest infamy, had transferred to me their own ignominy." And page 722: "And what I said to Alessandro, Biagio, and Domenico, I also said to Francesco once when he, knowing the offences against my honour which I had suffered, asked me if I were ready to give a beating to my said wife. And I then replied to him that she deserved not merely a beating, but death."