The Old Yellow Book: Source of Robert Browning's The Ring and the Book

by Unknown

The second qualification that increases the crime results from the kind of arms with which the murder was committed, for these were prohibited by the well-known decree of Alexander VIII. of sacred memory. This was not merely for the carrying, but even for the keeping, introduction, or manufacture of them for any cause whatever, even under the pretext of military service or the execution of justice. Hence they would be all the more prohibited [when carried] for the purpose of taking such impious and awful vengeance by the destruction of an entire family.

Nor is the carrying of arms in such a case to be confused with the main crime of murder; because when a greater penalty might be imposed for the former, as when excuse for the killing is drawn from injured honour, the carrying of the prohibited arms comes to be punished with the ordinary penalty. [Citations.] Nor are the authorities adduced to the contrary worthy of attention, for they hold good in the circumstance of murder done in self-defence or because of provocation in a quarrel. [Citation.] Still further, these are not applicable because they do not speak within the bounds of the Constitution, which so distinctly prohibits such arms. For Policardus speaks of the Regula Pragmatica which takes for granted the qualifying circumstance of the crime of treachery from the kind of arms, and he asserts that this order ceases in murder for self-defence, or on provocation in a quarrel, when committed with the said arms. But this judgment differs by the whole heaven from the sanction of our Constitution; because the latter was issued for the very purpose of entirely exterminating so pernicious a kind of arms.

The third qualification likewise increasing the crime is murder committed because of a lawsuit; for by the well-known decree of Alexander VII. of blessed memory, this was increased to the crime of rebellion and læsa majestas, punishable with death and the confiscation of goods. This qualifying circumstance as regards the slaughter of Pietro and Violante cannot be denied; because the Accused had won a victory in the lawsuit. And hence the offence should [not] be said to have been committed because of just anger for injury inflicted upon him; [first] by the pretence of birth, which was revealed after the marriage had been celebrated, in order that they might break the marriage contract; [second] by the publication of pamphlets greatly to his injury; and [third] by their conspiracy in the flight of his wife to the injury of the honour of the Accused and of his entire family. They claim that since this cause for avenging the injury is graver than that arising from the lawsuit, the murder should be attributed to it, as more proportionate thereto.

But the victory he obtained had regard only to the actual possession of the property while the lawsuit was under appeal. And the parents were still pursuing this suit, so that that cause continued and could not be said to be extinct. The injury, indeed, from whatever different causes it may be claimed to have arisen, really came from this same lawsuit. And this had regard both to the pretence of birth revealed, and to the insults contained in those pamphlets concerning the meagreness of the family affairs (which was quite the contrary of the boasted riches, in the hope of which the marriage had been made), and concerning the ill-treatment which the parents of the wife had suffered in the home of the Accused. For by this marriage agreement food was to be furnished them. Still further, as to any conspiracy in her flight, much less as to any complicity in her pretended adultery, we have no proof at all. And so the cause of hatred conceived because of the lawsuit kept always urging him, and it does not redeem the criminal from the penalty inflicted by the decree of Alexander, because the suit might have been injurious to the Accused, either in his substance or in the manner. For this indeed presents such a cause as is always required in premeditated murders. Nor does it exclude the qualifying circumstance of the lawsuit, and indeed confirms it; since it is explicitly presupposed that injustice had been committed. Otherwise an opportunity to take private vengeance would be permitted, which in all law is forbidden, especially when a lawsuit is going on; because then the majesty of the Prince is insulted, as was proved in my other information, § Accedit ad exasperandum.

The fourth and, indeed, a very grave qualifying circumstance is drawn from the place in which the crime was committed, namely in the home of those slain. It was also in an insidious manner, by pretending the delivery of a letter sent by Canon Caponsacchi. For one's home should be the safest of refuges to himself, as was proved in our other information, § plurimum quoque. The manner indeed savours of treachery, as is proved not merely by committing murder under the show of friendship, but also at a time when the power and obligation of special caution in the one slain had ceased. [Citation.] And this is far from doubtful in our case, for the wretched parents could have had no such apprehension from the Accused, who was staying in his own country.

To these is added a fifth very grave qualifying circumstance, drawn from the place with respect to the very wretched wife. For she had been imprisoned at the instance of the Accused, and was detained in the home of her parents as a prison with the consent of the Abate, his brother; and hence she was under public safekeeping, which it were wrong for the Accused to violate without incurring the penalty of læsa majestas. [Citation.]

This very grave qualifying circumstance, which increases the crime, cannot be avoided by the dual response given by his Honour; first, that we are dealing with no prison properly speaking; second, that one giving offence, or killing in prison, is excused on a just plea of injured honour. Neither of these excludes this qualifying crime; for the unsuitability of a prison would be considerable if we could defend a violation of it made by one in prison and so to avoid his own injury, but if it were otherwise when we were arguing in his favour for avenging an injury to himself in a home assigned as a prison. The plea of injured honour can help one only if the offence in prison follow in self-defence under the very impulse of rash anger. In such circumstances the authorities adduced by his honour would hold good. But this is not so in excusing vengeance taken after an interval upon one imprisoned even at the instance of the slayer. For then the qualifying circumstance of the place greatly aggravates the crime, as it is indeed injurious to the public safekeeping and involves treachery, etc.

It is therefore very evident that the murders committed by the Accused have many qualifications mingled with them, which greatly magnify them. And however far the opinion has weight, which urges the diminution of punishment for one killing an adulteress after an interval, and however much the pretended adultery may be declared to have been proved in the manner required to gain such diminution, even by all those in favour of the milder judgment, still this penalty, because of these qualifications, would have to be increased and the ordinary penalty of the Lex Cornelia de Sicariis in its entirety would have to be demanded. And therefore it seems superfluous to argue about the kind of torture, since in view of these very urgent proofs, of which I understand there is no doubt, and in view of the well-known powers granted to the Most Illustrious Governor, it is quite within limits that the crime should be punished with the ordinary penalty, even if the qualifying circumstance of special atrocity were not present, so that the penalty should not be increased on that account.

But such a qualifying circumstance is not wanting here, as it results indeed from the treacherous manner and from the charge of læsa majestas, which is provable in our case on three grounds; namely offence committed during a lawsuit, the assembling of armed men, and the violation of public safekeeping, because of the home assigned as a prison. For according to the Apostolic Constitutions, the crime would be raised to that degree upon the basis of the first and the second; and there should be no doubt as to the power of the Prince to do so. [Citation.] Spada asserts that in such a case, so far as all the effects of law are concerned, it should not be considered a matter of controversy that the qualification of special atrocity, which is in agreement with such a crime, is to be revoked. And in our very circumstances Spada gives this opinion in demanding the torment of the vigil.

Nor can that qualifying circumstance of the person concerned, so far as it is proved, stand in the way of such infliction of the torment of the vigil, which does not allow the death penalty upon a nobleman to be made worse, as is accustomed to happen in very atrocious crimes (because noble blood should not be degraded by such increase of penalty which adds infamy). But for this purpose merely the nature of the crime is considered, and not the quality of the person, which would hinder the execution of a penalty carrying with it such infamy. Otherwise the torture of the vigil never could be inflicted upon noblemen, priests, and men in religious office upon whom an infamous penalty cannot be inflicted. But nobility affords no privilege in the manner of torment, especially in very atrocious crimes [Citation], etc.