Likewise the preparation and use of prohibited arms is also punishable with the capital penalty, if we investigate the order of the Banns and Constitutions of Alexander VIII., of sacred memory. Nor is this sufficiently avoided by the response given by the Defence that it is included in the main offence; so that no greater penalty can be inflicted for it than the main crime itself deserves. For what we have said above as regards "an assembling" is opposed to such a confusing of the punishment of the Banns, and the authorities adduced in our past response, § nec delationis, affirm the contrary. And those authorities cited for the contrary opinion should be understood to apply only when one is dealing with an insult, or with murder committed in a quarrel, or in self-defence, or for the sake of immediate reparation of honour. [Citation.] The difficulty is at an end in our case, because of the clear disposition of the Banns, which expressly declare and command that the penalty for the carrying of arms is not to be confounded with the penalty of the crime committed therewith. Nor does the response given by the Procurator of the Poor seem strong enough to avoid this; namely that when, under the common law, the Banns receive only a passive interpretation, merely the crime of preparing and bearing arms for committing murder is considered; but that it is otherwise if the arms are borne, for no ill end, and then a crime is committed with them. Because it would be too harsh for one bearing arms for no ill end and then sinning with them, to suffer a greater penalty than one preparing arms to commit crime, and carrying his purpose into effect. Hence these Banns never can receive such an interpretation. For since by them the carrying of arms is forbidden as pernicious and as affording occasion to commit crime, much more should the bearing of them when purposed for committing crime be considered prohibited and punishable with a rigorous penalty. This is especially true when we consider the declaration that the crimes are not to be confounded with one another.
There is left, finally, one other qualification, which greatly aggravates the crime, namely the violating of the home assigned as a prison with the consent of Abate Franceschini. And this is so in spite of what can be alleged as to Guido's ignorance of this circumstance. Because in the said writing prepared in Italian for giving true notice of the fact [[Pamphlet 10]], it is asserted that the entire management of the cause was left and committed to this same brother, since Guido had left the City. Hence it is quite incredible that Guido was not informed by him of so important a matter. And as concerning the distinction between violating a public prison and mere custody in a home under bond, and as to offence permitted therein for honour's sake, we have given sufficient response in our past argument, § Quibus accedit and those following. For the same reasoning is applicable in both cases, since in both the person detained is under the protection of the Prince whose majesty is accordingly insulted. And the excuse would hold good if we were arguing about the resenting of an injury offered in prison. Under these very circumstances do those authorities adduced by the Defence speak, as is evident from their recognition of them.
Therefore, in the present case many grave qualifications are present, which increase the crime, and on account of these his Honour, the Advocate of the Poor, admits in § Agnoscit Fiscus that the penalty should be increased. Nor can such increase of penalty be made good except by death. For even if the adultery were proved, as it is not proved in our case, the mere murder of the wife, when committed after an interval, could demand only a diminution of penalty, according to the more lenient opinion. Hence the justice of the decree for the torment of the vigil should be said to be sufficiently asserted and vindicated against opposing reasons. And now that confession has followed, there remains only that condign punishment be inflicted in expiation of this awful crime.
Giovanni Battista Bottini,
Advocate of the Fisc, and of the Reverend
Apostolic Chamber.
[[File-title of Pamphlet 14.]]
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE
with qualifying circumstance.
For the Fisc, against Count Guido Franceschini
and the others.
Response of the Lord Advocate of the Fisc.