[Pamphlet 12.]
Most Illustrious and Most Reverend Lord:
Why should we waste time in disputing the point whether adultery committed by Francesca Comparini with Canon Caponsacchi, as is claimed by the other side, is sufficiently proved? For in our first information [[Pamphlet 5]] as to the law and fact in the case, we have already declared that judgment was given in the Congregation only for the penalty of banishment to Civita Vecchia against the abovesaid Canon, and of retention in the nunnery against Francesca, because of the very lack of proof of the said adultery. And this is quite right in law, because neither the Canon himself nor the said Francesca have confessed, much less been convicted of it; and because the suppositions brought on the other side are trivial and equivocal. But, even if these latter had been weighty and very urgent, they would not have been enough to establish conclusive proof, but at the most could only lead the mind of the judge to place some minor punishment upon them arbitrarily, as Farinacci testifies. [Citation.]
Therefore there should be strict insistence on behalf of the Fisc upon the point that Guido Franceschini had not the right to kill, after an interval, his wife, whom he had not taken in adultery nor in base conduct, without incurring the ordinary penalty of the Lex Cornelia de Sicariis. For in our former writings, § Alii vero, we have proved by the strength of many distinguished authorities that a husband who kills his wife after an interval is not excused from the said penalty.
Now that this fundamental assertion [in their argument] is overthrown, we declare that the rights of the Fisc cannot at all be controverted in the case with which we are dealing, since the authorities alleged by the Defence, who excuse a husband from the ordinary penalty, speak in the case of simple murder; and they ought not, accordingly, to be extended to a case made still graver by qualifying attendant circumstances. And for this reason, because the penalty cannot possibly be the same, when the crime is greater in the one case than in the other. [Citations.]
Nor for the purpose of overthrowing this fundamental idea of the Fisc can the objection be made that all the qualifying and attendant circumstances, which have been brought together in behalf of the Fisc, should have no consideration, because they tend toward and are preordained for the end had in mind; for the end and intention of Count Guido was directed toward the murder of his wife and the vindication of his honour. But one can well understand how fallacious this argument really is, from what I have already written in § Prima enim together with the one following, and § secunda qualitas and si ergo. There we have proved that the learned authorities who can be adduced by the other side speak and should be so understood when the end is licit and not prohibited by law, or else when some qualifying circumstance, through the force of particular Constitutions or Banns, does not establish some further capital crime, distinct and separate. And this is true whether the preordained end in the mind of the delinquent follow or do not follow.
But in our case, from what has been conceded by the lawyers for the Defence, the husband is not permitted by law to kill with impunity his wife, after an interval, for adultery. But he is permitted by law to slay the vile adulterer and his adulterous wife only when taken in adultery. How then can these authorities be applied to our case? For they hold good and find a place for themselves only in a case permitted by law. In these circumstances speaks Laurentius Matthæus [Citation], who is cited by the other side, where in his setting forth a case we may read: "The adulterer and adulteress were slain in the home of the husband, although in that case the husband did not escape unpunished, because he had used firearms."
Nor does it hold good in law and practice that the bearing of arms is included along with the crime committed. Not in law, as we have affirmed in our other argument § si ergo; nor in practice, because in all the tribunals of the entire Ecclesiastical State, it is held that even when murder in a rage has been committed, if it has been committed with the arms which are prohibited under the capital penalty, especially if these arms come into the possession of the Court, a more severe penalty is inflicted. And murders which should suffer a lighter penalty because they were done in anger are condemned under the ordinary penalty because of the carrying of such arms. Farinacci and Guazzini testify that this has been the practice in the Ecclesiastical State while this Decree has held good. [Citations.]