Such a confession should be accepted with its own qualifications, for the Fisc cannot divide and detach this from it (according to the usual theory). [Citations.]
This is undoubtedly true, when, as in the present case, one is arguing for the infliction of the ordinary penalty, whatever may be said, according to some authorities, for the infliction of an extraordinary penalty. [Citations.] Ludovicus extends this conclusion to all qualified confessions in any kind of crime.
This is true especially when the qualification is not merely propped up in some way, but is conclusively proved. [Citations.] For beside the said decree, and the other considerations above, we have his fellows in crime especially swearing that their services were required by Count Guido for committing crime in his very company for the abovesaid reason. Especially is this the case with Blasio Agostinelli, page 316: "Signor Guido told me that his wife had fled from him in company of an Abate, and had carried away some money and jewellery. He led me into the very room where she had robbed him of the said jewellery and money, and told me that he wished to go to Rome to kill his wife, and that he wished that I and the said Alessandro would go with him," etc. And page 317: "At the above time the said Guido told me that his wife, for the purpose of fleeing securely with the said Abate, and that he might not perceive it, had mixed an opiate in the wine for dinner to put himself and all the rest of them to sleep. He also said that he was in litigation with his father-in-law, who had not merely sworn that the said wife was not his own daughter, but still further had received her back into his home, after she had run away from her husband, although he would have put her in a monastery after he overtook her at Castelnuovo during the flight." And Alessandro Baldeschi (page 623): "The said Guido in the presence of myself, as well as that of Biagio, Francesco, and Domenico, told me that he ought to kill the lady, that is, his wife, who was here in Rome, to recover his own honour; and also to kill the father and mother of the said wife because they had lent her a hand in the insult she had offered to his honour." And page 645: "He told us also, in the presence of the keeper of the vineyard, that he was obliged to kill his wife, his father-in-law, and his mother-in-law, because the latter had lent a hand to their daughter in her ill-doing, and had acted the ruffians too, and because the said Guido also declared that these same people, whom he had to kill, had wished to have himself, that is Guido, killed."
Nor can the plea of injured honour be excluded by the attestations of those who afforded assistance to Francesca Pompilia even up to the time of her death: for they attest that she made declaration that she had never violated her conjugal faith. These assertions are merely testimony given outside of a trial, and do not demand belief. [Citations.]
And more especially as they were extorted and begged (while the suit was pending and the other side was not summoned), by the heir of the same Francesca Pompilia, for avoiding the prosecution by the Monastery of the Convertites, which was laying claim to the succession to her property on account of her dishonesty. Such shame would cause all of her hereditary property to be sequestered and judicially assigned to the said Monastery by law. [Citations.]
And this objection to their testimony is especially true because some of the witnesses who swear as above are beneficiaries of the same Francesca Pompilia, so that they might be swearing for their own advantage. For if her dishonour were substantiated, her property would devolve upon the said Monastery, and consequently they would be shut out of their legacies. [Citations.]
And however far these attestations may occasion belief, a declaration of this kind serves to no purpose, because no one is presumed to be willing to reveal his own baseness. [Citations.] So likewise Francesca Pompilia should not be believed, especially when testifying outside of a court and without oath. [Citations.] Much less are the aforesaid witnesses to be believed, lest more credence be given to hearsay evidence than to its original. [Citations.]
Nor can it be said that no one is presumed to be unmindful of his eternal safety; for all are not presumed to be Saint John the Baptist. [Citation.] Especially when the argument is concerning the prejudice of the third. [Citation.] And still more so when the argument is for punishing more gravely the enemy of the declarant. [Citations.]
And therefore, as the plea of injured honour is substantiated, it makes no further difference that the said murders were committed after an interval, according to what we have very fully affirmed in our last argument, § nec verum est, even down to § prædictis nullatenus. There it was shown that this is the general opinion of authorities, and in accordance therewith judgment has been given from time to time not only in the Sacred Courts, but also in all the other tribunals of the world, as Matthæus well observes, etc. [Citation.]
Nor can there be any departure from this opinion in the present case on the ground that Count Guido did not kill his wife in the act of seizing her in her flight with her lover, but was indeed content to carry her before the judge as an adulteress. For it would not have been safe for him to kill her then; because he was alone and she was in company of the said lover, a daring young fellow, strong, and well armed, and accustomed to sinning. And what is more, this lover was prompt and well prepared to make resistance, lest his beloved Amarillis should be snatched from him. Likewise she was prompt and ready to hinder her husband even with a sword she had seized and drawn, lest her beloved Mirtillo might be offended. Guido should not therefore be considered to have spared her nor to have remitted his injury. But lest she might escape into more distant parts where he could have no hope of the due vengeance, his just and sudden anger then counselled him to have her arrested by officers, so that he might kill her as soon as possible; and when afterward a suitable occasion arose, if he killed her, it should be considered as if he had slain her immediately. [Citations.]